Last Updated on May 11, 2020 by LawEuro
FIFTH SECTION
CASE OF SIYANKO v. UKRAINE
(Application no. 52571/11)
JUDGMENT
This version was rectified on 25 February 2020 under Rule 81 of the Rules of Court.
STRASBOURG
9 January 2020
This judgment is final but it may be subject to editorial revision.
In the case of Siyanko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
André Potocki, President,
Mārtiņš Mits,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 3 December 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 52571/11) 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 Mykola Fedorovych Siyanko (“the applicant”), on 27 July 2011.
2. The applicant, who had been granted legal aid, was represented by Ms N. Okhotnikova, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.
3. On 16 May 2018 notice of the application was given to the Government.
4. No comments were received in due time from Res Publica, an Albanian non-governmental organization, which was given leave to intervene in the written proceedings under Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1959 and is detained in Cherkasy.
A. Background to the case
6. Between October 2004 and May 2009 four old women, Tso., S., Z. and Ye., were found dead in their houses in the village where the applicant was living. Some of them had visible head injuries. The police were not called and no criminal proceedings were instituted at the time in connection with their deaths on the assumption that there was nothing suspicious in their deaths; it was considered that they had died by accident.
7. In March 2008 criminal proceedings were instituted in connection with a theft of money from K.’s house. The applicant and his wife, who were K.’s neighbours, had been involved as attesting witnesses in those proceedings. The proceedings were suspended on an unspecified date in 2008 as no perpetrator had been identified.
B. Criminal proceedings against the applicant
8. In the early morning on 7 July 2009 Kl., another aged neighbour of the applicant, was found murdered at her home. The police dog had brought the police to the applicant’s house. The applicant was taken to the village council and then to a police station.
The applicant did not contest before the Court that it had been him who had killed Kl. According to him, he had planned to go to the police to confess to the murder but the police had come first.
9. On the same date a criminal investigation was instituted against the applicant for the murder of Kl. and at 10 a.m. on that day he was formally arrested at the police premises. The available documents suggest that during his arrest the applicant was apprised of his rights as a suspect but waived his right to a lawyer in writing indicating that his refusal was not linked to his financial situation. Investigator Pav. accepted the waiver, noting that legal representation was not mandatory under a murder charge. Following this, from 12.05 to 12.50, the applicant was questioned as a suspect. During the interview, he admitted his guilt in Kl.’s death, submitting that he had killed her by accident on 6 July 2009 and providing details.
The applicant stated that after his arrest he had requested the assistance of a legal-aid lawyer or a meeting with a person who could assist him in hiring a private one but the request had been dismissed by the investigator. Following an insistent request by the investigator, he had had to waive his right to legal assistance.
10. At 2 p.m. on the same day a record of the applicant’s voluntarily surrender and confession to the police (явка з повинною) was drawn up by Investigator P., whom the applicant knew. The applicant confessed, in a concise fashion, to the murder of Kl.
According to the applicant, the confession was written on the demands of, and as dictated by, the investigator.
11. On 8 July 2009 a reconstruction of the crime was organised at Kl.’s house in the absence of a lawyer and in the presence of attesting witnesses, a forensic medical expert and a criminal law specialist. According to the reconstruction record, the applicant was invited by the investigator to show, of his own free will, how he had killed Kl. The applicant agreed. He provided a detailed account of the relevant circumstances, clarifying them on the request of the forensic expert and the investigator.
According to the applicant, he gave evidence as instructed by Investigator Shch., who did not appear in the formal records at the time but was de facto heading the investigation instead of Pav.
12. On 10 July 2009, from 9 to 9.20 a.m., the applicant was informed by Investigator Pav. of his procedural rights, including the right to legal assistance, and again waived his right to a lawyer in writing. He was then charged with the premeditated murder of Kl. and, between 9.30 and 10.30 a.m., he repeated his earlier testimony, maintaining that he had killed Kl. by accident.
According to the applicant, he requested a meeting with a lawyer but his request was again rejected.
13. Later on the same date, from 11 a.m. to 3.20 p.m. five records of the applicant’s voluntary surrender to the police had been consecutively drawn up by Investigator P., suggesting that the applicant had appeared before him and confessed to having committed a number of crimes: the theft from K.’s house (see paragraph 7 above); the murders of Z. and Tso.; the murder and robbery of Ye.; and the murder of a woman from his village named Motria whose last name he did not remember but who was later identified as S. (see paragraph 6 above).
