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

e, however, satisfied that this counsel would properly defend the applicant in the course of the investigation. The investigators' interest in the advancement of the investigation and eventual disclosure of other offences through possible confessions from the applicant did not induce them to keep a close eye on the effectiveness of the defence.
114. The foregoing considerations disclose, in the Court's view, a series of serious shortcomings in relation to the applicant's exercise of his right to legal assistance in the pre-trial proceedings.
(ii) The use of evidence at the trial
115. The Court has also taken note of the concomitant grievances raised by the applicant. They concern in substance the use made of the available evidence against him, including his pre-trial confessions, at the trial. The Court reiterates in that connection that it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Jalloh, cited above, § 94, and Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports 1998-IV). It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence - for example, evidence obtained unlawfully in terms of domestic law - may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair.
116. Thus, the Court has previously considered that, in determining whether the proceedings as a whole were fair, regard must be had to whether the rights of the defence have been respected, in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use (see Panovits, cited above, § 82). In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy (ibid.). Indeed, where the reliability of evidence is in dispute the existence of fair procedures to examine the admissibility of the evidence takes on an even greater importance (see Allan v. the United Kingdom, No. 48539/99, § 47, ECHR 2002-IX).
117. In the present case, in finding the applicant guilty the trial court relied on his pre-trial admissions and certain other evidence, including various pieces of physical evidence obtained through the use of information provided by the applicant in his statements made in February 2001 (see paragraphs 34 - 39 above). The Court has already discussed the circumstances in which they were obtained, and considers that they were such as to cast doubt on the reliability of the admissions. It also transpires that both the trial and appeal courts dealt with the alleged violation of the applicant's right to legal assistance during the preliminary investigation, as well as his allegations of ill-treatment and confession under duress (see paragraphs 32, 33 and 40 above). It is noted, however, that the applicant made no specific allegations concerning the procedure by which the courts reached their decision concerning the admissibility of the evidence, including his own confessions (cf. Bykov [GC], cited above, § 95). Nor did he put forward any specific arguments concerning the admissibility or sufficiency of the other evidence such as expert reports or witness statements.
118. In any event, no further findings are required in that respect in the present case since having found that the pre-trial restriction on the applicant's right to counsel had no justification the Cour



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