CASE OF ALAKHVERDYAN v. UKRAINE

FOURTH SECTION

CASE OF ALAKHVERDYAN v. UKRAINE

(Application no. 12224/09)

JUDGMENT

STRASBOURG

16 April 2019

This judgment is final but it may be subject to editorial revision.

In the case of Alakhverdyan v. Ukraine.

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Paulo Pinto de Albuquerque, President,
Faris Vehabović,
Carlo Ranzoni, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 26 March 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 12224/09) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Sergey Vladimirovich Alakhverdyan (“the applicant”), on 11 February 2009.

2.  The applicant, who had been granted legal aid, was represented by Mr M. Tarakhkalo, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchina.

3.  On 19 January 2016 the complaints concerning an alleged breach of the right to legal assistance in criminal proceedings and of the right of individual petition were communicated to the Government, and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

4.  The Government objected to the examination of the application by a Committee, but provided no reasons. Having considered the Government’s objection, the Court rejects it (see, in respect of a similar approach, Nedilenko and others v. Ukraine [Committee], no. 43104/04, § 5, 18 January 2018; Lada v. Ukraine [Committee], no. 32392/07, § 4, 6 February 2018; and Geletey v. Ukraine [Committee], no. 23040/07, § 4, 24 April 2018).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1984 and is serving his life sentence in a prison.

6.  On 10 December 2004 the bodies of two women, D. and S., were found in a village – in D.’s house – with numerous stab wounds. The prosecutor’s office instituted criminal proceedings on the same day, and over the following days proceeded to interview those of the victims’ neighbours and relatives who might have known something about the incident.

7.  On 11 December 2004 the police searched the house of Dor., a resident of same village, and found clothes bearing blood traces. According to the case file, on the same day the applicant, who knew both D. and Dor., was summoned in the context of these proceedings by a prosecutor; however, he did not appear. No other details are available in the file in this regard.

A.  The events of 12 December 2004

8.  On 12 December 2004 police officers arrived at the applicant’s home and asked him to go with them to the investigator from the Tatarbunary prosecutor’s office (“the investigator”). The applicant agreed. On their way they picked up G., an acquaintance of his.

9.  From 10 to 11 a.m. on that date, at Tatarbunary police station, the investigator questioned the applicant as a witness in the context of the above-mentioned criminal proceedings. His testimony did not contain any confessions or incriminating remarks and did not provide any specific information relating to the circumstances of the crime. He submitted, inter alia, that he did not know who could have committed the murder and that on a number of occasions he had seen D.’s husband communicating with two suspicious men. According to the applicant, the police officers had then taken him and G. to a forest. D.’s husband had been there and had offered them money in exchange for their confession to the murder of D. and S., which had been ordered by Dor. The applicant alleged that they had refused and had been tortured by the police until he had finally agreed to plead guilty to the murder, which he had not in fact committed.

10.  A few hours later, at 2.20 p.m., while still at Tatarbunary police station, the applicant made a “statement of surrender and confession” (явка з каяттям). This statement commenced by noting that the applicant had been warned of his criminal responsibility if he refused to testify and that he had been advised of his right under Article 63 of the Constitution not to incriminate himself. In his statement, the applicant submitted that he and G. had murdered D. and S. after being incited to do so by Dor., who had wished to take revenge on the women because she believed that one of them had been having an affair with her partner and that the other one had facilitated the start of the affair. At noon on the day of the murder, Dor. had given them knives, which the applicant described in detail, and they had then gone away. At about 6.30 p.m. on that day they had again come to Dor.’s place and then gone to D.’s house. As they had been approaching D.’s house, they had seen her husband leaving home in his car. They had then entered the house carrying the knives given to them by Dor. in their hands. The applicant had entered first and had seen three women in the kitchen – D. and two others whom he did not know. He had approached one of the women and had stabbed her once or twice until G. had stopped him, saying that she was “from our village” and asking him not to harm her. The applicant had then stabbed D. and the third woman to death while G. had watched. The woman he had injured had sat with her face lowered and with her ears covered by her hands. After both of the stabbed women had fallen to the ground the applicant had gone away; G. had remained, talking to the injured woman.

