CASE OF SARANCHOV v. UKRAINE

FIFTH SECTION

CASE OF SARANCHOV v. UKRAINE

(Application no. 2308/06)

JUDGMENT

STRASBOURG

9 June 2016

FINAL

09/09/2016

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

In the case of Saranchov v. Ukraine,

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

Angelika Nußberger, President,
Ganna Yudkivska,
Khanlar Hajiyev,
André Potocki,
Faris Vehabović,
Yonko Grozev,
Carlo Ranzoni, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 3 May 2016,

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

PROCEDURE

1. The case originated in an application (no. 2308/06) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Sergey Ivanovich Saranchov (“the applicant”), on 12 December 2005.

2. The applicant was represented by Mr T. Kalmykov, a lawyer practising in Kharkiv. 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 he had not had a fair trial ‒ because he had not been provided with a legal aid lawyer at any stage of the criminal proceedings ‒ and that the trial court which convicted him had lacked impartiality to the extent that a substantial part of the trial had been conducted in the absence of a prosecutor.

4. On 22 June 2012 the above complaints were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1968 and lives in Komsomolskoye village in the Kharkiv Region.

6. In May 1999 the Pavlograd Police placed the applicant on the wanted list in connection with their criminal investigation into a violent burglary in Pavlograd and the infliction of grave bodily injuries on B.’s daughter P., who was a minor.

7. On 28 January 2000 the applicant was arrested in Russia on suspicion of having committed an unrelated crime in that country, for which he was subsequently convicted by a Russian court to a term of imprisonment that was due to end on 27 July 2004.

8. On 1 June 2004 a Russian court ordered the applicant’s retention in custody pending his extradition to Ukraine.

9. On 1 December 2004 the applicant was extradited to Ukraine and placed in a pre-trial detention facility.

10. At 5.20 p.m. on 16 January 2005 the applicant was presented with an arrest report stating that he had been arrested on suspicion of having committed aggravated burglary. He was informed of his right to have access to a lawyer as from the first interrogation. The applicant signed this report, stating that he generally disagreed with its content and that he wished to have a lawyer as from the first interrogation.

11. At the same time on the same day the applicant also signed a record confirming that he had been informed about his rights as a suspect, in particular the right to remain silent and to consult a lawyer. The applicant signed the report and added by hand in the relevant field provided on the pre-printed form that he had “refused the assistance of a defence counsel and would defend himself, not for financial reasons” (свои права буду защищать самостоятельно, не по материальным причинам). The applicant alleged that he had been compelled to sign this and subsequent waivers because the police had told him that they would not provide him with a lawyer, as he had initially requested.

12. On 17 January 2005 the applicant signed another record confirming that he had been informed about his rights as a suspect and stating ‒ using the same wording ‒ that he would defend himself.

13. On the same day he was questioned twice. He denied any involvement in the alleged offence.

14. On 25 January 2005 the applicant was formally charged with aggravated burglary. On the same day he signed a record confirming that he had been informed about his rights as an accused person and stated ‒ using the same wording ‒ that he would defend himself.

15. On 27 January 2005 he signed another such record using the same wording. On the same day the investigator announced to the applicant that the pre-trial investigation was complete and gave him the criminal case file to study.

16. On 29 January 2005 the Pavlograd Prosecutor signed the final bill of indictment, charging the applicant with aggravated burglary. The indictment contained a request that the victims, B. and P., and two other witnesses be called at the trial.

17. On 1 March 2005 the applicant stood trial before the Pavlograd Court sitting in a single judge formation, assisted by a clerk. According to the trial record, the trial unfolded as follows:

(a) Only the applicant and B. were present at the opening of the trial, the prosecutor, P. and the witnesses being absent. The judge asked the applicant and B. whether they objected to proceeding in the others’ absence. None having objected, the judge ruled to proceed.

(b) The judge explained to the applicant his rights as a defendant, including the right to have a defence counsel or to defend oneself, and to testify or to remain silent.

(c) Responding that he understood those rights, the applicant asked to be allowed to represent himself. The judge granted the request.

(d) The judge read out the indictment and asked the applicant whether he understood the charges and how he wished to plead.

(e) The applicant responded that he understood the charges, pleaded guilty and refused to testify.

(f) B. asked the court to question her first and then allow her to leave and proceed with the trial in her absence. The applicant expressed no objection, and the court granted the victim’s request.

