Last Updated on June 24, 2021 by LawEuro
The applicant alleged that his lawyer had not been allowed access to him while the authorities had been conducting an examination of his office. In the course of the examination, they discovered marked money and traces of the marking substance on the applicant’s hands; and the applicant made certain statements about the origin of the money. That evidence was later used to convict him of bribery. He complained under Article 6 §§ 1 and 3 (c) of the Convention.
FIFTH SECTION
CASE OF GALAMAY v. UKRAINE
(Application no. 44801/13)
JUDGMENT
STRASBOURG
24 June 2021
This judgment is final but it may be subject to editorial revision.
In the case of Galamay v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President,
Jovan Ilievski,
Ivana Jelić, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 44801/13) 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 Igor Romanovych Galamay (“the applicant”), on 4 July 2013;
the decision to give notice to the Ukrainian Government (“the Government”) of the complaint set out in paragraph 1 below and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 3 June 2021,
Delivers the following judgment, which was adopted on that date:
1. The applicant alleged that his lawyer had not been allowed access to him while the authorities had been conducting an examination of his office. In the course of the examination, they discovered marked money and traces of the marking substance on the applicant’s hands; and the applicant made certain statements about the origin of the money. That evidence was later used to convict him of bribery. He complained under Article 6 §§ 1 and 3 (c) of the Convention.
THE FACTS
2. The applicant was born in 1968 and lives in Shepetivka. He was represented by Mr M. Tarakhkalo and Ms V. Lebid, lawyers practising in Kyiv.
3. The Government were represented by their Agent, Mr I. Lishchyna.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. The applicant was convicted of bribery committed, as established by the domestic courts (see paragraph 17 below), under the following circumstances:
(i) the applicant, at the time deputy commander for social issues in a military unit, told Soldier O.V. that he would make sure that O.V. gets an allowance (of 1,170 Ukrainian hryvnias (UAH), about 100 euros (EUR)) to improve his living conditions, in return for a UAH 800 (about EUR 70) payment to the applicant;
(ii) at the same time the applicant, in his official capacity, was collecting contributions from the unit’s servicemen for a celebration of the unit’s anniversary. The domestic courts found that the money demanded from O.V. had been intended as the latter’s contribution to funding the party (see paragraph 17 (iv) below);
(iii) Soldier O.V. applied for the allowance and the unit’s commanding officer, on the applicant’s recommendation, awarded it. Once the allowance had been paid to O.V., the applicant, through Major R.V., pressed him to pay up, threatening that disciplinary proceedings would be instituted against him and his salary would be reduced;
(iv) on 23 May 2011 O.V. complained of being pressured for money to the military counterintelligence unit of the Security Service of Ukraine (SBU). The police and the SBU supplied him with banknotes marked with a special substance visible only in ultraviolet light;
(v) early in the morning on 25 May 2011 O.V. gave the banknotes to Major R.V. who in turn left them on the applicant’s desk.
6. In the morning the same day the SBU and the police conducted the investigative measure of “examination of the scene of event” (hereinafter “scene examination” – see paragraph 23 below for the relevant legislative provisions) in the applicant’s office in the presence of the applicant and two attesting witnesses and drew up a report. There is no indication that the applicant was advised of any rights, in particular of the right to remain silent or the right to a lawyer. The content of report was as follows:
(i) banknotes (UAH 800) marked with the special marking substance were discovered under a sheet of paper on the applicant’s desk. When asked about the origin of the money, the applicant responded that it could have been placed there by Major R.V. or in fact by anyone since the office had been unlocked;
(ii) the applicant’s hands were examined under ultraviolet light and it was discovered that on his left hand there were two almost invisible spots of the special marking substance. The applicant’s hands were swabbed with gauze pads and the swabs were sealed;
(iii) a sum of more than UAH 11,000 in unmarked banknotes was found in the applicant’s safe. He explained that those constituted contribution to the unit’s celebration. Some printed invitations to the celebration were also found;
(iv) the applicant added a handwritten note to the report asserting that the swabs had been made 1.5 to 2 hours after the discovery of the money and during that time he had touched the paper under which the money had been found and other things. Moreover, the spots of marking substance had been discovered also on the witnesses’ hands. The applicant asserted, therefore, that the swabs could not serve as evidence against him.
7. In the course of the examination, the applicant called his lawyer and asked him to come. On the orders of an SBU officer and the unit’s commanding officer, the lawyer was denied entry to the military compound where the office was located.
