CASE OF KRIVOSHEY v. UKRAINE

FIFTH SECTION

CASE OF KRIVOSHEY v. UKRAINE

(Application no. 7433/05)

JUDGMENT

STRASBOURG

23 June 2016

FINAL

23/09/2016

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

In the case of Krivoshey v. Ukraine,

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

Angelika Nußberger, President,
Khanlar Hajiyev,
Erik Møse,
Faris Vehabović,
Síofra O’Leary,
Carlo Ranzoni, judges,
Sergiy Goncharenko, ad hoc judge,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 31 May 2016,

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

PROCEDURE

1. The case originated in an application (no. 7433/05) 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 Anatoliy Aleksandrovich Krivoshey (“the applicant”), on 18 February 2005.

2. The applicant, who had been granted legal aid, was represented by Mr A.P. Bushchenko, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented most recently by their Acting Agent, Ms O. Davydchuk of the Ministry of Justice.

3. The applicant alleged, in particular, that the length of criminal proceedings against him in relation to theft charges was incompatible with the “reasonable time” requirement. He also complained that he had not been provided with legal assistance at the initial stage of the criminal case against him, contrary to the requirements of Article 6 § 3 (c) of the Convention.

4. On 12 January 2012 the application was communicated to the Government. Mrs Ganna Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). Accordingly, the President of the Fifth Section decided to appoint Mr Sergiy Goncharenko to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1966 and is currently serving a prison sentence.

6. In August and September 2001 a number of separate criminal proceedings were instituted in connection with stealing grain, farm animals and other items from different farms. These proceedings were eventually joined into a single criminal case (“the theft proceedings”).

7. On 15 August 2001 the applicant – together with several other individuals including V.Z. – was arrested as a suspect in these proceedings.

8. On 17 August 2001 the Magdalynivsky District Court (hereafter “the District Court”) remanded the applicant in custody pending pre-trial investigation of the above charges.

9. On 23 August 2001 criminal proceedings were instituted in connection with the premeditated murder of a man whose body had allegedly been found by a villager in the forest near the applicant’s village (“the murder proceedings”).

10. On the same day, whilst being interrogated in the theft proceedings, V.Z. allegedly told the police that on 1 August 2001 the applicant had fatally injured a woman, L.G., in a traffic accident and had killed her husband, A.G., in V.Z.’s presence in order to cover this crime. He also stated that they had hidden the bodies in the forest. According to the Government, criminal proceedings in connection with L.G.’s death in a traffic accident were also launched that day.

11. Later the same day, the applicant and V.Z., unaccompanied by lawyers, were taken to the centre of the village where they lived and were asked by the police to give video-recorded testimonies about the circumstances of the deaths of L.G. and A.G. V.Z. repeated the statement he had made earlier that day. According to the record of the crime reconstruction, which referred to the applicant as the “suspect”, the latter –having been informed of his rights to defence and his right not to incriminate himself – agreed to give testimony and acknowledged that he had fatally hit L.G. with his car and had helped V.Z. to cover the victims’ bodies, but stated that it was V.Z. who had killed A.G.

12. On the same day, in the absence of the applicant’s lawyer, a site inspection and a road examination were carried out. The investigation team and forensic experts also examined the applicant’s car in his absence.

13. On 24 August 2001 criminal proceedings were instituted against the applicant in connection with the traffic accident which had resulted in L.G.’s death. The applicant’s wife was questioned by the police.

14. On 31 August 2001 the applicant was informed in writing of his right to defence and was questioned, in the presence of his defense counsel, as a suspect in the premeditated murder of A.G. He repeated the statement he had made on 23 August 2001.

15. On 26 September 2001 the applicant was charged with ten counts of theft and with causing a traffic accident which resulted in L.G.’s death.

16. On 10 October 2001 the investigation into the premeditated murder of A.G. was suspended because it had been impossible to establish the offender. It was resumed on 10 February 2002.

17. On an unspecified date the applicant was committed for trial on the charges of theft and causing a fatal traffic accident.