As G. had been leaving the house he had encountered D.’s neighbour. Then G. and the applicant had gone to Dor.’s home, where they had met T., one of her relatives. Dor. had then arrived and had asked them to leave. G. had taken the applicant’s knife from him and had hidden it in one of some old disassembled bikes standing in the backyard of Dor.’s house. For half an hour they had hidden first in a field and then at a farm until, one after the other, they had gone back to Dor.’s house. The applicant had taken off his jacket because it had been covered with blood and had put on a leather one given to him by Dor. Then they had gone to the garden of G’.s home, where, using diesel fuel, the applicant had burned his clothes (a detailed description of which was provided by the applicant), including the jacket given to him by Dor. Thereafter they had gone to the applicant’s home and then to a disco bar. The applicant also submitted that the “sweater that I was wearing” was at his home; since 10 December 2004 he had not seen Dor. or T. On 11 December 2004 they had gone to Dor.’s house but she had not been at home; they had not checked whether the knife with which he had committed the murder was still in the place where G. had hidden it.

The statement of surrender and confession closed with a handwritten statement by the applicant to the effect that he had given the above evidence of his own free will, with no duress having been applied to him.

11.  From 4.30 p.m. until 6.04 p.m. on the same day, in order to clarify and verify information that the applicant had provided in his confession, the investigator conducted a reconstruction of the crime scene in the presence of attesting witnesses and a specialist on criminal procedure. As can be seen from the video recording of the reconstruction and the relevant verbatim record of this investigative step (which have been provided by the Government to the Court), the investigator invited the applicant – referring to him as “a suspect” – to tell him about the circumstances of the crime that he had allegedly committed. He did not inform the applicant of his right to remain silent and to have a lawyer present. The applicant repeated his confession and provided details in reply to the investigator’s questions. He submitted, inter alia, that he had not witnessed the moment at which G. had hidden the knife, but had only been made aware of the hiding place when G. had told him about it. A subsequent inspection of Dor.’s backyard by the participants in the reconstruction did not uncover any knife in the place indicated by the applicant. In G.’s garden, in the presence of G.’s parents, fragments of burned clothes – which matched the description provided by the applicant – were found. To the investigator’s question regarding whether the applicant had been forced in any way to give evidence during the reconstruction the applicant replied in the negative. The verbatim record of the reconstruction, as well as the record of the review of the reconstruction video, are both signed by the applicant without any statement or comment.

12.  On the same day, at 7.30 p.m., the investigator drew up an arrest report ordering the applicant’s detention as a suspect in the premeditated murder of D. and S. According to the report, the applicant was arrested on the grounds of his statement of surrender and confession, and his right to a lawyer was explained to him. The applicant signed the report and noted that he regretted what he had done. The applicant also signed a separate document explaining his rights as a suspect, including the right to remain silent and to consult a lawyer before his first questioning. When signing the document, the applicant noted that he wished to be legally represented. On the same day, the investigator appointed a legal-aid lawyer, Dym., for the applicant.

B.  Subsequent investigation and the applicant’s trial

13.  On 13 December 2004 the applicant was questioned as a suspect in the presence of Dym. He repeated his earlier statements, elaborating on them in detail: he did not deny that he had murdered D. and S., but he did deny that he had done so for profit. He also submitted that he not had burned all his clothes, as he had stated before. Specifically, he had not burned his trousers (as they had been brand new) but had given them to G. so that he could wash them; he had hidden the leather jacket given to him by Dor. at his home, behind a sofa. On the same date the police officers inspected his home and, in the presence of the applicant’s mother, seized the jacket. The applicant’s mother confirmed that the jacket did not belong to her son. On an unspecified date, G’s mother testified that on the night of 11 December 2004 her son had asked her to wash his trousers, as they had been dirty. While washing them, she had noticed that the water had become blood-red. Her son explained this by stating that he had been involved in a conflict at a disco bar.

14.  On the same date N., the woman whom the applicant had allegedly injured (but not killed) at D.’s home, was questioned. No record of her questioning has been submitted to the Court. The trial-court judgment (see paragraphs 27 and 28 below) suggests that she provided an account of the events that was similar to that given by the applicant; she submitted, inter alia, that D. had addresed the applicant by name while he had been stabbing her. When shown passport photographs of the applicant and G. she identified the applicant as the person who had inflicted injuries upon her and had killed D. and S.; she identified G. as his accomplice.

