Last Updated on April 30, 2020 by LawEuro
FIFTH SECTION
CASE OF GOLOVKO v. UKRAINE
(Application no. 2053/09)
JUDGMENT
STRASBOURG
23 January 2020
This judgment is final but it may be subject to editorial revision.
In the case of Golovko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Síofra O’Leary, President,
Ganna Yudkivska,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 17 December 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 2053/09) against Ukraine lodged with the Court under Article34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Oleg Ivanovych Golovko (“the applicant”), on 26 December 2008.
2. The applicant was represented by MrO.M.Pokhyl, a lawyer practising in Kobelyaky. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.
3. The applicant alleged, in particular, that he had been ill-treated by the police in violation of Article 3 of the Convention and that there had been no effective domestic investigation into the matter. He also complained that he had not had a fair trial contrary to Article 6 §§ 1 and 3 (c).
4. On 19April 2018 notice of the above complaints was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule54§3 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1967 and lives in Gorishni Plavni (named Komsomolsk at the material time).
A. Background
6. At the time of the events the applicant owned a small scrap metal company.
7. On 16 September 2000 Ko., a private entrepreneur who, like the applicant, was involved in a local scrap metal business, was shot several times near his home in Komsomolsk. His wounds were assessed as being of moderate gravity.
B. The applicant’s arrest, and administrative-offence proceedings against him
8. On 4 February 2003, at about 7 p.m., the applicant was arrested. According to the police report (see paragraph 9 below), he was arrested for swearing while drunk in public, which was classified as an administrative (minor) offence of petty hooliganism. As indicated by officials from the Kremenchuk Unit of the Poltava Regional Department for Combatting Organised Crime (“the UBOZ”) when they were subsequently questioned by the prosecution authorities, on 4 February 2003 they had received “operational information” that the applicant and one of his acquaintances, Pi., might have been involved in the assault on Ko. (see paragraph 7 above). The UBOZ officers stated that they had had a conversation with the applicant and Pi. on that day, and that those men had immediately confessed (see paragraphs 53 and 54 below).
9. The police drew up a report on the applicant’s commission of an administrative offence. Although it was formally dated 4 February 2003, the applicant alleged that it had been issued on 5 February 2003. The report contained a handwritten note (written by the applicant) stating that he admitted swearing in public and regretted his actions. According to the applicant, he was forced to write that and sign the report as a result of his ill-treatment (see paragraph 14 below).
10. On 5 February 2003 a judge of the Kremenchuk Kryukivskyy District Court found the applicant guilty of petty hooliganism on account of his actions as reported by the police, and sentenced him to ten days’ administrative detention.
11. On 21 March 2003 the Poltava Regional Court of Appeal (“the Regional Court”) quashed the above judgment on the grounds that it was poorly reasoned and the overall examination of the case had been formalistic and incomplete. The appellate court also noted that, although administrative detention was an exceptional penalty, its application in the applicant’s case had not been explained. The case was remitted to the first-instance court for fresh examination.
12. On 20 May2003 the Kremenchuk Kryukivskyy District Court discontinued the administrative-offence proceedings against the applicant as time-barred. In its reasoning, it mentioned that the applicant’s guilt had been fully established.
13. On 24 July 2003 the Regional Court upheld that decision, but deleted the part concerning the applicant’s guilt.
C. Alleged ill-treatment of the applicant, domestic investigation into the matter, and developments concerning the applicant’s health
14. According to the applicant, he was subjected to serious ill-treatment by the police after his arrest (see paragraph 8 above). He provided the following account of the events.At about 7.40 p.m. on 4 February 2003 he was taken to the UBOZ, where police officers suggested that he confess to having ordered Ko.’s murder. They stated that the applicant’s acquaintance Pi. had been arrested earlier on that day and had confessed to having shot Ko. upon the applicant’s instructions. The applicant refused to admit his involvement. The police officers handcuffed him, with his hands behind his back, and put a gas mask on him, covering the eye area. Thereafter, the applicant was thrown to the floor face down. One of the officers pressed down on his back and another did the same to his feet. The applicant tried to get up and was kicked several times. Ringlike conductors were placed on his fingertips and he was subjected to electric shocks. The pain increased and decreased periodically. The applicant stated that, having succumbed to the torture, which had lasted until the morning of 5 February 2003, he had agreed to write a “statement of surrender to the police”, which had been dictated by the investigator. He had had light red linear marks around one finger on both hands, which had disappeared several days later.
15. According to the applicant, on 5 February 2003, once he was represented by D., the lawyer suggested to him by the investigator (see paragraph 56 below), he informed that lawyer about his ill-treatment. However, D. persuaded the applicant not to complain.
16. On 6 February 2003 the applicant asked to talk to the Komsomolsk town prosecutor in private. When provided with that opportunity, he complained that the police had given him electric shocks, and showed his fingers to the prosecutor. When the prosecutor was subsequently questioned about that event in the context of the investigation into the applicant’s allegations of ill-treatment (see paragraphs 41 and 50 below in particular), on one occasion he stated that he had seen ringlike marks on the applicant’s fingers. On another occasion he stated that he had not seen anything. On yet another occasion the prosecutor stated that he had seen some linear marks around the applicant’s fingers which had looked like they had been caused by pressure from a fingernail. The prosecutor also stated that during their conversation on 6February 2003 he had asked the applicant whether being subjected to electric shocks had influenced his statements, and the applicant had replied in the negative. The prosecutor undertook to arrange for a forensic medical examination of the applicant.
17. According to the applicant, his conversation with the prosecutor was interrupted by D., the lawyer, who tried to dissuade the applicant from raising any complaints.
18. On the same day the applicant’s wife complained to the Kremenchuk city prosecutor’s office and numerous other authorities that the administrative-offence charge against her husband had been fabricated and that he was being arbitrarily detained. She stated that neither she nor the lawyer whom she had hired on the day after the applicant’s arrest (see paragraph 55 below) had been allowed to see the applicant. However, her husband had been able to inform her, through some unidentified persons, that the police had forced him to confess to an attempted murder by giving him electric shocks.
19. Later, on 6 February 2003 an expert from the Kremenchuk Bureau of Forensic Medical Examinations examined the applicant and issued the following report (no. 182):
“To establish the severity of injuries.
Circumstances of the case: according to the subject, he was arrested by the police on 4 February 2003 on suspicion of an administrative offence. No police officers inflicted any injuries on him during the arrest. Likewise, thereafter nobody inflicted any injuries on him.
Complaints: none.
Objectively: no objective signs of injuries at the moment of the examination, the subject being fully undressed.
Conclusion: No objective signs of injuries at the moment of the forensic medical examination.”
20. One of the police officers who had allegedly been involved in the applicant’s ill-treatment was present during the examination.
