CASE OF GELETEY v. UKRAINE

FOURTH SECTION

CASE OF GELETEY v. UKRAINE

(Application no. 23040/07)

JUDGMENT

STRASBOURG

24 April 2018

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

In the case of Geletey v. Ukraine,

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

Faris Vehabović, President,
Carlo Ranzoni,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 10 April 2018,

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

PROCEDURE

1. The case originated in an application (no. 23040/07) 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 Vasyl Vasylyovych Geletey (“the applicant”), on 7 May 2007.

2. The applicant, who had been granted legal aid, was represented by Mr T.O. Kalmykov, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna, of the Ministry of Justice.

3. The applicant complained that his defence rights had been violated and he had not had a fair trial.

4. On 4 February 2013 the application was communicated to the Government. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Criminal proceedings against the applicant

5. The applicant was born in 1984 and lives in Berehove.

6. In the early hours of 22 August 2004 M. was robbed and killed in Berehove, where the applicant was also living. On the same date the applicant and two other people, K.A. and St., were arrested on suspicion of robbing and killing M.

7. According to the applicant, he was apprehended by the police task force at about 10 a.m. on 22 August 2004 in the apartment of his girlfriend and taken to the police station, where he was beaten up and threatened in an attempt to force him to confess to the robbery and murder of M.

8. The case file contains two arrest warrants – one issued by a police officer and another one by the prosecutor investigating the murder (hereinafter “the investigator”), both indicating that the applicant had been arrested by the above-mentioned officials on 22 August 2004 at 6.30 p.m. at their offices. The arrest warrant issued by the investigator indicates that the applicant acknowledged his guilt, had no observations regarding his arrest and that he wished to be legally represented. It bears the applicant’s signature, with no comments. The lower part of the last page of the record contains a printed statement (“довідка”) that was added later (it was dated 2007); this additional statement is signed by the investigator only and asserts that the applicant’s relatives were informed of his arrest. The applicant alleged that his family had been informed of his arrest on the evening of the following day (that is to say 23 August 2004).

9. After his arrest, the applicant signed a record, bearing no time, explaining his rights as a suspect, including the right to remain silent and to consult a lawyer before he was first questioned. The relevant entry in the record indicates that the applicant expressed his wish to be represented by S., a lawyer who lived in Uzhhorod, some 70 kilometres from Berehove, and noted the address of the latter.

10. At about 4 p.m. on 22 August 2004, according to the applicant, and from 9 until 10 a.m. on that day, according to the official record, the applicant was questioned as a suspect by the investigator in the presence of B., a lawyer. The record of the questioning noted that the applicant had been informed of his rights as a suspect from 6.30 until 6.45 p.m. on that day and that a separate procedural document existed in this respect evidencing that he had wished to be legally represented. The handwritten entry in the record furthermore stated that the applicant wanted to have B. as his lawyer and that he acknowledged in full his guilt in respect of the robbery and murder. During the questioning, the applicant provided details regarding the robbery and admitted that he had hit M. in the head with a bat during the robbery but that he had done so instinctively, in self-defence. The applicant did not state what had become of the bat – namely where or in what circumstances he had hidden the bat after the murder. The applicant and B. signed the verbatim record, making no objections as to its contents. B. then left.

11. Later that day, from 8 until 8.30 p.m., the applicant took part in a videotaped reconstruction of the crime in the presence of a forensic expert, an investigator from the local police, two attesting witnesses and the investigator in the case. According to the Government, B. was apparently busy and was not able to participate in the reconstruction. No other lawyer was instructed to assist the applicant during this investigative step. According to the applicant, he repeated his request for S. to be called, but this was not done and he was forced by means of threats to testify.

12. During the reconstruction, which commenced near the place where the bat used for the murder had been hidden, the applicant pointed to the exact place where the bat was; the bat was then uncovered and retained as evidence. A copy of the verbatim record of the reconstruction provided to the Court by the applicant indicates that he was informed of his constitutional right not to incriminate himself. The verbatim record bears a handwritten “not” next to the following printed “agreed to testify”. The relevant part of the text is not visible on the copy of the record provided by the Government. The record furthermore contains the applicant’s statement that he had not been forced to testify by means of any psychological or physical violence. The applicant signed the record without indicating any objections as to its contents next to his signature.