18. On 11 February 2002 the District Court found the applicant guilty on several counts of theft and sentenced him to ten years’ imprisonment. No verdict was reached on the other charge (see paragraph 21 below). By the same judgment, eleven other individuals, including V.Z., were convicted on various counts of theft in collaboration with the applicant and were sentenced to various penalties.

19. On the same day, the applicant was charged with the premeditated murder of A.G. He was questioned in the presence of his defence counsel but made no statement.

20. On 12 February 2002 the murder proceedings were stayed owing to the applicant’s unspecified illness. According to the applicant, his “illness” was invented by the authorities in order to protract the proceedings.

21. On 25 July 2002 the Dnipropetrovsk Regional Court of Appeal (hereafter “the Court of Appeal”) upheld the conviction of 11 February 2002 with respect to the applicant’s co-defendants, quashed the conviction with respect to the applicant and remitted his case to the District Court for retrial. The Court of Appeal noted, in particular, that the District Court, having admitted the case for trial on both the charges of theft and causing a fatal traffic accident, had reached a verdict only on the theft charge.

22. On 13 February 2003 the District Court disjoined the charge concerning the traffic incident and remitted it to the investigating authorities for further investigation together with the murder charge.

23. On 19 February 2003 the District Court found the applicant guilty on several counts of theft and sentenced him to ten years’ imprisonment.

24. On 24 February 2003 the murder proceedings were resumed and joined to the criminal proceedings concerning the traffic accident.

25. On 6 June 2003 the Court of Appeal quashed the judgment of 19 February 2003 and remitted the case for retrial. It noted, in particular, that the investigation was littered with deficiencies and procedural violations.

26. On 7 July 2003, following a request by the applicant and his lawyer, the District Court remitted the theft case to the Magdalynivsky District Prosecutors’ Office, instructing it to join the proceedings to those concerning the traffic accident and the murder.

27. On 24 September 2003 the investigator reclassified the applicant’s charges from premeditated to aggravated murder. On the same date, these proceedings were joined to the criminal proceedings concerning the theft and the traffic accident.

28. On 25 September 2003 the investigator from the Magdalynivsky District Prosecutors’ Office ordered the applicant’s release from custody pending trial in connection with the theft charges. On the same date, without being released, the applicant was re-arrested on suspicion of the premeditated murder of A.G.

29. On 26 September 2003 the prosecutor’s office asked the District Court to remand the applicant in custody in connection with the murder proceedings.

30. On 27 September 2003, in the presence of his defense counsel, the applicant was questioned as a suspect in the murder proceedings. He maintained his innocence.

31. On 29 September 2003 the District Court refused the prosecutor’s request to remand the applicant in custody in the murder proceedings, having found that the prosecutor’s decision to cancel the applicant’s detention on remand of 25 September 2003 had been unlawful. It noted, in particular, that the investigation of the murder case had featured artificial suspensions and other delays and that by joining and disjoining the various charges against the applicant, the investigation had been sidestepping the proper procedure for extending the term for the pre-trial investigation. Moreover, this tactic had allowed them to conduct various investigative activities in the absence of the applicant’s defence counsel. The court further found that the applicant should be considered as having been in detention since 15 August 2001 for the theft charges.

32. On 7 October 2003, in the presence of his defense counsel, the applicant was charged with theft, causing a traffic accident and premeditated murder and was questioned as an accused. He admitted that he had fatally hit L.G. but denied killing A.G.

33. On 8 October 2003 the Court of Appeal quashed the decision of 29 September 2003 and remitted the matter to the District Court for fresh consideration.

34. On 10 October 2003 the applicant was charged with the aggravated murder of A.G. and causing a traffic accident.

35. On 13 October 2003 the applicant had a face-to-face confrontation with V.Z.

36. On 14 October 2003 the District Court granted the prosecution’s request to remand the applicant in custody in the context of the murder proceedings.

37. On 20 November 2003 the applicant was charged, within the criminal proceedings as joined on 24 September 2003, with aggravated murder, theft and causing a traffic accident.

