CASE OF MAKSIMENKO v. UKRAINE (No. 2) (European Court of Human Rights) 45547/13

The present case concerns the applicant’s complaints under Articles 3 and 8 of the Convention about his handcuffing in a courtroom and, under Article 6 §§ 1 and 3 (c) of the Convention, about a breach of his defence rights in the criminal proceedings against him.


FIFTH SECTION
CASE OF MAKSIMENKO v. UKRAINE (No. 2)
(Application no. 45547/13)
JUDGMENT
STRASBOURG
29 September 2022

This judgment is final but it may be subject to editorial revision.

In the case of Maksimenko v. Ukraine (No. 2),

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Arnfinn Bårdsen, President,
Kateřina Šimáčková,
Mykola Gnatovskyy, Judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 45547/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 9 July 2013 by a Ukrainian national, Mr Sergey Ivanovich Maksimenko, born in 1972 and detained in Tyomnovka (“the applicant”), who had been granted legal aid and was represented by Mr M. Tarakhkalo and Mrs A. Kozmenko, lawyers practising in Kyiv;

the decision to give notice of the complaints concerning the alleged unfairness of the criminal proceedings and the applicant’s handcuffing in the courtroom to the Ukrainian Government (“the Government”), represented by their Agent, Mr I. Lishchyna, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 8 September 2022,

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

SUBJECT MATTER OF THE CASE

1. The present case concerns the applicant’s complaints under Articles 3 and 8 of the Convention about his handcuffing in a courtroom and, under Article 6 §§ 1 and 3 (c) of the Convention, about a breach of his defence rights in the criminal proceedings against him.

I. 2006 Criminal proceedings against the applicant and HIS CONVICTION

2. On 3 December 2001 the dead body of Mr L. was found, with a blood‑stained axe lying beside it. A criminal investigation was initiated in respect of premeditated murder.

3. On 20 February 2006 the police reported to the investigator at Yagotyn district prosecutor’s office (Kyiv Region), who had been in charge of that criminal case, that the applicant had been involved in L.’s murder, as fingerprints discovered at the crime scene belonged to the applicant.

4. On 14 March 2006 the applicant, who was at the time serving a fixed‑term prison sentence for several counts of premeditated murder, confessed in writing that he had hit L. on the head with the back of an axe, and provided details. He submitted his confession to a prison officer. He confirmed his statement on 23 March 2006 when questioned as a witness in the absence of a lawyer, and during the following investigation and trial before the Kyiv Regional Court of Appeal, in the presence of a legal aid lawyer who had been appointed on 23 June 2006 to represent him. In doing so, he submitted that he had confessed of his own free will.

5. On 7 November 2006 the Kyiv Regional Court of Appeal, sitting as a first-instance court, found the applicant guilty of premeditated murder and sentenced him to life imprisonment. It relied, among other evidence, on the applicant’s confession of 14 March 2006 and his witness statement of 23 March 2006 noting that the confession had been made voluntarily.

6. In his cassation appeal the applicant mainly challenged the severity of his sentence. He insisted that he had murdered L. unintentionally and requested that his confession, which he had made of his own free will, and his cooperation with the investigating authorities and the court, be taken into account.

7. On 22 February 2007 the Supreme Court, following a hearing in which the applicant was unrepresented, upheld his conviction.

II. Re-examination of the applicant’s CRIMINAL case

8. On 20 December 2011 the European Court of Human Rights (“the Court”) delivered a judgment in the applicant’s first case (see Maksimenko v. Ukraine, no. 39488/07), in which it found a violation of on account of the absence of legal assistance in the proceedings before the Supreme Court (see paragraph 7 above).

9. On 27 November 2012 the Higher Specialised Civil and Criminal Court (the HSCU) allowed the applicant’s application for the reopening of his case in the light of the 2011 judgment of the Court (see paragraph 8 above). It quashed the Supreme Court’s decision of 22 February 2007 and ordered a new cassation review of the applicant’s case.

10. On 14 February 2013 the HSCU, in the presence of the applicant and his lawyer, Mr Tarakhkalo, upheld the applicant’s conviction, slightly amending the reasoning on the basis of which the life sentence had to be imposed. It was suggested in the HSCU’s judgment that the applicant did not deny having murdered L. but wished L’s provocative behaviour and the applicant’s statement of confession to be taken into account when the court decided on the sentence. The HSCU did not address in its judgment a further complaint, raised by the applicant’s lawyer in a form of an addendum to the applicant’s cassation appeal of 2006 and reiterated in the hearing, concerning the lack of access to a lawyer at the initial stage of the investigation in 2006. The HSCU apparently considered that that complaint had been lodged in a procedurally incorrect way.

