CASE OF ARTUR PARKHOMENKO v. UKRAINE

FIFTH SECTION

CASE OF ARTUR PARKHOMENKO v. UKRAINE

(Application no. 40464/05)

JUDGMENT

This version was rectified on 6 March 2017

under Rule §81of the Rules of Court.

STRASBOURG

16 February 2017

FINAL

16/05/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Artur Parkhomenko v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Angelika Nußberger, President,
André Potocki,
Faris Vehabović,
Síofra O’Leary,
Carlo Ranzoni,
Mārtiņš Mits, judges,
Sergiy Goncharenko, ad hoc judge,
and Milan Blaško, Deputy Section Registrar,

Having regard to the parties’ submissions,

Having deliberated in private on 24 January 2017,

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

PROCEDURE

1. The case originated in an application (no. 40464/05) 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 Artur Anatolyevich Parkhomenko (“the applicant”), on 31 October 2005. The applicant was born in 1971 and lives in Zaporizhzhya.

2. The applicant, who had been granted legal aid, was represented by Mr A.A. Kristenko, a lawyer practicing in Kharkiv.[1] The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.

3. On 9 November 2007 notice of the application was given to the Government. At that stage of the proceedings the Government was not invited to submit observations on the case pending the outcome of another case that partly concerned a similar issue under Article 34 of the Convention (see Naydyon v. Ukraine, no. 16474/03, in which the Court delivered a judgment on 14 October 2010). On 22 June 2011 the Court invited the Government to submit observations on the admissibility and merits of the present application.

4. Mrs G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Fifth Section decided to appoint Mr S. Goncharenko to sit as an ad hoc judge (Rule 29 § 1(b)).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. Between 1993 and 1999 the applicant, P., Lu., and La. served their prison sentences in Volnyansk Prison. After their release all four of them moved to Kyiv, where the applicant kept in touch with La., who gave him a key to his apartment. La. kept in touch with Lu. and P.

6. On 22 August 2000 the applicant attacked Mr and Mrs I. in the hallway of their apartment block. He attempted to rob them, threatening them with a TT pistol and firing into the ceiling, but the victims resisted and the applicant ran away. On the same day the police arrived at the crime scene and found the bullet which the applicant had fired. In December 2000 the applicant travelled to Portugal; he returned to Ukraine in May 2001.

A. Criminal proceedings against the applicant

7. At the beginning of June 2001 the police detained La. within the framework of an investigation into a number of crimes and seized a TT pistol from his apartment. A forensic examination established that the bullet found at the crime scene on 22 August 2000 had been fired from the same gun. La. told the police that the gun belonged to him, he had received it from Lu. and had kept it, unloaded, at his apartment.

8. On 9 June 2001 P. told the police that La. had given him a TT pistol and said that the applicant had used it when he had tried to commit a robbery. P. also told the police that he and La. had committed a number of crimes using the same gun.

9. On 15 June 2001 the police detained the applicant and brought him to a police station. According to the applicant, the police officers handcuffed him, laid him on the ground and kicked him, forcing him to say that La. had been his accomplice in the attack on Mr and Mrs I. The applicant did not provide any statements to the police on that date.

10. In his application form the applicant stated, without developing further, that after his arrest he had been denied access to a lawyer.

11. On 16 June 2001 the applicant was informed of his right to legal counsel and his right to remain silent, but he waived those rights in writing. Before the Court the applicant stated that the police had apprehended his girlfriend, Y., and had threatened to keep her in detention until he admitted that La. had helped him to prepare the attack on Mr and Mrs I. The case file contains no documentary proof that Y. was indeed apprehended by the police.

12. On the same day the applicant told the police that in August 2000, when he had been living with Y. in her apartment, La. had suggested to him that he rob Mr and Mrs I. On 22 August 2000 La. had given him the TT pistol, had driven him to the apartment block where the couple lived, and had waited nearby while the applicant had tried to rob them. After the applicant had run away from the crime scene, La. had driven him home. About ten days later, La. had taken the gun away from the applicant.

13. The police charged the applicant with having attacked Mr and Mrs I.

14. During an identity parade and confrontation held on the same date Mr and Mrs I. said that it was the applicant who had attacked them. The applicant did not deny that he had done so.

15. On 18 June 2001 the applicant was once again informed of his right to legal counsel and his right to remain silent; again he waived those rights in writing. On the same date he was questioned and repeated the statements he had made on 16 June 2001.

16. On 19 June 2001 La. told the police that he had not been involved in the attack on Mr and Mrs I.

17. On an unspecified date a court ordered the applicant’s pre-trial detention. He remained in pre-trial detention until his conviction.