38. On 2 December 2003 the applicant and his defense counsel were granted access to the case-file.

39. On 9 December 2003 a bill of indictment was drafted by the investigator.

40. On 14 January 2004 the criminal case was sent to the Court of Appeal, acting as the first-instance court, for trial.

41. On 30 January 2004, upon requests from the prosecutor and the applicant, the court remitted the case for additional investigation as it had been littered with procedural violations which could not be rectified during the trial. The court noted, in particular, that after 23 August 2001 a number of investigative actions had been carried out in respect of the applicant without his procedural rights having been explained to him. It further noted that all the investigative actions taken after 23 October 2001 had violated the applicant’s procedural rights because the term for the pre-trial investigation of the murder had expired.

42. On 9 March 2004 the theft charges were disjoined into separate proceedings. The murder charges of 11 February 2002 were dropped.

43. On 16 March 2004 the applicant was charged with aggravated murder and was questioned in the presence of his defence counsel. He maintained his innocence and confirmed the statements made earlier in this respect.

44. On 19 April 2004 the applicant was committed for trial before the Court of Appeal, acting as a first-instance court, on charges of having caused the traffic accident which resulted in L.G.’s death and of the aggravated murder of A.G.

45. During the trial the applicant acknowledged that he had fatally hit L.G. with his car but denied killing A.G., who, according to him, had been murdered by V.Z.

46. On 27 April 2004 the criminal proceedings concerning the theft charges were suspended.

47. On 21 May 2004 the Court of Appeal found the applicant guilty of causing the traffic accident which resulted in L.G.’s death and of the aggravated murder of A.G. The conviction for murder was based on the testimony of V.Z., which the trial court found to be corroborated by the statements made by the applicant’s wife, the results of the crime-scene inspection and the forensic expert’s examination of the victim’s body. The Court of Appeal found reasonable V.Z’s argument that he had no reason to murder A.G. as it was not him who had killed A.G.’s wife. The applicant’s testimony with respect to V.Z. was found by the court to be inconsistent in its details and therefore not truthful.

48. The applicant was sentenced to life imprisonment in combination with a three-year driving ban. The Court of Appeal stated that the term of imprisonment was to be calculated from 10 October 2003.

49. The applicant lodged an appeal on points of law, having noted, inter alia, that he had not been provided with legal advice during the questioning of 23 August 2001.

50. On 5 October 2004 the Supreme Court upheld the conviction but reduced the sentence to fifteen years’ imprisonment. It found that the applicant’s guilt was proved by V.Z.’s testimony which was consistent and corroborated by other evidence and concluded that the lower court had correctly found the applicant’s accusation against V.Z. inconsistent in its details. Without particularly mentioning the applicant’s argument regarding the lack of legal assistance, the Supreme Court found no procedural violations serious enough to necessitate quashing the judgment.

51. On numerous occasions the applicant complained to the Court of Appeal and other State authorities that his term of imprisonment had been calculated incorrectly in the judgment of 21 May 2004, and that the starting point should have been the date of his first arrest in connection with the theft charges, i.e. 15 August 2001, rather than 10 October 2003. In reply, the applicant was informed that the term of imprisonment had been properly calculated, because prior to October 2003 the applicant had been detained in relation to charges that were not linked to the murder charge for which he was convicted.

52. On 4 April 2005 the criminal proceedings concerning the theft charge were renewed and on an unspecified date the case was referred for trial.

53. On 10 June 2005 the District Court remitted the case for further investigation.

54. On 17 June 2011 the criminal case was referred to the trial court for examination.

55. On 24 May 2012 the District Court found the applicant guilty on several counts of theft and sentenced him to eight years’ imprisonment combined with the confiscation of all his property. Given the applicant’s conviction under the judgment of 21 May 2004, the trial court applied the rule of absorption of sentences, as provided by domestic legislation, and defined the final sentence for all his crimes as fifteen years’ imprisonment combined with the confiscation of his property and the three-year driving ban. The District Court included the length of the applicant’s pre-trial detention in the overall term of imprisonment and ruled that the latter had started running on 15 August 2001, when the applicant had been detained for the first time in the context of the theft proceedings. The parties did not appeal against this decision and it became final on 8 June 2012.