(g) B. was questioned and left.

(h) A prosecutor arrived.

(i) The judge explained to the applicant that he had the right to challenge the prosecutor. The applicant responded that he did not wish to challenge the prosecutor. He again pleaded guilty and stated that he did not wish to testify. He stated that the evidence of his guilt was “admissible and sufficient,” asked the court not to call the absent witnesses since he was ashamed of his actions, and asked the court to dispense with the examination of evidence, pursuant to Article 299 of the Code of Criminal Procedure (see paragraph 30 below).

(j) The court ruled that the examination of the evidence be dispensed with and proceeded to read out some of the written evidence in the case file.

(k) The prosecutor asked the court to sentence the applicant to six and a half years’ imprisonment.

18. According to the applicant, this record of the trial was inaccurate. In particular, the applicant did not initially plead guilty. It was only after B. had departed that the judge persuaded him to plead guilty and to agree to abbreviated proceedings in exchange for a lenient sentence.

19. At the close of the trial on the same day, the court delivered its judgment. It convicted the applicant as charged and sentenced him to six and a half years’ imprisonment, to be counted from 28 January 2000, the date of his arrest in Russia, with one year and about five months therefore remaining to be served. The court relied on his guilty plea in the course of the trial and his consent to dispensing with the examination of evidence. It also stated that the applicant’s guilt was proven by a number of documents in the file. In particular it referred to the identification reports, according to which P. and another eyewitness had identified the applicant as the person who had attacked P.

20. On 4 March 2005 B. appealed, maintaining that the sentence was too lenient. She argued that the term of imprisonment should be calculated from the date of the applicant’s arrest in Ukraine rather than from the date of his arrest in Russia for an unrelated crime. She also maintained that the prosecutor had not been present at the trial and that the applicant had never repented or admitted his guilt and had behaved defiantly at the trial.

21. The applicant replied to the appeal, submitting that his guilty plea and remorse for the crime had been genuine and that the sentence imposed by the trial court had been correct and justified.

22. On 20 May 2005 the Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal”) held a hearing in the presence of a prosecutor, B. and the applicant. At the hearing the applicant reaffirmed his initial submissions, said that he regretted the offence he had committed, and requested that the trial court’s verdict be left in force. According to the applicant, he had requested the presence of a lawyer at this hearing but his request had not been granted.

23. On the same date the Court of Appeal quashed the sentence of the Pavlograd Court as unduly lenient, taking into account the seriousness of the offence and the applicant’s personality. It also found that the trial court had misinterpreted the law regulating the calculation of sentences with regard to the time served in prison in Russia. In particular, it had failed to take into account the fact that Ukraine had made a reservation to the Protocol to the Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters 1993 concerning the effect given to sentences rendered in other States Parties to the Protocol. Accordingly, the Court of Appeal sentenced the applicant to twelve years’ imprisonment to be calculated from 16 January 2005, the date of his arrest in Ukraine.

24. The applicant lodged an appeal on points of law, arguing that he was in fact innocent. He alleged that at the trial he had initially denied his guilt and pointed out what he believed to be gaps and inconsistencies in the prosecution’s case. However, he had then pleaded guilty because of pressure from the trial judge and because he had wished to be released sooner and had no funds to pay for a lawyer. No prosecutor had been present at his trial and in these circumstances he had not been convinced of the judge’s impartiality or that there had been a fair examination of evidence. When the judge had assured him that he would receive a lenient sentence if he pleaded guilty, he had followed the judge’s instructions. The applicant also alleged that the Court of Appeal had erred in failing to take into account the time he had served in prison in Russia.

25. On 30 August 2005 the Supreme Court rejected the applicant’s appeal and found that, taking due account of the adequacy of the written evidence collected by the prosecution, the applicant’s conviction had a sufficient factual and evidentiary basis. It furthermore found that the Court of Appeal had been correct in its calculation of the applicant’s prison term from 16 January 2005, but reduced the sentence to nine years.

26. On 10 March 2009, at the request of the prosecutors’ office, the Court of Appeal ordered that the term of the applicant’s imprisonment be calculated from 1 June 2004 (the date of the decision to remand him in custody pending consideration of the extradition request).