15.  From 14 December 2004 onwards the applicant, in Dym.’s presence, repeatedly confirmed his confession during different investigative actions (his questioning as a suspect and as accused, the reconstruction of the crime scene, and a confrontation conducted between him and Dor.) and provided details of the murder. When doing so, however, he persistently denied that he had committed the murder for profit. He also stated that he must have been poisoned or placed under some kind of hypnosis by Dor. as in normal circumstances he would have never killed D., as he had known her well and had been on good terms with her.

16.  On 17 December 2004 the applicant was examined by a forensic medical expert, who concluded that he had no bodily injuries.

17.  On 20 December 2004 criminal proceedings were instituted against the applicant, G. and Dor. in connection with the aggravated murder of D. and S.; on 21 December 2004, in the presence of Dym., he was charged accordingly. After being informed of his rights, the applicant submitted in writing that he wished to be legally represented.

18.  On 21 April 2005 two sets of criminal proceedings against the applicant were also instituted in respect of (a) the contract murder of D. and S., committed for profit and with extreme brutality, and (b) the applicant having inflicted bodily injuries on N. Those proceedings were joined with those instituted on 20 December 2004. On the same date the applicant’s charges were amended accordingly.

19.  On 27 April 2005 the pre-trial investigation was completed and the applicant and Dym. were given access to the case file, which they then examined in full.

20.  On 03 June 2005 the applicant, G. and Dor. were committed to stand trial before the Odessa Regional Court of Appeal (“the Regional Court”), acting as a first-instance court.

21.  On an unspecified date in June 2005, during the preparatory hearing of the Regional Court, the applicant requested that Dym. be replaced by another lawyer, as the former had failed to provide him with qualified legal assistance. In particular, he had acquainted himself with the case file at a different time than that at which he had shown it to the applicant, while in official documents he had stated that they had been shown the file together. His request was allowed and, on 24 June 2005, Sk., a lawyer hired by the applicant’s relatives, was appointed to the applicant.

22.  During the trial the applicant denied any involvement in the murder of D. and S. and submitted that his confession had been obtained by means of ill-treatment inflicted by the investigating officers, on the orders of D.’s husband. He provided the account of events given in paragraph 9 above. G. made similar statements.

23.  On 25 July 2005 the Regional Court, sitting as a court of first instance, found the applicant guilty as charged and sentenced him to fifteen years’ imprisonment.

24.  The applicant and Sk. appealed, claiming, inter alia, that the applicant’s voluntary surrender to the police and other self-incriminating statements had been obtained by the police by means of ill-treatment and in breach of his defence rights. The prosecution also appealed, alleging that the gravity of the offence called for the imposition of penalties stricter than those imposed by the first-instance court.

25.  On 21 March 2006 the Supreme Court, sitting as a second-instance court, allowed an appeal lodged by the prosecution (having found that the gravity of the crime imputed to the defendants called for the imposition of more severe penalties) and remitted the case for fresh consideration, having also instructed the Regional Court to verify the allegations made by the defendants.

26.  On 11 December 2006 the criminal case was remitted to the prosecutor’s office for further investigation, and on an unspecified date it was sent back to the Regional Court for a new trial.

27.  On 15 January 2008 the Regional Court found the applicant guilty of (i) the premeditated double murder of D. and S., committed in a group, to order and for profit and with particular cruelty, and (ii) causing light bodily injuries to N. It sentenced him to life imprisonment. In doing so, the court referred to various pieces of evidence, which included the identification of the applicant by N. and the fact that she had heard D. addressing the applicant by name when he had been stabbing her; the testimony of the applicant’s and G’s mothers; the results of forensic examinations, which had revealed, inter alia, that blood discovered on the applicant’s sweater had not belonged to him, contrary to his statements, but could have belonged to one of the victims; the statements of witnesses that they had seen the applicant and G. at Dor.’s home during the evening of 10 December 2004; and the confessions made by the applicant “during the reconstruction of the crime scene carried out in the presence of his lawyer” and during other investigative actions conducted in the lawyer’s presence.