21. On 13 February2003 the applicant was transferred to the Komsomolsk Temporary Detention Facility (the “ITT”), where he was examined by doctors as part of the standard admission procedure, and no bodily injuries were reported.
22. On 19 February2003 the applicant complained to the Poltava regional prosecutor’s office that he had been ill-treated, providing the account of events summarised in paragraph 14 above. He reiterated that complaint to the investigator during the reconstruction of the events on 5 March 2003 (see paragraph 65 below).
23. On 5 March 2003 the Poltava regional prosecutor’s office issued a ruling in respect of the applicant’s complaint, refusing to institute criminal proceedings against the police officers. In particular, the prosecutor relied on the report on the applicant’s forensic medical examination of 6February 2003 (see paragraph 19 above).
24. On 20 March 2003 the investigator ordered another forensic medical examination of the applicant at the Kremenchuk Bureau of Forensic Medical Examinations, with a view to answering the following questions: (1) whether the applicant had any injuries and, if so, what was the nature, location, origin and severity of those injuries; and (2) whether there were any objective signs indicating that he might have been subjected to electric shocks.
25. The applicant requested that the investigator entrust the examination to a bureau in a different region, but to no avail. The applicant’s arguments were as follows: he did not trust the Kremenchuk Bureau of Forensic Medical Examinations, because during the examination on 6 February 2003 an expert from that bureau had disregarded the marks from electric wires which had been on his fingers (see paragraph 19 above).
26. On 15 April 2003 the same expert who had examined the applicant on 6February 2003 (see paragraph 19 above) issued expert opinion no.453, this time without examining the applicant. The text of the report contained a brief overview of the charges against the applicant. It mentioned the fact that he had been examined at the Kremenchuk Bureau of Forensic Medical Examinations on 6February 2003 and noted:
“[The applicant’s] forensic medical examination did not discover … any objective signs of injuries or any objective signs that he had been subjected to electric shocks.”
27. As indicated in the applicant’s medical file, on 27 April 2003 an ambulance was called for him on account of his experiencing pain in his heart. He was diagnosed with cardiac vegetative-vascular dystonia and was given medication.
28. On 2 June 2003 the applicant’s lawyer applied to the prosecutor for a forensic medical examination of the applicant by a panel of experts. He submitted that, while small linear red marks on the applicant’s fingers had been the only marks of the alleged ill-treatment which the applicant had shown to the prosecutor, the expert had ignored them. The lawyer noted that the applicant was constantly complaining of headaches, pain in his heart and other health-related concerns, symptoms which had started manifesting themselves since the applicant had been subjected to electric shocks. Given that the applicant did not trust the Kremenchuk Bureau of Forensic Medical Examinations, his lawyer requested that the examination be carried out by the Kharkiv Regional Bureau of Forensic Medical Examinations.
29. It appears that on 8June 2003 the prosecution authorities issued another decision refusing to institute criminal proceedings against the police officers involved in the applicant’s alleged ill-treatment. There is no copy of that ruling in the case file before the Court.
30. At a certain point during his trial for aggravated murder and handling illegal firearms (which started on 20 August2003 – see paragraph 69 below), the applicant raised his complaint of ill-treatment before the trial court.
31. On 10 February 2004, in a ruling remitting the case for additional pre-trial investigation (see paragraph 70 below), the Regional Court noted that the applicant’s allegations warranted thorough verification, particularly by way of a forensic medical examination. The Regional Court also released the applicant. However, on 15 April 2004 the Supreme Court quashed the part of the above-mentioned ruling concerning the remittal of the case for additional investigation. It upheld the part pertaining to the applicant’s release.
32. From 13 February to 1 March 2004 the applicant underwent inpatient treatment in the neurological department of Novi Sanzhary Hospital, where he was taken by ambulance following a preliminary diagnosis of an attack relating to vegetative-vascular dystonia. The applicant complained of a headache, darkened vision and vertigo. His final diagnoses as established in the hospital were as follows: residual effects of an organic lesion of the central nervous system, asthenic-vegetative syndrome and paroxysmal syncope. As the doctor who treated the applicant explained when she was questioned in October 2006 in the context of the investigation into the applicant’s complaints of ill-treatment (see, in particular, paragraph 42 below), while those diagnoses could have resulted from an electric shock, they could not be interpreted as direct evidence proving that the applicant had been subjected to electric shocks. The doctor stated that such diagnoses might result from any organic disease: a head injury, an infection, intoxication and so on. She also stated that, in her opinion, the fact that there was no mention of the issue of electric shocks in the applicant’s medical file meant that he had not spoken of it to the doctors.
33. On 15 April 2004 the applicant sought treatment from the Kyiv Neurosurgery Institute. He submitted that he had sustained an electric shock about a year earlier, and complained of memory deterioration, insomnia and irritation. He was diagnosed with neurocirculatory dystonia of hypertonic type and paroxysmal syncope. However, his condition did not warrant neurosurgical treatment.
34. In May 2004 the applicant solicited a licensed private forensic medical centre for an expert conclusion. Having referred to his alleged ill-treatment as summarised in paragraph 14 above, the applicant stated that he was suffering from headaches and heart palpitations, which he considered to be the consequences of being subjected to electric shocks. Having examined the applicant and studied his medical file, on 29May 2004 the relevant expert issued his report (no. 719). It stated that electric shocks did not always leave marks. If the applicant had been subjected to such shocks as he had described, that might indeed have left temporary marks on his fingers. The expert further noted that the problems with the applicant’s health (see paragraphs 27, 32 and 33 above) might have resulted from his being subjected to electric shocks, particularly given the absence of any medical precedents that would explain the origin of those problems. The expert also documented an area of pigmentation measuring 5 cm by 8 cm on the applicant’s thigh. In the expert’s opinion, that could be a haematoma sustained from a blow from a blunt object. The expert stated that the healing time for such a haematoma was one to three weeks.
35. On 24 October 2004 the Poltava regional prosecutor’s office issued a ruling in respect of the applicant’s complaints of ill-treatment, refusing to institute criminal proceedings against the police officers. The prosecutor observed that neither the applicant’s medical examination upon his arrival at the ITT on 13February 2003 (see paragraph 21 above) nor his forensic medical examination of 15 April 2003 (see paragraph 26 above) had revealed any injuries. It was also noted that no complaints from the applicant had been reported during those examinations.
36. On 3 November 2004 the Regional Court, which was in charge of the applicant’s trial (see paragraph 69 below), ordered a forensic medical assessment of the applicant by a panel of experts from the Poltava Regional Bureau of Forensic Medical Examinations, with a view to answering the following questions: (1) whether there was any indication in the applicant’s medical documents that he might have sustained electric shocks on 4 or 5 February2003; and (2)whether expert conclusion no. 719 (see paragraph 34 above) could be regarded as confirmed.