18. In July 2001 the applicant had a meeting with lawyer L. hired by his girlfriend.

19. On 7 September 2001 the applicant once again waived in writing his right to legal counsel; also on the same date he was confronted with La. The investigator M. kept minutes of the confrontation, but later those minutes disappeared from the applicant’s case file (see paragraph 25 below). Copies of the minutes were not made available to the Court.

20. Also on 7 September 2001 the applicant was confronted with Lu. The latter denied that he had been involved in the attack, while the applicant stated that he had committed the attack alone, unassisted by other persons. Minutes of this confrontation were made available to the Court.

21. On 10 September 2001 the applicant made a written statement in which he refused to participate in further confrontations with Lu. and La. According to investigator M.’s testimony, subsequently relied upon by the trial court (see paragraph 37 below), the applicant motivated this statement by fear of reprisals from Lu.

22. On 9 October 2001 the applicant asked the investigator M. for a lawyer, Mr L., to be assigned to defend him. Despite that request, on 9 October 2001 the applicant was questioned without a lawyer and made an oral statement saying that he had committed the attack with the help of Lu. and La. but those two persons had threatened him and for that reason during the confrontations with them he had said that he had committed the attack alone. The applicant noted that he planned to deny the involvement of Lu. and La. during the ensuing criminal proceedings. Investigator M. noted the applicant’s oral statement in the minutes of the questioning and the applicant signed the minutes.

23. During the pre-trial investigation Y. was questioned and stated that, from February to December 2000, she had lived together with the applicant in her apartment in Kyiv.

24. On 26 November 2001 charges against the applicant were modified and he was charged with having attacked Mr and Mrs I. in conspiracy with Lu. and La.

25. On 29 November 2001 the pre-trial investigation was completed. The applicant studied the material in the case file and found out that the minutes of his confrontation with La. (see paragraph 19 above) had disappeared from it. According to the authorities, the minutes, along with some other materials, disappeared during the period when the defendants were studying the case file.

26. The case was submitted to the Kyiv Court of Appeal (“Court of Appeal”) for trial.

27. In July 2002 the applicant complained to the Court of Appeal that on 15 and 16 June 2001 the police had tortured him with the aim of extracting statements incriminating La.

28. On 9 December 2002 the Court of Appeal held a preliminary hearing in the case in the presence of the applicant and his co-accused Lu., La., and P. On the same day the Court of Appeal remitted the case to the prosecutors for further investigation.

29. On 24 April 2003 the Supreme Court partly modified the decision of 9 December 2002, but upheld it in the part stating that further investigation in the case must be carried out.

30. On 19 June 2003 the Obolonskyy District Prosecutor’s Office received the criminal case and started further investigation.

31. On 4 August 2003 the applicant asked a prosecutor for a lawyer, Mr K., to be assigned to defend him. On the same date that request was granted.

32. On 14 August 2003 the applicant was questioned in the presence of lawyer K. and stated that he had actually committed the attack alone and had not had any accomplices. He stated that initially he had said that La. had assisted him because the police had forced him to do so by using physical force.

33. In 2004 the applicant asked the investigative authorities to carry out his confrontation with Lu. and La. In July 2004 an investigator rejected that request on the ground that it was useless to conduct such a confrontation after the applicant, Lu. and La. had been able to communicate during the preliminary court hearing (see paragraph 28 above).

34. On an unspecified date the pre-trial investigation was completed and the case was submitted to the Court of Appeal for trial.

35. When questioned in court, the applicant stated that in August 2000 he had been living in La.’s apartment and had found a loaded TT pistol there. He had taken it without the knowledge or consent of La. and had attacked Mr and Mrs I. After the attack he had returned the gun to the apartment. During the pre-trial investigation the police officers had forced him, through physical and psychological pressure, to state that La. had helped him to prepare the attack. In particular, they had threatened to keep his girlfriend Y. in detention if he refused to give statements against La.

36. La. and Lu. were questioned at a court hearing and stated that they had not been involved in the attack.

37. Investigator M., who had conducted the preliminary investigation into the applicant’s case, told the court that, initially, the applicant had stated that La. had helped him to prepare the attack. On 7 September 2001, during his confrontation with La., the applicant started denying La.’s involvement and said that it had actually been Lu. who had helped him. After the confrontations with Lu. and La. the applicant had told M. that those two persons had threatened him and for that reason during the confrontations he had lied and said that he had committed the attack alone. In fact, he had committed it with the help of Lu. and La.