8. The lawyer lodged a complaint concerning refusal of access to the applicant. During the subsequent investigation the police officers explained that after completion of the examination of the applicant’s office, in the afternoon of 25 May 2011, the applicant was brought to a police station, “to provide explanations” (that was confirmed by the police station’s logbook). The applicant refused to speak. His lawyer attempted to see him at the station but was told by an officer that the applicant’s whereabouts were unknown.
9. At some point after examination of the applicant’s office on 25 May 2011, criminal proceedings were instituted on suspicion of bribery.
10. The applicant was officially placed under arrest at 1.20 a.m. on 26 May 2011. His rights as a suspect, including the right to remain silent and the right to a lawyer, were explained to him. He was allowed to consult the lawyer. From that point on and throughout the proceedings, the applicant was represented by lawyers of his choice.
11. In the course of the pre-trial investigation, the applicant was questioned several times, with his lawyers present, and denied any guilt.
12. During the trial the applicant also pleaded not guilty. He presented the following account of events (which appears to have remained largely consistent throughout the proceedings):
(i) as part of his duties the applicant had been preparing a party to celebrate the unit’s anniversary. It had been agreed that salaried servicemen would all contribute to fund the party. O.V. had refused. The applicant had offered to help him apply for the allowance, to which he was entitled anyway, and O.V. would in turn contribute part of the money received to the party expenses. After O.V. had received the allowance he still had not contributed but the applicant had not pursued the issue and had told him that money was no longer needed;
(ii) Major R.V. had participated in the collection of funds for the celebration. To the extent that he continued discussing a contribution with O.V. after the applicant had said that the money was not needed, R.V. had done so without the applicant’s knowledge or instructions. Early in the morning on 25 May 2011, R.V. had come to the applicant’s office to discuss unrelated matters; he had not given him or left any money. The applicant had then left his office unlocked and went on some business elsewhere in the military unit’s compound. At some point police officers found him and brought him back to his office. There they asked him questions about the collection of money for the unit’s celebration;
(iii) later, attesting witnesses had come to the office and in their presence the police discovered the marked banknotes, which the applicant had never seen or touched before, under some papers on his desk. The applicant believed that the minimal traces of the marking substance which had been discovered on his hand must have gotten there while he was talking to the investigators and touching documents on his desk prior to the arrival of the witnesses. The gauze pads used to swab the applicant’s hands had been prepared using the scissors which lay on the desk where earlier the marked money had been laid out. This meant that the marking substance found on the swabs did not come from the applicant’s hands but likely from the contaminated scissors or from other sources – this was further evidenced by the fact that the attesting witnesses’ hands had likewise been contaminated.
13. Throughout the proceedings, including in his subsequent appeals (see paragraph 18 below) the applicant raised the following issues:
(i) he had been improperly denied access to a lawyer on 25 May 2011;
(ii) his statements as to the origin of the marked cash found on his desk had been recorded in the scene examination report even though he had not been advised of his rights and his lawyer had been denied access to him at the time;
(iii) the restriction on his defence rights had also contributed to swabs from his hands having been collected in a way that compromised the result (see paragraphs 6 (iv) and 12 (iii) above);
(iv) in general the evidence collected in his office was inadmissible since it had been collected prior to the institution of criminal proceedings (see the relevant legislative provisions in paragraph 23 below).
14. At the trial Soldier O.V. gave the account of events as described in paragraph 5 above. In particular, he testified that his wife had been pregnant, and he had applied for the allowance to help with the cost of living but had initially been refused. Then the applicant had offered to help him get the allowance in exchange for a contribution to the unit’s anniversary celebration and had threatened him that he would have problems in his service record unless he paid. At some point in time, the applicant had told him that the money was no longer needed but then Major R.V. told him that in fact the applicant was continuing to demand the money. O.V. had then complained to the SBU and had given the marked money to R.V.
15. Major R.V. confirmed O.V.’s account and testified that the applicant had asked him to initiate disciplinary proceedings against O.V. for failure to meet physical fitness goals. R.V. had voiced surprise, given that O.V. was in the process of discharge from the army anyway. The applicant had explained that the real reason was that O.V. failed to pay the sum of UAH 800 he had promised and asked R.V. to tell O.V. that unless he paid he would have problems in his service record. After hearing that message, on 25 May 2011 O.V. had paid up the sum and, taking the money, R.V. brought it (hidden in a notepad) to the applicant’s office and put the money on the applicant’s desk. Having seen the money and understood what it was for, the applicant had covered it with some papers.