According to the applicant, his confession to the theft from K.’s house had been made following a threat by an investigator that if he refused to confess, his wife would be charged as his accomplice to the theft and that this would expose their child to the risk of placement in an orphanage. Other self-incriminating statements were also made under “pressure” from the investigator and as dictated by him. He also submitted that on the same date, he had been forced to agree that some ammunition would be planted in his house by the police; he had been promised in this connection that he would not be prosecuted as the bullets were too old and no longer usable.
14. On 11 July 2009 the police conducted a search of the applicant’s house and seized seventy-six bullets for different weapons.
15. On 13 July 2009 the applicant was additionally questioned as a suspect in the investigation related to Kl.’s murder. The available documents suggest that before the questioning, at which a prosecutor was also present and of which a video-recording was made, the applicant was apprised of his procedural rights in writing and he requested the assistance of Ts., a lawyer; the lawyer was admitted to the proceedings and the above interview took place in his presence. According to the record of the above interview, the applicant admitted his guilt regarding Kl.’s death and, as a reply to unspecified questions on the part of Investigator Pav., made further statements in which he confirmed he had murdered Z., Tso., Ye. and S., providing details. He stated, inter alia, that he had come to the victims’ house to ask for a loan as he had needed money to pay his bills; once the victims had refused to give him money, he had killed them.
According to the applicant, before being questioned he was apprised of his rights orally but did not understand a word. He further stated that after he had managed to talk to the prosecutor, he had been provided with legal assistance by Ts., but that he had had no possibility to talk to the lawyer in private before or during the interview.
16. Between 14 and 22 July 2009, still in the framework of criminal proceedings in respect of Kl.’s murder, a number of investigative measures were taken to verify the applicant’s confessions in respect to the other murders which included examination of the crime scenes, questioning of the victims’ relatives and other witnesses, and exhumation and examination of the victims’ corpses. Material evidence, including one of the victim’s hairs found covered with blood on a doorframe, was discovered following an examination of the crime scene. The forensic expert confirmed following the exhumation that there had been injuries inflicted on the victims’ bodies. In his reports issued after the reconstructions of the crime with the applicant’s participation had been conducted (see paragraph 19 below), the expert concluded that the victims’ injuries could have been inflicted in the circumstances indicated by the applicant.
17. On 20 July 2009 criminal proceedings were instituted against the applicant on account of unlawful possession of ammunition seized from his house on 11 July 2009 (see paragraph 14 above).
18. On 23 and 24 July 2009 investigator L. questioned the applicant as a suspect and accused accordingly in the proceedings concerning unlawful possession of ammunition. No lawyer was present during the interviews as the applicant had waived his right to legal assistance. The applicant admitted his guilt in the offence. According to the applicant, he did so at the request of the investigator and provided evidence as dictated to him in exchange for a promise to grant him a meeting with his wife to discuss the issue of hiring a private lawyer.
19. On 29 July 2009, in order to verify statements given by the applicant during his questioning of 13 July 2009, reconstructions of the crimes were conducted in the village in the presence of Ts., a forensic medical expert, attesting witnesses and criminal law specialists. The applicant provided a detailed account of the crimes, confirming his guilt. The applicant alleged that he had done so following the instructions of Investigator Shch. in exchange for a new promise to allow him to meet with his wife at the spot. The relevant record, which bears the applicant’s signature, suggests that during the crime reconstruction, when asked why he had confessed to the crimes on 10 July 2009, the applicant stated that he had not been able to bear such a burden any longer. According to the applicant, he had never signed the reconstruction records and had refused to watch the video‑recording of this investigative step.
20. On 31 July 2009 criminal proceedings regarding the theft from K.’s house were resumed. The applicant was informed of his procedural rights but waived his right to legal assistance in respect of the theft charge. His waiver was accepted by Investigator Shch., as legal representation was not mandatory under domestic law in respect of that charge, and the applicant was questioned without a lawyer present. He confirmed his guilt in respect of the theft and provided details regarding the circumstances of the crime.
According to the applicant, both the waiver and the self-incriminating statements were given following demands by the investigator.