38. On 3 December 2004 the Court of Appeal, referring, inter alia, to the submissions of the investigator M. (see paragraph 37 above) and P. (see paragraph 8 above), convicted the applicant and sentenced him to seven years’ imprisonment and confiscation of all his property for having attacked Mr and Mrs I. with the help of Lu. and La. In particular, the court found that after the applicant had failed to repay his debt to Lu., Lu. and another individual brought the applicant to a forest, threatened him and suggested he repay the debt by robbing Mr and Mrs I.

By the same judgment the court convicted P., Lu. and La. of having committed a series of armed attacks and planned attacks using the TT pistol which the applicant had used to attack spouses I. P. was also convicted of murder of a person who promised to report him to the authorities and the attempted murder of police officers in order to evade arrest. The court referred to evidence that the applicant had hidden P. after the attack on the police officers.

Noting that the applicant, La. and P. recanted their initial confessions in the course of the subsequent investigation and trial, the court stated that it found their initial confessions more trustworthy since they were more coherent with other evidence in the file than their subsequent, modified, accounts of the events.

39. In reaching the conclusion that Lu. and La. had helped the applicant to prepare the attack the court referred to the fact that Lu., La., and the applicant knew each other because they had served their prison sentences together and maintained contacts after release. It also referred to the fact that the bullet found on the crime scene was shot from the TT pistol which belonged to La. and had been found in his apartment. The court noted that the fact that La. had assisted the applicant in the attack was confirmed by the statements that the applicant had given during the pre-trial investigation. In this context, the court specifically cited the applicant’s initial statements of 16 and 18 June 2001.

40. The court found that the applicant’s submissions regarding the pressure exerted on him by the police were unsubstantiated. The applicant’s statement that in August 2000 he had been living in La.’s apartment and had found a loaded gun there was false because it was contradicted by the statements of Y. and La. In particular, Y. stated that from February to December 2000 the applicant had lived with her in her apartment, and La. stated that he had kept the TT pistol unloaded (see paragraphs 7 and 23 above).

41. The applicant appealed to the Supreme Court. He argued that the police, by means of physical and psychological pressure, had forced him into stating that Lu. and La. had assisted him in the commission of the crime. In particular, the investigators had threatened to detain his girlfriend, Y., if he refused to give statements incriminating Lu. and La. In fact, those individuals had not been involved in the attack. The applicant also mentioned that on 9 October 2001 he had been questioned without a lawyer despite his request for a lawyer lodged on the same date.

42. On 24 May 2005 the Supreme Court held a hearing in the presence of the applicant and orally pronounced its decision upholding the first-instance court judgment. It noted that the applicant’s allegations of physical and psychological pressure were unsubstantiated. The court also noted that although the minutes of the applicant’s confrontation with La. were not available, the case file contained sufficient evidence of the applicant’s guilt.

43. On 12 August 2005 the applicant was served with a copy of the Supreme Court’s decision.

44. On 31 October 2005 the applicant lodged his first letter with the Court. On 19 December 2005 he lodged his application form.

45. On 29 March 2006 the Court asked the applicant to indicate on which date he first received legal assistance. The Court also asked the applicant to provide copies of any requests for legal assistance which he had lodged with the authorities.

46. In his reply of 2 May 2006, the applicant indicated that the lawyer Mr L., had first visited him in July 2001 and his request for a lawyer of 9 October 2001 had not been granted. He also stated that before 9 October 2001 he had orally requested the authorities to assign him a lawyer, but he could not provide any proof that he had lodged such requests.

47. On 14 May 2006 the applicant asked the Court of Appeal to give him a copy of his request for a lawyer of 9 October 2001.

48. On 24 May 2006 the Court of Appeal refused the request, stating that the law did not empower it to provide him with such a copy.

49. On 21 May 2007 the applicant was released on parole. The applicant did not inform the Court whether, after release, he had made any further attempts to obtain a copy of his request of 9 October 2001.

B. Conditions of detention

50. In August 2001 the applicant was placed in SIZO no. 13 in Kyiv. In February 2003 he underwent a lung X-ray which revealed that he was suffering from tuberculosis (TB). According to the certificate issued by the State Penitentiary Service in 2011 and submitted to the Court by the Government, he was diagnosed with 5.1 TB (see paragraph 54 below). From February 2003 to May 2005 the applicant received a special diet in connection with his TB. The applicant stated that, during the same period, he had not been accorded medications to treat his TB. The Government stated (referring to a certificate issued by the State Penitentiary Service in 2011) that, from February 2003 to June 2005, the applicant had received anti-relapse medication. The Government were unable to specify the name of this medication because the applicant’s medical file had been damaged by flooding in the SIZO in 2006-2007 and destroyed in 2008. In May 2005 the applicant started coughing up blood. An X-ray examination and an examination by a TB specialist revealed that the applicant’s TB reactivated. In June 2005 the applicant was moved to the SIZO medical unit and started receiving antibiotics as a person suffering from category 1 TB. On 29 August 2005 the applicant was moved to Prison no. 17 for inmates suffering from TB, where he received treatment. On the date of the applicant’s release he still suffered from TB.

