Last Updated on February 8, 2024 by LawEuro
European Court of Human Rights (Application no. 3016/16)
The applicant challenged the validity of the waiver at the domestic level on two other grounds: firstly, on the ground that no lawyer had been present when the waiver had been signed; and secondly, because he had been suffering from the mental and physical effects of drug addiction and withdrawal syndrome when he signed the waiver.
The absence of a lawyer when the waiver was signed does not of itself render the waiver invalid for purposes of Article 6 of the Convention. The European Court of Human Rights also observes that the Supreme Court interpreted the relevant provisions of the domestic law to mean that the presence of a lawyer was not required for a valid waiver where no lawyer had yet been appointed for the defendant.
As to the applicant’s drug addiction, he was suffering from it at the time of his de facto arrest on 14 April 2014. The applicant signed the waiver of his right to a lawyer two days later, on 16 April 2014.
Since there is no indication that the applicant had access to drugs or substitution therapy while he was under the control of the police, the applicant’s allegation that he was already suffering from withdrawal symptoms at the time he signed the waiver can be considered credible.
The Court has already held that confession statements made while in unrecorded detention, combined with evidence of unexplained injuries, may create an appearance that such statements were not voluntary.
While in the present case there is no evidence of injuries and the applicant’s allegations of physical ill-treatment lack substantiation, somewhat similar considerations nevertheless apply in that the circumstances of the applicant’s unrecorded detention, combined with credible allegations that he was suffering from withdrawal symptoms at the time he waived his right to a lawyer, render the voluntary nature of the waiver signed by the applicant open to doubt.
In such circumstances, it was in the first place for the domestic courts to establish in a convincing manner whether or not the waiver of legal assistance had been voluntary and valid, in spite of those problems.
The courts did not dispute that the applicant’s diagnosis of addiction-related psychological and behavioural disorders could in principle be a barrier to a valid waiver of his right to a lawyer under domestic law. The domestic case-law explicitly recognised the applicant’s diagnosis as potentially bringing him into the category of individuals who could not, by law, validly waive that right, on account of his mental disorder.
However, they found that the authorities only became aware of the applicant’s addiction in May 2014, after all the investigation activities with his participation had been completed. In making that assessment, the courts did not comment on the information to the effect that, starting not later than from 17 April 2014, that is the day after the applicant signed the waiver and confessed, ambulances were repeatedly called to the detention centre in connection with his withdrawal symptoms. Nor did the courts explain how the applicant could have been registered, without the authorities’ knowledge, with the addiction treatment centre on 18 April 2014, that is, while he was being held in detention.
The flawed nature of the domestic courts’ assessment was confirmed when it came to light that the police had known about the applicant’s addiction from the very outset of the investigation, in the period from 14 to 16 April 2014 when, according to strong indications in police officers’ own statements, as noted in paragraphs 24, 46 and 47 above, the applicant was already under their control. The fact that this information had only come to light after the completion of the criminal proceedings against the applicant is attributable to the authorities and to the delay caused by the repeated adoption of premature discontinuation decisions.
Thus, although the domestic law in principle established a safeguard for such situations, on account of the police officers’ conduct that safeguard proved ineffective. This can be compared to the practice under the 1960 Code of Criminal Procedure, identified by the Court as problematic in such judgments as Balitskiy v. Ukraine, of initially classifying a crime as a less serious one which did not require mandatory legal representation and, in this way, effectively denying the defendants appropriate legal assistance.
In Balitskiy the defendant, after having signed a waiver, was questioned without a lawyer about a murder. The charges were subsequently upgraded to murder for profit, an offence punishable by life imprisonment in respect of which waiver of the right to lawyer was excluded by domestic law. That was despite the fact that the police had indications from the outset that the crime had been motivated by profit. The Court found that this was an example of a practice, identified in previous cases, of erroneously classifying the offence with the ulterior purpose of effectively denying defendants legal assistance.
Likewise, in the applicant’s case domestic case law excluded acceptance of waivers from patients with the diagnosis the applicant was later found to have. However, the police had already known that the applicant was suffering from drug addiction from 14 April 2014, when he was, according to strong indications in the police officers’ own statements, under their control. This may have indicated that the applicant had an illness which led, under domestic case law, to the impossibility of accepting his waiver. The police, nevertheless, withheld that information from the relevant authorities.
