Постановление Европейского суда по правам человека от 01.04.2010 «Дело Павленко (pavlenko) против России» [англ.]

Город принятия

(Application No. 42371/02)
(Strasbourg, 1.IV.2010)
*This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Pavlenko v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Nina {Vajic}*,

*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Anatoly Kovler,

Elisabeth Steiner,

Khanlar Hajiyev,

Giorgio Malinverni,

George Nicolaou, judges,

and {Andre} Wampach, Deputy Section Registrar,

Having deliberated in private on 11 March 2010,

Delivers the following judgment, which was adopted on that date:

1. The case originated in an application (No. 42371/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Russian national, Mr Aleksandr Ivanovich Pavlenko ("the applicant"), on 6 November 2002.

2. The applicant, who had been granted legal aid, was represented by N. Prokopyev, a lawyer practising in Barnaul. The Russian Government ("the Government") were represented by Ms V. Milinchuk, the then Representative of the Russian Federation at the European Court of Human Rights.

3. On 21 May 2007 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

4. The Russian Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government's objection, the Court dismissed it.

I. The circumstances of the case
5. The applicant was born in 1971 and is serving a sentence of imprisonment in the Irkutsk Region.

A. Criminal proceedings against the applicant
6. In November 1999, July 2000 and September 2000 criminal inquiries were opened following discoveries of the dismembered bodies of women (victims K., Ok. and A., Os.).

1. The applicant's arrest and interrogations
(a) Interrogation in 2000
7. On 22 August 2000 the applicant was questioned in the presence of counsel in relation to an accusation of rape by victim G. On 15 September 2000 the case was discontinued for lack of a corpus delicti, in view of the apparently consensual nature of the relations.

(b) Interrogation on 3 February 2001
8. Thereafter, on 3 February 2001 a Ms F. accused the applicant of rape and unlawful deprivation of liberty. It appears that on 3 February 2001 the applicant either came to the Barnaul police or was arrested with regard to that complaint. The applicant explained that he had consumed alcohol with the victim at his home on the previous evening, but denied any sexual assault. It appears that, having been apprised of his procedural rights, including the right to legal assistance, he waived this latter right. He was then questioned but apparently made no further statement. The investigator ordered his placement in custody and asked the administration of the temporary detention centre to ensure that the applicant, then a State official (a driver in a sobering-up centre), be kept separately from other detainees (see also paragraphs 43 and 44 below). According to the applicant, on the same date he was refused permission to contact his family in order to retain counsel. The case against the applicant was entrusted to four investigators in view of the case's "complexity and the large amount of work to be done". On the same day, the investigator heard a Ms S. in relation to the accusations against the applicant.

9. In addition to the investigators, on 4 February 2001 investigator P. of the Altay Regional Prosecutor's Office requested the police department to assign officers for a "series of operational and search measures" to verify whether the applicant had been involved in recent cases concerning the disappearances of female students from a local university (see also paragraphs 14 and 25 below).

10. According to the applicant, after his arrest he asked to be represented by Mr K., an advocate at the local bar association. It appears that the investigator decided that K. could not represent the applicant, given a potential conflict of interest arising from the fact that at the time K. already represented a Mr P. According to the applicant, however, P. retained K. as counsel not earlier than on 19 February 2001.

(c) Further questioning and the applicant's confessions
11. On 6 February 2001 investigator A. listed charges against the applicant in relation to victim F. The applicant was informed of his right to remain silent and his right to legal assistance and admitted his guilt "in part". He did not want to be represented by the on-duty legal-aid lawyer and thus required adjournment until the following day in order to be represented by (unspecified) counsel retained by his parents.

12. According to the applicant, his mother first learnt about his arrest on 6 February 2001 from his girlfriend, who in turn had learnt about it from a relative, a former law-enforcement officer. When the applicant's mother came to the investigator's office, she was reassured that the applicant did not wish other counsel. She was later told that the applicant was satisfied with the services of counsel D. According to the Government, the applicant's mother first learnt about the applicant's arrest on 4 February 2001.

13. On 7 February 2001 the investigator appointed D. as legal-aid counsel, the applicant's objection notwithstanding. The applicant reiterated his wish to be represented by counsel retained by his parents and remained silent. He was still refused permission to receive visits from them or to contact his family, on the ground that it would adversely affect the conduct of the investigation. As can be seen from the interrogation record, this interview with the investigator was held from 3.15 to 3.20 p.m. However, according to the visitors' logbook, the investigator saw the applicant from 2.44 to 5.06 p.m. on that day.

14. According to the applicant, he was daily questioned in relay for up to twelve hours by investigators and police officers in the temporary detention centre until 2 March 2001. Only the leading officer's name was noted in the visitors' logbook. According to the applicant, he was beaten up by officers who used techniques leaving no traces. In order to obtain confessions, officers also proffered threats against the applicant's next of kin, suggesting, for instance, that they would allow publication of an article in a local newspaper mentioning the names of the applicant's brother and girlfriend; that they would carry out searches in their flats; that they would stage his suicide with the aid of cellmates. On unspecified dates, the applicant was allegedly beaten up by his cellmates, who had been instructed to induce him to make admissions. The applicant subsequently accused the officers of ill-treatment (see paragraph 33 and 42 below).

15. Thus, the following interviews took place:

On 8 February 2001 - by officers, from 4.10 to 5.15 p.m.;

On 9 February 2001 - by officers, from 11.50 a.m. to 1.35 p.m. and from 5.20 to 7.40 p.m. On the same date the authorities re-opened the proceedings concerning the alleged rape of G. (see paragraph 7 above).

On 10 February 2001 - by officers, from 11.15 a.m. to 3.20 p.m.;

On 12 February 2001 - by the investigator, from 3 to 4.10 p.m.

