FIFTH SECTION
\nCASE OF ANTONYUK v. UKRAINE
\n(Application no. 48040\/09)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n7 May 2020<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Antonyuk v. Ukraine,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Having deliberated in private on 24 March 2020,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1. The case originated in an application (no.\u00a048040\/09) against Ukraine lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Ukrainian national, Mr\u00a0Roman\u00a0Grigoryevich Antonyuk (\u201cthe applicant\u201d), on 24\u00a0August 2009.<\/p>\n 2. The applicant, who had been granted legal aid, was represented by Mr\u00a0M.O.\u00a0Tarakhkalo and Ms\u00a0A.\u00a0Saliuk, lawyers practising in Kyiv. The Ukrainian Government (\u201cthe Government\u201d) were represented by their Agents, most recently Mr\u00a0I.\u00a0Lishchyna.<\/p>\n 3. On 7 September 2015 the Government were given notice of the complaints concerning alleged police ill-treatment, ineffective investigation of the relevant allegations and unfairness of the criminal proceedings against the applicant, and the remainder of the application was declared inadmissible pursuant to Rule\u00a054\u00a0\u00a7\u00a03 of the Rules of Court.<\/p>\n 4. The Government did not object to the examination of the application by a Committee.<\/p>\n THE FACTS<\/strong><\/p>\n 5. The applicant was born in 1972 and resides in Kryvyy Rig.<\/p>\n 6. At about 7.30\u00a0a.m. on 22\u00a0January\u00a02007 two men armed with knives and a wooden club, and wearing stockings over their heads, entered a house belonging to Ms I.G. in Kryvyy Rig. The men threatened I.G., her two-year old child and the child\u2019s nanny, Ms L.Z., with violence and demanded that the women hand over money and valuables, which they did. Afterwards the men tied up the women and left.<\/p>\n 7. In mid-February\u00a02007 Mr R.A., the applicant\u2019s brother, was arrested in Kyiv on suspicion of having participated in the burglary of I.G.\u2019s house, apparently after the police had traced the location of a mobile telephone stolen from it by the burglars.<\/p>\n 8. On an unspecified date R.A. confessed to having been one of the burglars and submitted that the other was called \u201cSasha\u201d. On an unspecified subsequent date he modified his testimony, alleging that the other burglar was a certain Mr V.D.<\/p>\n 9. In July\u00a02007 V.D. was arrested on suspicion of being an accomplice in the burglary.<\/p>\n 10. On an unspecified subsequent date V.D. testified to the police that the second man participating in the burglary had been the applicant, while he himself was guilty of aiding and abetting. He noted, in particular, that the idea of committing the crime had come from his friend, D.P., a former employee of I.G.\u2019s family who was well informed of their lifestyle and financial situation. Having heard that idea, V.D. had refused to commit the burglary himself, but had decided to propose it to his acquaintance – the applicant – who had been living in Kyiv at the material time. The applicant had then passed the idea on to his brother R.A. and in January\u00a02007, both of them had come to Kryvyy Rig, where V.D. had introduced them to D.P. It had then been decided that the applicant and R.A. would break into the house, while D.P. and V.D. would remain on the lookout in the vicinity. After the burglary, the four of them had celebrated the occasion in the flat of V.D.\u2019s girlfriend and had shared the proceeds.<\/p>\n 11. On an unspecified further date D.P. was also arrested and charged. He pleaded not guilty.<\/p>\n 12. On 3\u00a0September 2007 the applicant was placed on the wanted list.<\/p>\n 13. On 21\u00a0November 2007 the applicant was arrested on charges of aggravated burglary and assault.<\/p>\n 14. At 9.45\u00a0a.m. on the same date the applicant signed a two-page document explaining to him the procedural rights of the accused, including the right to remain silent and to be represented by a lawyer. He made a hand-written inscription at the end of that document waiving his right to legal representation.<\/p>\n 15. From 1.30\u00a0p.m. to 4\u00a0p.m. on the same date the applicant was questioned by investigator M.T. of the Saksaganskiy district police in Kryvyy Rig and denied the charges brought against him. He submitted, in particular, that his brother had never told him about the burglary and he had learned about it only when R.A. had been arrested; that his acquaintance V.D. had never proposed that he commit any crime and that he had no idea who D.P. was. Due to the lapse of time, he had difficulty remembering where he had personally been on 22\u00a0January 2007, but he supposed that he had been in Kyiv, his habitual residence at the material time.