13. At an unspecified time on the same date St. and K.A were questioned as suspects. St., being represented by B. (the same lawyer who represented the applicant), acknowledged his guilt in respect of the robbery. He stated, inter alia, that he had seen the applicant carrying a bat when they had been entering the victim’s house. K.A., having waived his right to legal assistance, admitted that he had taken part in the robbery. He furthermore participated, still unrepresented, in a videotaped reconstruction of the crime during which he stated, inter alia, that he had seen the applicant with a bat in his hands but had not seen who had murdered M.

14. On 23 August 2004 the investigator appointed B. to represent the applicant, and St., and admitted him to the proceedings.

15. On the same day the applicant, in the presence of B., participated in another videotaped reconstruction of the crime in the victim’s house. The applicant admitted his guilt and gave further details about the robbery and murder. He reiterated that he had hit M. on the head with the bat and stated that another suspect in the case had helped him to hide the bat afterwards.

16. On 26 August 2004 the applicant’s mother signed a contract with the lawyer S. concerning her son’s legal representation. On the same date S. contacted the prosecutor, who allowed S. to represent the applicant instead of B. The applicant furthermore made a written statement declaring that he was refusing the services of B. and wanted S. to act as his lawyer.

17. On 8 October 2004 medical experts examined the applicant following his complaint that he had been ill-treated by the police. No injuries were discovered on the applicant’s body.

18. On 14 October 2004 the video recording of the reconstruction of the crime of 23 August 2004 was played to the applicant in the presence of S. The applicant retracted his earlier confession and explained that he had only given it because he had been threatened and beaten up by the police on 22 August 2004.

19. On 2 September 2004, and 20 and 28 January and 17 February 2005 the applicant was questioned in the presence of his defence lawyer but refused to give any evidence.

20. On 19 January 2005 the prosecutors refused to institute a criminal investigation into the applicant’s allegation that he had been beaten up by the police, having found the police officers’ actions to be lawful.

21. On 18 February 2005 the pre-trial investigation was completed and the applicant – together with St. and K.A. – was charged with robbery and murder. It was established that another person, I.K., had also participated in the robbery, but as he had absconded, he would have to be tried separately.

22. During the trial the applicant denied having participated in the robbery and the murder and refused to give any evidence. He stated that his earlier confessions to the crimes should not be admitted as evidence as they had been made under duress and in breach of his defence rights, including his right to be represented by a lawyer of his own choosing. He also argued that the bat which had been retained as evidence and examined by experts during the investigation had not been the same bat as that which he had pointed out during the reconstruction. He supported his allegation by referring to the fact that in the verbatim record, the prosecutor had described the bat as blue, while the experts who had subsequently examined it had described it as grey.

23. In April 2005 the police detained I.K. In the course of the trial St., A.K. and I.K all pleaded guilty to robbery but denied killing M.

24. On 29 August 2006 the Zakarpattya Regional Court of Appeal, acting as the first-instance court, convicted the applicant of murder and robbery and sentenced him to fifteen years’ imprisonment. St., A.K. and I.K. were also found guilty of robbery but acquitted of murder. The hearing was held in the presence of the applicant’s new lawyer, D., who had replaced the lawyer S. on an unspecified date.

25. The court based the applicant’s conviction, among other evidence, on the confessions he had made during his questioning by the investigator on 22 August 2004, the reconstructions of the crime on 22 and 23 August 2004, the statements of his co-defendants that they had seen him with a bat in M.’s house, and physical evidence, including an expert’s report suggesting that the traces of blood found on the bat (the location of which had been pointed out by the applicant during the reconstruction of the crime on 22 August 2004) could have belonged to M.

26. By the same judgment, the court rejected as unsubstantiated the applicant’s submissions that he had made his self-incriminating statements under duress, referring to the results of the medical examination of 8 October 2004 (see paragraph 17 above) and the prosecutors’ decision of 19 January 2005 (see paragraph 20 above).