51. According to the applicant, he developed TB in the SIZO in 2003 because in that facility he was not able to “breathe fresh air” and the food which he received was “not sufficiently rich in calories”. He did not provide any further details concerning his detention conditions and did not submit any evidence in this respect.

52. The Government provided certificates issued by the State Penitentiary Service stating that the cells in which the applicant had been held in the SIZO had been well ventilated and that the food provided to him had been adequate and in compliance with national legislation.

II. RELEVANT DOMESTIC LAW

A. Criminal Code of 1960

53. According to Article 142 of the Code, as worded at the material time, assault with the purpose of misapropriation of other people’s property, committed with violence which threatens human life and health or with the threat of using such violence, shall be punishable by deprivation of liberty for a term of three to ten years, with or without confiscation of property. The same offence committed by a group of people shall be punishable by deprivation of liberty for a term of five to twelve years with confiscation of property.

B. Order of the Ministry of Health of Ukraine no. 45 of 28 January 2005 on Approval of the Protocol of Medical Assistance for Patients with Tuberculosis

54. Under Order of the Ministry of Health of Ukraine no. 45 there are five main categories and five sub-categories concerning the recording of those who have TB or may be affected by it. Patients with residual changes to various organs after TB has healed fall under category 5.1. The Protocol indicates that persons suffering from categories 1-3 TB require medical treatment. Those suffering from category 5.1 require medical monitoring (chest X-ray) every six months and drug treatment for the prevention of TB relapse (chemoprophylaxis).

THE LAW

I. SCOPE OF THE CASE

55. In his observations submitted to the Court in 2012 in reply to those of the Government, the applicant complained that he had not been assigned a lawyer under the legal aid scheme to defend him before the Supreme Court although the interests of justice had required this and he had not had financial means to hire a lawyer. The Court considers that this complaint is very specific and does not constitute an elaboration of the applicant’s initial complaints lodged in 2005. The Court considers therefore that it is not appropriate to take up this matter in the context of the present case (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

56. The applicant complained that the police had beaten him and threatened him. He complained that the conditions of his detention in the SIZO had been incompatible with the requirements of Article 3 of the Convention, in particular, he was not able to breathe fresh air and the food given to him had not been sufficiently rich in calories. Because the conditions of his detention had been poor he had developed TB while in the SIZO. According to the applicant, he received inadequate medical treatment from February 2003 to June 2005. In particular, he was not given any medications to treat his TB even though he needed them. The applicant invoked Articles 3 and 14 of the Convention. However the Court, which is the master of characterisation to be given in law to the facts of the case, considers that the present part of the application falls to be examined solely under Article 3 of the Convention which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

57. The Government submitted that the complaint concerning ill‑treatment by the police was not supported by any evidence. Moreover, it had been lodged only on 2 May 2006, that is more than six months after the date when the final decision in the applicant’s case was adopted by the Supreme Court (24 May 2005). The applicant had never requested a medical examination; he had only raised before the national authorities the complaint of ill-treatment by the police thirteen months after the date on which it had allegedly taken place. As regards the complaint concerning the conditions of the applicant’s detention, the Government stated that the applicant had not raised it before the domestic authorities and thus had not exhausted the remedies available to him. Referring to their description of the conditions of the applicant’s detention, the Government argued that they had been adequate.

58. The applicant argued that, as the problems arising from the conditions of detention and the lack of proper medical treatment in Ukrainian places of detention were of structural nature, he did not need to exhaust the remedies referred to by the Government. He also submitted that he had raised his complaint of ill-treatment before the authorities and had thus exhausted the domestic remedies in this respect. The applicant submitted that he had not been medically examined before his placement in pre-trial detention or following his complaints of ill-treatment lodged with the domestic authorities. The applicant stated that the conditions of his detention were similar to those described in Nevmerzhitsky v. Ukraine (no. 54825/00, ECHR 2005‑II (extracts)) and Petukhov v. Ukraine (no. 43374/02, 21 October 2010), in the findings of the CPT and the Ukrainian Parliament Commissioner for Human Rights. Mr K., one of the applicant’s co-accused, died of TB in the SIZO no. 13 and his other co‑accused, Mr P., developed TB in the same SIZO. According to the applicant, the Government had not demonstrated that his treatment before June 2005 had been adequate because they had not submitted to the Court his SIZO medical file.