<\/p>\n 16. On 22\u00a0November 2007 the Saksaganskiy District Court in Kryvyy Rig (\u201cthe District Court\u201d) remanded the applicant in custody pending investigation of the charges against him.<\/p>\n 17. On 27\u00a0November 2007, during further questioning by investigator M.T., the applicant modified his initial submissions and pleaded guilty. His submissions were similar to V.D.\u2019s, save for the distribution of the roles between them. In particular, the applicant alleged that it had been him who had remained on the lookout together with D.P., while his brother had broken into the house together with V.D.<\/p>\n 18. On the same date a reconstruction of the crime scene was carried out, in the course of which the applicant, in the presence of two lay witnesses, presented the same version of the events.<\/p>\n 19. On 4 December 2007 the applicant was taken to the District Court to participate in R.A.\u2019s, V.D.\u2019s and D.P.\u2019s trial, which had already commenced. During the hearing the applicant refused to testify, referring to his right to remain silent.<\/p>\n 20. On the same date the applicant asked his mother, who was present in court, to complain to the prosecutor\u2019s office that he had been ill-treated by the police, which she did.<\/p>\n 21. On 6 December 2007 the applicant\u2019s father requested that lawyer P.B. be admitted to the case as the applicant\u2019s representative.<\/p>\n 22. On 7 December 2007 that request was granted.<\/p>\n 23. On an unspecified date the Saksaganskiy district prosecutor\u2019s office instructed investigator M.T. to inquire into the applicant\u2019s ill-treatment complaints, apparently in response to the complaint lodged by the applicant\u2019s mother.<\/p>\n 24. On 11 December 2007 M.T. and two escorting officers accompanied the applicant to the Kryvyy Rig medical forensic examination bureau. According to the applicant\u2019s submissions made on that date, as recapitulated by expert Y.K. who carried out the examination, the facts relevant to the applicant\u2019s ill-treatment allegations were as follows. At about 8.30\u00a0p.m. on 22\u00a0November 2007 N.R., a police officer, together with another unidentified officer, had taken the applicant to office no.\u00a0418 at the Saksaganskiy district police station. There, the officers had repeatedly kicked him in the legs, hit his body, head and arms with some unspecified \u201cwooden object\u201d and squeezed his front teeth with pliers, causing him severe pain and pressurising him to confess to the burglary.<\/p>\n 25. On an unspecified subsequent date the applicant amended his initial submissions, alleging that he could not remember whether the alleged ill\u2011treatment had taken place on 22 or 23 November 2007.<\/p>\n 26. Having interviewed and examined the applicant, Y.K. explained to M.T. that he was not competent to assess the applicant\u2019s alleged dental injuries and that he needed to obtain an opinion by a dental specialist in this respect. Likewise, he instructed her to obtain an X-ray of the applicant\u2019s swollen finger.<\/p>\n 27. On the same day M.T. and the escorting officers took the applicant to municipal hospital no. 1 for an X-ray and to the private dental surgery of Dr\u00a0V.G. for a dental consultation.<\/p>\n 28. According to the report made by the hospital radiologist, the swelling on the applicant\u2019s finger had been caused by deforming arthrosis dating back to one and a half to two years before the examination.<\/p>\n 29. According to a certificate provided by Dr\u00a0V.G., the applicant\u2019s oral cavity was free from injuries. On the other hand, the enamel of two upper\u2011front incisors was chipped. The dentist described the chipping as \u201cold\u201d.<\/p>\n 30. On the same date expert Y.K. issued his report. Referring to his examination of the applicant and the documents collected from the X-ray and dental specialists, he concluded that the applicant had suffered several injuries, which had been inflicted at various times and cumulatively qualified as \u201cminor\u201d. In addition to the aforementioned chipping to the applicant\u2019s dental enamel and his swollen finger, he also noted a scar on the applicant\u2019s head, which could have been sustained between six months and one and a half years prior to the examination, and some areas of damaged skin on his left arm and right leg \u201cpossibly\u201d remaining from abrasions which could have been sustained \u201cat least eleven to sixteen days\u201d prior to the examination. The expert further noted that the abrasions had been caused by impact from a blunt hard object (or objects), which could possibly include a bare hand or a booted foot. The applicant had either received a blow with such an object or bumped into one. Alternatively, the abrasions could also have resulted from a single fall from his own height.