Постановление Европейского суда по правам человека от 13.07.2010 <Дело Лопата (Lopata) против России» [англ.]

n a ruling of 14 January 2000 the Constitutional Court declared unconstitutional several provisions of the RSFSR CCP authorising the courts to initiate, of their own motion, criminal proceedings. In the same ruling the Constitutional Court reiterated that a court could carry out judicial review of the lawfulness and reasonableness of an investigating authority's decision to open a criminal case, to refuse to initiate criminal proceedings or to discontinue such proceedings, in particular, upon a complaint of a person who considered that his or her constitutional rights had been breached by such a decision. The ruling was published in February 2000.

B. Access to counsel

95. Under Article 47 § 1 of the Code, in force at the material time, counsel could be admitted to the proceedings from the moment of announcing/listing charges, or - for an arrested or detained suspect - from the moment of giving him or her access to the arrest record or detention order. If a privately-retained counsel did not appear within twenty-four hours, the authority in charge of the case was allowed to suggest that the person retain another counsel, or to appoint counsel (Article 47 § 2). On 25 October 2001 the Constitutional Court indicated that Article 47 § 4 did not require any special permission for meetings with counsel. In the same decision the Constitutional Court invalidated one provision of the 1995 Custody Act in so far as the authorities applied it as requiring counsel who wanted to see his client to obtain special leave from the authority in charge of the criminal case.

C. Confession statements

96. Article 51 of the Russian Constitution provides that no one may be required to incriminate himself or herself and his or her spouse and close relatives.
97. Article 111 of the RSFSR CCP required that a confession statement be recorded in detail in a separate document, signed by the person who gave the confession and by the investigator or prosecutor who took the confession.

D. Reopening of criminal proceedings

98. Article 413 of the Russian Code of Criminal Procedure, setting out the procedure for re-opening of criminal cases, in so far as relevant, reads:
"1. Court judgments and decisions which have become final are to be quashed and proceedings in a criminal case are to be re-opened in the event of new or newly discovered circumstances.
...
4. New circumstances are:
...
(2) a violation of a provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms committed by a court of the Russian Federation during examination of a criminal case and established by the European Court of Human Rights, pertaining to:
(a) application of a federal law which runs contrary to the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms;
(b) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms;
(c) other new circumstances."

III. Relevant international documents

99. For a summary of the relevant international documents on access to counsel see Pishchalnikov v. Russia (No. 7025/04, §§ 39 - 42, 24 September 2009).

THE LAW

I. Alleged violation of Article 3 of the Convention

100. The applicant complained under Article 3 of the Convention that on 8 - 9 September 2000 police officers had ill-treated him and that the authorities had failed to conduct an effective investigation into the alleged ill-treatment. Article 3 reads as follows:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

A. Submissions by the parties

1. The Government



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