28.  The court noted that it considered the applicant’s denial of his guilt during the trial as constituting an attempt to escape criminal responsibility. It went on to note that the applicant had made self-incriminating statements of his own free will and in the presence of a lawyer and that neither the applicant nor the lawyer had raised any complaint when signing the records of the relevant procedural actions. It furthermore observed that at a different stage of the pre-trial investigation the applicant had given a similar detailed account of events that had tallied with the evidence given by N. The list of items of evidence referred to by the court in this context included the applicant’s voluntary surrender to the police and the “records of reconstructions of the crime scene”.

29.  The Regional Court dismissed the applicant’s allegation of ill‑treatment. Having examined the applicant’s medical file and having watched the video recordings of procedural actions undertaken with his participation, it concluded that there was no evidence that the applicant had suffered any physical injuries at the hands of the police. It also observed that in the course of the investigation the applicant had never complained of any ill-treatment but that, in the presence of Dym., he had consistently repeated his confession (including to a forensic psychiatrist), which contained information that had not been known to the police and could only have been known to the perpetrator. The checks conducted by the investigating authorities following his confessions had confirmed the accuracy of his statements.

30.  In a cassation appeal to the Supreme Court the applicant stated, inter alia, that his initial confessions made on 12 December 2004 had been at the heart of his conviction and that this evidence had been obtained under duress and in the absence of a lawyer. More specifically, no lawyer had been present either during his initial questioning as a witness on 12 December 2004 or later on that date, during the reconstruction of the crime scene and when he had made his statement of surrender and confession to the police. His right to remain silent and to legal counsel had not been explained to him until the investigator had obtained, by means of ill-treatment, detailed confessions from him. He furthermore submitted that N. had given false evidence and had been in league with D.’s husband. The applicant’s lawyer, in lodging a separate cassation appeal, also submitted that the applicant had repeated his confession in Dym.’s presence as he had “had no trust in the latter” and had continued to be affected by his ill‑treatment.

31.  On 12 August 2008 the Supreme Court upheld the judgment of the Regional Court of 15 January 2008 (see paragraph 27 above), with some amendments introduced at the request of the prosecution. It noted, inter alia, that the applicant’s guilt had been proved by the statements of N., who had witnessed the crime, and that the accuracy of her statements had been confirmed by other evidence, including by the fact that the applicant had given a similar account of events in his statement of surrender and confession to the police, together with the following statements that he had made. The court furthermore relied on the fact that following the applicant’s initial confessions a sweater bearing traces of the blood of one of the victims had been revealed at his place.

32.  As regards the applicant’s complaint concerning the purported breach of his rights of defence, the Supreme Court dismissed them as unfounded. It noted that as soon as the applicant had been detained as a suspect on the basis of his statement of surrender and confession to the police, he was immediately provided with a lawyer, in accordance with the requirements of the domestic law.

33.  The Supreme Court also dismissed as unsubstantiated the applicant’s allegation that he had been ill-treated by the police, having observed that no bodily injuries had been found on the applicant when he had been searched on 12 December 2004 and following his forensic medical examination five days later (see paragraph 16 above).

34.  The applicant was served with a copy of the above-mentioned judgment on 6 October 2008.

C.  The applicant’s efforts to obtain certain documents regarding his application to the Court

35.  On numerous occasions after the criminal proceedings had been completed the applicant lodged requests with the Regional Court, where the case file was kept, to be provided with copies of his cassation appeals and bills of indictments, as he needed them in connection with his intention to lodge an application with the Court. The Regional Court refused those requests, citing, inter alia, the absence of any legal obligation for it to provide copies of such documents as cassation appeals and noting that the bills of indictments had already been handed over to the applicant.

36.  On 11 February 2009 the applicant lodged his present application with the Court.

37.  By a letter of 4 June 2009 the Court asked the applicant to submit, inter alia, copies of his appeals in cassation against the judgment of 15 January 2008 (see paragraph 30 above).

38.  On 26 August 2009 the applicant asked the Regional Court to provide him with copies of his appeals in cassation. The applicant referred to the Court’s letter and enclosed a copy thereof. No reply was received by the applicant to this request.

39.  In 2010 the applicant again unsuccessfully tried to obtain copies of certain documents in his case file. In his request, he did not mention that he needed them to support his application to the Court.

40.  According to an information note from the State Department for the Execution of Sentences provided to the Court by the Government, after his conviction the applicant maintained contact with his mother and a cousin and, on 12 August 2010, was visited by Sk.