<\/p>\n 31. On 12\u00a0December 2007 the applicant was presented to nanny L.Z.\u00a0during an identification parade. She submitted that it had been him, rather than V.D., who had broken into I.G.\u2019s house together with R.A. During a subsequent confrontation with L.Z., the applicant claimed that she was mistaken and that he had seen her for the first time on the day of the identification parade.<\/p>\n 32. On an unspecified date I.G. also submitted that, having met the applicant, she considered that it was him rather than V.D. who had broken into her house.<\/p>\n 33. On 20\u00a0December 2007 the applicant was committed to stand trial.<\/p>\n 34. During the trial, the applicant pleaded not guilty. As it appears from the recapitulation of his testimony by the District Court, he acknowledged that in\u00a0January 2007 he had come to Kryvyy Rig from Kyiv together with his brother following an invitation from V.D. \u201cto earn some money by helping a friend\u201d, and V.D. had introduced him to D.P. However, the burglary itself had been committed only by R.A. and V.D., whereas he personally had not been involved in any manner. The applicant also acknowledged that he had visited the flat of V.D.\u2019s girlfriend after the burglary and had seen his brother and V.D. sharing the proceeds. He had been aware that his brother had taken stolen goods to Kyiv, where he had proceeded to sell them. In addition, the applicant alleged that earlier he had given false self-incriminating statements as a result of having been tortured by N.R. and another, unidentified, police officer.<\/p>\n 35. On 9\u00a0January 2008 the District Court instructed the Saksaganskiy district prosecutor\u2019s office to conduct an inquiry into the applicant\u2019s ill\u2011treatment complaints.<\/p>\n 36. On 23\u00a0January 2008 the prosecutor\u2019s office decided that there was no call to institute criminal proceedings as no traces of ill-treatment had been identified. That decision was joined to the case-file materials.<\/p>\n 37. On 4\u00a0March 2008 the court summoned investigator M.T., police officer N.R., expert Y.K. and Dr\u00a0V.G. for questioning in connection with the applicant\u2019s ill-treatment complaints. Those persons testified in court as follows:<\/p>\n – Officer N.R. refuted the applicant\u2019s accusations and submitted that on the date of the purported ill-treatment, he had in fact been on leave;<\/p>\n – Investigator M.T. submitted that she had done everything in her power to secure evidence with a view to the prompt examination of the applicant\u2019s ill-treatment complaints. In particular, she had taken the applicant to the forensic expert, had arranged for him to undergo an X-ray and a dental consultation, and had personally covered the relevant fees. Regarding the dental consultation, she had picked the first available private dentist practising in the neighbourhood, as upon arrival at the municipal hospital there had been no dental specialist available to examine the applicant;<\/p>\n – Expert Y.K. confirmed his previous assessment;<\/p>\n – Dr\u00a0V.G. gave the following testimony, as recorded in the transcript of the court proceedings and insofar as relevant:<\/p>\n \u201cOn 11 December 2007 the investigator and two escorting officers brought [the applicant] to me for an examination of his oral cavity …<\/p>\n … At first there came a woman and two men from the police, the woman paid for everything … [she] said that there was a need to examine a patient, I agreed, and then two men brought [the applicant] …<\/p>\n The chips on the upper teeth were not eroded, but I can\u2019t say anything about their age, such things can be learned only from the patients …<\/p>\n I am not an expert, I am simply a dentist …<\/p>\n The patient said that his front teeth had been injured, but I am not an expert, and there were no evident injuries in the oral cavity … Small chips may be caused by anything …<\/p>\n The police were in the corridor, one can hear everything that I do from there. I did not close the doors of my office …<\/p>\n The chips were sharp, it is possible that they could have