16. In the course of the trial the exact sequence of events in the applicant’s office was examined in considerable detail with the attesting witnesses and the investigator (who had drawn up the scene examination report) being cross-examined by the defence.
One of the attesting witnesses testified that he had observed how money marked by fluorescent substance with the word “bribe” had been discovered on the applicant’s desk. The applicant had two very small spots of the same fluorescent substance on his hand. However, on that occasion it was discovered that the witness’s own hands had even larger traces of the fluorescent substance. The witness also stated that the scissors used to prepare gauze pads to be used for swabbing the applicant’s hands had been taken from the applicant’s desk, and that before swabbing the pads had not been lit up by ultraviolet light.
The investigator who had conducted the scene examination stated, by contrast, that the gauze pads had not been cut up by the scissors found on the applicant’s desk but taken from sealed manufacturer’s packaging.
17. On 20 December 2011 the Shepetivka Court convicted the applicant of bribery and sentenced him to a fine of UAH 8,500 (about EUR 800) and a two-year ban on occupying managerial positions. The trial court:
(i) relied on the above-mentioned evidence, including the testimonies of O.V., R.V. and the attesting witnesses, the scene examination report, the results of confrontations between the applicant, O.V. and R.V. (in the course of which they had confirmed their incriminating statements), a forensic examination report (showing that the same marking substance had been discovered on the marked banknotes and on swabs from the applicant’s hands), and evidence from the military unit’s records to the effect that O.V.’s application for the allowance had not been properly registered. The latter element was, for the trial court, proof showing that the applicant had personally collected O.V.’s application and presented it to the commanding officer;
(ii) concerning the scene examination report in particular, the court made reference to the applicant’s statement that “the money could have been put on his desk by R.V. or in fact by anyone since the office had been unlocked” (see paragraph 6 (i) above);
(iii) in discussing the evidence of the attesting witnesses who had observed the marking of the banknotes and their discovery in the applicant’s office, the court noted one witness statement to the effect that the witness had traces of the marking substance on his hands similar to the very little traces on the applicant’s hand (see paragraph 16 above);
(iv) the trial court did not contest that the sum of UAH 800 given to the applicant had been intended for the unit’s anniversary celebration but considered that under the relevant criminal law provision that fact did not exclude criminal liability for bribery. It was in the applicant’s interest to organise a celebration and, the contributions from others being insufficient, he had unduly pressured O.V. to make a contribution.
18. In his appeals the applicant contested the assessment of the evidence by the trial court. He continued to raise the issues set out in paragraph 13 above.
19. On 28 April 2012 the Kmelnytsk Regional Court of Appeal upheld the applicant’s conviction. It stated that the trial court’s findings had been supported by the evidence, partially re-examined by the Court of Appeal in the course of its hearings. The Court of Appeal referred in particular to Soldier O.V.’s and Major R.V.’s statements and the scene examination report (see paragraphs 6, 14 and 15 above). The denial of the applicant’s lawyer’s access to the military unit’s premises had been lawful since matters of access to army installations had been within the exclusive competence of the military authorities. As to the procedure followed in taking of swabs from the applicant’s hands, it had been done appropriately and the procedure used had not been open to criticism. The court finally held that it had been lawful to conduct the scene examination prior to the formal decision to institute criminal proceedings (see the relevant legislative provisions in paragraph 23 below).
20. On 14 February 2013 the High Specialised Court for Civil and Criminal Matters upheld the lower courts’ decisions. It endorsed the Court of Appeal’s findings.
RELEVANT LEGAL FRAMEWORK
21. Article 43-1 of the 1960 Code of Criminal Procedure (in effect until 20 November 2012) provided that a person was to be considered a criminal suspect if he/she has been arrested on suspicion of having committed a crime. A suspect was entitled to several rights, including the right give evidence or keep silent, to have defence counsel and a meeting with the latter before the first questioning. The arrest report had to state that those rights explained were explained to the suspect.
22. Under Article 48 of the Code, defence counsel had the right to be present at all investigative actions, including questioning, search and seizure and identification parades, in which the suspect participated.
23. Article 113 provided that investigative actions could be conducted only after criminal proceedings have been instituted. However, pursuant to Article 190 § 2 in cases of urgency examination of the scene of event could be conducted prior to institution of criminal proceedings.