21. On 3 August 2009 Investigator Shch. instituted criminal proceedings against the applicant in connection with the aggravated murders of Z., Tso., Ye. and S.
22. On the same date all sets of criminal proceedings against the applicant were joined in a single case with the applicant’s charges listed as premediated murder for profit, robbery, theft, and unlawful possession of ammunition. He was then questioned in respect of these crimes in the presence of Ts., whom he wished to maintain as his lawyer. During the questioning, the applicant partly admitted his guilt in respect of Kl.’s murder and refused to give any other evidence.
According to the applicant, he refused to give evidence as Shch. had not kept his promises to allow him a meeting with his wife.
23. On 30 December 2009, having viewed a video recording of the questioning of 13 July 2009 and the reconstructions of the crimes of 29 July 2009, a psychological expert asserted that the applicant’s behaviour showed that he had been testifying of his own will.
24. On 25 March 2010, apparently after a complaint by Kl.’s friend, criminal proceedings were instituted against the applicant for having also robbed Kl. These proceedings were joined to the main case and the charges against the applicant were amended accordingly.
25. On 30 March 2010, during his questioning in the presence of Ts., the applicant denied his guilt in respect of all the charges against him – with the exception of Kl.’s murder, which he insisted had been an accident – and refused to give further evidence, relying on his constitutional right not to incriminate himself.
26. On 26 April 2010 the investigation was completed and the applicant and Ts. were granted access to the case file. According to the applicant, following Ts.’s advice, he signed the relevant record raising no complaints or requests.
27. On unspecified date the case was sent to the Court of Appeal of Cherkasy Region (“the Court of Appeal”) for trial at first instance.
28. On 31 May 2010 following the applicant’s request, the Court of Appeal replaced Ts. with F., a legal-aid lawyer.
29. During the hearings at the trial court, in which the applicant and F. were present, the applicant admitted his guilt with respect to Kl.’s death only, maintaining that he had killed her by accident and denying he had robbed her. He complained, for the first time, that his confessions to the crimes he had not committed had been obtained by the police under psychological duress and in breach of his defence rights. He submitted in this context that during the investigative actions in respect of Kl. murder Investigator P. had asked him “if he [had known] anything else”; he told the investigator about different accidents and crimes that had occurred in the village and that there were rumours that some old villagers had been murdered, rather than having died accidently as everybody thought. Then, Investigator P. gave him forms and forced him, by threatening to harm his family, to confess to some of the crimes he had chosen from the applicant’s story; in doing so, he dictated to him the text of the confessions. The applicant also informed the trial court that he had been made aware of some factual circumstances related to the deaths of Z., Tso., Ye. and S. from their relatives and had used those details in his testimonies; the remainder of the circumstances had been set out by him as instructed by the investigators P. and Shch.
30. On being questioned by the trial court, the residents of the village denied that there had been any rumours of any suspicious deaths. Investigator P. in his turn submitted, inter alia, that: he had offered the applicant a chance to confess to “all his sins” at the same time, if there had been any apart from Kl.’s murder; on 10 July 2009 the applicant had been brought to his office as he had wished to tell him something; in the office, the applicant had made his statements of voluntary surrender and confessed to the theft and murders; the applicant’s confessions to the murders had prompted the relevant investigation as nobody had known about the murders before.
31. On 19 July 2010 the applicant lodged a complaint with the trial court alleging, without any details given, that F. was not representing his interests effectively and asking to replace her with another legal-aid lawyer. No information has been provided to the Court as to whether that complaint was ever considered by the trial court.
32. On 19 October 2010 the Court of Appeal found the applicant guilty as charged. He was given a life sentence for murder for profit and terms from two to ten years’ imprisonment in respect of the remaining charges. Using the rule of absorption of a more lenient punishment by a more severe one, the applicant’s final sentence was life imprisonment. The court relied, inter alia, on the applicant’s statements of voluntary surrender and confession to the police, and his self-incriminating statements made during a number of investigative actions, including in the absence of a lawyer.