27. On 30 September 2011 the applicant was released.

II. RELEVANT DOMESTIC LAW

A. Constitution of Ukraine 1996

28. The relevant provisions of Articles 59 and 63 of the Constitution of Ukraine concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of 19 February 2009 in the case of Shabelnik v. Ukraine (no. 16404/03, § 25, 19 February 2009).

B. Criminal Code 1960

29. Article 142 § 3 of the Code which was in force on the date of the offence provided that violent burglary was punishable by imprisonment for a period of between six and fifteen years, with confiscation of property.

C. Code of Criminal Procedure 1960

30. The relevant provisions of the Code of Criminal Procedure as worded at the material time read as follows:

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 another counsel at a later stage of the proceedings.

...”

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

“A defence counsel shall be engaged by the suspect, accused, defendant or convicted person or by their representatives with their consent. The officer conducting the inquiry, the investigator and the court shall facilitate contact between the arrested or detained person and a defence counsel or with persons who can engage one.

...

A defence representative shall be appointed [by the officer conducting the inquiry, the investigator or the court] in the event:

...

(2) that ... the defendant wishes to engage a defence representative but, lacking funds or due to other objective circumstances, is unable to do so.

...”

Article 299. Establishing the scope of evidence to be examined and the procedure for its examination

“...

The court may, if the parties to the trial have no objection, find that the examination of evidence is unnecessary in respect of circumstances of the case... In so doing, the court shall ascertain that the defendant and other parties to the trial correctly understand the substance of those circumstances, that there are no doubts regarding the voluntary and true nature of their position, and explain to them that in such a case they will waive the right to challenge, by means of appeal, these circumstances and the amount claimed.

...

Unless the defendant refuses to testify, his/her questioning is obligatory.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

31. The applicant complained that he had not had a fair trial ‒ because he had not been provided with a legal aid lawyer at any stage of the criminal proceedings ‒ and that the trial court which convicted him had lacked impartiality to the extent that a substantial part of his trial had been conducted in the absence of a prosecutor. He relied on Article 6 of the Convention, which reads, insofar as relevant, as follows:

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

...

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

...

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

...”

A. The parties’ submissions

1. In respect of the alleged unavailability of legal assistance

32. The applicant pointed out the inconsistency between the arrest report, in which the applicant had requested a lawyer, and the waiver signed at the same time, in which he had waived this right. For him, this contradiction reflected the fact that he had initially requested a lawyer but the police had subsequently told him that they would not grant his request and had threatened him with reprisals should he persist with it. Not seeing any prospects of success and fearing ill-treatment, the applicant had been compelled to sign all subsequent waivers presented to him. Every time he renewed his request for a lawyer he had been threatened and pressurised to sign a new waiver. The domestic courts had failed to ensure that the applicant’s waiver had been unequivocal, in particular in the light of his vulnerability and the seriousness of the punishment he faced.

33. Even though he had not made any incriminating statements in the course of the pre-trial investigation, he had been deprived of the opportunity to discuss his defence strategy, and in particular the consequences of changing his position at the trial from a complete denial of guilt to a guilty plea. His failure to complain about this in his appeal can be explained by his desire to preserve the lenient sentence imposed on him. Moreover, when he had requested a lawyer at the Court of Appeal hearing, this request had not been granted. Similarly, the Supreme Court had failed to respond to his complaint concerning his inability to obtain the services of a lawyer.

34. In view of these arguments the applicant maintained that there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention.

35. The Government submitted that domestic law clearly provided for the right to legal assistance, to be provided free of charge if the applicant lacked the means to hire a lawyer. This right had been repeatedly explained to him. Even though in the arrest report of 16 January 2005 the applicant had indeed requested a lawyer, he had unequivocally waived this right the very next day, on 17 January 2005, before his first interrogation. Afterwards, he repeatedly and consistently reiterated his waiver throughout the proceedings and had not cast doubt upon it in his submissions to the Court of Appeal, in which he had also affirmed that his trial had been fair and had readmitted his guilt. The interests of justice had not required the applicant to be represented by a lawyer before the Court of Appeal because the latter only corrected the trial court’s error in sentencing.

36. In view of these arguments, the Government maintained that there had been no violation of Article 6 § 3 (c) on account of the alleged failure to provide the applicant with a legal-aid lawyer.