24. Article 127 described an attesting witness (понятий) as a person disinterested in the outcome of a criminal case who was invited by an investigator to attest to an investigative measure and to the accuracy of a report produced to that effect.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
25. The applicant complained of a violation of his rights under Article 6 §§ 1 and 3 (c) of the Convention, which read as follows:
“1. “In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …”
…
3. Everyone charged with a criminal offence has the following minimum rights:
…
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
…”
A. Admissibility
26. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
27. The applicant submitted that he had been a victim of manipulation of the police who had left money on his desk while he had been absent. He considered that this was the reason for which the police had deliberately kept his lawyer out. The applicant had not waived his right to a lawyer and had raised that matter throughout the domestic proceedings.
28. The evidence collected in the absence of the lawyer on 25 May 2011, when the applicant was de facto treated as a suspect, had formed the basis for the conviction: namely, the scene examination report, the applicant’s statements recorded in it and the swabs from the applicant’s hands. He considered that that evidence had been the only direct evidence of his guilt since none of the witnesses had seen him actually take the alleged bribe.
29. The lawyer’s absence had a fundamental effect on the applicant’s defence. The lawyer was not able to observe the process of examination of the office, the swabbing of the applicant’s hands or to ensure that they were conducted correctly, so as to avoid the following irregularities: (i) before his hands were swabbed the applicant had touched documents on his desk as a result of which his hand had likely been accidentally contaminated with the marking substance, (ii) the lawyer would have insisted on other objects in the office being examined with ultraviolent light to make sure that they were not contaminated in the same way as the applicant’s hand was, (iii) the lawyer would have insisted that such irregularities be noted in the report. He would also have been able to advise the applicant to remain silent and not to answer questions about the origin of funds on his desk.
(b) The Government
30. The Government considered that the applicant had not pointed to any specific disadvantage caused by the absence of a lawyer on 25 May 2011. He had not made any statement at the police station on that day. The applicant had consistently denied his guilt throughout the proceedings. On 26 May 2011 the applicant had been arrested, informed of his rights and given access to the lawyer of his choice. On that occasion he did not raise any complaints. Subsequently he had been represented by professional counsel of his choice throughout the proceedings. His conviction had been based on a wide range of evidence.
2. The Court’s assessment
31. The relevant principles of the Court’s case-law are set out in Beuze v. Belgium ([GC], no. 71409/10, §§ 119-50, 9 November 2018).
32. Looking beyond appearances to the reality of the situation, the Court considers it established that the authorities treated the applicant as a suspect from the moment the examination of his office started on 25 May 2011. Accordingly, the protections afforded by Article 6 §§ 1 and 3 (c) applied from that moment (ibid., § 119).
33. The Court finds it established that the applicant’s access to a lawyer was restricted on 25 May 2011, both during the examination of his office and at the police station (see paragraphs 7 and 8 above). There is no indication that the applicant waived his right to a lawyer. In fact, that right was only explained to him the next day, on 26 May 2011 (see paragraph 10 above and compare Dvorski v. Croatia [GC], no. 25703/11, §§ 90-93, ECHR 2015, and Lopata v. Russia, no. 72250/01, §§ 137-41, 13 July 2010).
34. The Court does not discern any compelling reasons for the impugned restriction.
35. No evidence was collected at the police station (see paragraph 8 above) and there is no indication that the police’s attempt to interrogate the applicant at the station could have any impact on the overall fairness of proceedings against him (see Simeonovi v. Bulgaria [GC], no. 21980/04, §§ 136-45, 12 May 2017).
36. The key question before the Court is, therefore, whether the restriction on the applicant’s access to a lawyer during the examination of his office had such an impact. In the absence of compelling reasons for the restriction, in order to answer that question the Court must apply a very strict scrutiny (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 265, 13 September 2016) in light of the principles set out in the Ibrahim judgment (ibid., § 274).
37. Turning to those principles the Court observes that the applicant was not particularly vulnerable, the evidence was assessed by professional judges and the applicant had an opportunity to challenge the authenticity of the evidence and oppose its use.
38. There is no indication that any domestic provisions were breached in collection of the relevant evidence. The Court of Appeal’s findings in that respect do not appear arbitrary or manifestly unreasonable (see paragraph 19 above and Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, § 310, 1 July 2010, where the Court observed that under Ukrainian law at the time examination of the scene of event was possible prior to the institution of criminal proceedings).
39. However, that technical compliance undermined the applicant’s ability in practice to challenge the use of evidence obtained from him in the absence of a lawyer, because the domestic courts found it sufficient to observe that domestic law had been complied with (compare Sitnevskiy and Chaykovskiy v. Ukraine, nos. 48016/06 and 7817/07, § 81, 10 November 2016).