Having questioned the investigating officers in the case, attesting witnesses, forensic medical experts and having examined video-recordings of procedural actions and reports by psychological expert, the court found no evidence in support of the applicant’s allegations that he had made self‑incriminating statements under psychological pressure from and as instructed by investigators. It also observed in this connection that neither the police nor the victims’ relatives suspected that Z., Tso., Ye. and S. had been murdered until the applicant had confessed and that therefore the factual circumstances of those crimes could not have been given by the applicant at the instigation of the authorities. In addition, the court noted that the applicant had confirmed his confessions in the presence of his lawyer and that no complaints of any pressure on the part of the investigating authorities had been made by the applicant or his lawyer at the investigation stage. The fact that the applicant had retracted his confessions during the trial and complained of duress on the part of the police was seen by the court as the applicant’s attempt to avoid punishment for the crimes he had committed.
The Court of Appeal found no breach of the applicant’s defence right as the absence of a lawyer at his arrest and during some of investigative actions resulted from his waivers, made of his own free will, of his right to legal assistance. Given that at that time the crimes he had been suspected of did not require compulsory legal representation under domestic law his waivers had been lawfully accepted by the investigator; once the applicant expressed his wish to be represented by a lawyer, on 13 July 2009, his request was granted.
33. The applicant and his lawyer, F., drafted appeals. The applicant’s lawyer mainly challenged the court’s findings that the murders had been committed intentionally and for profit. She also stated, without drawing any conclusions, that no assessment had been given by the first-instance court in respect of the fact that the exhumation of the victims’ bodies had taken place before the reconstructions at the crime scene of 29 July 2009, during which the applicant had provided a detailed accounts how he had caused injuries to the victims, and that therefore the nature of bodily injuries, their location and the way they had been inflicted had already been known to the investigating officers.
34. In his appeal, the applicant repeated, inter alia, his complaints about the lack of access to a lawyer and the forced nature of his confessions. In addition, he complained that both his lawyers had been inactive. In particular, Ts. had been appointed by and had been working for the investigation and, despite being aware of the violations of the applicant’s rights, had failed to lodge any complaints; F. had also been “silent”, had not reacted to his requests for assistance and had not held private meetings with him to discuss his legal defence strategy, visiting him in detention only once during the seven months of the trial.
35. By a letter of 24 December 2010 the Court of Appeal notified the parties to the proceedings, including F., of the date and time of the examination of the appeals in the applicant’s case by the appeal court. It was also mentioned in the notification letter that the appearance of the parties before the appeal court was not mandatory.
36. On 15 February 2011 the Higher Specialised Court on Civil and Criminal Matters (“the Higher Specialised Court”), acting as the second-instance court, upheld the applicant’s conviction and sentence, finding that the applicant’s guilt was proven by a number of pieces of evidence which had been carefully assessed and relied on by the first-instance court.
The Higher Specialised Court rejected as unsubstantiated the applicant’s complaint that his conviction had been based on inadmissible evidence obtained in breach of his rights. It noted, inter alia, that the first-instance court had relied on detailed self-incriminating statements made by the applicant during his questioning while a suspect and after having been accused, including in the presence of a lawyer, and that that evidence had been obtained in compliance with the procedural law and had been corroborated by a number of other pieces of evidence.
The Higher Specialised Court further supported the lower court’s reasoning and conclusion as to the lack of evidence of any psychological pressure applied to the applicant. It reiterated that the authorities had had no knowledge of the murders of Z., Tso., Ye. and S. “until the applicant had made his statements in July 2009”, which excluded the possibility of any pressure on him having been exerted with a view to extracting that information. It went on, noting that once the relevant statements had been made, the relevant facts had been verified by the authorities and the evidence which had confirmed the applicant’s allegations had been obtained. The court also pointed to the level of details given by the applicant in his testimony and suggested that such details could have been known to him only if he had been the perpetrator.
As regards the defence rights, the Higher Specialised Court advanced the same reasoning as the first-instance court (see paragraph 32 above).
37. The text of the judgment suggests that the hearing took place in the presence of the applicant and that the applicant’s lawyer was absent from the hearing. The reason for his absence is unknown to the Court. According to the applicant, the hearing at the Higher Specialised Court lasted about thirty minutes and he was allowed to be present and make his statement only at the end.
C. Subsequent events
38. On 3 July 2013 the applicant also complained to the prosecutor’s office that all confessions in the criminal proceedings against him had been made under psychological pressure from Investigator P.