II.  RELEVANT DOMESTIC LAW

41.  Under Article 45 of the Code of Criminal Procedure of 1960 (“the CCP”), as in force at the material time, legal representation during an inquiry, pre-trial investigation or trial before a court of first instance was obligatory if, inter alia, such proceedings concerned an offence for which a life sentence was a possible penalty.

42.  The relevant provisions of domestic legislation concerning access to case files and the relevant European Prison Rules are summarised in the judgment in the case of Naydyon v. Ukraine (no. 16474/03, §§ 35-38 and 41-42, 14 October 2010).

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

43.  The applicant complained that his defence rights had been violated and that he had not had a fair trial. He invoked Article 6 of the Convention, which in the relevant parts reads as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.

...”

A.  The parties’ submissions

1.  The applicant

44.  The applicant initially complained that the criminal proceedings against him had been unfair in that no lawyer had been present during the investigative actions conducted with his participation on 12 February 2004 prior to his official arrest as a suspect. He furthermore submitted that his conviction had been based on his self-incriminatory statements (including his initial confessions), which he had retracted during the trial, and that his arguments regarding the violation of his defence rights at the initial stage of the investigation had not been properly examined by the domestic courts.

45.  In his reply to the Government’s observations, on 27 December 2016, the applicant furthermore submitted that Dym.’s services had been ineffective because he had behaved passively in the course of the investigation, mainly advising him to cooperate with the investigating authorities and on one occasion failing to attend during his questioning as an accused.

2.  The Government

46.  The Government submitted that the applicant had been always informed of his right not to incriminate himself but that he had not refused to testify and had not exercised his right to remain silent. He had been legally represented from the very outset of the criminal proceedings against him, and throughout the whole investigation he had maintained his confession to murder in the presence of his lawyer and had never raised any objection or complaint in respect of his defence rights or his alleged ill‑treatment.

47.  They furthermore stated that the applicant’s conviction had not been based on the applicant’s initial confessions but rather on a number of other items of evidence, the main one being the testimony of the eyewitness to the murder.

48.  The Government noted that the applicant’s allegations of a violation of his defence rights raised during the trial had been examined by the trial court in an open hearing held in the presence of the applicant and his defence counsel and that it had been rejected as unfounded.

49.  Lastly, they submitted that the applicant’s allegation regarding his inefficient representation by Dym. was inadmissible owing to the non‑exhaustion of domestic remedies or, alternatively, as being lodged too late.

B.  Court’s assessment

1.  Admissibility

(a)  Absence of a lawyer from the questioning of the applicant as a witness on the morning of 12 December 2004

50.  There is no indication in the case file that on the morning of 12 December 2004 the applicant made any statements that were to play a role in his conviction (see paragraph 9 above). Furthermore, there is no information in the case file that would allow the Court to ascertain whether by the time of the applicant being interviewed as a witness the authorities had sufficient incriminating material to consider the applicant a “suspect”, thus bringing Article 6 guarantees into play (see, mutatis mutandis, Zherdev v. Ukraine, no. 34015/07, § 150, 27 April 2017). The Court thus considers that this complaint is unsubstantiated.

51.  Therefore, this complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

(b)  Alleged ineffectiveness of Dym.’s services

52.  Even assuming that this allegation constitutes an elaboration of the applicant’s initial complaint under Article 6 of the Convection, the Court agrees with the Government (see paragraph 49 above) that this complaint is in any event inadmissible, as it was lodged for the first time in 2016 (see paragraph 45 above) – that is more than six months after the completion of the criminal proceedings in respect of the applicant’s case (see paragraph 34 above). Accordingly, this complaint should be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention.

(c)  The remainder of the applicant’s complaints under Article 6 §§ 1 and 3 (c)

53.  The Court considers that the remainder of the applicant’s complaints under Article 6 §§ 1 and 3 (c) are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

2.  Merits

54.  The Court clarified the general principles to be applied with regard to a restriction on the right of access to a lawyer and concerning the fairness of proceedings in Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, §§ 257-265, ECHR 2016) and Simeonovi v. Bulgaria ([GC], no. 21980/04, §§ 112-120, ECHR 2017 (extracts), with further references); it confirmed those principles recently in Beuze v. Belgium ([GC], no. 71409/10, §§ 119-150, 9 November 2018).