40. There is no indication of a breach of any other Convention Article or that any compulsion was used against the applicant.
41. As to the weight of the public interest in the investigation and punishment, it should normally be considered particularly strong where corruption is concerned. However, this cannot be asserted with the same degree of certainty in the present application, given that, according to the domestic courts’ findings, the case concerned a modest amount and involved essentially inappropriate methods of funding an office party, rather than more serious matters of official corruption (see paragraph 17 (iv) above).
42. The remainder of the Ibrahim criteria concern the evidence collected with the applicant’s participation while his right to a lawyer was restricted. In the present case there were two elements of such evidence:
(i) the applicant’s statement about the possible origin of the marked funds recorded in the scene examination report (see paragraph 6 (i) above), and
(ii) evidence concerning the discovery of marking substance on the applicant’s hands contained in the scene examination report and physical evidence (swabs of the applicant’s hands on the gauze pads). The latter was subjected to forensic expert examination (see paragraphs 6 (ii) and 17 (i) above).
43. As to the applicant’s statement, there are no factors that would cast doubt on its reliability or accuracy. It did not contain any admission of guilt but did indicate that the applicant knew that the marked money had possibly come from Major R.V. According to the findings of the trial court, the latter had acted on the applicant’s behalf in extracting the bribe from Soldier O.V. (see paragraphs 5 (iii) and 15 above).
44. Given R.V.’s central role in the events as established by the domestic courts, the applicant’s admission, at this early stage, may have undermined his defence. His statement was therefore self‑incriminating in the sense that it likely substantially affected his position (see Beuze, cited above, § 178).
45. This was even more important given the paucity of other direct evidence of the applicant’s guilt. The fact that the marked money was found on his desk, or that his hands may have been in contact with it, could not be such evidence since the domestic courts found that the money had been intended for an office party, the only specifically incriminating element being that the applicant had put pressure on O.V. to contribute. The latter element was only proven by O.V.’s and R.V.’s statements. That is why the applicant’s state of mind as to R.V.’s role in the events, revealed in the statement to the police and recorded in the scene examination report, appears to have been particularly important.
46. This is further borne out by the fact that the trial court quoted the impugned statement in its judgment and, moreover, the Court of Appeal singled out the scene examination report (which contained the statement) among a limited number of other elements of evidence against the applicant which the Court of Appeal considered incriminating. That indicates that the evidence in question played a significant role in the case against the applicant (see paragraphs 17 (i) and 19 above and compare Palchik v. Ukraine, no. 16980/06, § 45, 2 March 2017).
47. In view of the above considerations, the Court does not consider it necessary to examine separately the role which the second element of the evidence collected in the applicant’s office (the presence of the marking substance on the applicant’s hands) played in the proceedings.
48. The domestic courts addressed the applicant’s complaints concerning the breach of his right to a lawyer by simply pointing out that the situation complied with domestic law (see paragraph 19 above). They did not assess the impact of the evidence collected in the applicant’s office on the case against him.
49. For this reason, applying strict scrutiny, the Court is not convinced that the criminal proceedings, when considered as a whole, cured the procedural defects which occurred on the first day of the investigation. It concludes that the Government have failed 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 on 25 May 2011 (compare Beuze, cited above, § 193).
50. There has accordingly been a violation of Article 6 §§ 1 and 3 (c) of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
51. 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.”
52. The applicant claimed 8,500 Ukrainian hryvnias in respect of pecuniary damage (representing the fine he paid as punishment imposed by the domestic courts), 10,000 euros (EUR) in respect of non-pecuniary damage and EUR 4,500 in respect of costs and expenses.
53. The Government contested those claims considering them unjustified and excessive.
54. The Court does not discern any causal link between the violation found and the pecuniary damage alleged (see Mikhaylova v. Russia, no. 46998/08, § 106, 19 November 2015). It therefore rejects this claim.
55. The Court, in view of the minor gravity of the violation found, awards the applicant EUR 1,800 in respect of non-pecuniary damage, plus any tax that may be chargeable.
56. The Court awards the applicant EUR 3,500 in respect of costs and expenses incurred before the Court, plus any tax that may be chargeable to the applicant.
57. 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.
58. The Court observes that domestic law provides for the right to request a reopening of domestic proceedings (see Chernika v. Ukraine, no. 53791/11, § 82, 12 March 2020, with further references).
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 1,800 (one thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 24 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Mārtiņš Mits
Deputy Registrar President
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