Zaichenko v Russia: ECHR 18 Feb 2010

(First Section) The claimant complaned that he had not been allowed access to a lawyer when being questioned by police when he was not under arrest. He had been stopped driving home from work and his car inspected by the police after reports of workers stealing diesel from their service vehicles. Two cans of diesel were discovered in the car. The applicant made self-incriminating statements in reply to questions put to him by the police at the roadside. He was charged with stealing the cans, and he was convicted. His complaint was that he had not been advised of the privilege against self-incrimination when he made his admission to the police. His position at the trial was that he had purchased the diesel at a petrol station and that he did not give this explanation to the police because he felt intimidated and did not have a receipt to prove the purchase.
Held: The court set out the general principles that are relevant to a consideration of whether there has been a violation of the right to a fair trial. It noted that article 6(3)(c) especially might be relevant before a case is sent to trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by a initial failure to comply with its requirements.
The court said: ‘The right not to incriminate oneself presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see, inter alia, J B v Switzerland, no 31827/96, para 64, ECHR 2001-III), BAILII: [2001] ECHR 324. In this sense the right is closely linked to the presumption of innocence contained in article 6(2) of the Convention. In examining whether a procedure has extinguished the very essence of the privilege against self-incrimination, the Court must examine the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures and the use to which any material so obtained is put.’
Given the context of the road check and the applicant’s inability to produce any proof of the diesel purchase at the moment of his questioning by the police, there was a suspicion of theft against him from that moment and that, although he was not yet accused of any criminal offence, his situation in the proceedings at the roadside was substantially affected. Article 6(1) was therefore engaged at that point. However, the absence of legal representation at the roadside check did not violate his right to legal assistance under article 6(3)(c).
Christos Rozakis, President
39660/02, [2010] ECHR 185
European Convention on Human Rights 6(1) 6(3)(c)
CitedImbrioscia v Switzerland ECHR 24-Nov-1993
The applicant had been questioned several times without access to a lawyer while he was in police custody.
Held: Overall there had been no breach of article 6(1). The right set out in article 6(3)(c) is one element, among others, of the . .
CitedDeweer v Belgium ECHR 27-Feb-1980
The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid.
Held: Since the payment was made . .
CitedEckle v Germany ECHR 15-Jul-1982
Two fraud prosecutions against the claimants had lasted for 15 and 20 years respectively.
Held: Article 6.1 applies to all stages of criminal proceedings, including sentencing and any appeal. The ‘reasonable time’ in criminal matters, . .
CitedJ B v Switzerland ECHR 3-May-2001
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings; Costs and expenses partial award – Convention . .

Cited by:
CitedAmbrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
CitedMcGowan (Procurator Fiscal) v B SC 23-Nov-2011
The appellant complained that after arrest, though he had been advised of his right to legal advice, and had declined the offer, it was still wrong to have his subsequent interview relied upon at his trial.
Held: It was not incompatible with . .
CitedO’Neill v Her Majesty’s Advocate No 2 SC 13-Jun-2013
The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .

These lists may be incomplete.
Updated: 22 February 2021; Ref: scu.401728