39. On 30 September 2013, mainly citing the testimonies of police officers, who had denied any pressure having been exerted on the applicant, and the results of examination of the same complaint by the trial court, the prosecutor dismissed the applicant’s allegations as unsubstantiated. This decision was upheld by the Kamyanka Town Court and the Cherkasy Regional Court of Appeal on 14 February and 21 March 2014 respectively.
40. It appears from the prosecutor’s decision that the police officers submitted, inter alia, that a few days after his arrest when he had been brought to the police station from a detention facility the applicant had stated that he had wished to confess to Investigator P. to a number of murders he had committed between 2003 and 2007; the records of his confessions had been sent to Investigator Shch. who had then ordered an investigation into the relevant facts.
41. In 2017 a similar complaint by the applicant was dismissed by the police as unsubstantiated following an internal inquiry.
II. RELEVANT DOMESTIC LAW
42. Under paragraph 1 of Article 115 of Criminal Code of 5 April 2001, premeditated murder is punishable by imprisonment for a term of seven to fifteen years. Under paragraph 2 of Article 115, premeditated murder in the aggravating circumstances listed in that paragraph is punishable by imprisonment for a term of ten to fifteen years, or life imprisonment.
43. The relevant provisions of domestic law governing access to a lawyer and the reopening of criminal proceedings can be found in Zakshevskiy v. Ukraine (no. 7193/04, §§ 48 to 51, 17 March 2016).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
44. The applicant complained that he had been subjected to psychological pressure in police custody. He relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties’ submissions
45. The applicant complained that he had been subjected to treatment prohibited by Article 3 of the Convention. In particular, he had been threatened that his wife would be charged with the theft from K.’s house and their child would be given to an orphanage. This threat had been the decisive factor in his decision to make a false confession to the theft and to waive his right to legal assistance. His confessions to other crimes, made on 10 July 2009 and later on, as well as all his waivers of his right to legal assistance had also been the result of pressure from the police.
46. The Government submitted that this complaint was manifestly ill‑founded as it was set in general terms and not supported by any evidence. The allegation of the threat to his family could, alternatively, be rejected as incompatible ratione materiae with the Convention. Even assuming that such a threat had indeed taken place, the applicant had failed to show that this had caused him mental suffering attaining the minimum level of severity required by Article 3 of the Convention.
47. In his reply to the Government’s observations, the applicant submitted that the fact that he had been put under pressure by the police was proven by the way he had presented his confessions to the theft and murders on 10 July 2009: five statements out of the blue, on five separate forms, written in similar language.
B. The Court’s assessment
48. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence (see Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000‑IV). In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25).
49. The Court observes that in the present case while alleging that he had been under permanent psychological pressure from the police which had made him confess to a number of crimes, the applicant provided no details as to what the pressure had consisted of. The only exception was the threat of problems for his family which had been allegedly used against him in order to extract his confession to the theft from K.’s house (see paragraph 13 above).
50. The Court observes that no evidence has been provided by the applicant to corroborate his account of the relevant events. In doing so, it accepts that it is not always possible to provide direct evidence of psychological pressure inflicted behind the closed doors. It will therefore assess the credibility of the applicant’s allegations in the light of the materials of the case-file.
51. The Court notes that the applicant raised his complaint of duress on the part of the investigating authorities during the trial only. In the circumstances of the present case the Court does not find any justification for such a delay. It observes in this connection that the applicant was represented by a lawyer as of 13 July 2009 and could have brought the relevant facts to his attention. However, in the lawyer’s presence the applicant confirmed his confessions to the murders without raising any complaint.
52. In addition, as suggested by the applicant’s own submissions, he was able to raise the issue concerning his legal assistance before the prosecutor on 13 July 2009 (see paragraph 15 above). It is not clear why he could not have similarly complained to the prosecutor about the psychological pressure he had been subjected to, if there had been any.
53. Lastly, the domestic courts did not find the applicant’s allegation of duress by investigators to have been established either (see paragraph 32 above). The Court sees no reason to depart from the domestic courts’ conclusions which it does not find to have been arbitrary or manifestly unreasonable.
54. In so far as the applicant can be understood as having complained that the investigator’s alleged promise to allow a meeting with the applicant’s wife also constituted duress which had caused him to waive his right to a lawyer and confess to a number of crimes, the Court finds that this allegation is also unsubstantiated. In any event, even if it had occurred, such behaviour on the part of the investigator would not have attained a sufficient level of severity to fall within the ambit of Article 3 of the Convention.