55.  Turning to the present case, the Court reiterates that the applicant’s statement of surrender and confession to the police of 12 December 2004 (see paragraph 10 above) did not constitute the first communication between the applicant and the police on that day. Approximately three hours before the statement was made, the applicant was questioned by the investigator as a witness in connection with the murder of D. and S. but submitted no information suggesting his involvement in the murder (see paragraph 9 above). The Court is unable, on the basis of the documents before it, to explain such a drastic change in the applicant’s testimony within such a short interval or to decide whether the applicant made his confession on his own initiative or at the instigation of the authorities. At the same time, once the applicant had informed the investigator that he was going to make a statement of surrender and confession to the police, the authorities must have been aware of the possible context of such a statement and of the consequences that would arise. However, there is no indication that the investigator offered the applicant any legal assistance before recording his confession or secured the presence of a lawyer. Moreover, even after the confession was made – that is to say when the investigator formally had every reason to suspect the applicant of the double murder – there is nothing to suggest that the applicant’s status as a witness was formally changed to that of a suspect or that he was offered legal assistance in connection with the murder charge. Instead, in the absence of a lawyer, the applicant was made to participate, apparently as a witness, in the reconstruction of the crime scene; during the reconstruction he made further self-incriminating statements (see paragraph 11 above). It should not be overlooked in this respect that under domestic law the applicant was entitled to mandatory legal representation as regards the double murder, as he faced the possibility of life imprisonment (see paragraph 41 above).

56.  To the extent that the Government can be understood as implying that the applicant’s decision to give self-incriminating statements on 12 December 2004 (even after being informed of his right to keep silent) in itself constituted an implicit waiver of his right to counsel (see paragraph 46 above), the Court notes that the fact that the applicant was informed of his constitutional right not to incriminate himself when he made his statement of surrender and confession to the police is not sufficient for an assumption to be made that the applicant waived the right to be represented by a lawyer (see, mutatis mutandis, Khayrov v. Ukraine, no. 19157/06, § 77, 15 November 2012). It reiterates that there is no evidence to suggest that prior to his making self‑incriminating statements the applicant was apprised of his right to legal assistance or that the investigator staged the reconstruction of 12 December 2004 at either the applicant’s suggestion or request and that the confession made by the applicant during the reconstruction was thus initiated by him. Moreover, nothing suggests that before the reconstruction the applicant was apprised even of his right not to incriminate himself.

57.  In view of the foregoing, the Court concludes that the applicant’s right to a lawyer was restricted on 12 December 2004. The Court does not discern from the material in the case file that there were any compelling reasons for such a restriction.

58.  In the light of the above findings, it remains for the Court to now examine whether the fairness of the proceedings as a whole was prejudiced by the defence lawyer’s absence during the investigative actions of 12 December 2004.

59.  In making this assessment the Court is guided by the criteria set out in the case of Ibrahim and Others (cited above, § 274), to the extent that it is appropriate, given the circumstances of the present case. Owing to the lack of compelling reasons for restricting the applicant’s right to a lawyer, the Court must apply very strict scrutiny to its fairness assessment. The absence of such reasons weighs heavily in the balance when assessing the overall fairness of the criminal proceedings and may tip the balance towards finding a violation. The onus will then be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on the applicant’s access to legal advice (ibid., § 265; and Beuze, cited above, § 145).

60.  In this respect, the Court observes, on the one hand, that a number of factors tend to argue in favour of considering the proceedings fair: (i) there is nothing that would indicate that the applicant was particularly vulnerable; (ii) there is no indication in the material before the Court that the applicant’s right to challenge the authenticity of the evidence and oppose its use was in any way restricted; (iii) there is no evidence that the applicant’s initial confessions resulted from his ill-treatment; (iv) the applicant did not promptly retract his statements of 12 December 2004 but consistently maintained them throughout the investigation in the presence of his lawyer, and even provided new details; (v) there was other strong evidence against the applicant, including eyewitness statements; (vi) the evidence in the case was assessed by professional judges, (vii) the public interest in the prosecution of the offence imputed to the applicant – that of double murder – was very strong; (viii) equally, there is no indication that another Convention right has been violated.