27. The court also found no violation of the applicant’s defence rights. It noted, inter alia, that on 22 August 2004 the prosecutor’s decision to appoint B. as the applicant’s lawyer had been lawful, because at the material time the applicant had not had a contract with S. for legal representation. It also observed that on 22 August 2004 the applicant had raised no objections to the questioning record. The court also suggested, without giving details, that there had been some technical errors in the procedural documents, in particular as regards the time of the applicant’s arrest and questioning, but that they did not affect the fairness of the respective investigative actions.

28. The court refuted the applicant’s allegation that the bat retained as evidence had been switched with another (see paragraph 22 above), noting that the disparity in the bat’s description by the experts and the prosecutor could have been explained by the fact that the latter was colour blind.

29. The applicant lodged an appeal with the Supreme Court on points of law, reiterating his complaints. He stated, in particular, that he had not been represented by the lawyer of his choice, S., on 22 and 23 August 2004, but by B., who had been appointed by the investigator against the applicant’s will. He further stated that he had not been assisted by any lawyer when he had been forced to confess during the crime reconstruction of 22 August 2004. He also complained about the fact that B. had represented him and his co-accused St. at the same time (see paragraph 13 above) – a conflict of interest (as there had been important discrepancies in their respective statements) that should have prevented him from being allowed to do so.

30. On 12 April 2007 the Supreme Court, acting as the second-instance court, upheld the applicant’s conviction and sentence in his presence. The applicant was not represented by a lawyer during the hearing, but he did not provide any further details in this regard.

31. The Supreme Court found that the applicant’s guilt was proved, inter alia, by the statements he had made during his questioning of 22 August 2004 and during the reconstructions of the crime. It noted in this respect that those statements had been corroborated by other evidence, including the testimony of his co-accused, and concluded that the lower court had correctly admitted the applicant’s self-incriminating statements as evidence. The court also noted that the details of the crime which the applicant had revealed in his statements could not have been known to him unless he had been the direct perpetrator.

32. Without mentioning the applicant’s arguments regarding the alleged breach of his defence rights, the Supreme Court found no procedural violations during the proceedings serious enough to necessitate it quashing the judgment.

33. On an unspecified date the applicant was released from prison.

II. RELEVANT DOMESTIC LAW

A. Constitution of Ukraine of 1996

34. The relevant provisions of the Constitution read as follows:

Article 59

“Everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose the defender of his or her rights.

In Ukraine, advocates act to ensure the right to a defence against accusation and to provide legal assistance in deciding cases in courts and other state bodies.”

Article 63

“A person shall not bear responsibility for refusing to testify or to explain anything about himself or herself, members of his or her family or close relatives in the degree determined by law.

A suspect, an accused, or a defendant has the right to a defence ... .”

B. Criminal Code of 5 April 2001

35. Under paragraph 1 of Article 115, premeditated murder is punishable by imprisonment for a term of seven to fifteen years. Under paragraph 2 of Article 115, premeditated murder in the aggravating circumstances listed in that paragraph is punishable by imprisonment for a term of ten to fifteen years, or life imprisonment.

C. Code of Criminal Procedure, 28 December 1960 (“the CCP”), as worded at the relevant time

36. The relevant provisions of the CCP read as follows:

Article 44 Defense counsel

“... Powers of defence counsel to participate in a case should be confirmed with regard to: (1) a lawyer – by authorisation of the respective bar association; (2) a lawyer who is not member of a bar association – by agreement;

...

Defence counsel shall be admitted to the proceedings by ... a ruling of the investigator ... .”

Article 45. Compulsory participation of a defence counsel

“The participation of defence counsel in the inquiry, pre-trial investigations and trial by the first-instance court is compulsory:

...

(4) from the time of the person’s arrest or when he or she is charged with a criminal offence carrying a penalty of life imprisonment ... .”

Article 47. Procedure for the engagement and appointment of a defence counsel

“Defence counsel is hired by the suspect, the accused, defendant or convict, their legal representatives, or by other persons upon the request or consent of the suspect, the accused, defendant or convict. The investigator ... must help the arrested person or detainee to contact the defence counsel or individuals who can hire defence counsel. ...