11. According to the applicant, during the hearing before the HSCU on 14 February 2013 he was placed in a glass cabin where he remained handcuffed throughout the trial, whereas defendants in other cases had not been handcuffed. In reply to a complaint raised in this respect by the applicant’s lawyer on 20 May 2013, the head of the relevant convoy unit noted, in general way, that in accordance with the relevant regulations, persons sentenced to life imprisonment had to be handcuffed during the delivery of the verdict.

THE COURT’S ASSESSMENT

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

12. The applicant complained under Articles 3 and 8 of the Convention that at the public hearing before the HSCU on 14 February 2013 he had remained handcuffed in the glass cabin for three and a half hours. The Court, being the master of the characterisation to be given in law to the facts of the case, considers that the latter complaint falls to be examined under Article 3 of the Convention only.

13. The Government argued that this complaint was manifestly ill‑founded, mainly as the application of the measure of restraint had been lawful and short in time.

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

15. The relevant general principles concerning the use of handcuffs can be found in Raninen v. Finland (16 December 1997, § 56, Reports of Judgments and Decisions 1997‑VIII) and Mathew v. the Netherlands (no. 24919/03, § 180, ECHR 2005‑IX).

16. The Court notes first that in the present case neither the Government nor the domestic authorities, when replying to the relevant complaint of the applicant’s lawyer (see paragraph 11 above), denied the facts as presented by the applicant. In such circumstances the Court accepts the applicant’s version of the events as true.

17. It has not been suggested by the Government that the use of handcuffs was made necessary by the applicant’s own behaviour or that the absence of handcuffs during the applicant’s appearance before the HSCU could have raised fears of a risk of violence, damage, flight, or harm to the proper administration of justice. The Court discerned nothing in the file that could suggest that any of the above-mentioned risks existed. It therefore does not consider that the use of handcuffs was intended to restrict the person concerned in a reasonable manner (see, for instance, D.G. v. Ireland, no. 39474/98, § 99 in fine, ECHR 2002‑III) and considers that this measure was disproportionate.

18. Although the applicant has not shown that the handcuffing affected him physically or mentally or was aimed at humiliating him, the Court considers that the exposure of the applicant – who was in a glass cabin – in handcuffs during the public hearing of 14 February 2013, without that measure being shown to have been reasonably necessary for the safety of the public or the proper administration of justice, constituted degrading treatment within the meaning of Article 3 of the Convention (see Gorodnitchev v. Russia, no. 52058/99, §§ 103-09, 24 May 2007).

19. There has accordingly been a violation of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

20. The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that the proceedings in his criminal case had been unfair as (a) he had not been given access to a lawyer in 2006, when he had made his confession statement and been questioned as a witness, and (b) no assessment of this complaint, which was raised by the applicant’s lawyer in the reopened proceedings in 2013, had been made by the HSCU.

21. Regard being had to the available materials and to its case-law (see Beuze v. Belgium ([GC], no. 71409/10, §§ 119-50, 9 November 2018), the Court considers that these complaints do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

22. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

23. The applicant claimed 65,000 euros (EUR) in respect of non‑pecuniary damage and EUR 10,500 in respect of costs and expenses incurred before the HSCU and the Court. In support of his claims he presented a contract for legal representation dated 4 January 2013, at an hourly rate of EUR 150, and a timesheet recording seventy hours of legal work. According to the contract, the applicant is obliged to pay for the work done when and if the Court makes a relevant award.

24. The Government contested those claims.

25. The Court recalls that in the present case it has found a violation of the applicant’s rights under Article 3 of the Convention only. Making its assessment on an equitable basis, the Court awards the applicant EUR 1,800 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

26. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award, in addition to the legal aid received, the sum of EUR 150 for costs and expenses, plus any tax that may be chargeable to the applicant. At the request of the applicant, the amount awarded under this head should be paid directly into the bank account of Mr M. Tarakhkalo (see, for example, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, 15 December 2016).

27. The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the applicant’s handcuffing during the public hearing before the HSCU on 14 February 2013 admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 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 150 (one hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, this amount to be paid into the bank account of Mr M. Tarakhkalo;

(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 29 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller                        Arnfinn Bårdsen
Deputy Registrar                     President

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