59. In so far as the conditions of the applicant’s detention are concerned, the Court notes that it has rejected the Government’s similar objections concerning non-exhaustion of domestic remedies in a number of other cases concerning Ukraine (see, for example, Visloguzov v. Ukraine, no. 32362/02, §§ 52 and 64, 20 May 2010). The Government provided no information which would enable the Court in the present case to depart from its findings and therefore it considers that this part of the application cannot be declared inadmissible for non-exhaustion of domestic remedies.

60. The relevant principles of the Court’s case-law concerning the State’s obligation to provide detained persons with appropriate medical treatment have been recently summarised in Cătălin Eugen Micu v. Romania (no. 55104/13, § 55, 5 January 2016). Failure to comply with that obligations may lead the Court to find a violation of Article 3 of the Convention. However, the Court reiterates that, in order for ill-treatment to fall under Article 3 of the Convention, it must attain a minimum level of severity. The assessment of such minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the gender, age and state of health of the victim. Allegations of ill-treatment must be supported by appropriate evidence. The Court is mindful that the applicants might experience certain difficulties in procuring evidence to substantiate a complaint of ill-treatment. Nevertheless, in such cases applicants may well be expected to submit at least a detailed account of the facts complained of and provide – to the greatest possible extent – some evidence in support of their complaints (see Danilov v. Ukraine, no. 2585/06, § 78, 13 March 2014, with further references).

61. In the Court’s opinion, this requirement has not been met in the present case, as the applicant’s complaints regarding the physical conditions of his detention have been limited to general statements which do not enable the Court to conclude that his suffering reached the threshold of severity required by Article 3 of the Convention or that the applicant developed TB because of those conditions. The applicant alleged that he had not been able to breathe fresh air and that the food which he had received had not been sufficiently rich in calories. He did not, however, submit any further details or evidence in this respect. In particular, the applicant’s statements were not corroborated by statements of inmates with whom he shared his cells.

62. The Court observes that, according to the information provided by the Government, from February 2003 to June 2005 the applicant suffered from category 5.1 TB which required X-ray monitoring and chemoprophylaxis. The Government submitted documentary evidence proving that the applicant had received anti-relapse medication from February 2003 to June 2005. The documentation provided by the Government appears to indicate that the applicant may have suffered from TB at some point prior to his imprisonment in 2001, which went into remission and was diagnosed as such in 2003.

63. However, the Court does not need to make any definitive finding in this respect since the applicant does not allege that he was infected with TB during his stay in the SIZO from August 2001 to February 2003 (contrast Cătălin Eugen Micu, cited above, §§ 50, 56-62). As to his complaint concerning allegedly inadequate treatment for that disease, the applicant did not provide any evidence, for example, in the form of witness statements, that he had not received the anti-relapse medication to which the Government referred. He also did not provide any details about the manifestation of his TB during the period from February 2003 to June 2005 and the Court thus finds no reason to believe that during that period he suffered from categories 1-3 TB. The Court also observes that the applicant did not claim that his requests for medical aid were refused or that he was not able to undergo X-ray examinations every six months. In such circumstances the Court cannot conclude that the applicant’s treatment from February 2003 to June 2005 was inadequate or that the reactivation of his TB and the deterioration of his health was imputable to the authorities.

64. In so far as the complaint about the alleged police ill-treatment is concerned, the Court notes that the applicant lodged it on 19 December 2005, that is less than six months after August 2005 when he had received a copy of the final judicial decision in his case. The Government’s objection regarding non-compliance with the six-month rule must thus be rejected (see Worm v. Austria, 29 August 1997, § 33, Reports of Judgments and Decisions 1997‑V). The Court notes that the applicant described his alleged physical ill-treatment by the police in quite general terms and did not produce any evidence in support of his allegations of beating and threats having been issued by them. It also notes that the applicant did not complain about his alleged beating until July 2002 (see paragraph 27 above) – more than one year after the events in question. Such a delay undoubtedly undermined the authorities’ chances of collecting any evidence in support of the applicant’s allegations. Furthermore, the applicant did not suggest that he had been prevented from complaining of the alleged ill-treatment earlier.

65. In view of the above, the Court considers that the applicant has not laid the basis of an arguable claim that he was ill-treated in breach of Article 3 of the Convention, therefore the present part of the application should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

66. The applicant complained under Article 5 § 1 of the Convention that his pre-trial detention had been unlawful and, in particular, that certain periods of detention had not been covered by any judicial decision. The Court notes that the applicant’s pre-trial detention lasted from 15 June 2001, when he was arrested, until 3 December 2004, when he was convicted by the first instance court. This complaint was thus lodged outside the six‑month time‑limit (see B. v. Austria, no. 11968/86, § 39, 28 March 1990) and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

67. In his first letter lodged with the Court on 31 October 2005 the applicant complained, invoking Article 6 § 1 of the Convention, that the criminal proceedings against him had been unfair. In particular, the courts had misinterpreted the facts of the case, their finding that the applicant had committed the attack in conspiracy with other persons had not been supported by sufficient evidence. In fact, he had attacked Mr and Mrs I. alone and had not had any accomplices.