61.  On the other hand, even though the applicant’s initial confessions did not formally constitute key evidence on which his conviction was based, the manner in which the confessions were obtained from him by the police and their significant likely impact on the further development of the criminal proceedings against him cannot be ignored by the Court when assessing the overall fairness of those proceedings (see, mutatis mutandis, Dvorski v. Croatia [GC], no. 25703/11, § 111, 20 October 2015).

62.  As the Court has already noted in paragraph 55 above, it appears that the applicant gave his first confession while he still had the status of a witness, without the police offering him the assistance or presence of a lawyer. Even after he had presented his first detailed confession, he was made (still as a witness) to participate and give evidence (again, without a lawyer, and without having had his rights explained to him) in the on-site reconstruction of the crime (see paragraph 11 above). It was only after the reconstruction – that is to say when the necessary evidence had been secured – that the applicant’s procedural status was formally changed to that of a suspect and the relevant guarantees came into play (see paragraph 12 above).

63.  In the testimony that he provided when his status was still that of a witness, the applicant not only confessed to the double murder but also provided information that subsequently allowed the investigating authorities to adduce further evidence, which was used in the case against him – including the material evidence. It is true that after the applicant was afforded legal representation by a lawyer of his own choosing (see paragraph 21 above), he declared that he had not commtted the crimes; however, it is difficult to see how it could have been possible to effectively retract those statements that had already led to the collection of other evidence against him.

64.  Thus, the statements that the applicant made on 12 December 2004 provided the domestic investigating authorities with the framework around which they built their case and the focus for their search for other corroborating evidence; it therefore undoubtedly irreversibly affected the applicant’s position (compare Ibrahim and Others, cited above, § 309, and contrast Yurchenkov v. Russia (dec.) [Committee], no. 38106/05, § 30, 10 April 2018).

65.  In addition, the Court cannot but note that both the Regional Court and the Supreme Court did refer to his initial confessions in their judgments, albeit not in the part of those judgments that listed the evidence proving the applicant’s guilt (see paragraphs 28 and 31 above).

66.  Moreover, the early restrictions on the applicant’s right to defence, although having been pointed out by him in the appeal in cassation to the Supreme Court (see paragraph 30 above), were not properly addressed by the latter. The court merely referred to the fact that the applicant had become legally represented immediately after he had been declared a suspect (which had been in compliance with the domestic law) and that throughout the investigation he had repeated his confessions in a consistent way in the presence of his lawyer. It did not, however, address in any way the particular argument submitted by the applicant that he should have been provided with a lawyer prior to his official recognition as a suspect – that is to say when he had made his initial confession on 12 December 2004, which had played a role in the further course of the related investigation and his ultimate conviction (see paragraph 32 above). The Government was likewise silent on that matter.

67.  Re-emphasising the very strict scrutiny that must be applied where there are no compelling reasons to justify the restriction on the right of access to a lawyer, the Court finds that the criminal proceedings brought against the applicant, when considered as a whole, did not cure the procedural defects occurring at the pre-trial stage. This conclusion leads the Court to hold that the Government have failed to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the criminal proceedings against the applicant was not irretrievably prejudiced by the restriction of his access to a lawyer on 12 December 2004.

68.  It follows that there has been a violation in the present case of Article 6 §§ 1 and 3 (c) of the Convention.

II.  ALLEGED INTERFERENCE WITH THE APPLICANT’S RIGHT OF INDIVIDUAL PETITION

69.  The applicant complained that the authorities had failed to provide him with copies of the documents in his case file, which he had wished to submit to the Court in substantiation of his application.

He relied on Article 34 of the Convention, which provides:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

70.  The Government submitted that the applicant and his lawyer had several times studied the case file in the course of the proceedings and that they could have made copies of the relevant documents for the purposes of the applicant’s subsequent application to the Court. They furthermore noted that the cassation appeals were documents that had been drafted by the applicant. It was thus his own fault that he had not made and kept copies of those documents.

71.  The Government argued that after the completion of the domestic proceedings, the applicant or his relatives could have engaged a lawyer to obtain copies of necessary documents. They relied in this respect on the fact that the applicant’s property had not been confiscated following his conviction and that the applicant had maintained contacts with Sk., whom he had consulted in 2010 (see paragraph 40 above). The Government did not provide any information concerning the fate of the applicant’s request of 26 August 2009 for copies of his appeals in cassation (see paragraph 38 above).