55. Accordingly, this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
56. The applicant complained of various violations of Article 6 of the Convention, the relevant parts of which provide:
“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. The parties’ submissions
1. The applicant
57. The applicant maintained that the criminal proceedings against him had been unfair. He submitted, in particular, that he had not been assisted by a lawyer for the first few days of his detention as he had been forced to waive his right to legal assistance. While unrepresented he had been forced to give statements of voluntary surrender and confessions to the police on 7 and on 10 July 2009 and to make other self-incriminating statements.[1] The domestic courts had relied on those self-incriminating statements to secure his conviction without due verification of his allegations of ill-treatment and the violation of his defence rights.
58. He further submitted that he had not been able to defend his interests properly before the appeal court as he had not been present during the whole hearing and his legal-aid lawyer had been absent for its entirety.
59. Lastly, the applicant complained that both his lawyers had failed to ensure his effective legal representation in the criminal proceedings.
2. The Government
60. The Government submitted that the applicant had confessed to all crimes of his own free will. He had waived his right to a lawyer after being informed of his procedural rights, and that waiver had been lawfully accepted by the investigator at that stage. Once he had expressed his wish to be legally represented, on 13 July 2009, a lawyer had been appointed. In the lawyer’s presence he had confirmed his confessions to murders.
61. They further observed that the applicant had been able to raise his complaints before the trial court and the Higher Specialised Court had duly examined them and found them unsubstantiated. The applicant’s guilt had been proven by a range of evidence.
62. The Government submitted that both lawyers of the applicant had actively participated in the proceedings ensuring his effective legal representation. The absence of the applicant’s lawyer, who had been duly informed of the time and date of the hearing, had not violated the applicant’s defence rights as the applicant himself had been present and his lawyer had properly represented him at the first-instance court and had duly raised all complaints in the appeal.
B. The Court’s assessment
1. Admissibility
63. 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.
2. Merits
64. The Court clarified the general principles to be applied with regard to a restriction on the right of access to a lawyer and concerning the fairness of proceedings in Ibrahim and Others v. the United Kingdom([GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, §§ 257-65, ECHR 2016) and Simeonovi v. Bulgaria ([GC], no. 21980/04, §§ 112-20, CEDH 2017 (extracts), with further references); it confirmed those principles recently in Beuze v. Belgium ([GC], no. 71409/10, §§ 119-50, 9 November 2018).
65. In the present case, in the absence of a lawyer and in police’s hands, the applicant confessed to a number of crimes he had allegedly committed. On a number of occasions the applicant signed waivers of his right to legal assistance: on 7 and 10 July 2009 – in respect of the charges of Kl.’s murder; on 23 and 24 July 2009 – on the charges of unlawful possession of ammunition; and on 31 July 2009 – as regards the theft from K.’s house. He was eventually convicted of all the offences he had confessed to.
66. The Court reiterates its finding under Article 3 of the Convention in respect of the applicant’s complaint of ill-treatment (see paragraphs 49 to 55 above) and therefore considers that there is no sufficient evidence to believe that the self-incriminating statement the applicant made to the police in the absence of a lawyer had not been given in a cognisant and voluntary manner.
67. On the basis of the evidence before it, the Court further finds no indication that the waivers of the right to a lawyer referred to in paragraph 65 above were not effective. The case file contains no evidence proving that the waivers were made under duress and that the applicant in fact asked the authorities to provide him with legal assistance in respect to those charges but that the request was refused. Instead, the available documents suggest that during his arrest and before being questioned for the first time upon the charges of Kl.’s murder, the theft from K.’s house and unlawful possession of ammunition, which were the subject matters of a different set of proceedings, the applicant was informed in writing of his right to legal assistance and expressly waived his right to a lawyer (see paragraphs 9, 12, 18 and 20 above). His waivers were permissible under domestic law at the time they were made as the charges at issue did not require mandatory legal representation. The authorities, therefore, cannot be held responsible for any consequences those waivers entailed for his conviction on those charges (see, Zakshevskiy, cited above, §§ 112 and 113, and, mutatis mutandis, Sitnevskiy and Chaykovskiy v. Ukraine, nos. 48016/06 and 7817/07, § 66, 10 November 2016).