2. In respect of the alleged absence of the prosecutor from part of the trial

37. The Government submitted that the prosecutor had been absent only at the beginning of the trial and that the court had heard only one witness, namely B., on the basis of the request in the bill of indictment. Both the trial record and the applicant’s reply to B.’s appeal indicated that he had pleaded guilty in the prosecutor’s presence and had considered the trial court’s judgment fair.

38. The applicant maintained that there had been a violation of Article 6 § 1 on account of the prosecutor’s absence from a major part of the applicant’s trial.

B. The Court’s assessment

1. Admissibility

39. The Court finds that these complaints raise issues of fact and law requiring an examination of the merits. Therefore, neither of these complaints is manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. They are not inadmissible on any other grounds. They must therefore be declared admissible.

2. Merits

(a) General principles

40. The Court reiterates that the right of an accused to participate effectively in a criminal trial includes, in general, not only the right to be present but also the right to receive legal assistance, if necessary (see Lagerblom v. Sweden, no. 26891/95, § 49, 14 January 2003).

41. Furthermore, even if the primary purpose of Article 6 of the Convention, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 – especially paragraph 3 thereof – may be relevant before a case is sent for trial if and in so far as the fairness of the trial is liable to be seriously prejudiced by an initial failure to comply with its provisions (see Salduz v. Turkey [GC], no. 36391/02, § 50, ECHR 2008).

42. The Court has also held that in order to exercise his right of defence, the accused should normally be allowed to have the effective benefit of the assistance of a lawyer from the initial stages of the proceedings because national laws may attach consequences to the attitude of an accused in the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings (see Salduz, cited above, § 52). The Court has recognised that an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, and in most cases this can only be properly compensated for by the assistance of a lawyer, whose task is, among other things, to help to ensure that an accused’s right not to incriminate himself is respected. The Court emphasises that the fairness of proceedings requires that an accused should be able to obtain the whole range of services specifically associated with legal assistance (see Dvorski v. Croatia [GC], no. 25703/11, § 77 and 78, ECHR 2015, with further references).

43. Moreover, restricting a detained suspect’s access to a lawyer may prejudice the rights of the defence even where no incriminating statements are obtained as a result (see Dayanan v. Turkey, no. 7377/03, §§ 32 and 33, 13 October 2009, and Vyerentsov v. Ukraine, no. 20372/11, § 78, 11 April 2013). In particular, a systematic restriction of the right of access of all detained suspects to legal assistance on the basis of the domestic statutory provisions is sufficient in itself for a violation of Article 6 to be found (see Dayanan, cited above, § 33, and A.T. v. Luxembourg, no. 30460/13, § 65, 9 April 2015).

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

45. The requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1. The Court will therefore examine the applicant’s complaints under both provisions taken together (see, for example, Sakhnovskiy v. Russia [GC], no. 21272/03, § 94, 2 November 2010). In so doing, the Court must consider the proceedings as a whole, including the decision of the appellate court (see Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no. 247‑B).

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

46. The Court first notes that in the very first stage of the applicant’s involvement in the criminal proceedings against him in Ukraine he signed two contradictory documents, purportedly at the same time on the same day. While in one he requested a lawyer, in another he waived this right (see paragraphs 10 and 11 above). No satisfactory explanation for this contradiction has been provided by the authorities at any point in the criminal proceedings against the applicant or by the Government before this Court. It is true that three more waivers followed over the following ten days (see paragraphs 12 to 15 above). However, given that the first waiver is tainted by the above unexplained contradiction and the others, identically worded, followed in quick succession while the applicant remained in police custody, the Court is not convinced that the waiver of the applicant’s right to legal assistance in the course of the pre-trial investigation has been established in an unequivocal manner.

47. However, the Court is mindful of the fact that the applicant did not complain before any domestic authority specifically about the restriction of his right to legal assistance at the stage of pre-trial investigation (compare Trymbach v. Ukraine, no. 44385/02, § 64, 12 January 2012, and Zinchenko v. Ukraine, no. 63763/11, § 89, 13 March 2014).

48. The Court considers that it is unnecessary to examine separately the part of the applicant’s complaint concerning the validity of his waivers during the pre-trial investigation in view of the fact that the applicant’s position changed completely from denial of any guilt at the pre-trial stage to a guilty plea at the trial and in view of the Court’s following findings concerning his right to legal assistance at the trial.

