FIRST SECTION
\nCASE OF GORAN KOVA\u010cEVI\u0106 v. CROATIA
\n(Application no. 34804\/14)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n12 April 2018<\/p>\n
FINAL
\n12\/07\/2018<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Goran Kova\u010devi\u0107 v. Croatia,<\/strong><\/p>\n The European Court of Human Rights (First Section), sitting as a Chamber composed of:<\/p>\n Linos-Alexandre Sicilianos, President, Having deliberated in private on 21 November 2017 and 20 March 2018,<\/p>\n Delivers the following judgment, which was adopted on the last\u2011mentioned date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 34804\/14) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Croatian national, Mr Goran Kova\u010devi\u0107 (\u201cthe applicant\u201d), on 2 May 2014.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr A. Birimi\u0161a, a lawyer practising in Dubrovnik. The Croatian Government (\u201cthe Government\u201d) were represented by their Agent, Ms \u0160. Sta\u017enik.<\/p>\n 3.\u00a0\u00a0The applicant complained that he had been ill-treated during his stay in the police station and that there had not been an effective response on the part of the domestic authorities in that respect. He also complained that during his stay in the police station he had been denied access to a lawyer and had been pressured into making incriminating statements against his co\u2011accused.<\/p>\n 4.\u00a0\u00a0On 30 June 2014the application was communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1981 and lives in Dubrovnik.<\/p>\n A.\u00a0\u00a0The applicant\u2019s arrest and stay in the police station<\/strong><\/p>\n 6.\u00a0\u00a0On 21 October 2010, at 4:40 p.m. in Dubrovnik, police officers of the Criminal Police Department of the Dubrovnik-Neretva County Police (Odjel kriminalisti\u010dke policije Policijske uprave dubrova\u010dko-neretvanske) (hereinafter \u201cthe police\u201d) arrestedthe applicanton suspicion of drug abuse.<\/p>\n 7.\u00a0\u00a0According to the Government, the applicant resisted arrest and the police had to apply force in order to be able to bring him to the police station. During this process both the applicant and one of the police officers who had arrested him, S.D., sustained minor bodily injuries.<\/p>\n 8.\u00a0\u00a0According to the applicant, he did not resist arrest and did not sustain injuries during his arrest; rather, it was during his stay in the police station that the police officers ill-treated him in order to pressure him to make incriminating statements against his co-accused in the trial.<\/p>\n 9.\u00a0\u00a0The applicant was taken to the police station immediately after his arrest. At 9.40 p.m. hewas examined by a doctor, whofound that hehad sustained minor bodily injuries \u2013 excoriationson his left elbow, on the left side of his chest and behind his left ear. Minor bodily injuries were also found on the police officer, S.D., who had arrested the applicant \u2013 specifically, excoriationson his right knee and elbow.During their medical examination the applicant and the police officer S.D. stated that they had sustained their injuries by fallingtothe ground. The doctor\u2019s report of the examination was forwarded to the police.<\/p>\n 10.\u00a0\u00a0According to acommon report issued on the same day by the three police officers who arrested the applicant,S.D., L.D. and I.R., the applicant had resisted arrest and theyhad had to apply force in order to bring him to the police station. In particular, it was noted that the applicant had beenfound in a vehicle on the roadand arrested. Hehad refused to step out of his vehicle,so S.D. had grabbed him by his left wrist and had appliedthe so\u2011called \u201cwristlock\u201d technique in order to get him out of his vehicle. At that point police officer L.D. had grabbed the applicant by his right hand in order to apply the so-called \u201celbow-lock\u201d technique,but due to the fact that the applicant hadcontinued to resistall three of themhad fallentothe ground. The applicant had tried to stand up and L.D. had kept him on the ground by pressing his knee against his back. The applicant had then beenhandcuffed andplaced inthe back seat of a police vehicle. In the police vehiclethe applicant had continued to resist and the police officer S.D. had applied the \u201celbow-lock\u201d technique and leaned him forwards in order to restrain him.By the time they had parked in front of the police station, one handcuff had come loose,so L.D. and I.R. had applied the \u201celbow-lock\u201dtechnique again. When they had enteredthe police station the applicant had once again fallento the ground.Then the applicant had been seated in a room and had ceased to resist, so the police officers had stopped using force and removed his other handcuff. Lastly, it was noted that during the application of coercive measures the applicant and S.D. had sustained injuries which, according to the doctor\u2019s report,had beenminor.<\/p>\n 11.