The ... investigator ... may appoint defence counsel, under the procedure provided by law, through a bar association. A demand by the... investigator... for defence counsel to be appointed [must be complied with by] the head of the bar association.

Defence counsel shall be appointed [by the authorities] in the following cases:

(1) when, under Article 45 §§ 1 and 2, the participation of defence counsel is compulsory but the suspect, accused or defendant does not wish to or cannot appoint defence counsel;

(2) when a suspect, an accused or a defendant wishes to appoint defence counsel but cannot do so for lack of means or another objective reason.

If there is a need to urgently conduct investigative actions or other procedural actions with the involvement of the defence counsel and the suspect or the accused has not had time to employ defence counsel or the latter is unable to appear, the ... investigator by a ruling shall appoint defence counsel on a provisional basis before the hired defence counsel appears.

If there is no need to urgently conduct investigative actions or other procedural actions with the defence counsel’s involvement and if it is impossible to obtain the presence of the defence counsel selected by the suspect within twenty four hours ..., the investigator ... may propose that the suspect appoint other defence counsel. If this defence counsel is unable to appear in the case within twenty-four hours and in the event that the suspect... has not engaged other defence counsel within this timeframe ... the investigator... by [issuing] a ruling ... shall appoint the defence counsel.”

Article 46. Waiver and replacement of counsel

“Any suspect, accused or defendant may at any stage of the proceedings waive his or her right to counsel. Such a waiver is permissible only on the suspect’s, accused’s or defendant’s initiative and shall not deprive him or her of the right to seek the services of the same or other counsel at a later stage of the proceedings.”

Article 107. Questioning of a suspect

“... If the suspect has been arrested or placed in custody ... he shall be questioned immediately, or, if immediate questioning is not possible, within twenty-four hours of his arrest. The presence of defence counsel is compulsory during such questioning, except when the suspect waives the right to defence counsel and his/her waiver is accepted. Before questioning, the suspect should be advised of his/her rights, as set forth in Article 43 § 1 of the present Code, and informed as to what crime he/she is suspected of. The respective entry shall be made in the questioning record.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

37. The applicant complained that his defence rights had been violated and he had not had a fair trial. He referred to 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. Admissibility

38. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

39. The applicant complained that he had been deprived of effective legal assistance at the initial stage of the investigation. He submitted that no legal assistance had been provided to him during the reconstruction of the crime on 22 August 2004, when he had been forced to give evidence, as instructed beforehand by the investigator. To indicate this, he had put a handwritten “not” next to the statement “agreed to testify” in the record of the reconstruction (see paragraph 12 above).

40. The applicant furthermore submitted that four days after his arrest he had repeatedly expressed his wish to be represented by S., but to no avail. No efforts had been made by the investigator to contact the lawyer indicated by the applicant or to allow the applicant to contact him. Instead, the investigator had invited B., in breach of the procedure provided by the law, to represent the applicant and had coerced the applicant into accepting the services of the latter before each procedural action. The same lawyer had also been assigned by the investigator to another suspect in the case (whose evidence had contradicted that of the applicant), despite the evident conflict of interest (see paragraphs 13 and 29 above).

41. According to the applicant, B. had been biased and had acted in favour of the prosecution. On a number of occasions B. had advised him that it would be in the applicant’s interests to cooperate with the investigator and to confess to the crimes in order to avoid further beatings and to ensure that the trial court would take the confession into account when calculating his prison sentence. Being worn out by threats and ill-treatment at the hands of the authorities, the applicant had seen no choice but to confess. He had been precluded from logging any complaints or of availing himself of his right to remain silent. On the lawyer’s advice, in order to “mitigate” the classification of the crime, he had also stated that he had hit the victim instinctively, in self-defence (see paragraph 10 above).

42. The applicant further submitted that there had been no urgency in conducting the investigating measures in the absence of the lawyer of his own choosing but that the investigator had rushed to do so in order to secure the applicant’s confession. For the same reason the applicant’s mother had been informed of his arrest only on the evening of 23 August 2004 (see paragraph 8 above) – that is to say after the incriminating evidence had already been obtained. She had not been able to conclude an agreement with S., the lawyer, earlier than on 26 August 2004, as 24 and 25 August 2004 had been public holidays.