37. On 28 January 2005 the panel of experts issued their report (no.18), which was based on their assessment of the applicant’s medical file. The experts gave an overview of the pertinent scientific literature as regards the possible impact of electric shocks on a person, without answering the first question. They also noted that, while there was information that the applicant had had an area of pigmentation on his thigh which had looked like a haematoma in May 2004 (see paragraph 34 above), it was impossible to establish when and how it had been sustained. As regards the second question, the experts stated that they were not competent to answer it.
38. In its judgment of 22 March 2005 delivered in the criminal proceedings against the applicant (see paragraph 72 below), the Regional Court dismissed his allegation of ill-treatment as unsubstantiated. In particular, the trial court relied on the prosecutor’s refusals to institute criminal proceedings against the police of 5March 2003, 8June 2003 and 24 October 2004 (see paragraphs 23, 29 and 35 above). It also referred to the expert reports of 6February and 15April 2003 (see paragraphs 19 and 26 above), as well as that of 28 January 2005 (see paragraph 37 above).
39. On 7 July 2005 the Supreme Court quashed that judgment (see paragraph 73 below). It held, in particular, that the investigation into the applicant’s complaint of ill-treatment had been incomplete and superficial. The Supreme Court noted that the applicant himself had never been questioned in that regard, and that the statements of the police had been taken at face value. It also observed that the applicant’s examination on 6 February 2003, which had not documented any visible bodily injuries, had been carried out in the presence of one of the police officers concerned. The other forensic medical examination reports relied upon could not be considered entirely credible, given that they were either based on an analysis of the medical file only, or involved incomplete or incorrectly posed questions to the experts.
40. On 1 November 2005, in the proceedings following the remittal of the applicant’s case, the Regional Court instructed the prosecution authorities to further investigate his complaints of ill-treatment. In the course of that additional investigation, the prosecution authorities questioned six persons who had been detained in the same detention facility as the applicant at the time of the events. None of them had seen any injuries on him. Four detainees submitted that the applicant had not complained, one detainee stated that he had complained of police ill‑treatment in broad terms, and another detainee noted that the applicant had complained that the police had given him electric shocks. When subsequently questioned in that regard by the Regional Court during the applicant’s trial, that last-mentioned detainee noted that he himself was also intending to raise complaints of police ill-treatment, and that he was counting on the applicant to testify in his favour.
41. The Poltava regional prosecutor’s office also questioned the lawyer D. (see paragraph 56below), who stated that the applicant had not complained of ill-treatment to him, and the forensic medical expert who had examined the applicant on 6 February 2003 (see paragraph 19 above). That expert submitted that a police officer was usually present during an examination as a security measure, without there being any impact on the examination. The Komsomolsk town prosecutor was also questioned and stated that he had not seen any injuries or marks on the applicant’s fingers on 6 February 2003 (see paragraph16 above).
42. On 23 November 2005, 9 June, 21 October and 15November 2006 the Poltava regional prosecutor’s office issued further rulings in respect of the applicant’s complaints of ill-treatment, refusing to institute criminal proceedings against the police officers. However, all those rulings were quashed for being based on an incomplete and superficial investigation.
43. On 12 May 2006 the applicant was questioned for the first time in respect of his ill-treatment allegations.
44. Furthermore, on 30 June 2006 a forensic psychological assessment report was issued (no. 342) in respect of a video-recording of the reconstruction carried out on 6 February 2003 (see paragraph 58 below). The relevant experts did not discern any indication that the applicant had been put under psychological pressure by those participating in the investigative measure. He appeared to have made his statements freely.
45. On 3 April 2007 the Main Bureau of Forensic Medical Examinations of the Ministry of Public Health issued an expert opinion (no.682/3) at the request of the applicant’s lawyer. Having studied the applicant’s medical file, the experts concluded that the deterioration of the applicant’s health (in particular, the asthenic-vegetative syndrome and paroxysmal syncope) might have been a remote result of his alleged ill-treatment – his being subjected to electric shocks – on 4-5 February 2003. They observed, in particular, that prior to his arrest in February 2003 the applicant had not had any medical history of neurological or cardiovascular disorders. The experts also concluded that, if indeed the applicant had had red linear marks around his fingers as he alleged, such marks could have been caused by his being subjected to electric shocks.
46. According to the applicant, the trial court refused to include the above-mentioned expert opinion in the case file. The reasons for that are unknown.
47. On 8 August 2007 a panel of experts from the Poltava Bureau of Forensic Medical Examinations issued a report (no. 90) following an additional evaluation of the applicant’s medical file (including his examinations and treatment in hospitals – see paragraphs 27, 32 and 33 above). The evaluation had been carried out upon the instructions of the trial court. The experts concluded that there were “no objective forensic medical data” suggesting that the applicant had been subjected to electric shocks. In reply to a question put to them regarding any chronic diseases which might explain the symptoms manifested by the applicant, the experts noted that prior to 2004 he had not had any chronic diseases with neurological symptoms. They also observed that the applicant had not sought any medical assistance since 30 July 2004. The last question put to the experts was about what could have caused the area of pigmentation on the applicant’s thigh (mentioned in report no.18 of 28January 2005 – see paragraph 37 above) and when it had appeared. The experts noted that the applicant had sought assistance from a doctor in respect of that issue for the first time on 18May 2004, more than a year after his arrest and his alleged ill-treatment. There was therefore no link between those events. They also found that it was impossible to establish when the area of pigmentation in question had appeared.
48. The applicant complained to the Regional Court that the above‑mentioned experts could not be regarded as objective, particularly because they had already been involved in a similar examination on 28 January2005 and had not been able to give clear answers to the relevant question (see paragraph 37 above).
49. On 16 October 2007, in respect of the applicant’s allegations of ill-treatment, the Poltava regional prosecutor’s office once again refused to institute criminal proceedings against the police officers.