\u00a0\u00a0On the same day a shift manager of the Criminal Police Departmentnoted in a report that the applicant had actively resisted arrest and that S.D., L.D. and I.R. had applied coercive measures against him \u2013 bodily force, restraining techniques and handcuffing. It was also noted that the applicant had been examined by a doctor, who had found that hehad sustained excoriationson his left elbow, on the left side of his chest and behind his left ear. The applicant signed the report and stated that he did not have any objections to the procedure that had been followed.<\/p>\n 12.\u00a0\u00a0On25 October 2010 the chief of the Dubrovnik-Neretva County Police examined the information gathered in respect of the application of coercive measures against the applicant and found that they had been necessary, justified and lawful.<\/p>\n 13.\u00a0\u00a0According to apolice report made on the day of the applicant\u2019s arrest,the applicant was informed of the reasons for his arrest and his right to remain silent, to hire a lawyer of his own choosing and to have a person of his choice be informed of his arrest. The report noted that the applicant had declined to hire a lawyer and that he had asked that his father be informed of his arrest. In this connection it wasnoted thatthe applicant\u2019s father had beencontacted at 6.20 p.m. The applicant signed the report without making any objections to its contents. On the same day the police lodged a criminal complaint against the applicant under a reasonable suspicion of drug abuse.<\/p>\n 14.\u00a0\u00a0On 22 October 2010 at 9.45 a.m. the applicant was questioned by the police. In the report on his questioning it was noted that the applicant had been advised of his right to remain silent and to hire a lawyer of his own choosing who could be present during the questioning. In this connection it was notedthat the applicanthad declined to hire a lawyer. The applicant thengave a statement,explainingthatin August 2010 he had on two occasions acted as an intermediary inthe selling of amphetamines. He also stated that between 2008 and 2010 he had on several occasions bought cocaine from a certain D.\u0160.He expressed regret for his actions. The questioning ended at 11.10 a.m. The applicant signed the report on his questioning without making any objections regarding its contents.<\/p>\n B.\u00a0\u00a0The applicant\u2019s questioning before the investigating judge<\/strong><\/p>\n 15.\u00a0\u00a0On 22 October 2010at 12p.m. the applicant was brought for questioning before an investigating judge of the Dubrovnik County Court. Adeputy Dubrovnik County State Attorney, K.K., was also present during the questioning. According to the report on his questioning,the applicant was twice advised by the investigating judge of his right to remain silent and to hire a lawyer of his own choosing, who could be present during the questioning. The applicant repliedthat he understood the advice and the grounds for his being under suspicion and maintained that he did not require a lawyer for that day\u2019s questioning and that he would give a statement to the investigating judge and answer questions. He then explainedthat in August 2010 he had on two occasions acted as an intermediary in the selling of amphetamines and that between 2008 and 2010 he had on several occasions bought cocaine from D.\u0160. Lastly, the applicant stated that he had been arrested the day before at 5 p.m. and that apart from the use of force during his arrest he did not have any objections about the police conduct during his stay in the police station. The questioning ended at 12:50 p.m. The applicant signed the reporton his questioning without making any objections as to its contents.He was then released.<\/p>\n C.\u00a0\u00a0Investigation and trial against the applicant<\/strong><\/p>\n 16.\u00a0\u00a0On 29 October 2010 an investigation was opened in respect of the applicant and D.\u0160on the reasonable suspicion of their having engaged in drug abuse. On 2 December 2010 the investigation was extended to encompass a third person, V.V.<\/p>\n 17.\u00a0\u00a0On 3 December 2010 the applicant hireda lawyer,D.P.,to represent him.<\/p>\n 18.\u00a0\u00a0On 4 January 2011 the Dubrovnik County State Attorney\u2019s Office (\u017dupanijsko dr\u017eavno odvjetni\u0161tvo u Dubrovniku) indicted the applicant, D.\u0160., and V.V for drug abuse.<\/p>\n 19.\u00a0\u00a0On 3 May 2011 a hearing was held before the Dubrovnik County Court,which the applicant and his lawyer attended. The hearing was adjourned in order for V.V.\u2019s ability to followthe proceedings to be determined.<\/p>\n 20.\u00a0\u00a0The hearing of 7 June 2011, which the applicant and his lawyer attended, was adjourned owing to the illness of the presiding judge.<\/p>\n 21.