CASE OF KROT v. UKRAINE

FIFTH SECTION

CASE OF KROT v. UKRAINE

(Application no. 38112/14)

JUDGMENT
 

STRASBOURG

27 June 2024

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

In the case of Krot v. Ukraine,

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

 Lado Chanturia, President,
 Stéphanie Mourou-Vikström,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 38112/14) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 9 May 2014 by a Ukrainian national, Mr Vyacheslav Yuriyovych Krot (“the applicant”), who was born in 1982, is detained in Ukrayinka and was represented by Mr V.V. Kasandyak, a lawyer practising in Kyiv;

the decision to give notice of the complaints under Article 6 of the Convention concerning the applicant’s right to a lawyer and the length of proceedings to the Ukrainian Government (“the Government”), represented by their Agent, Ms M. Sokorenko, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 6 June 2024,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns allegedly lengthy and unfair criminal proceedings against the applicant on charges of murder. He complained of a violation of Article 6 §§ 1 and 3 (c) of the Convention. In particular, he alleged that his right of access to a lawyer had been breached.

2.  The following events took place on 10 April 2008.

(i)  The applicant was arrested on suspicion of the murder of Mr L., who was the former partner of the applicant’s girlfriend, Ms S.

(ii)  The applicant signed several documents confirming that he had been informed of his rights as a suspect, in particular his right to remain silent, to have a lawyer and to consult a lawyer before the first interview. The applicant signed the documents, adding by hand that he had been familiarised with his rights, that he was refusing the services of a lawyer and that he would conduct his own defence.

(iii)  The applicant was questioned as a suspect without a lawyer present. He stated that he, L. and S. had been staying at S.’s uncle’s house. During their stay, L. and the applicant had talked, had drunk alcohol and had ended up arguing over S. The next day (the day of the murder), L. had started another argument and had punched the applicant. The applicant had then stabbed the victim.

The applicant alleged that the documents he had signed, and the statements he had made, had been the result of “psychological and physical pressure” from the police.

3.  On 11 April 2008 the applicant instructed a lawyer, Mr K., but on 16 April 2008 refused his services, stating that he did not trust him.

4.  On 14 April 2008 the applicant was questioned in the presence of his lawyer K. and largely confirmed the account he had given on the day of the arrest.

5.  On 30 May 2008 the applicant instructed a new lawyer, Mr V.L. The applicant subsequently denied that he had stabbed the victim.

6.  On 10 July 2008 the investigation was completed, and the case was sent for trial.

7.  The applicant stood trial in the Kagarlyk District Court and subsequently underwent retrials in the Myronivka District Court and the Obukhiv District Court. He pleaded not guilty and stated that he and L. had drunk alcohol and had a physical fight, notably the day before the murder (9 April 2008). The applicant had then gone to sleep and after waking up, he had left.

8.  On 15 June 2009 and again on 11 April 2011 the first-instance courts convicted the applicant.

9.  On 16 February 2010 and again on 18 August 2011 the Kyiv Regional Court of Appeal quashed the convictions and remitted the case for additional pre-trial investigations. On the first occasion, the Court of Appeal considered that the motive of the crime had not been sufficiently specified and that the charges had not been formulated with sufficient precision in the indictment. On the second occasion, the Court of Appeal stated that its initial directions of 17 February 2010 had not been complied with and that the first-instance court had failed to remedy the deficiencies.

10.  On 19 December 2012 the Obukhiv District Court convicted the applicant for the third time and sentenced him to nine years’ imprisonment. It took into account the following evidence:

(i)  the testimony of S. and her minor son stating that the applicant had stabbed the victim in the circumstances described in paragraph 2 (iii) above;

(ii)  the testimony of Ms B., partner of Mr P. (the owner of the house where the events had occurred), stating that the applicant and the victim had fought on the days preceding the day of the murder, and that, on the day of the murder, S. had told B. that the applicant had stabbed the victim to death;

(iii)  the statements of Mr P. (who had testified at the first trial but had died by the time of the retrial), confirming that the applicant and the victim had fought on the days preceding the day of the murder but pointing out that he had not witnessed the murder itself as he had been intoxicated and asleep.