50. On 14 December 2007 the Regional Court delivered a new judgment on the applicant’s criminal case (see paragraph 75 below). It dismissed his complaint of ill-treatment as unfounded. The trial court relied on forensic medical expert reports nos. 90 and 18, according to which there was no indication that the applicant had been subjected to electric shocks (see paragraphs 37 and 47 above). The court also questioned the experts who had issued those reports. As regards the expert conclusion which the applicant had commissioned (no. 719 – see paragraph 34 above), according to which there had been an indication that he had been subjected to electric shocks, it was concluded that it had been based on incomplete medical documentation. Namely, the court noted that the applicant had provided the expert with only the medical records containing his complaints that he had been subjected to electric shocks, and that no forensic medical examination reports of 2003 had been given to the expert. The expert in question was not summoned to the hearing, in spite of the applicant’s requests to that effect. The trial court questioned the prosecutor to whom the applicant had complained of ill-treatment on 6February 2003 (see paragraph 16 above). He stated that he had seen some linear marks around the applicant’s fingers which had looked like they had been caused by pressure from a fingernail. The prosecutor also submitted that he had drawn the forensic medical expert’s attention to the applicant’s allegation that he had sustained electric shocks. Furthermore, the court questioned the doctors from Novi Sanzhary Hospital who had treated the applicant in February-March 2004 (see paragraph 32 above). One of them said that the applicant had stated that he had sustained an electric shock as a result of an accident at his house in the country. Lastly, the Regional Court questioned a number of former detainees with whom the applicant had been detained in the same detention facility in February 2003. One of them stated for the first time that he had seen linear marks on the applicant’s fingers in June 2003. The court did not find that statement credible, given that it contradicted statements given by the same witness at an earlier stage, and having regard to the timing of the statement. No other former detainees confirmed the veracity of the applicant’s allegation.
51. Overall, the trial court considered that there had been a thorough investigation into the applicant’s ill-treatment allegation, and that the prosecutor’s ruling of 16 October 2007 refusing to institute criminal proceedings against the police officers concerned (see paragraph 49 above) was duly reasoned.
52. On 10 July 2008 the Supreme Court upheld the first-instance court’s findings (see also paragraph 85 below).
D. Criminal proceedings against the applicant
53. On 5 February 2003 the applicant’s acquaintance Pi. wrote a “statement of surrender to the police” in which he stated that he had shot Ko. several times (see paragraph 7 above) upon the instructions of the applicant, who had promised him 3,000 United States dollars (USD) for Ko.’s murder. Subsequently Pi. retracted that statement on the basis that it had been obtained under duress.
54. On the same day the applicant also wrote a statement of surrender, allegedly as a result of his ill-treatment (see paragraph 14 above). The contents of the statement were as follows. On an unspecified date in summer 2000 the applicant had discovered that a number of specific metal pieces were missing from his warehouse. He had decided to inspect all the scrap metal collection points in the vicinity. The applicant submitted that he had eventually found the metal pieces at Ko.’s collection point, and that Ko. could not convincingly explain where they had come from. The applicant had therefore decided to teach him a lesson. He had given a gun to Pi. and had asked him to intimidate Ko. by shooting in the latter’s direction, in exchange for money. After Pi. had informed the applicant that he had done as asked, the applicant had paid him USD3,000.
55. At some point on 5 February 2003 the applicant’s wife signed a legal assistance contract for the applicant’s defence with U., a lawyer. However, U. was not allowed to see the applicant either on that date or for another week, even though he persistently asked for such a meeting (seeparagraph 60 below). It appears that officials from Kremenchuk police station refused U.’s requests to that effect on the grounds that additional permits were required, it was a weekend, or schedules were too busy.
56. On the evening of 5 February 2003, at 8.15 p.m., the investigator instituted criminal proceedings against the applicant on suspicion of attempted murder. He issued a report explaining to the applicant what his procedural rights were as a suspect in criminal proceedings. The applicant signed it with a note stating that he wished to be legally represented. The investigator proposed that the applicant be represented by D., a lawyer who happened to be in the police station for unrelated proceedings. Both the applicant and D. agreed to this, and at 9 p.m. D. was formally admitted to the proceedings as the applicant’s legal counsel. At that point the applicant was not aware of the legal assistance contract regarding his representation by U.
57. Late in the evening on 5 February 2003 the applicant was questioned as a suspect in the presence of the lawyer D., and he reiterated his initial statement of confession (see paragraph 54 above).
58. On 6 February 2003 the reconstruction of the events was carried out at a place where the applicant had allegedly thrown the gun and its magazine into a river. Two divers who were deployed did not recover anything of interest for the investigation. The applicant and the lawyer D. were present.
59. On 11 February 2003 the reconstruction of the events was resumed. This time the applicant did not have a lawyer present. The divers retrieved a recoil spring and a gun magazine with two bullets from the river. According to the applicant, those items had been planted by the police. He referred to the video-recording of that investigative measure, from which it allegedly appeared that the investigator had announced the discovery of those items before the divers had appeared on the surface with them. The applicant stated in front of the camera that he had been tortured by electric shocks.
60. On 12 February 2003 the applicant’s wife hired another lawyer, Ch., in addition to the lawyer U. (see paragraph 55 above). On the same day the applicant declined the services of D. and said that he wished to be represented by the lawyers U. and Ch., who were immediately admitted to the proceedings. There is no information on any investigative measures carried out in the presence of those lawyers.
61. On 13 February 2003, once the applicant’s administrative detention had expired (see paragraph 10 above), the investigator of the Komsomolsk town prosecutor’s office arrested him on suspicion of the attempted murder of Ko.
62. On 16 February 2003 the Komsomolsk Town Court remanded the applicant in custody pending trial. On 28 February 2003 the Regional Court upheld that decision.
63. On 22 February 2003 the applicant refused the services of the lawyers U. and Ch. and said that he wished to be represented by the lawyers R. and Po.
64. On the same day the formal charge of attempted murder was laid against the applicant and he was questioned as an accused in the presence of his new lawyers, R. and Po. Relying on Article 63 of the Constitution (see paragraph 86 below), he refused to make any statements. He also stated that he wished to retract all his earlier statements, including those made in the presence of the lawyer D.
65. On 5 March 2003 another reconstruction of the events was carried out at the place where the applicant had allegedly thrown the gun and its magazine into the river (see paragraphs 58 and 59 above), this time in the presence of the applicant’s lawyer Po. The divers continued looking for the gun, but did not find anything. The applicant denied his involvement in the incident with Ko. He stated that he had not had a gun, let alone thrown one into the river. He also noted in the reconstruction report that the lawyer D. had been imposed on him by the investigator, and that his initial confession had been made as a result of his torture by electric shocks.
66. On 21 March 2003 the applicant refused the services of the lawyer R., and said that he wished to retain Po. as his only legal counsel.
67. On 10 June 2003 formal charges of attempted aggravated murder and illegal firearms handling were brought against the applicant.
68. On the same day the applicant was questioned in the presence of the lawyer Po., and denied any involvement in the incident concerning Ko.
69. On 20 August 2003 the Regional Court started the trial as a court of first instance.
70. On 10 February 2004 the Regional Court remitted the case for additional pre-trial investigation, mainly with a view to verifying the applicant’s ill-treatment allegation (see paragraph 31 above). The applicant was released subject to his giving an undertaking not to abscond.
71. On 15 April 2004 the Supreme Court quashed the part of the ruling of the appellate court concerning the remittal of the case for additional investigation. However, it upheld the part pertaining to the applicable preventive measure.