68. In his application form submitted to the Court on 19 December 2005, the applicant complained under Articles 6 § 1 and 13 of the Convention that although he had needed a lawyer from the moment of his arrest, he had not been provided with legal assistance and on 9 October 2001 he had been questioned without a lawyer despite his request for a lawyer lodged on the same date. The Court considers that the present part of the application falls to be examined under Article 6 §§ 1 and 3 (c) of the Convention, which reads as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

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. Admissibility

69. The Government stated that the complaints concerning the lack of legal assistance had been lodged only on 2 May 2006 and thus outside the six-month time-limit. The applicant disagreed.

70. Where an applicant is entitled to be served automatically with a copy of the final domestic decision, the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the copy of the decision (Worm, cited above, § 33). The Court notes that the applicant was served with a copy of the final decision in his case in August 2005. Less than six months later, on 19 December 2005, he lodged the complaint concerning lack of legal assistance with the Court. The Government’s objection must thus be rejected. The Court notes that the present part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

71. The applicant maintained his complaints. He stated that he had become entitled to legal assistance from the moment of his arrest. He further stated that, in the interests of justice, the authorities should have assigned him a lawyer even despite the fact that he had signed legal assistance waivers. He stated that he had been forced into signing those waivers. The court convicted the applicant of the crime committed in conspiracy with others only on the basis of the confessions obtained in the absence of a lawyer.

72. The Government stated that, initially, the applicant had been questioned without a lawyer because he had waived his right to legal assistance and the involvement of a defence lawyer had not been mandatory under national law. On 14 August 2003 the investigator appointed Mr K. to act as the applicant’s lawyer and questioned the applicant in his presence. The evidence against the applicant had been examined and found reliable by courts at two levels of jurisdiction, his guilt had been sufficiently proven. According to the Government, the applicant had been convicted for robbery in conspiracy on the grounds that the applicant knew his co-defendants from prison and continued to maintain contact with them after release, as well as the contradiction between his statement that he had found the crime weapon loaded at La.’s flat when he lived there and La.’s and Y.’s evidence in that regard (see paragraphs 39-40 above).

2. The Court’s assessment

(a) General principles

73. The Court reiterates that in order to exercise his right to mount a defence, an accused person should normally be allowed to effectively benefit from the assistance of a lawyer from the initial stages of a case, as the investigation phase is important for the preparation of criminal proceedings, in view of the fact that the evidence obtained during that phase determines the framework within which the offence in question will be considered at trial (see Salduz v. Turkey [GC], no. 36391/02, §§ 52 and 54, 27 November 2008). Article 6 § 1 requires that, as a rule, access to a lawyer should be provided from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict that right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such a restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will, in principle, be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer are used for a conviction (ibid., § 55).

74. The above test in Salduz (ibid.) for assessing whether a restriction on access to a lawyer is compatible with the right to a fair trial is composed of two stages. In the first stage, the Court must assess whether there were compelling reasons for the restriction. In the second stage, it must evaluate the prejudice caused to the rights of the defence by the restriction in the case in question. In other words, the Court must examine the impact of the restriction on the overall fairness of the proceedings and decide whether the proceedings as a whole were fair (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, § 257, 13 September 2016).

75. As to the first stage of the test, the criterion of compelling reasons is a stringent one: having regard to the fundamental nature and importance of early access to legal advice, in particular when a suspect is first questioned, restrictions on access to legal advice are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case. It is of relevance, when assessing whether compelling reasons have been demonstrated, whether the decision to restrict legal advice had a basis in domestic law and whether the scope and content of any restrictions on legal advice were sufficiently circumscribed by law so as to guide operational decision-making by those responsible for applying them (ibid., § 258).

76. Where compelling reasons are established, a holistic assessment of the entirety of the proceedings must be conducted to determine whether they were “fair” for the purposes of Article 6 § 1 (ibid., § 264).

77. Where compelling reasons are not established, the Court must apply a very strict scrutiny to its fairness assessment. The failure of the respondent Government to show compelling reasons weighs heavily in the balance when assessing the overall fairness of the trial and may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (c). The onus is 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 access to legal advice (ibid., § 265).