11.  The applicant and his lawyers appealed, arguing, in particular, that there had been errors in the assessment of the evidence and that, for a long time during the pre-trial investigation, the applicant had not been represented by a lawyer whom he trusted.

12.  The first-instance judgment was upheld on 23 May 2013 by the Court of Appeal and on 14 November 2013 by the High Specialised Court for Civil and Criminal Matters.

THE COURT’S ASSESSMENT

13.  The Government contested the applicant’s complaint, pointing, in particular, to the fact that he had validly waived his right to a lawyer.

14.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor is it inadmissible on any other grounds. It must therefore be declared admissible.

15.  The relevant general principles concerning the right to legal assistance have been summarised in Beuze v. Belgium ([GC], no. 71409/10, §§ 119-50, 9 November 2018) and, concerning the question of waiver of that right, in Simeonovi v. Bulgaria ([GC], no. 21980/04, § 115, 12 May 2017).

16.  The applicant alleged that his initial statements had been made as a result of pressure applied on him by the police. Those allegations have not been supported by any evidence.

17.  The applicant waived his right to legal assistance after both his right to remain silent and his right to have legal assistance had been duly explained to him. There is no reason to doubt the validity of that waiver.

18.  Other than the applicant’s incriminating statements, there was considerable other evidence, notably eyewitness evidence, directly incriminating the applicant (see paragraph 10 above).

19.  The applicant had a full opportunity to present his case and to challenge the evidence against him before the courts at three levels of jurisdiction.

20.  To the extent that the applicant alleged that the domestic courts had erred in their assessment of the evidence and of the domestic law and that they had wrongly convicted him, the Court reiterates that it is not its function to deal with errors of fact or of law allegedly committed by a domestic court unless and in so far as they may have infringed rights and freedoms protected by the Convention. In the determination of whether the proceedings were fair, the Court does not act as a court of fourth instance deciding on whether the evidence has been obtained unlawfully in terms of domestic law, on its admissibility or on the guilt of an applicant (see Murtazaliyeva v. Russia [GC], no. 36658/05, § 149, 18 December 2018).

21.  Having examined the proceedings as a whole, the Court sees no grounds for finding that they were unfair.

22.  There has accordingly been no violation of Article 6 §§ 1 and 3 (c) of the Convention.

23.  The applicant also raised a complaint about the length of proceedings covered by the well‑established case-law of the Court. This part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. Accordingly, it must be declared admissible.

24.  The Court, having regard to the relevant principles set out in Pélissier and Sassi v. France ([GC], no. 25444/94, § 67, ECHR 1999‑II), notes, in particular, the relative simplicity of the applicant’s case and the repeated re-examination of the case (see paragraph 9 above) – an aspect which, as the Court has held on many occasions, might disclose a serious deficiency in the domestic judicial system (see, for example, Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003; Gavula v. Ukraine, no. 52652/07, § 98, 16 May 2013; and Krivoshey v. Ukraine, no. 7433/05, § 97, 23 June 2016). It is also relevant that the applicant had remained in detention throughout the proceedings (see Abdoella v. the Netherlands, 25 November 1992, § 24, Series A no. 248-A), which lasted for five years and more than seven months before three levels of jurisdiction.

25.  Having examined all the material before it, and in the light of the considerations set out above and its findings in the leading case of Merit v. Ukraine (no. 66561/01, §§ 70-76, 30 March 2004), the Court finds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the proceedings.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

26.  The applicant claimed 35,000 euros (EUR) in respect of non‑pecuniary damage and EUR 1,000 in respect of costs and expenses incurred before the Court.

27.  The Government contested that claim.

28   The Court awards the applicant EUR 500 in respect of non-pecuniary damage, plus any tax that may be chargeable.

29.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 200 for the proceedings before it, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 500 (five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 200 (two hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 27 June 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Lado Chanturia
 Deputy Registrar President