72. On 22 March 2005 the Regional Court found the applicant guilty of inflicting grievous bodily injuries on Ko., and sentenced him to four years’ deprivation of liberty. However, he was amnestied and absolved from serving the sentence. As a preventive measure before the judgment became final, the applicant maintained his undertaking not to abscond.
73. On 7 July 2005 the Supreme Court quashed the judgment and remitted the case to the first-instance court for fresh examination. It observed that the only evidence against the applicant and Pi. had been their own self-incriminating statements and the gun magazine with two bullets, and that the trial court had not verified whether that evidence had been collected lawfully. The Supreme Court criticised the investigation into the accused’s complaints of ill-treatment (see paragraph 39 above) and observed that their allegations that the administrative-offence charges against them had been fabricated had not been verified. The Supreme Court further observed that the motives for the criminal offence had not been duly established: there had been no assessment of the applicant’s statements that he had in fact found the missing metal pieces (see paragraph 54 above) at the scrap metal collection point owned by a certain Zh. and that Zh. had given them back to him. In confirmation of that, the applicant had presented a notarised statement from Zh., who had meanwhile moved to Portugal. The trial court had neither commented on that statement nor sought to have Zh. questioned through an international legal assistance mechanism. Furthermore, the Supreme Court criticised the Regional Court for not having duly responded to the applicant’s complaint that his right to defence had been violated on account of his lack of access to the lawyer whom his wife had hired (U.) from 6 to 12 February 2003 (see paragraphs55 and 60 above).
74. On 7 August 2007 the preventive measure in respect of the applicant was changed from an undertaking not to leave town to pre-trial detention. No further information in that regard is available.
75. On 14 December 2007 the Regional Court delivered a new judgment by which it found the applicant guilty of attempted aggravated murder and illegal arms handling and sentenced him to nine years’ imprisonment, with confiscation of half of his personal property.
76. The Regional Court found that the applicant’s motives had been as follows. In an effort to put an end to their commercial competition, and wishing to increase the proceeds from his scrap metal business, on many occasions he had proposed to Ko. that they unite their businesses, but Ko. had refused. The fact that Ko. had not allowed the applicant to enter his warehouse “had definitely convinced [the applicant] of [Ko.’s] unwillingness to unite their businesses, and had made the applicant want to get rid of his competitor and capture [Ko.’s] scrap metal market”. It was established that the applicant had bought a gun from an unidentified person and had hired Pi. to carry out Ko.’s murder.
77. The applicant argued that he had had no reasons to wish Ko. any harm, let alone order his murder. He observed that since the incident in September 2000 (see paragraph 7 above) he had been maintaining friendly personal and commercial relations with Ko. However, the trial court was not convinced by those arguments. Nor did it find credible the applicant’s submission that his transfer of USD 3,000 to Pi. in September 2000 had in fact been a loan which Pi. had repaid to him in December 2000.
78. The Regional Court relied on the applicant’s and Pi.’s initial statements of surrender (see paragraphs 53 and 54 above). However, it considered that the applicant’s real intention had not been to intimidate Ko. as noted in the statement of surrender, but to have him murdered.
79. Pi. refused to make any statements before the trial court, and maintained his not guilty plea. He alleged that his statement of surrender had been extracted from him by ill-treatment. While noting that Pi. had given several versions of the events, the court considered the initial one – according to which he had shot Ko. upon the applicant’s instructions – the most convincing. At some point during the pre-trial investigation Pi. had stated that he had received the gun from a certain Ka. (a local criminal gang leader who had died by the time the investigation in this case had been completed). Eventually Pi. had stated that it had been Ka. who had shot Ko. and told Pi. about that incident.
80. As regards the testimonies by the victim, Ko., the trial court observed that the case file contained an “explanation” (пояснення) from him dated 16 September2000, a report on his questioning dated 30 September 2000 and some further explanations which were undated, according to which he could not remember any features of the perpetrator’s appearance. However, in March 2007 Ko. had stated that the signature on those documents did not belong to him. As a result, a criminal investigation had been launched in respect of the forgery of those documents. A forensic handwriting examination of 19 September 2007 had established that, indeed, the signature on the documents in question was not that of Ko. The Regional Court therefore declared those documents inadmissible evidence and excluded them from the file. It noted that at some point during the pre‑trial investigation the investigator had shown Ko. the video-recording of the reconstruction of the crime, and Ko. had recognised Pi. as the perpetrator. From that moment on, Ko. had had no doubts that it was Pi. who had shot him. The Regional Court relied on his statements in that regard.
81. In giving reasons for the applicant’s conviction, the trial court also relied on the material evidence: three bullet casings and a bullet found at the incident site, and the gun magazine with two bullets retrieved by the divers from the river at the place which the applicant had indicated (seeparagraph 59 above). They were found to have similar characteristics as regards their classification.
82. As regards the applicant’s complaint that a lawyer had been imposed on him by the investigator during the initial stage of the investigation, the court noted that as of 6 February 2003 the applicant had been represented by U., a lawyer of his choice, and that subsequently he had been able to instruct other lawyers.
83. Lastly, the Regional Court held that the applicant’s complaint that the administrative-offence charge against him had been fabricated was not supported by the case-file material.
84. The applicant lodged an appeal on points of law. He complained in particular that his conviction had been mainly secured by the initial self‑incriminating statements which he had made under duress and in the absence of legal assistance. The applicant also contended that his complaints about further restrictions on his right to defence (namely, the continued denial of his access to the lawyer U., and the absence of legal assistance for him during the reconstruction on 11February 2003) had not been duly addressed. He complained that the Regional Court had not adequately examined his pertinent and arguable claim that the administrative-offence charge against him had been fabricated in order to secure his availability for questioning as a criminal suspect without respecting his procedural rights. Furthermore, the applicant submitted that the trial court had disregarded the evidence which indicated firstly that he had had no motives for wishing harm on Ko., and secondly that the facts outlined in his statement of surrender were inaccurate (see paragraph 73 above). Lastly, the applicant observed that the victim’s statements had been accepted without any assessment, particularly as regards why he had not challenged the authenticity of his signature on the initial investigation documents for about four years, even though he had studied the case file on many occasions (see paragraph80 above).
85. On 10 July 2008 the Supreme Court upheld the judgment overall. It held that the convicted persons’ guilt had been established by the totality of the evidence which had been duly assessed by the first-instance court. The Supreme Court summarised the contents of the convicted persons’ statements of surrender and the reports on the reconstruction of the events. It also reiterated the trial court’s reference to the material evidence (see paragraph 81 above). As regards the applicant’s allegation of coercion, the Supreme Court considered that it had been rightly dismissed as unfounded (see paragraphs 50-52 above). The ruling of the Supreme Court did not mention the issue of the alleged fabrication of the administrative-offence charge. It was also silent as to the applicant’s arguments about the alleged restrictions of his right to defence, and did not contain any reference to his complaints regarding the alleged flaws in the assessment of Ko.’s statements and the failure to examine Zh.’s testimonies.