68. However, the situation is different when it comes to the episode which led to his conviction for murders of Z., Tso., Ye. and S. for the following reasons.
69. On 10 July 2009 in the context of the criminal proceedings in respect of Kl.’s murder, the applicant was questioned by Investigator Pav. as an accused, having waived his right to legal assistance before the interview had started. After the interview, he appeared before Investigator P. and confessed firstly to having committed a theft from K.’s house and then to a number of murders (see paragraph 13 above). It is apparent from testimonies given by police officers in the domestic proceedings that they knew that the applicant was going to confess to murders as he had allegedly informed them of this fact (see paragraph 40 above). Assuming that it was so, the Court considers that from that time the police had every reason to suspect the applicant of having committed multiple murders, given that by then he had already confessed to the murder of Kl. The authorities thus must have been aware of the legal consequences such a charge would entail, including the risk of a life sentence, and that the domestic law barred waivers of the right to legal assistance in cases involving such a charge and entitled the applicant to mandatory legal representation (see Zakshevskiy, cited above,§ 48).
70. However, there is no indication that the police explained to the applicant, who had no legal expertise, the possible consequences of his confessions before recording them and ensured the presence of a lawyer. They failed to do so even after his confession to the murder of Z. – the first out of four murders to which the applicant would confess that day – had been recorded, that is to say when the police formally had every reason to suspect the applicant of a double murder. It should not be overlooked in this connection that the applicant’s confessions were recorded by the police one by one, using a separate form for each crime (see paragraph 13 above).
71. The Court finds that in the above circumstances the previous waiver given by the applicant earlier that day in the context of the Kl.’s murder charges could no longer be accepted as valid in respect of the following confessions and those confessions, respectively, could not be seen as having been made following an effective waiver.
72. In view of the foregoing, the Court concludes that the applicant’s right to legal assistancewas restricted on 10 July 2009, when the applicant made his confessions. The Court does not discern from the material in the case file that there were any compelling reasons for such a restriction.
73. The Court is therefore called upon to examine the consequences for an overall fairness of the criminal proceedings fromthe defence lawyer’s absence on the referred date.
74. In making this assessment the Court is guided by the criteria set out in the case of Ibrahim and Others (cited above, § 274), to the extent that it is appropriate, given the circumstances of the present case. Owing to the lack of compelling reasons for restricting the applicant’s right to a lawyer, the Court must apply very strict scrutiny to its fairness assessment. The absence of such reasons weighs heavily in the balance when assessing the overall fairness of the criminal proceedings and may tip the balance towards finding a violation. The onus will then be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on the applicant’s access to legal advice (ibid., § 265; see also Beuze, cited above, § 145).
75. In this regard, the Court observes, on the one hand, that a number of factors are pointing in favour of considering the proceedings fair: (i) there is nothing that would indicate that the applicant was particularly vulnerable; (ii) there is no indication in the material before the Court that the applicant’s right to challenge the authenticity of the evidence and oppose its use was in any way restricted; (iii) there is no evidence that the applicant’s initial confessions to the murders resulted from his ill-treatment; (iv) the applicant did not promptly retract his confessions but confirmed them in the presence of his lawyer, and even provided new details; (v) there was other evidence against the applicant, including real evidence; (vi) the evidence in the case was assessed by professional judges, (vii) the public interest in the prosecution of the offence imputed to the applicant – that of multiple murders – was very strong; (viii) equally, there is no indication that another Convention right was violated.
76. On the other hand, the significant likely impact of the applicant’s confessions to murders made on 10 July 2009 on the further development of the criminal proceedings against him cannot be ignored by the Court (see, mutatis mutandis, Dvorski v. Croatia [GC], no. 25703/11, § 111, 20 October 2015). In fact, as pointed out by the authorities themselves, it was those confessions from which the authorities became aware of the crimes and which prompted investigation of the relevant facts (see paragraphs 32 and 36 above). As a result, the exhumation of the alleged victims’ corpses and the relevant forensic examinations as well as the inspections of the crime scene had been held. It allowed the investigating authorities to adduce further evidence, which was used in the case against the applicant – including the material evidence (see paragraph 16 above).