been caused by pliers, without damaging the mucous membrane …<\/p>\n [the applicant] said that his teeth had been injured, but when, by whom and how, he did not say, and I did not delve into this situation …<\/p>\n An old chip is [one] which dates back half a year, a year, i.e. it does not cut the tongue, the lip … there were no complaints concerning discomfort. The lips [and] tongue were not injured, the mucous membrane was not damaged, the chips were small …\u201d<\/p>\n 38. On the same date the District Court ordered a further expert assessment with a view to establishing how the applicant had sustained the damage to his teeth and the timing of its infliction, as well as whether the enamel chips had been sharp and whether they could have been inflicted by the application of an iron object such as pliers.<\/p>\n 39. On 18 March 2008 expert V.B. of the Kryvyy Rig medical forensic examination bureau delivered a report which, insofar as relevant, read as follows:<\/p>\n \u201c…<\/p>\n 2. These injuries could result from impact with a blunt hard object (objects) with limited contact surface, including by the application of a metal object (slim pliers) … or by squeezing … a blunt hard object between the teeth … with the application of physical force.<\/p>\n 3. The nature of the chips was not established by the dentist in the course of the consultation of 11 December 2007.<\/p>\n 4. The timing of these injuries is impossible to establish in view of the lapse of time …\u201d<\/p>\n 40. On unspecified dates the court watched a video-recording of the reconstruction of the crime scene of 27\u00a0November\u00a02007, during which the applicant had pleaded guilty. It also questioned the two lay witnesses present during the procedure. The witnesses submitted that at the material time they had not seen any injuries on the applicant\u2019s body and that he had willingly taken the initiative and demonstrated first-hand knowledge of various details pertinent to the case.<\/p>\n 41. On 12\u00a0May 2008 the District Court convicted the applicant and his co-defendants for having participated in aggravated burglary and sentenced them to various terms of imprisonment, ranging from seven and a half years (V.D.) to eleven years (the applicant). The court determined that the burglary itself had been committed by the applicant and R.A., while D.P. and V.D. had remained on the lookout. It concluded that this version of events, which had been consistently reiterated by V.D. in the course of the proceedings, was also corroborated by other sources of evidence. In this connection, the court referred to the statements of the two victims \u2013 I.G. and L.Z. \u2013 who had insisted that they recognised R.A. and the applicant as their assailants. In addition, the court referred to indirect evidence, such as mobile telephone logs indicating that the co-accused had been communicating with each other in the vicinity of I.G.\u2019s house at the time of the offence, and to the testimony of two of I.G.\u2019s neighbours examined in court. They testified that on the morning of the burglary, they had seen D.P. (personally known to them) in the company of three men in the vicinity of I.G.\u2019s house. The court next referred to the applicant\u2019s statements given on 27\u00a0November 2007 and during the identification parade of 12\u00a0December 2007. It noted that his conduct during the procedure and the various small remarks he had made indicated that he had very detailed knowledge of the relevant events. His oral submissions concerning his innocence and similar submissions by his brother had, on the contrary, lacked consistency. They had been modified on several occasions, and had not been corroborated by objective evidence. Insofar as the applicant had alleged that he had falsely incriminated himself at the pre-trial stage as a result of ill-treatment, his allegations had not proved to be substantiated.<\/p>\n 42. On 26 May 2008 the applicant complained to the prosecutor\u2019s office that when familiarising himself with the case-file materials, he had discovered that the certificate concerning his dental examination of 11\u00a0December 2007 contained forgery. Namely, in the phrase \u201cold enamel chips\u201d, the word \u201cold\u201d in his view had been added by a different pen and hand, which had tried to imitate Dr\u00a0V.G.\u2019s handwriting. According to the applicant, this and several subsequent analogous requests had been left without reaction.