II. DOMESTIC LAW
86. The relevant provisions of the 1996 Constitution of Ukraine are quoted in the Court’s judgment in the case of Ogorodnik v. Ukraine (no. 29644/10, § 65, 5 February 2015).
87. The relevant provisions of the 1960 Code of Criminal Procedure (in force at the material time and repealed with effect from 19 November 2012) can be found in the judgments in the cases of Leonid Lazarenko v. Ukraine (no. 22313/04, §§ 30-33 and 35, 28 October 2010) and Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
88. The applicant complained that he had been ill-treated by the police and that there had been no effective domestic investigation into the matter. He relied on Article3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
89. The Government submitted that the applicant had failed to exhaust the domestic remedies available to him. In particular, they observed that he had failed to challenge before a court the prosecutor’s decision of 16 October 2007 not to institute criminal proceedings in respect of his allegations of ill‑treatment (see paragraph 49 above). The fact that the applicant had raised that complaint before the domestic courts in the course of the criminal proceedings against him did not, in the Government’s view, affect that argument.
90. Alternatively, the Government argued that the applicant had missed the six-month time-limit, as the last decision had been taken on 16October 2007 and he had not lodged his application with the Court until 26 December 2008. For these reasons, they invited the Court to declare the complaint inadmissible.
91. The applicant disagreed. He referred to the Court’s judgment in the case of Kaverzin v. Ukraine (no. 23893/03, 15 May 2012), in which the Court, having analysed the practice, came to the conclusion that procedures of appeal to hierarchically superior prosecutors and the courts had not been proved to be capable of providing adequate redress in respect of complaints of ill‑treatment by the police and ineffective investigations (ibid., § 97). The applicant further submitted that the domestic courts had examined his complaint of ill-treatment on the merits, and that it had been reasonable for him to await the completion of his trial before bringing that complaint before the Court.
92. The applicant emphasised that he had taken all possible steps at domestic level to bring his complaints of ill-treatment by the police to the attention of the national authorities.
93. The Court notes that, as pointed out by the applicant, it did indeed reject a similar non-exhaustion objection in the case of Kaverzin (cited above, § 98). In that case, in comparable factual circumstances, the Court concluded that the applicant had taken sufficient steps at domestic level to bring his complaints of ill-treatment by the police to the attention of the national authorities, noting that the fact that the complaints had been rejected by the prosecutor had not prevented the domestic courts from examining them on the merits in the course of the applicant’s trial (ibid. § 99).
94. The Kaverzin approach has been followed by the Court in cases against Ukraine ever since. In summary, the Court now considers that where an applicant who was a criminal defendant has raised ill‑treatment allegations both before the trial court and on appeal, as in Kaverzin, the six‑month limit should be counted from the final decision in the applicant’s criminal case (see, for example, Bondar v. Ukraine, no. 18895/08, § 61, 16 April 2019).
95. The Court sees no reason to depart from that approach in the present case, and therefore considers that this complaint cannot be rejected for failure to exhaust domestic remedies or for non-compliance with the six‑month time-limit.
96. The Court further finds that this part of the application is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. Alleged inadequacy of the investigation
(a) The parties’ submissions
97. The applicant submitted that, although he had immediately complained to the prosecutor of his ill-treatment, the domestic authorities had made no serious attempts to verify his allegations.
98. He observed that the initial forensic medical examination, even though it had been carried out without delay, had been superficial and had taken place in the presence of one of the police officers concerned. In his opinion, the subsequent forensic medical assessments, which had been carried out upon the instructions of the prosecution authorities, had also been incomplete and inconclusive. As regards the expert reports corroborating his allegation that he had been subjected to electric shocks, the applicant contended that the investigation had disregarded them for no valid reason.
99. The applicant also submitted that there had been no meaningful investigation into the alleged fabrication of the administrative-offence charge against him.
100. Overall, the applicant contended that the authorities had preferred to rely on hasty and unreasonable conclusions in order not to institute criminal proceedings against the police officers concerned, rather than seek to establish the truth and punish those responsible for his ill-treatment.
101. The Government contested those arguments. They submitted that the prosecution authorities had promptly reacted to the applicant’s complaint and had implemented a broad variety of investigative measures in order to collect all the information essential for establishing the circumstances of the event. Those measures had included the questioning of the police officers and witnesses (such as the former detainees), numerous forensic medical examinations, and so on.
102. The Government emphasised that the findings of the prosecution authorities had been verified and upheld by courts at two levels of jurisdiction. Their conclusion that there had been no indication that the actions of the police officers had comprised a criminal offence was well-founded. The fact that the applicant was not satisfied with such an outcome did not mean that the investigation had been flawed.
(b) The Court’s assessment
103. The Court refers to the general principles set out in, inter alia, El‑Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 182-85, ECHR 2012).
104. The Court also reiterates that proper medical examinations are an essential safeguard against the ill-treatment of persons in custody. Such examinations must be carried out by a properly qualified doctor, without any police officer being present, and the report of the examination must include not only the detail of any injuries found, but the explanations given by the patient as to how they occurred and the opinion of the doctor as to whether the injuries are consistent with those explanations (see Akkoç v. Turkey, nos. 22947/93 and 22948/93, § 118, ECHR 2000‑X).
105. Turning to the present case, the Court notes that on 6 February 2003 the applicant complained to the prosecutor that he had been subjected to electric shocks on 4‑5February 2003 (see paragraph 16 above). That was an assertion of serious ill-treatment, which warranted investigation in accordance with the above-mentioned standards.
106. The Court discerns, however, a number of deficiencies in the domestic investigation undermining its effectiveness.
107. First of all, the Court takes note of the alleged hindrance to the early stages of the investigation by lawyer D., who had been appointed to defend the applicant at the recommendation of the investigator (see paragraphs 15 and 17 above).
108. The Court next observes that the efficiency and credibility of the applicant’s initial and therefore crucial forensic medical examination on 6 February 2003 was compromised by the presence of one of the police officers allegedly involved in his ill-treatment (see paragraph 20 above).
109. Furthermore, it is noteworthy that the authorities did not convincingly explain why the forensic medical examination report produced by a private expert at the applicant’s request on 29 May 2004 could not be relied on (see paragraphs 34 and 50 above). They also appeared to ignore another expert report issued by the Main Bureau of Forensic Medical Examinations of the Ministry of Public Health on 3 April 2007 at the request of the applicant’s lawyer which also corroborated, at least to some extent, the applicant’s allegation (see paragraphs 45 and 46 above).