16. On 13 February 2001 investigators A. and Sh. had access to the applicant from 10.25 a.m. to 12.25 p.m. and from 3.05 to 7.35 p.m. In his written statement the applicant confessed to a sexual assault against F. and the double murder of A. and Ok. in July 2000. The applicant was questioned from 5.30 to 7.25 p.m. in the presence of counsel D. During that interview, the content of Article 51 of the Constitution was explained to the applicant, and he confirmed that he understood it. He also confirmed he was willing to give testimony and endorsed his earlier confessions on the same day, stating that his admissions had been voluntary and were due to the fact that "he could no longer bear the burden". According to the applicant, counsel D. was present only from 7.30 to 7.35 p.m.

17. The applicant was questioned by the investigator on 15 February 2001 from 5.27 to 6.57 p.m. According to the Government, at this interview the applicant confirmed his admission in respect of victim F, in the presence of counsel D.

18. On 17 February 2001 the applicant was questioned by officers from 10.20 a.m. to 1 p.m.

19. On 18, 20 and 26 February 2001 the applicant confessed to several offences. According to the applicant, on each occasion he was brought to the principal investigator after questioning by officers, and signed the record. The events during the relevant period can be described as follows:

On 18 February 2001 investigator A. visited the applicant from 12.30 to 2.10 p.m. The applicant was questioned in the presence of counsel D. from 12.30 to 12.50 p.m. about the double murder. In reply to the investigator's question, the applicant stated that he had not committed any other murders.

On 19 February 2001 the applicant was questioned by officers from 2.35 to 4.13 p.m.

On 20 February 2001 the applicant was questioned by police officers from 10 a.m. to 3.30 p.m. The applicant made a written statement concerning the murder of K., indicating that "the confession was voluntary without physical or psychological duress".

20. Subsequent interviews (without the presence of counsel) were as follows:

On 21 February 2001 the applicant was questioned by the investigator from noon to 3.30 and by (an) officer(s), from 3.15 to 5.25 p.m.;

On 22 February 2001 - by (an) officer(s), from 11.40 a.m. to 2.35 p.m.;

On 23 February 2001 - by the investigator, from 11.43 a.m. to 2.35 p.m.;

On 24 February 2001 - by officers, from 12.15 to 1 p.m.;

On 26 February 2001 the applicant was questioned by officer(s) from 9.50 a.m. to noon and by the investigator from 5 to 6.40 p.m. The applicant made a written statement confessing to the murder of victim Os.

21. As transpires from the visitors' register, on 27 February 2001 the investigator saw the applicant from 11.33 a.m. to 1.07 p.m., while police officer S. saw him from 5.05 to 5.55 p.m. on the same day. The photo identification lasted from 1.10 to 1.15 p.m. in the presence of counsel D.

22. Visits continued thereafter in March and April 2001 (see also paragraph 28 below).

23. According to the applicant, after his mother had read in the local newspaper that he had admitted to serious grave crimes, she realised that she had been misled by investigator A. and retained counsel S. (see below).

(d) Admission of counsel S. and further proceedings
24. On 6 March 2001 the applicant was allowed for the first time to see his privately-retained counsel, Mr S. The applicant retracted and sought exclusion of all previously-collected evidence, including his confessions, as obtained under compulsion and without effective legal advice.

25. On 11 April 2001 police officer S. reported back to investigator P. that, following the order of 4 February 2001, a series of "operative measures" had disclosed the applicant's involvement in the murders of Ok., A., K. and Os. At the same time, no connection was established in relation to the disappearances of female students. The report mentioned that the applicant was still being investigated.

26. On 23 April 2001 the applicant was placed in solitary confinement after an altercation with cellmates.

27. During the preliminary investigation a large number of forensic reports were prepared and more than fifty persons were heard as witnesses; many of them gave oral testimony during the trial. Searches were conducted in the applicant's flat and a number of documents were seized.

28. Counsel S. complained that the applicant continued to be visited by police officers who, in his view, were not authorised to deal with the criminal case. On 31 May 2005 the investigator issued an order stating that only four investigators, including himself, were authorised to have meetings with the applicant. When questioned about their activities, the above officers explained to the investigator that they had been assigned the task of verifying whether there might be a link between the applicant and the disappearances of female students other than those already investigated.

29. Upon counsel's complaint, in June 2001 the investigator ordered an inquiry concerning the injuries to the applicant's face, caused on 23 April 2001, and whether he had complained about any ill-treatment. Investigator P. also informed the applicant that the investigators had not been aware that various officers had had meetings with the applicant in the temporary detention centre or the remand centre.

30. In October 2001 the investigator reported to the trial prosecutors' department that the activities carried out by the assigned officers did not permit the conclusion that the applicant had been involved in other criminal offences.

2. Trial
31. The case against the applicant was scheduled for trial before the Altay Regional Court. The applicant admitted in substance the charges in relation to Ms F. He argued that his intercourse with G. had been consensual; that he had no link to the other four persons (victims K., Ok., Os., A.); and that his pre-trial confessions in that connection had been obtained through ill-treatment and psychological pressure on the part of the police officers. In support of his allegation of duress the applicant provided the trial court with an extract from the visitors' logbook of the temporary detention centre for the period from 4 February to 23 March 2001. During that period the applicant received visits from various officers and investigators.

32. The trial court dealt with the applicant's allegations of ill-treatment, confession under duress and the alleged violation of his right to legal assistance during the preliminary investigation. The court heard investigator A., who confirmed that the applicant could not be represented by counsel "named by him" (possibly meaning Mr K.) because at the time the latter represented Mr P. The investigator also confirmed that the applicant was not allowed to receive visits from