43. Lastly, the applicant stated that his conviction had been based on his self-incriminatory statements 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. His confessions had been the only direct evidence of his guilt.

(b) The Government

44. The Government denied any violation of the applicant’s rights, having stated that he had been legally represented throughout the proceedings and had given all evidence of his own free will.

45. In the factual part of their initial observations, the Government stated that on 22 August 2004, having been informed of his procedural rights – including the right to legal assistance – the applicant had named S. as the lawyer of his choice. He had then been questioned in the presence of another lawyer, B., having expressed the wish to be represented by B. when he had once again before the questioning been apprised of his rights. In their further observations, the Government submitted that on 22 August 2004 B. had been instructed by the investigator to temporarily assist the applicant and that the applicant had consented to be represented by him. They contended in this respect that there had been an urgent need to conduct investigative measures within the twenty-four hours provided by the law and that it could have taken a long time to appoint S. as the applicant’s lawyer, given that: no contract had existed between him and the applicant; S. had resided in another city; and the applicant had not given anyone S.’s telephone number. The applicant’s mother had been informed of her son’s arrest on the same day but she had delayed the appointment of the lawyer until 26 August 2004. Once hired by the applicant’s mother, S. had been admitted to the proceedings (see paragraph 16 above).

46. The Government acknowledged that B. had been absent during the reconstruction of the crime on 22 August 2004 (see paragraph 11 above). They noted, however, that the applicant had been informed of his right to remain silent before the reconstruction had started (see paragraph 12 above) and had voluntarily agreed to give evidence. He had confirmed his submissions in the presence of B. during the reconstruction of the crime carried out the next day (see paragraph 15 above).

47. The Government also alleged that in the course of the pre-trial investigation, in the absence of the lawyer of his own choosing, the applicant had never raised any objection or complaint in respect of his defence rights, had not refused to testify, and had not exercised his right to remain silent. The fact that the applicant had refused to give evidence after S. had replaced B. as his lawyer had constituted nothing more than a change of a defence strategy on the part of the new lawyer.

48. Lastly, the Government maintained that the applicant’s allegations of a violation of his defence rights had been examined by the trial court in an open hearing in the presence of the applicant and his defence counsel and had been rejected as unfounded. The trial court had taken account of the confessions as they had been corroborated by a number of other items of evidence in the case.

2. The Court’s assessment

(a) General principles

49. Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as of 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 this 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 interrogation without access to a lawyer are used for a conviction (see Salduz v. Turkey [GC], no. 36391/02, § 55, 27 November 2008).

50. As clarified by the Court in the judgment of Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, § 257, ECHR 2016), in applying the Salduz test the Court must first assess whether there were compelling reasons for the restriction of access to a lawyer. In the second stage, it must evaluate the prejudice caused to the rights of the defence by the restriction in the case in question. 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). Where there are no compelling reasons for restricting access to legal advice, the Court must apply a very strict scrutiny to its fairness assessment, with the onus shifting to 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).

51. 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 (see Ibrahim and Others, cited above, § 274).

52. 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, the entitlement to the guarantees of a fair trial. That also applies to the right to legal assistance. However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. Such a waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. Moreover, the waiver must not run counter to any important public interest (see Simeonovi v. Bulgaria [GC], no. 21980/04, § 115, CEDH 2017 (extracts), with further reference).

(b) Application of these principles to the present case

53. The Court observes that the applicant complained that his defence rights had been violated on two counts:

(a) no legal advice had been offered to him during the reconstruction of the crime on 22 August 2004;

(b) he had not been afforded an opportunity to retain counsel of his choice between 22 and 26 August 2004 but had imposed upon him the services of a lawyer appointed by the investigator.

54. Turning to the first limb of the applicant’s complaint, the Court recalls that the applicant was arrested under suspicion of having committed aggravated murder and robbery. Therefore, by virtue of principles of the Court’s case-law mentioned above, the applicant was entitled to have access to a lawyer during the conduct of his first interrogation (see paragraph 49 above) and of the investigative measures relating to those crimes. His legal representation was also mandatory under the domestic law as he faced the possibility of life imprisonment in respect of the charges against him (see paragraphs 35 and 36 above).