110. The Court further observes that overall the investigation lasted about four and a half years, and was discontinued and subsequently resumed seven times. In the Court’s opinion, repeated remittals of a case for further investigation may disclose a serious deficiency in the domestic prosecution system (see, for example, Aleksandr Smirnov v. Ukraine, no. 38683/06, § 61, 15 July 2010).
111. It is also relevant to note that the domestic authorities examined the applicant’s complaint only by means of inquiries, without full-scale criminal proceedings being opened. The Court has held that this investigative procedure does not comply with effectiveness principles, because an inquiring officer can take only a limited number of procedural steps within that procedure, and a victim’s procedural status is not properly formalised (see, mutatis mutandis, Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, §§ 310-12, 1 July 2010, and Savitskyy v. Ukraine, no. 38773/05, § 105, 26 July 2012).
112. Lastly, the Court notes that the applicant was questioned for the first time in respect of his ill-treatment allegation only on 30 June 2006, almost three years and five months after the events.
113. The Court considers the above considerations sufficient to conclude that the applicant was denied an effective investigation into his arguable claim that he had been ill-treated by the police. It observes that it has held in other cases (see Kaverzin, cited above, §§ 169-82) that situations such as this often stemmed from systemic problems at national level which did not provide for adequate or effective investigations into allegations of ill‑treatment by agents of the State.
114. There has therefore been a violation of Article 3 of the Convention under its procedural limb.
2. Alleged ill-treatment
115. Maintaining his account of the events (see paragraph 14 above), the applicant insisted that he had been subjected to ill-treatment by the UBOZ officers after his arrest on 4 February 2003. He referred in particular to the expert reports which supported his allegations (see paragraphs34 and 45 above), as well as the statements of a number of former detainees who confirmed that he had complained of ill-treatment (see paragraphs 40 and 50 above).
116. The Government argued that the applicant’s complaint was not supported by any evidence. On the contrary, they emphasised that there were numerous forensic medical examination reports refuting his allegations.
117. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances or the victim’s behaviour (see, among other authorities, Labita v.Italy [GC], no.26772/95, §119, ECHR 2000‑IV).
118. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Nonetheless, where allegations are made under Article 3 of the Convention, the Court must apply “particularly thorough scrutiny”, even if certain domestic proceedings and investigations have already taken place (see El-Masri, cited above, § 155, with further references).
119. The Court further reiterates that in assessing evidence, it has generally applied the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (ibid., § 151).
120. In the present case, there is no direct evidence suggesting that the applicant was ill-treated by the police as alleged.
121. The Court takes note of the contradictions in the statements made by the prosecutor as to whether there had been any marks on the applicant’s fingers on 6 February 2003 (see paragraph 16 above). In the Court’s opinion, those contradictions may be interpreted as an indirect indication of the existence of some marks. However, the applicant’s initial forensic medical examination on the same date, although of limited credibility, (see paragraph108 above), did not document any visible injuries.
122. In addition, no link between the applicant’s health-related concerns and his alleged ill-treatment has been conclusively established. The expert reports stating that those concerns might have resulted from the applicant’s being subjected to electric shocks did not clearly exclude other possible causes of his health problems (see paragraphs 34 and 45 above); and conversely, the expert reports stating that there was no medical evidence in support of his allegation did not refute that possibility as such (see paragraphs 19, 26, 37 and 47 above).
123. The Court emphasises that it was the authorities’ failure to carry out an effective investigation into the applicant’s complaints that allowed several crucial issues to remain unclear (compare Dolganin v. Ukraine [Committee], no. 18404/07, § 69, 16 February 2017). However, on the basis of the information available it is not possible to conclude beyond reasonable doubt that, when in police custody on 4-5 February 2003, the applicant sustained the ill-treatment alleged, including, but not limited to, being subjected to electric shocks.
124. It follows that there has been no violation of the substantive limb of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
125. The applicant further complained that he had not had a fair trial as required by Article 6 §§ 1 and 3 (c) of the Convention, the relevant parts of which read:
“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
126. The Court notes that this part of the application 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
127. The applicant complained that his conviction had mainly been based on his statement of surrender, which had been obtained under duress and in the absence of legal assistance. He also argued that his right to defence had been infringed on account of: his being denied access to the lawyer whom his wife had hired (U.) until 12 February 2003; the lawyer D. being imposed on him by the investigator; and the conduct of the reconstruction of the events on 11February 2003 in the absence of legal assistance for him.
128. The Government submitted that the applicant had made his confession voluntarily, and had confirmed this by his signature (see paragraph 54 above). Furthermore, they observed that the psychologists who had analysed his behaviour on the video-recording of the reconstruction measure on 6February 2003 had established that no pressure had been put on the applicant (see paragraph 44 above).
129. The Government noted that the applicant had been legally represented from the time when he had first been questioned as a suspect on 5 February 2003, and that since then he had always been represented by one or several lawyers of his choice. As regards his access to the lawyer U., the Government submitted that they could not clarify that issue, given that the relevant documents had been destroyed after all the time that had elapsed. While the Government did not comment on the absence of the applicant’s lawyer during the reconstruction of the crime on 11 February 2003, they observed that the applicant had not objected to how that investigative measure had been carried out, and that he had not raised any complaints in that regard.
130. Lastly, the Government submitted that in addition to his statement of surrender, the applicant’s guilt had been confirmed by extensive evidence.
2. The Court’s assessment
(a) General case-law principles
131. The general principles with regard to access to a lawyer, the right to remain silent, the privilege against self-incrimination, and the relationship of those rights with the overall fairness of proceedings under the criminal limb of Article 6 of the Convention can be found in Beuze v. Belgium ([GC], no. 71409/10, §§119-50, 9November 2018).
(b) Application of the general principles to the facts of the case
(i) Existence and extent of the restriction
132. The Court observes that, as confirmed by the police officers themselves, on 4 February 2003 they had information about the applicant’s involvement in the incident concerning Ko., and they arrested the applicant with a view to verifying that information (see paragraph 8 above).
133. By virtue of the Court’s case-law on Article 6 §§ 1 and 3 (c), the applicant was entitled to be assisted by a lawyer from the time when he was first questioned as a suspect by the police. However, it is an established fact that when making his statement of surrender, the applicant was not legally represented (see paragraphs 54 and 56 above). Moreover, at that point there were no criminal proceedings against him and he had been arrested only in respect of an unrelated administrative (minor) offence (see paragraphs 8 and 56 above). Looking beyond appearances and the language used, and concentrating on the realities of the situation, the Court considers that in reality the applicant’s administrative detention occurred in order to facilitate his questioning as a criminal suspect (compare Grigoryev v. Ukraine, no. 51671/07, § 86, 15 May 2012).