78. When examining the proceedings as a whole in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings, the following non-exhaustive list of factors, drawn from the Court’s case‑law, should, where appropriate, be taken into account:

(a) Whether the applicant was particularly vulnerable, for example, by reason of his age or mental capacity.

(b) The legal framework governing the pre-trial proceedings and the admissibility of evidence at trial, and whether it was complied with; where an exclusionary rule applied, it is particularly unlikely that the proceedings as a whole would be considered unfair.

(c) Whether the applicant had the opportunity to challenge the authenticity of the evidence and oppose its use.

(d) The quality of the evidence and whether the circumstances in which it was obtained cast doubt on its reliability or accuracy, taking into account the degree and nature of any compulsion.

(e) Where evidence was obtained unlawfully, the unlawfulness in question and, where it stems from a violation of another Convention Article, the nature of the violation found.

(f) In the case of a statement, the nature of the statement and whether it was promptly retracted or modified.

(g) The use to which the evidence was put, and in particular whether the evidence formed an integral or significant part of the probative evidence upon which the conviction was based, and the strength of the other evidence in the case.

(h) Whether the assessment of guilt was performed by professional judges or lay jurors, and in the case of the latter the content of any jury directions.

(i) The weight of the public interest in the investigation and punishment of the particular offence in issue.

(j) Other relevant procedural safeguards afforded by domestic law and practice (ibid., 274).

79. Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, his entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. Furthermore, it must not run counter to any important public interest (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006‑II). For a waiver to be effective it must be shown that the applicant could reasonably have foreseen the consequences of his conduct (see, mutatis mutandis, Idalov v. Russia [GC], no. 5826/03, § 173, 22 May 2012). The right to counsel, being a fundamental right among those which constitute the notion of a fair trial and ensuring the effectiveness of the rest of the guarantees set forth in Article 6 of the Convention, is a prime example of those rights which require the special protection of the “knowing and intelligent waiver” standard established in the Court’s case-law (see Dvorski v. Croatia [GC], no. 25703/11, § 101, ECHR 2015).

(b) Application of the above principles to the present case

(i) Whether there was a restriction on access to a lawyer and whether there were compelling reasons for the restriction

80. The Court notes that the case-file contains no evidence proving that before 9 October 2001 the applicant requested the authorities to provide him with legal assistance and that that request had been refused. The Court further notes that, on 16 and 18 June 2001, the applicant waived his right to be legally represented. It finds no reason to believe that these waivers were made under duress. In July 2001 the applicant had a meeting with lawyer L. hired by his girlfriend. After that meeting, on 7 September 2001, the applicant again signed a legal assistance waiver.

81. The Court notes that on 9 October 2001 the applicant asked the authorities to assign him a lawyer and on the same date he was questioned without a lawyer being present. The Court finds that after the applicant lodged his request for a lawyer, his earlier legal assistance waivers could no longer be considered valid. His defence rights were thus restricted on 9 October 2001.

82. From the material in the case file it does not follow that there were any compelling reasons to justify this restriction. In particular, the Government did not identify any legal grounds for the restriction. Accordingly, the Court must apply a very strict scrutiny in assessing whether this restriction undermined the fairness of the proceedings (see Ibrahim and Others, cited above, § 265). Moreover, the burden of proof is 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 (ibid.).

(ii) Overall fairness of the proceedings

83. In making the overall fairness assessment the Court is guided by the Ibrahim criteria (see paragraph 78 above), to the extent it is appropriate in the circumstances of the present case.

84. The Court notes that the applicant did not make specific submissions concerning the impact of the restriction on 9 October 2001 on the fairness of proceedings. However, the Court observes that on 9 October 2001 the applicant made a statement to the effect that he had committed the attack with the help of Lu. and La. and that those persons had threatened him (see paragraph 22 above).

85. The Court observes that the applicant never denied that he had actually attacked Mr and Mrs I. with the pistol belonging to La. The only thing which he denied was that he had committed that attack in conspiracy with others. The trial court found the applicant guilty of having committed the attack in conspiracy referring to the statement of investigator M., to the “statements the applicant had given during the pre-trial investigation”, the statements of his co-defendant P. and the fact that the bullet found on the crime scene had been shot from the gun which had been found in the apartment of La. All this evidence tied La. to the applicant’s attack on Mr and Mrs I. and proved that the applicant had acted in conspiracy with others (see paragraphs 38 and 39 above).

86. The Court observes that the Government maintained that evidence other than the applicant’s statement of 9 October 2001 was decisive in finding the applicant guilty of robbery committed in a group (see paragraph 72 above) while the applicant did not make specific submissions on this point.