77. It is true that the applicant confirmed his confessions in the presence of his lawyer on 13 July 2009 and retracted them at a later stage only. However, there is no evidence that the applicant had been provided with an opportunity to meet with the lawyer in private before that questioning. Moreover, as noted above, the statements that the applicant made on 10 July 2009 provided the domestic investigating authorities with the framework around which they built their case and the focus for their search for other corroborating evidence; it therefore undoubtedly irreversibly affected the applicant’s position (compare Ibrahim and Others, cited above, § 309, and contrast Yurchenkov v. Russia (dec.) [Committee], no. 38106/05, § 30, 10 April 2018).
78. In addition, the Court observes that the Court of Appeal expressly relied on the applicant’s initial confessions made on 10 July 2009 as evidence proving his guilt in the murders of Z., Tso., Ye. and S. without making any assessment on the issue of the applicant’s right to legal assistance, or assessing the impact the absence of the lawyer had had on the proceedings (see paragraph 32 above). The Higher Specialised Court found that the applicant’s conviction had been based on admissible evidence. The following analysis, however, did not include the applicant’s initial confessions of 10 July 2009 and the role they had played in the further course of the related investigation but merely concerned the applicant’s statements made when questioned as a suspect and as an accused (see paragraph 36 above).
79. Re-emphasising the very strict scrutiny that must be applied where there are no compelling reasons to justify the 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. This conclusion leads the Court to hold that the Government have failed to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the criminal proceedings against the applicant was not irretrievably prejudiced by the restriction of his right to legal assistanceon 10 July 2009 when he made his initial confessions to the murder of Z., Tso., Ye. and S.
80. The Court has already found violations of Article 6 §§ 1 and 3 (c) on account of similar situations as regards the right to legal assistance in a number of cases against Ukraine (see, mutatis mutandis, Sitnevskiy and Chaykovskiy v. Ukraine, cited above, §§ 64-88, and Zakshevskiy, cited above, §§ 112-23).
81. It follows that there has been a violation in the present case of Article 6 §§ 1 and 3 (c) of the Convention.
82. Having regard to the above finding, the Court considers that it is not necessary to examine separately the remaining complaints of the breach of the applicant’s rights under Article 6 §§ 1 and 3 (c) of the Convention (see, mutatis mutandis, Grabovskiy v. Ukraine, no. 4442/07, § 64, 29 November 2018).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
83. 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
84. The applicant claimed 1,000,000 euros (EUR) in respect of non‑pecuniary damage.
85. The Government considered those claims unsubstantiated and excessive.
86. The Court observes that it has found a violation of Article 6 §§ 1 and 3 (c) of the Convention in the present case. The Court cannot speculate as to the outcome of the proceedings against the applicant had there been no violation (see Ibrahim, cited above, § 315). The Court notes that Article 445 of the Code of Criminal Procedure and section 10 of the Law on the Execution of Judgments of the European Court of Human Rights allow for the possibility of reopening proceedings (see Zakshevskiy, cited above, §§ 50 and 51) and considers that the finding of a violation constitutes in itself sufficient just satisfaction (see Sitnevskiy and Chaykovskiy, cited above, § 142,and Zakshevskiy, cited above, § 133).
B. Costs and expenses
87. The applicant claimed no costs and expenses incurred before the Court apart from the sum of EUR 850 which had already been paid to him by way of legal aid (see paragraph 2 above). Accordingly, the Court makes no award.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declaresthe applicant’s complaints under Article 6 §§ 1 and 3 (c) of the Convention concerning his defence rights admissible and the remainder of the application inadmissible;
2. Holdsthat there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention on account of the absence of a lawyer on 10 July 2009, when the applicant made his confessions;
3. Holdsthat there is no need to examine the remainder of the applicant’s complaints under Article 6 §§ 1 and 3 (c) of the Convention;
4. Holdsthat the finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention constitutes in itself sufficient just satisfaction for any non‑pecuniary damage sustained by the applicant in this regard;
5. Dismissesthe remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 9 January 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško André Potocki
Deputy Registrar President
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[1] Rectified on 25 February 2020: the text was “While unrepresented he had been forced to give statements of voluntary surrender and confessions to the police on 7 on 10 July 2009 and to make other self-incriminating statements”.
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