\u00a0\u00a0At a hearing held on 20 June 2011, which the applicant and his lawyer attended,the Dubrovnik Country Court(\u201cthe trial court\u201d) established the identity of the defendants and the charges brought against them. The applicant stated that he understood the charges brought against him and the warnings regarding his rights given by the presiding judge and that he would present his defence and answer questions. He pleaded not guilty. He asked to give his defence at the end of the trial. Evidence was read out aloud, whereas certain evidence was excluded from the case file at the request of the defence. The trial court heard three witnesses.<\/p>\n 22.\u00a0\u00a0At a hearing held on 21 June 2011,which the applicant and his lawyer attended,the trial court heard I.G., a witness.<\/p>\n 23.\u00a0\u00a0At a hearing held on 1 July 2011,which the applicant and his lawyer attended,the trial court continued to hear I.G. and examined certain other evidence. The applicant\u2019s lawyer then proposed that the trial court examinethe medical records of the applicant\u2019s father who allegedly suffered a stroke after learning of the applicant\u2019s arrest, as well as a medical certificate dated 27 January 2011confirming that on 21 October 2010the applicant had been examined by a doctor and that the doctor\u2019s report had been forwarded to the police. He also proposed that the trial court hear the applicant\u2019s sister and examinethe power of attorney by which she had hireda lawyerto represent the applicant during the time that the investigating judge was questioning him. The applicant\u2019s lawyer, D.P., explained that this proposed evidence was relevant for the establishing of the conduct of the police against the applicant. D.H., the lawyer allegedly hired by the applicant\u2019s sister, who representedD.\u0160., the applicant\u2019s co-accused in the trial, stated that the power of attorney in question had been signed in his office on the night when the applicant had been held inthe police station. The trial court examined the applicant\u2019s father\u2019s medical records andrejected the other proposed evidence,considering themirrelevant for the proceedings at that point.<\/p>\n 24.\u00a0\u00a0At a hearing held on 4 July 2011 the trial court heard the applicant\u2019s co-accused, D.\u0160. D.\u0160. stated, inter alia, that he had not sold drugs to the applicant and that he had learned from his lawyer, D.H., that the police had ill-treated the applicant in the police station and had beaten him. The trial court then heard the applicant.<\/p>\n 25.\u00a0\u00a0The applicant reiterated the part of his statement given to the investigating judge on 22 October 2010 concerningthe criminal accusation against him, namely that he had on two occasions acted as an intermediary in the selling of amphetamines. He retracted the part of his statement concerning the buyingof cocaine from D.\u0160. He alleged that after he had been brought to the police station he had been physically and psychologically ill-treated and had been coerced to into giving such a statement to the investigating judge. He further allegedthat the following morning his father and sister had come to the police station, and when he had seen his father crying, he had agreed togive his statement to the investigating judge. He explained that once he had been brought to the police station he had immediately confessed to being an intermediary in the selling of amphetamines. However, when the police had started questioning him about D.\u0160. and the cocaine, he had asked for a lawyer. Later, at one pointpolice officer L.D.had told him that D.H. had arrived at the entrance ofthe police station but had not been allowed to comein.He alleged that he had been beaten by police officers L.D., S.D. and I.R.<\/p>\n 26.\u00a0\u00a0When asked by the prosecutor,the applicant explained that during his arrest and transportation to the police station the police officers had used force against him and had beaten him. When further asked by the presiding judge and the lawyer, D.H.,the applicant explained that even though on 22\u00a0October 2010 he had beenadvised by the investigating judge of his right to remain silent and to hirea lawyer, he had been afraid of the police officers who had brought him before the investigating judge, given that they had beenthe same police officers who had beaten him.The applicant\u2019s lawyer thenasked that the applicant\u2019s sister be heard on account of a conversation that she had had with the police officer, L.D. He also asked that D.H. be heardand that the medical documentation relating tothe injuries the applicant had sustained during his questioning by the police be examined. The trial court dismissed these requests, considering such evidence to be unnecessary.<\/p>\n 27.\u00a0\u00a0In a closing statement the applicant\u2019s lawyer asked the trial court to take into account, when determining the applicant\u2019s sentence,the fact that hehad confessed tohis crime. The applicant reiterated his lawyer\u2019s statement and added that he intended to finish school and start working and would neverrepeat his actions.<\/p>\n 28.