<\/p>\n 43. On 17 June 2008 the applicant also complained to the prosecutor\u2019s office that from the day of his arrest on 21 November 2007 and until the date on which he had confessed to the burglary (27 November 2007), he had been unlawfully detained at the district police station, in an unequipped cold office without any furniture or fixtures, and without having been provided with food. As a result of that treatment, he had been physically exhausted and his moral resistance had been broken. According to the applicant, that complaint and several other analogous complaints had yielded no reaction from the authorities.<\/p>\n 44. In June 2008 the applicant lodged an appeal against his conviction, reiterating his ill-treatment allegations and contesting the probative value of various pieces of evidence, the credibility of the victims\u2019 and witnesses\u2019 testimony, and the assessment of the evidence by the District Court.<\/p>\n 45. On 20 January 2009 the Dnipropetrovsk Regional Court of Appeal dismissed the applicant\u2019s appeal, having found that the District Court\u2019s conclusions as to the facts of the case and his ill-treatment allegations had been sufficiently and properly substantiated.<\/p>\n 46. The applicant lodged an appeal in cassation, essentially reiterating his previous arguments.<\/p>\n 47. On 16 July 2009 the Supreme Court rejected the applicant\u2019s cassation appeal, and his conviction and sentence became final.<\/p>\n THE LAW<\/strong><\/p>\n I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION<\/p>\n 48. The applicant complained that he had been ill-treated in police custody with a view to extorting self-incriminating statements and that his respective complaints had not been properly investigated. He referred to Article\u00a03 of the Convention, which reads as follows:<\/p>\n \u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/p>\n 49. The Government filed no comments concerning the admissibility or merits of the above complaints.<\/p>\n A. Admissibility<\/strong><\/p>\n 50. The Court notes that the applicant\u2019s complaints are not manifestly ill-founded within the meaning of Article\u00a035\u00a0\u00a7\u00a03\u00a0(a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.<\/p>\n B. Merits<\/strong><\/p>\n 51. The applicant alleged that there had been violations of Article\u00a03 of the Convention under both its substantive and procedural limbs.<\/p>\n 1. As to alleged ineffectiveness of the investigation<\/em><\/p>\n 52. Reviewing the facts of the present case in the light of the general principles established in its case-law (see, among other authorities, Bouyid v. Belgium ([GC], no.\u00a023380\/09, \u00a7\u00a7\u00a081-90 and 114-23, 28\u00a0September\u00a02015), the Court considers that the applicant raised an arguable ill-treatment claim at the domestic level. The claim triggered an obligation on the part of the national authorities to carry out an effective official investigation with a view to establishing the origin of the injuries complained of and identifying and punishing those responsible, should the applicant\u2019s allegations concerning ill-treatment have proved to be true.<\/p>\n 53. From the documents before the Court it appears that the origin of the applicant\u2019s injuries has not been established and the domestic investigation did not reflect a serious effort to determine the relevant facts.<\/p>\n 54. In particular, the prosecutor\u2019s office did not open a full-scale investigation into the applicant\u2019s complaints and the applicant\u2019s medical assessment in December 2007 was conducted by specialists lacking the necessary qualifications. Furthermore, the initial inquiry was not independent, as it was entrusted to the same investigator who was in charge of the applicant\u2019s criminal case and who worked in the same police unit as the officers implicated in the ill-treatment allegation (see paragraphs 23-24, 27 and 37 above). The District Court\u2019s attempt to compensate for those shortcomings \u2013 notably by ordering a further medical assessment by an independent expert in March 2008 \u2013 failed, as important evidence had been lost due to the lapse of time (see paragraphs 38-39 above).<\/p>\n 55. The Court notes that in a number of other cases against Ukraine it has already condemned patterns of investigation similar to those of the present case (see, inter alia, Savitskyy v. Ukraine, no.\u00a038773\/05, \u00a7\u00a7\u00a0103-05, 26\u00a0July 2012; Danilov v. Ukraine, no.\u00a02585\/06, \u00a7\u00a070, 13\u00a0March 2014; and Kirpichenko v. Ukraine, no.\u00a038833\/03, \u00a7\u00a087, 2\u00a0April 2015). In the case of Kaverzin v. Ukraine (no.