Постановление Европейского суда по правам человека от 18.02.2010 «Дело Александр Зайченко (Aleksandr Zaichenko) против России» [англ.]

. The Court observes, in that connection, that Article 413 of the Code of Criminal Procedure of the Russian Federation provides that criminal proceedings may be reopened if the Court has found a violation of the Convention (see paragraph 29 above).

B. Costs and expenses

66. The applicant made no claim in respect of costs and expenses. The Court considers that there is no call to make an award under this head.

C. Default interest

67. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1. Declares unanimously the application admissible;
2. Holds by six votes to one that there has been no violation of Article 6 § 3 (c) of the Convention on account of the issue of legal assistance;
3. Holds unanimously that there has been a violation of Article 6 § 1 of the Convention on account of the issue of the privilege against self-incrimination and the right to remain silent;
4. Holds unanimously
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses unanimously the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 18 February 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Christos ROZAKIS
President

{Soren} NIELSEN
Registrar





In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following partly dissenting opinion of Judge Spielmann is annexed to this judgment.

C.L.R.

S.N.

PARTLY DISSENTING OPINION OF JUDGE SPIELMANN

1. I am unable to subscribe to point 2 of the operative part and to the finding of the majority that there has been no violation of Article 6 § 3 (c) of the Convention on account of the issue of legal assistance.
2. The applicant was convicted on the basis of the admission he made to the police without the benefit of legal advice.
3. In Salduz v. Turkey the Court held that as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police (see Salduz v. Turkey [GC], No. 36391/02, § 55, ECHR 2008-...). The Court also held that the lack of legal assistance during a suspect's interrogation would constitute a restriction of his defence rights and that these rights would in principle be irretrievably prejudiced when incriminating statements, made during police interrogation without access to a lawyer, were used for a conviction. The Court took a similar approach in the equally important judgment in Panovits (Panovits v. Cyprus, No. 4268/04, §§ 66 and 70 - 73, 11 December 2008).
4. In the present case the applicant was not initially informed of any suspicion or accusation against him. Admittedly, the applicant was not formally arrested or interrogated in police custody. However, the interview on 21 February 2001 took place in circumstances that can in no way be compared to those normal



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