\u00a0\u00a0On 6 July 2011 the Dubrovnik County Court found the applicant guilty as charged and sentenced him to two years\u2019 imprisonment.It also found D.\u0160. and V.V. guilty as charged and sentenced them to eight and two years\u2019 imprisonment, respectively. In finding D.\u0160. guilty the trial court referred to, inter alia, the statement that the applicant had givento the investigating judge concerning his having purchased cocaine from D.\u0160. in the period between 2008 and 2010. It did not consider credible the applicant\u2019s allegation that he had given his statement to the investigating judge under police duress.It found that during the trial the applicant himself had alleged that he had given his oral statement to the investigating judge uninterruptedly, without the police officers being present, and after being advised of his right to hire a lawyer and to remain silent. In this respect it noted that the applicant had told the investigating judge that he had been ill\u2011treated by the police only during his arrest, and not during his stay in the police station. It considered that the fact that the applicant had changed the nature of his allegation was an attempt to help his co-accused D.\u0160 in the trial.<\/p>\n 29.\u00a0\u00a0The trial courtdismissed evidence proposals relating to the applicant\u2019s alleged ill-treatment in the police station, specifically that his sister be heard in respect of this allegation, finding thathis sister had not been present during hisarrest and transportation to the police station, and later on had not been in the same room with the applicant and the police officers. As to the criminal accusation against the applicant,the trial courtfound that the applicant had confessed to being an intermediary in the sale of amphetamines and it took his confession into account as a mitigating circumstance.<\/p>\n 30.\u00a0\u00a0The applicant appealed against the first-instance judgment to the Supreme Court (Vrhovni sud Republike Hrvatske). In his appeal he stated that he had not resisted his arrest and had not sustained injuries during his arrest. He explained that once he had been brought to the police station he had immediately and voluntarily confessed to his crime. Therefore, he could have had no reason to resist the police only a few minutes beforehand. He further statedthat the policehad physically and psychologically pressured him into incriminating D.\u0160. and had denied himaccess to a lawyer.He alleged that he had given a statement to the investigating judge under duress applied by the police officers who had brought him beforethe investigating judge. He complained about the trial court\u2019s dismissal of his proposalsregarding evidence relating to those circumstances. He lastly stated that, given that the trial court had believed the statement that he had given against D.\u0160. and had taken it into account when convictingD.\u0160., he should have been given a milder sanction.<\/p>\n 31.\u00a0\u00a0On 29 February 2012the Supreme Court upheld the applicant\u2019s conviction but reduced his sentence to one year\u2019s imprisonment.The Supreme Courtfound that in his appeal the applicant himself had stated that the police officers had had no reason to exert pressure on him given that he had immediately confessed his crime. As to the change of the applicant\u2019s line of defence during the trial, the Supreme Court agreed withthe trial court that this had probably been an attempt to help his co-accused, D.\u0160.,in the trial, rather than constituting a credible reason for retracting his earlier statements. The Supreme Court lastly found that the applicant\u2019s statement had helped to convict D.\u0160. and that therefore his sentence was to be reduced to one year\u2019s imprisonment.<\/p>\n 32.\u00a0\u00a0The applicant lodged a constitutional complaint withthe Constitutional Court (Ustavni sud Republike Hrvatske). He complained that during his stay in the police station he had asked for a lawyer and that his sister and father had hiredD.H. to represent him. However, he stated thatthe police had forced him to waive this right.He furthercomplained that he had been ill-treated during his stay in the police station. He explained that he had not resisted arrest and had not been injured during his arrest, but during his stay in the police station when he had been forced to incriminateD.\u0160.<\/p>\n 33.\u00a0\u00a0On 7 November 2013 the Constitutional Court dismissed the applicant\u2019s constitutional complaint as ill-founded.The decision was served on the applicant\u2019s representative on 18 November 2013.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 34.\u00a0\u00a0The relevant domestic law is set out in the case of Mafalani v.\u00a0Croatia (no. 32325\/13, \u00a7\u00a7 54-60, 9 July 2015).<\/p>\n 35.\u00a0\u00a0Meanwhile, on 31 March 2011 a new Police Act (Zakon o policiji, Official Gazette no. 34\/2011 with subsequent amendments) came into force, whose provisions set out a procedure which should guarantee an independent and effective examination of an allegation of a violation of the person\u2019s rights and freedoms inflicted by a police officer.