II. RELEVANT DOMESTIC LAW

A. Criminal Code of 1960 (partly repealed by the new Criminal Code of 2001)

56. Article 93 (Aggravated murder), paragraph (ж), of the Code defined the punishment for “premeditated murder aimed at covering another crime” as a term of imprisonment of up to life and confiscation of property;

57. Article 94 (Premeditated Murder) defined the punishment for “premeditated murder committed in the absence of the aggravating circumstances listed in Article 93”, as a term of imprisonment of up to fifteen years.

B. Criminal Code of Ukraine of 2001

58. The relevant provisions of the Criminal Code of Ukraine concerning sentencing read as follows:

Article 63. Deprivation of liberty for a fixed term

“...

2. Deprivation of liberty shall be for a term of between one and fifteen years.”

C. Code of Criminal Procedure of 1960

59. Article 45 § 1 provides that legal representation during an inquiry, a pre-trial investigation and a trial before a court of first instance is obligatory if, inter alia, a life sentence is a possible penalty.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

60. The applicant complained that on 21 May 2004 the Court of Appeal had arbitrarily refused to take into account his pre-trial detention between 15 August 2001 and 10 October 2003 when calculating the imprisonment term. This failure allegedly resulted in his de facto facing a seventeen-year term of deprivation of liberty instead of the fifteen years ordered by the Court of Appeal. He relied on Article 5 § 1 (a) of the Convention, which reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court; ...”

61. The Government contested that argument and noted that by virtue of the judgment of the District Court of 24 May 2012, the applicant was considered as being sentenced to an overall term of fifteen years which started running on 15 August 2001, i.e. the first day of the applicant’s detention on remand under the theft charges.

62. The Court observes that the applicant was charged with several offences and convicted in two judgments in two sets of criminal proceedings. In accordance with the requirements of the domestic legislation, the more lenient punishment under the judgment of 24 May 2012 was in fact eventually absorbed by the more severe one given on 21 May 2004, and, as a result, all the periods of the applicant’s pre-trial detention were included in their entirety in the overall prison term (see paragraph 55 above).

63. It therefore follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION IN RESPECT OF THE APPLICANT’S DEFENCE RIGHTS

64. The applicant complained that his defence rights had been violated as he had not been provided with a lawyer at the initial stage of the pre-trial investigation, namely during the investigative action of 23 August 2001, although his conviction for a murder had been based on statements he had made that day. He relied on Article 6 §§ 1 and 3 (c) of the Convention, the relevant parts of which read 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

65. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

66. The applicant maintained that on 23 August 2001, without any explanation and in the absence of a lawyer, he had been made to participate in a crime reconstruction and to give statements relating to the murder of A.G. He noted in this respect that he had not been informed of the legal nature of the event and that his right to legal defence had not been explained to him.

67. According to the applicant, this course of action breached his right to defence because, being de facto treated as a suspect, he did not enjoy the procedural rights to which suspects are entitled, including the right to be legally represented. He stressed, with reference to the case-law of the Court, that legal assistance should have been provided to him as soon as V.Z. had given his first testimony implicating the applicant as the person who had murdered A.G., because it could not be argued that – having obtained that testimony – the investigator did not suspect the applicant’s involvement in the crime.

68. The applicant further asserted that the pieces of evidence the authorities had from the very outset of the proceedings should have classified the crime as an aggravated murder that required him to be legally represented.

69. The applicant finally alleged that his right to a fair trial had been impaired as a whole since the statements he had given on 23 August 2001 in the absence of legal assistance were used by the trial court to secure his conviction. He also noted that one of the grounds on which the trial courts based his conviction for the murder was the alleged inconsistency between the statements he had given during pre-trial investigation and those at his trial. Stressing the courts’ failure to specify the alleged inconsistencies, the applicant maintained that if he had been legally represented from the very outset of the investigation, his lawyer would have made sure that he focussed on the issues important to the case, as with the passage of time he had naturally forgotten some of the details of the events.