49. That said, the fact remains that the applicant’s allegation that he abandoned his initial request for a lawyer under pressure from the police has not been convincingly disproven by the Government and the contradiction in the documentation signed by the applicant on the first day of his participation in the investigation remains without a satisfactory explanation. This fact may be relevant in assessing the question of whether the waiver of his right to legal assistance at the trial stage was valid.

50. In evaluating the latter question, in view of the contradictions between the applicant’s account of his trial and the trial record, the Court is confronted with the question of whether the trial record constitutes an exhaustive record of all relevant events in the courtroom.

51. Turning to this question, the Court observes that the trial record shows that the applicant’s waiver and his guilty plea followed each other closely at the opening of his trial and both occurred prior to the arrival of the prosecutor in the courtroom. According to the record, they also occurred in B.’s presence. However, the Court cannot help but notice that the submissions B. made in her appeal directly contradicted the trial record on a crucial point in that she claimed that the applicant had denied his guilt and behaved defiantly, whereas the record indicates that he pleaded guilty and displayed an utterly compliant attitude in her presence.

52. This contradiction, even though pointed out by the applicant, was never explained by the domestic authorities in the course of the subsequent appellate proceedings or by the Government before the Court. In any event, the veracity of B.’s claim in this particular respect was never questioned even though the applicant contested the completeness of the trial record.

53. In view of this unexplained contradiction and the absence of the prosecutor from this part of the trial, the Court is not entirely convinced that the trial record represents an exhaustive record of all events in the courtroom prior to the arrival of the prosecutor.

54. To be sure, the Court requires compelling evidence to convince it that an official document, such as a trial record, is unreliable (see Galstyan v. Armenia, no. 26986/03, § 76, 15 November 2007). However, certain features of the present case, in particular the informal manner in which the trial was conducted ‒ with no party other than the applicant, the trial judge and his clerk being present throughout the hearing ‒ prevent the Court from fully dismissing the applicant’s allegations. The Court cannot, in the circumstances, reach a conclusive finding as to the veracity of the applicant’s allegation that the trial record did not constitute a complete account of the events in the courtroom which led the applicant to waive his right to legal assistance and plead guilty (compare Hall v. the United Kingdom (dec.), no. 65327/01, 19 February 2002).

55. The Court observes that the presence of a defence counsel or an indication in the Supreme Court’s ruling that it had examined and had good reasons for dismissing the applicant’s allegations in this regard would have permitted the Court to set aside its doubts as to the completeness of the trial record. However, in the circumstances, such doubts persist.

56. Moreover, not having any special expertise in law (contrast Paskal v. Ukraine, no. 24652/04, §§ 77 and 78, 15 September 2011) the applicant was in no position to adequately assess the implications of waiving his rights to legal assistance at the trial. In particular, the calculation of the sentence in the applicant’s case involved the issue of the application of sentencing rules in an international context, the full comprehension of which undoubtedly required a lawyer’s professional training (see, mutatis mutandis, Quaranta v. Switzerland, 24 May 1991, § 34, Series A no. 205). There is no indication either that the trial court made the applicant aware of the complexity of the legal matters involved or that he was otherwise able to appreciate them. It cannot be said, therefore, that the applicant’s waiver of his right to legal assistance was made in full awareness of its legal consequences (contrast Natsvlishvili and Togonidze v. Georgia, no. 9043/05, § 92, ECHR 2014 (extracts)).

57. Finally, in view of its finding concerning the waiver of the applicant’s right to legal assistance at the stage of pre-trial investigation, the Court cannot rule out that the failure of the domestic authorities to follow up his initial request for a lawyer in the course of the pre-trial investigation might have discouraged him from asserting his right to legal assistance at the trial.

58. In view of the above considerations, and in particular in the absence of a fully reliable record of the trial up to the moment of the prosecutor’s arrival, the Court finds that the applicant’s waiver of his right to legal assistance at the trial was not attended by minimum safeguards commensurate with its importance. It was, therefore, not effective for Convention purposes.

59. In view of the above considerations the Court finds that the failure of the domestic authorities to provide the applicant with free legal assistance at the trial prejudiced the fairness of the criminal proceedings against him as a whole.