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION<\/p>\n 36.\u00a0\u00a0The applicant complained of being ill-treated during his stay in the police station and of the absence of an effective response on the part of the domestic authorities in that respect. He relied on Article 3 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 A.\u00a0\u00a0The parties\u2019 arguments<\/strong><\/p>\n 1.\u00a0\u00a0The Government<\/em><\/p>\n 37.\u00a0\u00a0The Government contended that the injuries which the applicant had sustained during his arrest and transportation to the police station on 21\u00a0October 2010did not reach the minimum level of severity to fall within the scope of Article 3 of the Convention. In particular, the applicant was a healthy young man and the minor injuries which he had sustained\u2013excoriationson his left elbow, on the left side of his chest and behind his left ear, for which he had received prompt medical assistance \u2013 could not have caused him suffering reaching the minimum level of severity to fall under Article 3 of the Convention.<\/p>\n 38.\u00a0\u00a0The Government further submitted that the applicant had failed to exhaust the domestic remedies because he had not lodged a criminal complaint against the police officers who had allegedly ill-treated him.<\/p>\n 39.\u00a0\u00a0Theyfurther argued that the applicant had not complied with the six\u2011month time-limit because his alleged ill-treatment by the police had occurred on 21 October 2010, whereas he had only lodged his application with the Court on 2 May 2014, without a criminal complaint with the national authorities having been lodged.<\/p>\n 40.\u00a0\u00a0They also argued that the applicant\u2019s allegations of ill-treatment during his stay in the police station were completely implausible and unsubstantiated. These allegations were not supported by the available evidence. In particular, the available reports on his arrest and transportation to the police station described in detail the manner in which he and one of the police officers who had arrested him, S.D., had sustained injuries. This was entirely owing to the applicant actively resisting his arrest and transportation to the police station. The injuries he had sustained \u2013 excoriations on his left elbow, on the left side of his chest and behind his left ear \u2013 corresponded to the course of events, as described in the reports. The applicant, on the other hand, never provided any details regarding his alleged ill-treatment in the police station, nor the exact manner in which, according to his version of events, he had sustained his injuries in the police station. He only alleged in general terms that he had been \u201cphysically and psychologically ill-treated\u201d by the police officers.In view of the foregoing, the applicant\u2019s assertion of ill-treatment in the police station lacked credibility and therefore did not entail a procedural obligation under Article\u00a03 of the Convention to investigate.<\/p>\n 2.\u00a0\u00a0The applicant<\/em><\/p>\n 41.\u00a0\u00a0The applicant contendedthat he had been ill-treated by the police and had endured psychological trauma as a result ofthat ill-treatment. He therefore considered that the Government\u2019s arguments that the injuries he had sustained did not reach the minimum level of severity to fall within the scope of Article 3 of the Convention were completely inappropriate and misplaced.<\/p>\n 42.\u00a0\u00a0He pointed out that the domestic authorities had been under a duty to conduct an effective official investigation into his allegations of ill\u2011treatment. Therefore, the fact that he had not lodged a criminal complaint against the police officers who had ill-treated him had no bearing on the admissibility of his application.<\/p>\n 43.\u00a0\u00a0In the applicant\u2019s view, no issue could arise with regard to the six\u2011month time-limit, given that he had complained about his ill-treatment during the criminal proceedings against him.<\/p>\n 44.\u00a0\u00a0Heargued that the official version of events, according to which he had sustained injuries during his arrest and transportation to the police station, was incorrect. He maintained that he had not resisted arrest and that his injuries had been sustained not during his arrest but later on, during his stay in the police station. In particular, he explained that as soon as he had been brought to the police station he had immediately confessed his crime. Therefore, he could have had no reason to resist his arrest only minutes beforehand. He stressed that once he had confessed his crime the police officers had told him that he was of no interest to them, and that they had been after D.\u0160. Then, as the applicant explained, they had physically and psychologically ill-treated him in order to pressure him into making incriminating statements against D.