\u00a023893\/03, \u00a7\u00a7\u00a0173-80, 15\u00a0May 2012) the Court found that the reluctance of the authorities to ensure a prompt and thorough investigation into the ill-treatment complaints lodged by criminal suspects constituted a systemic problem within the meaning of Article\u00a046 of the Convention. In view of the circumstances of the present case and its relevant case-law, the Court considers that it constitutes another example of such a failure to ensure prompt and thorough investigation.<\/p>\n 56. The above findings are sufficient for the Court to establish that there has been a breach of Article\u00a03 of the Convention under its procedural limb.<\/p>\n 2. Alleged ill-treatment<\/em><\/p>\n 57. As regards the applicant\u2019s allegation that he was ill-treated by police officers, the Court notes that his personal submissions on the matter lack precision and detail. In his initial submissions made to expert Y.K. on 11\u00a0December 2007, he alleged that the ill-treatment incident had taken place on 22\u00a0November 2007, when the police officers had kicked and hit him with a \u201cwooden object\u201d and had squeezed his teeth with pliers. Subsequently he started claiming that he was not sure whether the aforementioned incident had taken place on 22 or 23\u00a0November 2007. In June\u00a02008 (more than six months later and after the District Court had already pronounced his conviction), the applicant supplemented his initial complaints by stating that from 21 to 27\u00a0November 2007 he had been deprived of food and had had to sleep on the cold floor in an empty office.<\/p>\n 58. Insofar as medical evidence is concerned, on 11\u00a0December 2007 expert Y.K. concluded that the applicant had \u201cpossibly\u201d sustained some abrasions \u201cno less than\u201deleven to sixteen days before the examination (see paragraph\u00a030 above), that is, between 25 and 30\u00a0November 2007. The indicated timing, construed narrowly, post-dates the alleged ill-treatment incident as indicated by the applicant. In view of the way in which the expert formulated his opinion on the timing, it can be assumed that the purported abrasions could in fact have been sustained before 25\u00a0November 2007. However, in this case it would likewise be impossible to exclude that they might have been sustained before the applicant\u2019s placement in custody (21\u00a0November 2007).<\/p>\n 59. As regards the dental enamel chips, the available medical reports have failed to establish when they were sustained, even approximately. The remaining recorded medical anomalies (a head scar and a swollen finger) clearly pre-dated the applicant\u2019s arrest and are irrelevant for the assessment of the present complaint.<\/p>\n 60. Overall, assessing the applicant\u2019s personal submissions and the available objective evidence, the Court finds them insufficient to make a conclusion that he had been ill-treated by the police officers, as indicated by him. To the extent that the questions concerning the origin and timing of the applicant\u2019s purported injuries remained unanswered because of the domestic authorities\u2019 failure to act in investigating his complaint, this matter has been examined under the procedural aspect of Article\u00a03 and the Court has found a procedural violation of that provision of the Convention. As regards the substantive aspect of Article\u00a03, the Court concludes that the available material does not allow it to establish beyond reasonable doubt that the applicant suffered ill-treatment when he was under the control of the police.<\/p>\n 61. In these circumstances, the Court finds no substantive violation of Article\u00a03 of the Convention.<\/p>\n II. ALLEGED VIOLATION OF ARTICLE 6\u00a0\u00a7\u00a01 OF THE CONVENTION<\/p>\n 62. The applicant complained under Article 6\u00a0\u00a7\u00a01 of the Convention that the criminal proceedings against him had been unfair. In particular, he claimed that his right not to incriminate himself had been violated and he had been convicted based on the statements he had given on 27\u00a0November 2007, which had been extorted from him as a result of ill\u2011treatment. After the case had been notified to the respondent Government, the applicant also added that he had made those statements in the absence of access to legal assistance and that he had retracted them as soon as he had been able to consult a lawyer.<\/p>\n 63. Article 6\u00a0\u00a7\u00a01, in so far as relevant, reads as follows:<\/p>\n \u201cIn the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/p>\n 64. The Government filed no comments concerning the admissibility or merits of the applicant\u2019s submissions.