134. The Court observes that it was only after his statement of surrender that the applicant was represented by a lawyer (D., a lawyer suggested to the applicant by the investigator – see paragraph 56 above).
135. In addition, for some unknown reason that lawyer was not present during the reconstruction of the events on 11 February 2003, when important material evidence was obtained (see paragraph 59 above). It was never suggested that the applicant had waived his right to defence during that investigative measure, either explicitly or implicitly.
136. Another relevant and important factor in these circumstances is the delay as regards the applicant’s access to U., the lawyer hired by the applicant’s wife on 5 February 2003 to represent him. While the Government submitted that they were unable to clarify the issue, referring to the relevant documents not being available (see paragraph 129 above), it appears to be sufficiently established that U. was admitted to the proceedings for the first time only on 12February 2003 (see paragraphs 55 and 60 above).
137. In view of the foregoing, the Court concludes that the applicant’s right of access to a lawyer was restricted on account of: his having no legal representation during his initial questioning on 4-5 February 2003 (it is not contested that, although charged with and subsequently convicted of an administrative offence on 4 February 2003, the applicant was questioned in relation to the shooting of Ko.); his lawyer being absent during the reconstruction of the events on 11 February 2003; and his access to the lawyer hired by his wife being delayed by seven days.
(ii) Existence of compelling reasons for the restriction
138. The Court observes that neither the domestic authorities, in the course of the applicant’s trial, nor the Government, in their submissions to the Court, referred to the existence of any exceptional circumstances which could have justified the impugned restrictions on the applicant’s right to legal assistance. It is not the Court’s task to assess of its own motion whether such circumstances existed in the present case.
139. The Court therefore concludes that those restrictions were not justified by any compelling reasons.
(iii) The fairness of the proceedings as a whole
140. The absence of compelling reasons does not in itself lead to a finding of a violation of Article 6. Whether or not there are compelling reasons, it is necessary in each case to view the proceedings as a whole. However, where there are no compelling reasons, the Court must apply very strict scrutiny to its fairness assessment.
141. The absence of such reasons weighs heavily in the balance when assessing the overall fairness of criminal proceedings, and may tip the balance towards finding a violation. The onus is then on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the criminal proceedings was not irretrievably prejudiced by the restriction on access to a lawyer (see the reference in paragraph 131 above).
142. In relation to this balancing exercise, the Court will examine, to the extent that they are relevant in the present case, the various factors deriving from its case-law as set out in Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, § 274, 13 September2016) and Simeonovi v. Bulgaria ([GC], no.21980/04, § 120, 12 May 2017), and as reiterated in Beuze (cited above, §150).
143. There is no indication that the applicant was particularly vulnerable by reason of his age or mental capacity. However, it is relevant to note that during his initial questioning by the police he had no procedural status in the related criminal proceedings. In the Court’s opinion, that circumstance may have rendered his situation somewhat vulnerable (compare Malyy v. Ukraine [Committee], no. 14486/07, §112, 11 April 2019).
144. Furthermore, it is undisputed that prior to making his confession on 5 February 2005 the applicant was not informed of his right to remain silent and of the privilege against self-incrimination.
145. The Court refers to its conclusion that the applicant has failed to make out his claim that he made his initial confession as a result of ill-treatment (see paragraph 124 above). This conclusion regarding his complaint under Article 3 of the Convention does not preclude the Court from examining his allegation of self-incrimination under duress from the standpoint of Article 6 safeguards (see Yuriy Volkovv. Ukraine, no. 45872/06, § 68, 19 December 2013). The Court cannot but observe that even though the circumstances in which the applicant made his initial confession cast doubt on its reliability, they were not elucidated by the domestic courts (see Yuriy Volkov, cited above, §69). In particular, there was no meaningful examination of the applicant’s arguable claim that the administrative-offence charge against him had been fabricated to ensure his availability for questioning without respecting the requisite safeguards for his procedural rights as a suspect in relation to a separate offence (see paragraphs 73 and 83-85 above).
146. The Court also observes that the applicant retracted his initial self‑incriminating statements shortly after he started to be represented by lawyers of his choice rather than the lawyer suggested by the investigator (see paragraph 64 above).
147. The Court notes that the applicant’s initial confession, obtained in the absence of legal assistance, formed an important if not key element of the prosecution’s case against him. It is true that the court viewed his statements in the light of other evidence before it. However, none of that evidence – including the confessions made by the applicant’s co-accused Pi. during the investigation stage, the victim’s statements and the material evidence – constituted direct evidence. Furthermore, a number of shortcomings in the examination of that other evidence, which were pointed out by the applicant in his appeal on points of law, remained unaddressed (see paragraphs 84 and 85 above).
148. The Court notes that at trial the applicant challenged the evidence obtained in breach of his defence rights and opposed its use. However, his arguments were rejected. The Supreme Court, which considered the case at second (and final) instance, did not mention the applicant’s submissions in that regard in its ruling (see paragraphs 84 and 85 above). In the Court’s view, this indicates the absence of relevant procedural safeguards afforded by domestic law and practice which could be regarded as counterbalancing the restrictions on the applicant’s right to legal assistance. The Court has previously stressed that, where there have been procedural defects at pre‑trial stage, the primary concern of the domestic courts at trial stage and on appeal must be the overall fairness of the criminal proceedings (see Doyle v. Ireland, no. 51979/17, § 101, 23 May 2019). As such, the apparent failure of the Supreme Court to engage with the applicant’s submissions is an important consideration.
149. In conclusion, re-emphasising the very strict scrutiny that must be applied where there are no compelling reasons to justify a restriction on the right of access to a lawyer, the Court finds that the criminal proceedings brought against the applicant, when considered as a whole, did not cure the procedural defects which occurred at the pre-trial stage.
150. There has therefore been a violation of Article 6 §§ 1 and 3 (c) of the Convention in that regard.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
151. 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
152. The applicant claimed 200,000 euros (EUR) in respect of non‑pecuniary damage.
153. The Government contested that claim.
154. The Court considers that the applicant suffered non-pecuniary damage which cannot be compensated for by the mere finding of a violation of his Convention rights. Having regard to the circumstances of the case, and ruling on an equitable basis, as required by Article 41, the Court awards the applicant EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
155. The applicant made no claim for costs and expenses. Accordingly, the Court makes no award under this head.
C. Default interest
156. 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. Declaresthe application admissible;
2. Holds that there has been a violation of Article 3 of the Convention under its procedural limb;
3. Holdsthat there has been no violation of Article 3 of the Convention under its substantive limb;
4. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;
5. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 10,000 (ten thousand 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;
6. Dismissesthe remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 23 January 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško Síofra O’Leary
Deputy Registrar President
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