(b) The Government

70. The Government maintained that the investigative actions conducted on 23 August 2001 with the participation of the applicant had been aimed at verifying the testimonies given by V.Z., and that the applicant had made the statement after being informed of his right to defence.

71. They further commented that the applicant’s statement during their investigative actions, in particular the acknowledgement of the fact that he had fatally injured L.G., had served as the basis for initiating criminal proceedings against him on 24 August 2001 in connection with the traffic accident but not the murder of A.G. As regards the latter, the Government asserted that it was only on 31 August 2001 that the police began to suspect the applicant of having committed that crime. In this respect they stressed that before that date the applicant had never been questioned in connection with the murder of A.G. and that all the major investigative steps taken after that date had been carried out in the presence of the applicant’s defence counsel. The Government also pointed out that the offence of premeditated murder under Article 94 of the Criminal Code, of which the applicant was initially suspected, did not require mandatory legal representation of a suspect.

72. The Government further emphasised that the applicant did not deny that he was guilty of having fatally injured L.G. either in the course of the pre-trial investigation or in the course of the trial. On the contrary, he consistently confirmed the statements he had given in this respect on 23 August 2001. In the same way, he never confessed, either on 23 August 2001 or any time afterwards, to murdering A.G.

73. They further emphasised that the applicant’s guilt as regards the murder of A.G. was established on the basis of a number of pieces of evidence in a public and adversarial trial at which he had been represented by a lawyer and had had ample opportunity to challenge any evidence against him. They noted in this respect that the Supreme Court of Ukraine, when reviewing the applicant’s conviction in an appeal on points of law, found no procedural shortcomings in the case.

74. The Government therefore expressed the view that the absence of legal assistance on 23 August 2001 had no bearing on the applicant’s conviction and did not impair in any other way the fairness of the proceedings.

2. The Court’s assessment

75. As the applicant raises his complaint only with respect to the criminal proceedings regarding the murder of A.G., the Court makes its assessment in respect of those proceedings only.

76. The Court reiterates that the requirements of paragraph 3 of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1 of that Article and they are thus to be examined together (see Van Geyseghem v. Belgium [GC], no. 26103/95, § 27, ECHR 1999‑I). The Court is called upon to examine whether the proceedings in their entirety were fair (see Balliu v. Albania, no. 74727/01, § 25, 16 June 2005).

77. It further reiterates that Article 6 § 1 requires that access to a lawyer should, as a rule, be provided from the first time a suspect is questioned 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 questioning by police without access to a lawyer are used for a conviction (see Salduz v. Turkey [GC], no. 3639/02, § 55, 27 November 2008). In the Salduz judgment (§ 58), the Court found that neither the legal assistance provided subsequently nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during the time spent in police custody.

78. The disputed question between the parties is whether – at the time of his questioning on 23 August 2001 – the authorities suspected the applicant of having committed the murder and therefore should have provided him with legal assistance.

79. The Court first notes that the record of the on-site crime reconstruction of 23 August 2001 refers to the applicant as “the suspect”. Moreover, the police took the applicant and V.Z. to the centre of the village because V.Z. had informed the police – in the context of investigations into the theft – that the applicant had killed both L.G. and her husband.

80. The Court considers that the applicant must have been considered by the police as a suspect in respect of both offences at that stage.

81. The next question is therefore whether the absence of a lawyer was justified by any compelling reason. However, on the facts the Court does not find any compelling reason for the failure to respect the applicant’s right to a lawyer on the first occasion on which he was questioned as a suspect. It therefore concludes that the applicant’s defence rights were unjustifiably restricted at the initial stage of the investigation.

82. The Court however notes that the present case differs from the Salduz case, cited above, as well as from many other cases where the Court found a violation of Article 6 in view of the absence of a lawyer while in police custody having concluded that neither the legal assistance provided subsequently nor adversarial nature of the ensuing proceedings could cure the defects which had occurred during the time spent in police custody (see, e.g., Salduz, cited above, § 58).