<\/p>\n 65. Reviewing the present complaint in the light of the principles established in its case-law (see, among other authorities, Zamferesko v.\u00a0Ukraine, no.\u00a030075\/06, \u00a7\u00a070, 15\u00a0November 2012 and Minikayev v.\u00a0Russia, no.\u00a0630\/08, \u00a7\u00a7\u00a084-87, 5\u00a0January 2016, with ensuing references), the Court reiterates that the admission of self-incriminating statements, obtained in breach of Article 3 of the Convention, as evidence to establish the facts in criminal proceedings, always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction. However, in the present case the Court has not found a breach of the substantive limb of Article 3 of the Convention. Accordingly, it cannot conclude that the contested self-incriminating statements were made by the applicant under duress.<\/p>\n 66. The Court further observes that the disputed statements (made by the applicant on 27 November 2007 in the course of the preliminary investigation) formed part of the evidence adduced against him by the prosecution. The trial court found those statements admissible and referred to them when finding the applicant guilty and convicting him. At the same time, it cannot be said that those statements laid the basis for the applicant\u2019s conviction as such. According to the applicant\u2019s testimony of 27\u00a0November 2007, he had remained on the lookout while V.D., his co\u2011defendant, had broken into I.G.\u2019s house. By contrast, according to V.D.\u2019s version, it was the applicant who had broken into the house, while V.D. had remained on the lookout. Rather than relying on the applicant\u2019s version, the District Court preferred V.D.\u2019s version, which it found to be corroborated by the victims\u2019 statements and various sources of indirect evidence (see paragraph\u00a041 above).<\/p>\n 67. The Court further notes that the applicant had a procedural opportunity to challenge the admissibility of those statements in court on the grounds that they had been obtained in defiance of his will. It is notable that in dismissing his relevant arguments as unfounded, the District Court did not merely refer to the refusal by the prosecutor\u2019s office to open a criminal investigation, but had then conducted its own independent inquiry. In particular, it had ordered a separate medical assessment and examined two medical specialists, a police officer implicated by the applicant in his ill\u2011treatment, the investigator, and two lay witnesses in whose presence the applicant had given the self-incriminating statements.<\/p>\n 68. Regard being had to the Court\u2019s subsidiary role in the assessment of evidence and to the material in its possession, it cannot rule that the conclusion reached by the District Court and its decision dismissing the applicant\u2019s ill-treatment allegations were manifestly without basis (compare with Utvenko and Borisov v. Russia, nos.\u00a045767\/09 and 40452\/10, \u00a7\u00a7\u00a0172\u201173, 5 February 2019).<\/p>\n 69. The Court emphasises that these considerations do not undermine its findings in paragraphs\u00a053-56 above in respect of the procedural violation of Article\u00a03 of the Convention. It notes that the inquiry conducted by the domestic court was restricted to determining the admissibility of evidence and could not replace an official effective investigation which, to be compliant with Article 3 of the Convention, had to be able to lead to the establishment of the origin of the injuries and, if appropriate, punishment of the persons responsible for the ill-treatment (see ibid.).<\/p>\n 70. Insofar as the applicant emphasised that he had also given the impugned self-incriminating statements in the absence of legal counsel and had retracted them as soon as he had obtained one, the Court observes, firstly, that he had expressly waived his right to legal assistance on 22\u00a0November 2007 and that he was subsequently able to obtain access to a lawyer as soon as he requested one (see paragraphs 14, 21 and 22 above). Secondly, as is apparent from the available material, the applicant did not complain of the unavailability of legal assistance at the initial questioning, either before the domestic courts or before the Court prior to his application having been notified to the respondent Government. Finally, it is also to be noted that after the lawyer had been admitted to the proceedings, rather than retracting the statements he had given on 27 November 2007, the applicant modified them. They then also differed from his initial testimony given on 21\u00a0November 2007 (see paragraph 15 above), in which he had denied not only his involvement in the burglary, but also any knowledge of the relevant details or any acquaintance with its main proponent (D.P.). By contrast, in the subsequent statements made after consulting with the lawyer, while denying his personal role in the burglary, the applicant acknowledged that he was acquainted with D.P. and that he had been well apprised of various details of the crime by the other participants.