60. There has accordingly been a violation of Article 6 §§ 1 and 3 (c) of the Convention.

61. In view of the reasons for the above finding, the Court considers that it is not necessary to examine the applicant’s complaints concerning the alleged denial of his request for a lawyer at the hearing of the Court of Appeal and concerning the prosecutor’s absence from a part of the trial (see, mutatis mutandis, Yeşilkaya v. Turkey, no. 59780/00, § 36, 8 December 2009, and Nechto v. Russia, no. 24893/05, § 130, 24 January 2012).

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

62. The applicant complained under Article 6 of the Convention that he had not had the opportunity to question witnesses. He further complained, without invoking any Convention provision, that his health had deteriorated in detention and that the medical assistance provided had been inadequate. Finally, the applicant complained under Article 5 § 1 (a) of the Convention that the judicial authorities had failed to take into account his detention before 16 January 2005 when calculating his prison sentence and under Article 5 § 4 of the Convention that he had had no opportunity to challenge the lawfulness of his pre-conviction detention.

63. 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.

64. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

65. 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

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

67. The Government considered that claim unsubstantiated and excessive.

68. The Court considers that the applicant must have suffered some non‑pecuniary damage on account of the violation found which cannot be adequately compensated by the finding of a violation alone. Making its assessment on an equitable basis, the Court therefore awards the applicant EUR 2,500 in respect of non-pecuniary damage.

B. Costs and expenses

69. The applicant also claimed EUR 2,620 for the costs and expenses incurred before the Court.

70. The Government argued that the applicant had not substantiated any of the claimed expenses and that the claimed amount was excessive.

71. 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 above criteria, the Court makes no award under this head.

C. Default interest

72. 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,

1. Declares, unanimously, the complaints under Article 6 concerning the alleged breach of the applicant’s right to legal assistance and absence of the prosecutor from a part of the trial admissible and the remainder of the application inadmissible;

2. Holds, by six votes to one, that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;

3. Holds, by five votes to two, that there is no need to examine the applicant’s complaints concerning the alleged denial of the applicant’s request for a lawyer at the hearing of the Court of Appeal and concerning the prosecutor’s absence from a part of the trial;

4. Holds, by six votes to one,

(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

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

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

Done in English, and notified in writing on 9 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekAngelika Nußberger
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) Joint concurring opinion of Judges Nuβberger and Ranzoni;

(b) Dissenting opinion of Judge Vehabović.

A.N.
C.W.

JOINT CONCURRING OPINION OF JUDGES NUSSBERGER AND RANZONI

We have voted with the majority in finding a violation of Article 6 §§ 1 and 3 (c) of the Convention (point 2 of the operative provisions), but on the basis of a different reasoning. Moreover, we disagree with the majority’s finding “that there is no need to examine the applicant’s complaint concerning the alleged denial of the applicant’s request for a lawyer at the hearing of the Court of Appeal” (point 3 of the operative provisions). We are of the opinion that this should have been analysed.

Before the trial court, the applicant waived his right to legal assistance and consequently received a lenient sentence. In his reply to the appeal, the applicant submitted that his guilty plea had been “genuine” and that the sentence imposed, namely six and a half years’ imprisonment, had been “correct and justified” (see paragraph 21 of the judgment). Even at the hearing before the Court of Appeal, the applicant “regretted the offence he had committed, and requested that the trial court’s verdict be left in force” (see paragraph 22 of the judgment). He therefore fully agreed with the trial court’s judgment.

Under these circumstances we consider that the applicant’s waiver of his right to legal assistance at the investigation and the trial stage could be seen as valid and we doubt that the proceedings up to the first-instance judgment were unfair.

However, the Court should have examined also the applicant’s complaints concerning the alleged denial of his request for a lawyer at the later stage of the proceedings. On an appeal by one of the victims, the Court of Appeal increased the prison sentence to twelve years. The Supreme Court ultimately fixed the term of imprisonment at nine years. Because of the (foreseeable) risk of a harsher punishment at the appeal instances, the applicant should have been represented by a lawyer at this stage of the proceedings, as requested. In our view, it was this failure which made the proceedings unfair and led to the finding of a violation of Article 6 §§ 1 and 3 (c).

