Lopata v Russia

Facts
Lopata alleged he was beaten by police officers and forced into confessing to a murder in the absence of his lawyer. The district prosecutor refused to initiate criminal proceedings. During his murder trial Lopata’s lawyer argued that his confession was obtained under duress and in his lawyer’s absence. The trial and appeals courts, in dismissing Lopata’s applications, did not address the issue of legal representation during the confession.

Judgment
The ECtHR was unable to find beyond all reasonable doubt that the applicant was subjected to treatment contrary to Art 3 (prohibition of torture and inhuman treatment) due in large part to the domestic authorities’ failure to react effectively to the applicant's complaints at the relevant time.

The ECtHR noted that Art. 6 (right to a fair trial) is silent about rules on the admissibility of evidence, which should be regulated by national law. Instead it considered whether the proceedings as a whole, including the way in which the evidence was obtained, were fair and examined whether the applicant was given the opportunity to challenge the authenticity of the evidence and to oppose its use. The ECtHR stated that where the reliability of evidence was in dispute the existence of fair procedures to examine the admissibility of evidence takes on an even greater importance.

Russia argued that a lawyer’s presence was not mandatory under domestic law. The ECtHR responded that it was not its role to assess whether domestic law was compatible with the ECHR. Its obligation was to consider whether all the requirements of Art. 6 had been complied with and in this particular case whether Art 6(3)(c) (the right to defend oneself through legal assistance) had been observed.

The ECtHR noted that the domestic courts did not utilise fair procedures when assessing the admissibility of the confession, as the absence of a lawyer was not mentioned in their rulings. The ECtHR held that the use of the applicant's confession statement, which was obtained in circumstances that raised doubts as to its voluntary character, and in the absence of legal assistance, together with the apparent lack of appropriate safeguards at the trial, rendered the applicant's trial unfair and in violation of Art. 6.

Comment
In this case the ECtHR applied fair trial principles to a situation where the admissibility of evidence is contested. Lopata followed the precedent set in Panovits v Cyprus (No. 4268/04) 11/12/08, which provided that the ECtHR would not rule on admissibility of evidence but would rule on whether there were appropriate safeguards for the applicants to challenge or oppose the admissibility of evidence during proceedings. In Lopata, the domestic courts dealt with his submissions concerning duress in their rulings, but did not rule on the question of the absence of legal assistance during the confession. It was on this narrow point that the ECtHR held that Lopata did not have the opportunity to challenge admissibility and on this basis it found a violation of Art.6.

Lopata_admiss

Lopata_judgment

The above admissibility decision and judgment are taken from the website of the European Court of Human Rights http://www.echr.coe.int/ and can be accessed via HUDOC on the court's website: http://cmiskp.echr.coe.int/tkp197/default.htm

The Court's case-law is also collated in Reports of Judgments and Decisions, published by Carl Heymanns Verlag KG.