It is also relevant that, before signing the waiver of the right to a lawyer, the applicant was not informed of his right to remain silent. While the right to silence and the right to legal assistance are distinct and a waiver of one does not entail a waiver of the other, the rights are nevertheless complementary, since persons in police custody must a fortiori be granted the assistance of a lawyer when they have not previously been informed of their right to remain silent. Therefore, while the applicant did not raise a separate complaint in respect of his right to silence, the absence of notification of that right is a relevant factor further undermining the validity of his waiver of the right to legal assistance.
In summary, the applicant signed the waiver when, according to the indications in the police officers’ statements, he was in unrecorded detention and, when, according to his credible account, he was suffering from drug withdrawal symptoms. This made the voluntary nature of the waiver signed by the applicant open to doubt. In particular in such circumstances, it was up to the domestic courts to scrutinise the validity of the waiver, which they failed to do adequately.
Taking into account all these elements, the Court considers that the Government have failed to demonstrate that the applicant validly waived his right to a lawyer (compare Akdağ, cited above, § 61, and Lalik v. Poland, no. 47834/19, § 62, 11 May 2023).
Whether compelling reasons existed for restricting access to a lawyer
71. Given that there was no effective waiver of the right to a lawyer, the question arises whether the absence of a lawyer was justified by a compelling reason. The Court perceives no such reason. Accordingly, the Court must apply a very strict scrutiny in assessing whether the absence of a lawyer undermined the fairness of the proceedings, with the burden being on the Government to demonstrate convincingly that this was not the case.
Overall fairness of the proceedings
The Court will now examine, in the light of the factors set out in Ibrahim and Others and Beuze, whether the restriction of access to legal assistance affected the overall fairness of the criminal proceedings.
Turning to those criteria, the Court will first list those factors which tend to argue in favour of considering the proceedings fair: (i) the evidence was assessed by professional judges; (ii) there is no indication that any domestic provisions were breached in the collection of the relevant evidence; (iii) there were no factors that would cast doubt on the reliability or accuracy of the applicants’ statements; and (iv) there was considerable public interest in the prosecution of the offence imputed to the applicant.
However, other factors tend to militate in favour of a finding that the fairness of the proceedings was irretrievably prejudiced.
The applicant was to a certain extent vulnerable on account of the state of his health.
The impugned statements were directly incriminating. Made at the beginning of the investigation, they framed the way the authorities approached the investigation and therefore formed a very significant part of the evidence against the applicant.
While statements made by the applicant on 15 April 2014 before being informed of his right to legal assistance were never introduced into evidence against him as such, they allowed the authorities to obtain further evidence against him by locating and recovering the stolen goods. Having made those statements, the applicant might have found it prejudicial to change them after he was informed of the right to legal assistance and when the reconstruction was conducted.
The statements subsequently made by the applicant in the course of the reconstruction had a central role in the proceedings. No other evidence directly showed that he had committed the crime of theft aggravated by burglary.
Almost all of the other evidence against the applicant was derived from statements he made in the course of the reconstruction: the evidence of most of the witnesses consisted in simply confirming that he had indeed confessed. The only exception was the evidence of K., the person who purchased the stolen goods from the applicant. However, the material in the case file indicates that the police were able to identify him through statements made by the applicant before the right to a lawyer had been explained to him. It is not the Court’s task in the present case to decide whether using evidence obtained owing to those statements was in breach of requirements of Article 6 of the Convention. The relevant point in the present analysis is nevertheless that the failure of the domestic courts to question the validity of the waiver made by the applicant had very serious consequences for the overall fairness of the trial.
Although, as noted above, the applicant did have an opportunity to challenge the authenticity of the evidence and oppose its use, the domestic courts’ assessment of the issue of his mental state during the reconstruction was superficial. The domestic courts did not sufficiently address the applicant’s complaints concerning the breach of his right to a lawyer. While an exclusionary rule existed in domestic law, it was not applied.
For this reason, applying strict scrutiny, the Court is not convinced that the criminal proceedings, when considered as a whole, remedied the procedural defects which occurred on the first days 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. There has accordingly been a violation of Article 6 §§ 1 and 3 (c) of the Convention.
CASE OF BOGDAN v. UKRAINE (European Court of Human Rights) 3016/16. Full text of the document.