55. The Government acknowledged that no lawyer was present during the reconstruction of the crime on 22 August 2004 (see paragraphs 11 and 46 above). The applicant submitted that, prior to the reconstruction, he had repeated his request, made earlier on that day, for legal assistance from S., but that his wish had been ignored and he had been forced to confess, as instructed by the investigator (see paragraph 11 above). The Government, having stated that the applicant had not been ill-treated in any way (see paragraph 44 above), did not comment on the applicant’s assertion regarding his alleged denial of access to a lawyer. They merely noted, having referred to the reconstruction record, that the applicant had agreed to testify in the absence of legal assistance, having been apprised of his constitutional right not to make self-incriminating statements (see paragraph 46 above).

56. The Court observes that there is no strong evidence before it that the applicant made his statements under the threat of ill-treatment. It further notes that there is no evidence that the applicant signed any document waiving his right to a lawyer before the reconstruction. To the extent that the Government’s argument can be understood as implying that the applicant’s decision to give self-incriminating statements during the reconstruction of the crime in itself constituted an implicit waiver of his right to counsel, the Court notes that it is not in a position to establish without reasonable doubt whether the applicant voluntarily agreed to testify. Indeed, the verbatim record of the reconstruction bears a handwritten “not” next to the following printed “agreed to testify” (see paragraph 12 above).

57. In any event, the Court observes that there is no evidence to suggest that prior to his questioning the applicant was apprised of his right to legal assistance (see Simeonovi, cited above, § 119). The fact that the applicant was informed of his constitutional right not to incriminate himself (see paragraph 12 above), 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). Likewise, no evidence suggests that the investigator staged the reconstruction in the absence of a lawyer either at the applicant’s suggestion or at his request and that the confession made by the applicant during the reconstruction was thus initiated by him. The Court is not therefore convinced that by giving replies to the investigator’s questions the applicant, in a knowing, explicit and unequivocal manner, waived his right to receive legal representation (see, mutatis mutandis, Pishchalnikov v. Russia, no. 7025/04, § 79, 24 September 2009). Furthermore, the Court reiterates that under domestic law the applicant’s legal representation during this investigative step was mandatory and no waiver was permissible.

58. It thus follows that the applicant’s right to mount a defence was restricted in the present case. The Court does not discern from the material in the case file that there were any compelling reasons for such a restriction.

59. It remains for the Court to examine whether the fairness of the proceedings as a whole was prejudiced by the defence lawyer’s absence during the reconstruction of the crime on 22 August 2004.

60. In making this assessment the Court is guided by the Ibrahim criteria (see paragraph 51 above), to the extent that it is appropriate given the circumstances of the present case. Due to the lack of compelling reasons for restricting the applicant’s right to a lawyer, the Court will apply a very strict scrutiny (see paragraph 50 above).

61. Turning to those criteria, the Court will firstly list those factors which tend to argue in favour of considering the proceedings fair: (i) the applicant was not particularly vulnerable; (ii) as to the quality of evidence, there is no evidence before the Court that would indicate that any compulsion was involved; (iii) the evidence in the case was assessed by professional judges, and (iv) the public interest in the prosecution of the offences imputed to the applicant – aggravated murder committed by an organised group – was very strong.

62. However, other factors tend to militate in favour of the finding that the fairness of the proceedings was irretrievably prejudiced.