DISSENTING OPINION OF JUDGE VEHABOVIĆ

I am unable to share the view of the majority of the Chamber that the facts complained of by the applicant disclose a violation of Article 6 §§ 1 and 3 (c) of the Convention, which provides:

“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;

...“

On 16 January 2005 the applicant was presented with an arrest report giving the reason for his arrest, and was then informed of his right to have access to a lawyer as from the first interrogation. After initially requesting a lawyer the applicant decided, and confirmed in writing by hand, that he would defend himself, not for financial reasons. He confirmed on several occasions that he had been informed about his rights as an accused person and stated – using the same wording – that he would defend himself.

At the beginning of the hearing before the Dnipropetrovsk Regional Court of Appeal the applicant reaffirmed his initial submissions, said that he regretted the offence he had committed and requested that the trial court’s verdict be left in force. Only when the Court of Appeal quashed the sentence of the Pavlograd Court as “unduly lenient” did the applicant start complaining about a violation of his right to legal assistance.

This case must be clearly distinguished from the main line of Salduz case-law which provides that an accused at the initial stages of police interrogation, which are decisive for the prospects of the defence in any subsequent criminal proceedings, should normally be allowed to have the effective benefit of the assistance of a lawyer.

Obviously, the entire present case is about two basic questions: whether the applicant’s choice was made free of any pressure or duress by the police and, if no pressure or duress was applied by the police, whether the applicant should have been given the opportunity to defend himself if he so wished.

There is no evidence in the case file supporting the applicant’s allegation that the authorities in any way influenced him in making his choice to defend himself.

In Dvorski v. Croatia ([GC], no. 25703/11, ECHR 2015) the Court decided to assess whether, in the light of the proceedings as a whole, the rights of the defence had been “adversely affected” to such an extent as to undermine the overall fairness of the proceedings.

Without going into all the details of that test, I consider that the applicant’s wish to defend himself was respected (at the beginning his conduct of his own defence was very successful) throughout the entire criminal proceedings against him. While the nature of the proceedings against the applicant, which concerned a crime that had been committed, was serious, that does not mean that there should be different requirements for a fair hearing depending on the seriousness of the nature of the proceedings. When the applicant gave his first self-incriminatory statement in the circumstances of the present case, the reality was that he did so of his own free will in the absence of any sign of physical or psychological pressure by the police or any other State officials.

The applicant’s confession was not the central platform of the prosecution’s case (see, by contrast, Magee v. the United Kingdom, no. 28135/95, § 45, ECHR 2000‑VI), and the trial court interpreted his statement in the light of a complex body of evidence assessed by the court (compare Bykov v. Russia [GC], no. 4378/02, 10 March 2009).

In such circumstances it would be difficult for me to conclude that the proceedings against the applicant were unfair (compare O’Kane v. the United Kingdom (dec.), no. 30550/96, 6 July 1999), since all the applicant’s rights were adequately secured during the trial and his confession was not the sole, let alone the decisive, evidence in the case and as such did not call into question his conviction and sentence (compare Gäfgen v. Germany [GC], no. 22978/05, § 187, ECHR 2010, and, by contrast, Martin v. Estonia, no. 35985/09, §§ 95-96, 30 May 2013).

Against this background, and in view of the principle that the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1 of the Convention (see, for example, Zagorodniy v. Ukraine, no. 27004/06, § 51, 24 November 2011) and the requirement to evaluate the fairness of the criminal proceedings as a whole (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011), I find that it has not been shown that the applicant’s defence rights were irretrievably prejudiced or that his right to a fair trial under Article 6 was adversely affected (see, mutatis mutandis, Mamaç and Others v. Turkey, nos. 29486/95, 29487/95 and 29853/96, § 48, 20 April 2004, and Sarıkaya v. Turkey, no. 36115/97, § 67, 22 April 2004; see also, by contrast, Martin, cited above).

The applicant’s right to defend himself in person was guaranteed by Article 6 § 3 (c) and he effectively made use of that right. I disagree with the majority’s conclusion in paragraph 51 that the trial record shows that the applicant’s waiver and his guilty plea followed each other closely at the opening of his trial and both occurred prior to the arrival of the prosecutor in the courtroom. As far as I know the opposite situation might be problematic from an Article 6 perspective, if the applicant were absent from the hearing while the prosecutor was present. The Chamber found in the situation complained of a crucial contradiction that led it to find a violation of Article 6 § 3 (c).

The burden of proof is on the applicant to submit sufficient evidence in support of his allegations. That is exactly what is missing in this case.

 

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