83. In particular, it does not appear that the absence of the lawyer in the present case was a result of a systematic restriction on the right of access to legal assistance on the basis of statutory provisions (see, by contrast, Dayanan v. Turkey, no. 7377/03, 13 October 2009). In this case, the applicant had in principle the right to seek the assistance of a lawyer.

84. Furthermore, the applicant had access to the lawyer while in police custody, and the reconstruction on 23 August 2001 appears to be the only investigative action held with the applicant before the lawyer was appointed on 31 August 2001 (see and compare Yiğitdoğan v. Turkey (No. 2), no. 72174/10, 3 June 2014).

85. Unlike in other cases, there is no indication or allegation that on 23 August 2001 the applicant made any self-incriminating statement. It appears that the applicant consistently maintained that he was not guilty of the murder (see paragraphs 11, 14, 30, 32 and 45 above) and he did not change this position from the first time he was questioned to the submission made before this Court. His version of events was overturned by a number of pieces of evidence submitted in the case and not through any illicit means or methods (see, mutatis mutandis, Trymbach v. Ukraine, no. 44385/02, 12 January 2012). It should also be noted that the questioning of the applicant on 23 August 2001 was carried out in public, thus rasing no doubt as to possible duress on the applicant. The Court further notes that the applicant’s testimonies given that day were not the only source of information and evidence for the police: the major factual information appears to have already been known from V.Z., the another suspect in the case.

86. In any event, the case file suggests no evidence in support of the applicant’s allegation that his conviction was based on statements given by him on 23 August 2001, when unrepresented (see, by contrast, Titarenko v. Ukraine, no. 31720/02, 20 September 2012). It is apparent from the Court of Appeal’s judgment that the applicant’s conviction for murder was based mainly on V.Z.’s testimony, which the trial court found to be corroborated by statements made by the applicant’s wife, the results of the crime-site inspection and the forensic expert’s examination of the victim’s body.

87. The Court also notes that while complaining about the lack of legal assistance on 23 August 2001 the applicant did not point at any concrete disadvantages caused by the absence of a lawyer. The higher court did not find any such disadvantages either. In particular, the Supreme Court established no procedural violations serious enough to necessitate quashing the judgment (see paragraph 50 above). The Court finds the applicant’s argument that the alleged discrepancies in his evidence details referred to by the trial court was the direct consequence of the absence of a lawyer during his first interrogation vague. It observes in this respect that the applicant was represented by a lawyer as of 31 August 2001 and throughout the pre-trial investigation and was questioned with respect to the murder on a number of occasions. He was represented by the same lawyer during the trial. The Court thus finds that the applicant had adequate time and facilities to duly elaborate his position in the case and be consistent during the trial and that the absence of a lawyer on 23 August 2001 did not have a bearing in this respect. Furthermore, although the judgment does not refer to any particular discrepancies, it does not suggest that the judges particularly considered any difference between the applicant’s statements made on 23 August 2001 and those he had given later.

88. Consequently, in the circumstances of the present case, the Court finds no evidence that the absence of legal assistance on 23 August 2001 irremediably affected the general fairness of the proceedings (see, mutatis mutandis, Trymbach v. Ukraine, cited above). It therefore concludes that there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention in the present case.

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE LENGTH OF PROCEEDINGS

89. The applicant further complained that the length of the criminal proceedings against him in relation to the theft charges had been incompatible with the “reasonable time” requirement. He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

A. Admissibility

90. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

91. The applicant maintained that the length of the criminal proceedings in connection with the theft charges had been unreasonable.

92. The Government alleged that the length of the proceedings was compatible with the requirements of Article 6 § 1 of the Convention, taking into account the complexity of the case, which included twenty seven sets of criminal proceedings initiated through sixteen episodes of theft involving twelve defendants, including the applicant. In particular, they argued that it was the applicant and other participants in the proceedings who were responsible for the delays in the case and that there were no unreasonable delays for which the authorities could be held responsible.