63. The Court observes that when finding the applicant guilty for the robbery and the murder, the Zakarpattya Regional Court of Appeal expressly relied on (i) the self-incriminating statements that the applicant made during the reconstruction of the crime on 22 August 2004 and (ii) the evidence discovered following these statements as a basis for his conviction (see paragraph 25 above). It is true that the court viewed his statements in the light of other evidence before it. However, none of that evidence, including the confessions made by the applicant’s co-accused during the investigation stage, constituted direct evidence. It is also true that the applicant made his first confession to the crime in the presence of a lawyer prior to the crime reconstruction. However, the Court notes that during the reconstruction the applicant not only confirmed that he had robbed and killed M. but also showed the crime scene to the police – specifically, the place where he had hidden the bat with which he had allegedly killed M. (he had not mentioned anything in this regard in his earlier confession – see paragraphs 10 and 12 above). The immediate inspection made by the police uncovered a bat, bearing bloodstains, which was used as evidence in the case. The Court accepts that after the applicant became legally represented by a lawyer of his own choosing, it was open for him in principle to say – and he did so (see paragraph 22 above) – that he had not robbed and killed M.; however, it is difficult to see how it would be possible to effectively retract the statement concerning the location of the bat after it had actually been found and inspected by the police. The Court is thus of the opinion that the statements which the applicant made without a lawyer during the reconstruction on 22 August 2004 predetermined all the statements which he could make later. In the Court’s opinion, the above elements overweight those, mentioned in paragraph 61 above, which could militate in favour of considering the proceedings fair.

64. The Court furthermore notes that the applicant challenged at trial the evidence obtained in breach of his defence rights and opposed its use. His arguments, however, were rejected by the trial court (see paragraphs 25-28 above). The Supreme Court – which considered the case at the second (and final) instance – dismissed the applicant’s complaint in a general sentence, without addressing the relevant arguments at all (see paragraph 32 above).

65. The Court concludes that the Government have failed to demonstrate convincingly why – exceptionally and in the specific circumstances of the case – the overall fairness of the applicant’s trial was not irretrievably prejudiced by the restriction, without compelling reasons, on the applicant’s access to legal advice during the reconstruction of the crime on 22 August 2004.

66. The above-mentioned considerations are sufficient for the Court to find that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention on that account (see and compare Truten v. Ukraine, no. 18041/08, §§ 74 and 76, 23 June 2016). In the light of these findings, it is not necessary to examine the applicant’s arguments concerning the other aspect of the breach of his right to mount a defence (see, mutatis mutandis, Aleksandr Vladimirovich Smirnov v. Ukraine, no. 69250/11, § 74, 13 March 2014).

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

67. The applicant complained (i) under Article 3 of the Convention that on 22 August 2004 the police had tortured him to make him confess to robbery and murder; (ii) under Article 5 § 1 of the Convention that his arrest and detention had been unlawful; and (iii) under Article 6 § 2 of the Convention that his detention records stated that he had “committed murder”. He further complained under Article 6 §§ 1 and 3 (a) to (c) of the Convention that (i) the classification of his actions and factual findings by the investigator and the courts had been wrong and that the courts had been biased; (ii) he had not been assisted by a lawyer during his hearing before the Supreme Court; (iii) the prosecutor who had taken part in the trial had unlawfully changed the charges against him, which had in turn hindered the preparation of his defence; and that (iv) the expert report concerning one of the main pieces of evidence (the bat) had been flawed and that the object itself had been switched.

68. Having considered the applicant’s submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

69. 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

70. The applicant claimed 10,000 euros (EUR) in respect of non‑pecuniary damage.

71. The Government contested that claim.

72. The Court observes that it 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 that Article 445 of the CCP and Section 10 of the Law on the Execution of Judgments of the European Court of Human Rights allow for the possibility of a reopening of proceedings and considers that the finding of a violation constitutes in itself sufficient just satisfaction (see Zakhshevskiy v. Ukraine, no. 7193/04, §§ 50-51 and 133, 17 March 2016).

B. Costs and expenses

73. The applicant, who had been granted legal aid (see paragraph 2 above), also claimed EUR 160 for postal expenses and EUR 2,750 for his legal representation before the Court.

74. The Government contested these claims.

75. 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 these 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, the Court rejects the above claims in full.

C. Default interest

76. 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 reconstruction of the crime on 22 August 2004 and the applicant’s right to be represented by the lawyer of his own choosing admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention on account of the fact that no legal assistance was afforded to the applicant during the reconstruction of the crime on 22 August 2004;

3. Holds that there is no need to examine separately the applicant’s complaint concerning the denial of access to the lawyer of his own choosing;

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

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

Done in English, and notified in writing on 24 April 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea TamiettiFaris Vehabović
Deputy RegistrarPresident

 

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