87. Even though the Court cannot rule out that the statement of 9 October 2001 played a role in the applicant’s conviction, the Court cannot find it established that that statement was an integral or significant part of the probative evidence against him. The reasoning of the trial court indicates that the applicant’s early confessions, rather than his later changing statements, played the main role in the conviction (see paragraphs 38 and 39 above). It is also important in this respect that the statement of 9 October 2001 was not made at the initial stage of the investigation but was rather a confirmation of the statements made by the applicant previously. It cannot be said, therefore, that the impugned statement provided the authorities with the narrative of what happened or framed the process of evidence-gathering (contrast Ibrahim, cited above, § 309).

88. There is no indication that, in failing to honour the applicant’s request to appoint a lawyer for him, the authorities acted in accordance with any domestic legal provision. In particular, the Government did not cite any legal norm which would justify their inaction. The Court cannot but conclude that their inaction was not in accordance with the domestic legal framework. At the same time, the effect of this unlawfulness on the overall fairness of the proceedings was likely mitigated by the fact that it occurred not at the very beginning of the investigation, but subsequently, after the applicant had been repeatedly advised of his rights, including his right to remain silent but still made incriminating statements, and after he had already provided the authorities with all the essential information (see paragraphs 11 and 15 above and contrast Ibrahim, cited above, § 303).

89. The Court considers that the other Ibrahim criteria also militate in favour of considering the proceedings fair. In particular: (i) the Court does not perceive any factors 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) as to the quality of evidence, there is no indication that any compulsion was involved in obtaining his statement of 9 October 2001; (iv) there is equally no indication that another Convention right has been violated; (v) the evidence in the case was assessed by professional judges, (vi) the public interest in the prosecution of the offence imputed to the applicant – attempted robbery with a firearm – was strong and the public interest in admitting the applicant’s statement made in the absence of his co-defendants was further reinforced by the indications that his co-defendants may have attempted to intimidate him (see paragraphs 21, 22 and 37 above and, mutatis mutandis, Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 123, ECHR 2011).

90. In view of the above considerations it has been demonstrated that, in the circumstances of the present case, the overall fairness of the trial was not irretrievably prejudiced by the decision to refuse the applicant access to a lawyer on 9 October 2001.

91. It follows that there has been no violation of Article 6 § 1 taken together with Article 6 § 3 (c) of the Convention in this regard.

V. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

92. The applicant complained that the authorities had not given him a copy of his request for a lawyer to be appointed of 9 October 2001. The Court considers that this complaint falls to be examined under Article 34 of the Convention which reads as follows:

“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.”

93. The Government stated that there had been no non-compliance with Article 34 of the Convention because after the applicant’s release on parole he could have personally made copies of the materials in his criminal case file and submitted them to the Court.

94. The applicant maintained his complaint.

95. The Court observes that on 24 May 2006 the Court of Appeal refused to give the applicant a copy of his request for a lawyer of 9 October 2001. The Court reiterates that in Vasiliy Ivashchenko v. Ukraine (no. 760/03, § 110, 26 July 2012) it found that the Ukrainian legal system did not provide prisoners with a clear and specific procedure to enable them to obtain copies of case documents after the conclusion of criminal proceedings. The Court does not find a reason to depart from that finding in the present case. As regards the Government’s position, the Court observes that the applicant lodged his request for a copy of the document almost one year before his release on parole. At that stage it was not possible for him to obtain such a copy (see Vasiliy Ivashchenko, cited above). It was also impossible for him to foresee that in future he would be released and thus able to make such a copy in person. The Court thus rejects the Government’s objections and finds that the State has failed to comply with its obligations under Article 34 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

96. 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

97. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.

98. The Government contested that claim.

99. Having regard to the particular circumstances of the case and ruling on an equitable basis, the Court considers that the finding of a violation of Article 34 of the Convention constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.

B. Costs and expenses

100. The applicant also claimed 43,258.60 Ukrainian hryvnias (approximately EUR 4,038) for the costs and expenses incurred before the Court.

101. The Government contested that claim.

102. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that those have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria and bearing in mind that the applicant’s representative has already been paid EUR 850 under the Court’s legal aid scheme, the Court rejects the applicant’s claim.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the applicant’s complaints under Article 6 §§ 1 and 3 (c) of the Convention admissible and the complaints under Articles 3 and 5 of the Convention inadmissible;

2. Holds that there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention;

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

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

5. Dismisses the applicant’s claims for just satisfaction.

Done in English, and notified in writing on 16 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan BlaškoAngelika Nußberger
Deputy RegistrarPresident

[1]. Rectified on 6 March 2017: the following text has been added ”The applicant, who had been granted legal aid, was represented by Mr A.A. Kristenko, a lawyer practicing in Kharkiv.”

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