93. The applicant disagreed.

94. According to the Court’s case-law, the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and of the authorities dealing with the case, and the importance of what was at stake for the applicant in the litigation (see Svetlana Naumenko v. Ukraine, no. 41984/98, § 77, 9 November 2004, and Timotiyevich v. Ukraine (dec.), no. 63158/00, 18 May 2004).

95. The Court notes that the period to be taken into consideration in the present case began on 15 August 2001, when the applicant was detained on suspicion of committing a criminal offence and ended on 24 May 2012 with the final decision by which he was convicted. The proceedings embracing the pre-trial investigation and the trial at three levels of jurisdiction thus lasted more than ten years and nine months.

96. The Court cannot agree with the Government that the case was particularly complex. It notes in this respect that the criminal proceedings against the eleven individuals who were charged with theft along with the applicant were completed as early as July 2002, i.e. less than a year after the initiation of the criminal proceedings. It was only in respect of the applicant that the decision was quashed by the Court of Appeal on the grounds of procedural shortcomings on the part of the first-instance court, and thereafter it took about ten years for the authorities to finalise the proceedings.

97. The Court notes in this respect that the major delays in the proceedings were caused by the authorities’ numerous suspensions of the proceedings, the decisions to join and disjoin the case with the criminal proceedings regarding the traffic accident and murder of A.G., and by remittals of the case for re-trial or additional investigation. The Court reiterates in this connection that repeated remittals of a case for re-investigation and re-examination within one set of proceedings can disclose a serious deficiency in the operation of the criminal justice machinery (see, among others, Gavula v. Ukraine, no. 52652/07, § 98, 16 May 2013).

98. Finally, the Government failed to justify the period of almost six years of procedural inactivity between the decision of the first-instance court of 10 June 2005 to remit the case for additional investigation and the subsequent investigative actions of the investigator on 14 May 2011.

99. In any event, the Court considers that the circumstances referred to by the Government cannot justify a period amounting to almost eleven years for the determination of the applicant’s case.

100. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, for example, Ivanov v. Ukraine, no. 15007/02, § 74, 7 December 2006, and Benyaminson v. Ukraine, no. 31585/02, §§ 106 – 108, 26 July 2007).

101. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. The Court considers that in the instant case the authorities failed to handle the applicant’s case with the requisite diligence and that the length of the criminal proceedings concerning the theft charges against the applicant thus failed to meet the “reasonable time” requirement.

102. There has accordingly been a breach of Article 6 § 1 of the Convention.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

103. The applicant, invoking Articles 5, 6 and 8 of the Convention, complained that his pre-trial detention was unlawful, that the courts had incorrectly assessed the facts and evidence submitted by him and had failed to draw the correct conclusions, and that the interrogation in public by the police on 23 August 2001 as well as his wife’s suffering from the publicity of the interrogation had affected his private life. He also raised a number of unspecified complaints under Articles 1, 3, 13 and 17 of the Convention, Article 1 of Protocol No. 1 and Article 3 of Protocol No. 7.

104. Having regard to all the material in its possession, the Court finds that the evidence discloses no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

105. 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

106. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.

107. The Government submitted that as the applicant’s rights had not been violated, his claims should be dismissed. In the alternative, they suggested that the applicant’s claim was exorbitant and unsubstantiated.

108. The Court reiterates that it has found breach of the Convention on account of the length of criminal proceedings against the applicant. Ruling on an equitable basis, the Court awards the applicant EUR 3,000 in compensation for non-pecuniary damage.

B. Costs and expenses

109. The applicant did not submit a claim for cost and expenses. Accordingly, the Court considers that there is no call to award him any sum on that account.

C. Default interest

110. 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 legal representation during investigative actions on 23 August 2001 and the excessive length of the criminal proceedings related to the theft charges admissible and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 6 §§ 1and 3 (c) of the Convention on account of the lack of legal assistance at the initial stages of police questioning;

3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of a breach of the “reasonable time” requirement;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros) in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of the settlement, plus any tax that may be chargeable;

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

Done in English, and notified in writing on 23 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekAngelika Nußberger
RegistrarPresident

Full & Egal Universal Law Academy