<\/p>\n 71. In sum, it is evident from the case file that the admissibility and reliability of the applicant\u2019s statements made in the course of the preliminary investigation were rigorously scrutinised in adversarial proceedings before the trial and appellate courts. In the course of those proceedings, at which he was personally present and, when he so wished, legally represented, he took the ample opportunity available to him to challenge the evidence against him.<\/p>\n 72. Consequently, notwithstanding the doubts that may subsist as to the conduct of the police officers vis-\u00e0-vis the applicant following his arrest and placement in police custody, the Court finds no indication in the present case that he did not receive a fair trial as required by Article 6\u00a0\u00a7\u00a01 of the Convention.<\/p>\n 73. It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35\u00a0\u00a7\u00a7\u00a03\u00a0(a) and 4 of the Convention.<\/p>\n III. APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n 74. Article\u00a041 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n A. Damage<\/strong><\/p>\n 75. The applicant claimed 75,000\u00a0euros (EUR) in respect of non\u2011pecuniary damage.<\/p>\n 76. The Government filed no comments.<\/p>\n 77. Ruling on an equitable basis, the Court awards the applicant EUR\u00a07,500 in compensation for non-pecuniary damage.<\/p>\n B. Costs and expenses<\/strong><\/p>\n 78. The applicant also claimed EUR\u00a03,750 for his legal representation before the Court, which comprised twenty-five hours of legal work in the proceedings before the Court at EUR\u00a0150 per hour. He requested that this amount be paid into the bank account of Mr M. Tarakhkalo, one of his lawyers. To substantiate that claim, the applicant submitted a copy of the legal assistance contract with Mr Tarakhkalo of 2 November 2016, which stipulated that payment would be made after completion of the proceedings in Strasbourg and within the limits of the sum awarded by the Court for costs and expenses. The applicant also submitted a report completed by Mr\u00a0Tarakhkalo in respect of the work done.<\/p>\n 79. The Government filed no comments on the above claim.<\/p>\n 80. According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that the applicant has already been provided with legal aid in the amount of EUR\u00a0850 to assist him in covering the legal fees. Having regard to the material in its possession, the Court finds it reasonable to award him EUR\u00a01,000 in legal fees, plus any tax that may be chargeable to him on that amount, to be transferred directly to the account of his representative as indicated by him (see, mutatis mutandis, Khlaifia and Others v.\u00a0Italy [GC], no. 16483\/12, \u00a7\u00a0288 and point 12\u00a0(a) of the operative part, 15\u00a0December 2016, and Belousov v. Ukraine, no.\u00a04494\/07, \u00a7\u00a7\u00a0115-17, 7\u00a0November 2013). The Court rejects the remainder of the claim for costs and expenses.<\/p>\n C. Default interest<\/strong><\/p>\n 81. 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Declares the complaints under Article 3 of the Convention admissible and the remainder of the application inadmissible;<\/p>\n 2. Holdsthat there has been a violation of Article 3 of the Convention under the procedural limb;<\/p>\n 3. Holdsthat there has been no violation of Article 3 of the Convention under the substantive limb;<\/p>\n 4. Holds<\/p>\n (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:<\/p>\n (i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be transferred directly to the account of the applicant\u2019s lawyer, Mr M.\u00a0Tarakhkalo;<\/p>\n (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;<\/p>\n 5. Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 7 May 2020, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Victor Soloveytchik\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Yonko Grozev
\nYonko Grozev, President,
\nGanna Yudkivska,
\nLado Chanturia, judges,
\nand Victor Soloveytchik, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n