72.  In his reply to the Government’s observations, the applicant submitted that when studying the case material during the criminal proceedings, he had not considered it necessary to make copies of the documents because he had thought that the courts would not find him guilty. His relatives had not had the right to access his case file and had not been able to afford to hire a lawyer as they had already spent a lot to pay for Sk.’s services during the criminal proceedings. The applicant furthermore submitted that Sk. had visited him in 2006 and in 2010 only, and that they had not stayed in contact in the interim period. However, when in 2008 he had had to lodge his application with the Court he had needed all the relevant documents; he had thus been fully dependent on the authorities in his efforts to secure copies of those documents.

73.  The Court notes that on numerous occasions after the completion of the criminal proceedings the applicant, who was serving a life sentence, requested the court responsible for archiving his criminal case file to provide him with copies of several documents, including the above‑mentioned appeals in cassation. His requests were either refused as not based on law or left unanswered (see paragraphs 35-39 above).

74.  The Court notes that the facts underlying this complaint and the arguments advanced by the Government were similar to those that have already given rise to findings of violations of Article 34 of the Convention in other cases against Ukraine (see, for example, Naydyon v. Ukraine, no. 16474/03, §§ 64-69, 14 October 2010, and Vasiliy Ivashchenko v. Ukraine, no. 760/03, §§ 103-109, 26 July 2012). The Government submitted no argument that would have allowed the Court to come to a different conclusion in the present case. The Court notes in this respect that the Government provided no evidence that following the completion of the proceedings, the applicant had had a valid service contract with Sk. or that he had had sufficient financial means with which to engage a lawyer. In any event, they did not show how, in the light of the relevant provisions of the domestic law, the existence of such a contract would have afforded the lawyer access to the applicant’s case file.

75.  In the light of the foregoing, the Court concludes that Ukraine has failed to comply with its obligations under Article 34 of the Convention with respect to the authorities’ refusal to provide the applicant with copies of documents from his criminal file for the purposes of his application to the Court.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

76.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

77.  The applicant claimed 30,000 euros (EUR) in respect of non‑pecuniary damage.

78.  The Government disagreed.

79.  Having regard to the particular circumstances of the case and ruling on an equitable basis, the Court considers that the finding of violations of Articles 6 §§ 1 and 3 (c) and 34 of the Convention constitutes in itself sufficient just satisfaction in respect of non-pecuniary damage sustained by the applicant. As regards the violation of the former provision, the Court cannot speculate as to the outcome of the proceedings against the applicant. The finding of a violation of Article 6 §§ 1 and 3 (c) in the present case does not imply that the applicant was wrongly convicted. The Court notes however that Article 445 of the CCP and Section 10 of the Law on the Execution of Judgments of the European Court of Human Rights in principle allow for the possibility of a reopening of proceedings (see Zakhshevskiy v. Ukraine, no. 7193/04, §§ 50-51 and 133, 17 March 2016).

B.  Costs and expenses

80.  The applicant also claimed EUR 4,200 for the costs and expenses incurred before the Court.

81.  The Government contended that the amount claimed by the applicant was excessively high.

82.  Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to allow the applicant’s claim in full and to award the sum of EUR 3,350 – that is to say the sum of EUR 4,200, less EUR 850 (the sum paid by way of legal aid – see paragraph 2 above) – for the proceedings before the Court. This award is to be paid directly into the bank account of the applicant’s lawyer, Mr Tarakhkalo, as indicated by the applicant (see, mutatis mutandis, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288 and point 12 (a) of the operative part, ECHR 2016 (extracts)).

C.  Default interest

83.  The Court considers it appropriate that the default interest rate 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, UNANIMOUSLY,

1.  Declares the complaints concerning the absence of a lawyer during the questioning on the morning of 12 December 2004 and ineffective legal representation by the legal-aid lawyer inadmissible and the remainder of the application admissible;

2.  Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;

3.  Holds that the State has failed to comply with their obligations under Article 34 of the Convention;

4.  Holds that the finding of the above violations constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;

5.  Holds

(a)  that the respondent State is to pay the applicant, within three months EUR 3,350 (three thousand three hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the bank account of his representative, Mr Mykhailo Tarakhkalo and to be converted into the currency of the respondent State 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;

6.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 16 April 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea TamiettiPaulo Pinto de Albuquerque
Deputy RegistrarPresident

 

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