\u0160. It was then that he had sustained his injuries. This was confirmed by the medical report issued on the same day. He added that additional psychological pressure had been imposed on him when on the following day his father and sister had come to the police station to see him, after which his father had suffered a stroke.Even though he had complained of ill-treatment by the police throughout the criminal proceedings against him, notably in the presence of the Deputy Dubrovnik County State Attorney, there had been no reaction whatsoever on the part of the domestic authorities as regards his complaints.<\/p>\n B.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 45.\u00a0\u00a0The Court does not have to address all the objections raised by the Government because the complaint is in any event inadmissible for the following reasons.<\/p>\n 46.\u00a0\u00a0The relevant general principles of the Court\u2019s case-law concerning the substantive and procedural aspects of obligations under Article 3 of the Convention are summarised inthe case ofBouyid v. Belgium ([GC],no.\u00a023380\/09, \u00a7\u00a7 81-90 and 100-101 ECHR 201581-90), and El\u2011Masri v.\u00a0the former Yugoslav Republic of Macedonia ([GC], no.\u00a039630\/09, \u00a7\u00a7\u00a0182\u201185, ECHR 2012) respectively.<\/p>\n 47.\u00a0\u00a0The Court reiterates that allegations of ill-treatment contrary to Article 3 must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof \u201cbeyond reasonable doubt\u201d but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, \u00a7 161 in fine, Series A no. 25; Labita, cited above, \u00a7 121; Jalloh v. Germany [GC], no.\u00a054810\/00, \u00a7 67, ECHR 2006 IX; Ramirez Sanchez, cited above, \u00a7 117; G\u00e4fgen, cited above, \u00a7 92; and Bouyid, cited above, \u00a7 82).<\/p>\n 48.\u00a0\u00a0Article 3 of the Convention gives rise to a positive obligation to conduct an official investigation where an individual raises an arguable claim of ill-treatment (see Assenov and Others v. Bulgaria, 28 October 1998, \u00a7 102, Reports of Judgments and Decisions 1998\u2011VIII). Even in the absence of an express complaint, Article 3 of the Convention requires an official investigation where there are sufficiently clear indications that ill\u2011treatment might have occurred (see Members of the Gldani Congregation of Jehovah\u2019s Witnesses and Others v. Georgia, no. 71156\/01, \u00a7 97, 3 May 2007, and Hassan v. the United Kingdom [GC], no. 29750\/09, \u00a7 62, ECHR\u00a02014; see also J.L. v. Latvia, no. 23893\/06, \u00a7\u00a7 11-13 and 73-75, 17\u00a0April 2012, where the obligation to investigate arose, inter alia, on the basis of facts implied in the complaints made by the applicant during the criminal proceedings against him, and P\u0103dure\u0163 v. Moldova, no. 33134\/03, \u00a7\u00a7 63-64, 5 January 2010, where the duty to undertake a prompt investigation arose on the basis of the results of a medical examination of the applicant, which revealed the possibility of ill-treatment).<\/p>\n 49.\u00a0\u00a0In the present case the Court notes that there is no dispute between the parties that the applicant sustained minor bodily injuries on the day of his arrest. Their respective versions of events, however, differ with regard to the manner in which they were caused.<\/p>\n 50.\u00a0\u00a0According to the Government, the applicant actively resisted his arrest and the police officers had to use force against him in order to restrain him and bring him to the police station. The manner in which he and S.D., one of the police officers who arrested him, sustained injuries was described in detail in the report on the applicant\u2019s arrest. The applicant, however, contended that he had not resisted his arrest, and had sustained injuries not during his arrest, but later on, in the course of his subsequent ill-treatment by police officers in the police station.<\/p>\n 51.\u00a0\u00a0The Court observes that a medical report signed at 9.40 p.m. on 21\u00a0October 2010 (the day of the applicant\u2019s arrest) states that the applicant had sustained minor bodily injuries \u2013excoriations on his left elbow, on the left side of his chest and behind his left ear. Minor bodily injuries were also found on S.D., the police officer who had arrested the applicant \u2013 specifically, excoriations on his right knee and elbow. The applicant and S.D. told the doctorwho examined them that they had sustained their injuries by falling tothe ground (see paragraph 9 above).<\/p>\n 52.\u00a0\u00a0The Court notes that on the same day the shift manager of the police station to which the applicant was brought issued a report stating that he had actively resisted arrest and that the police officers had applied coercive measures against him, after which he had been examined by a doctor who had found that he had sustained excoriations on his left elbow, on the left side of his chest and behind his left ear. The applicant signed the report and stated that he did not have any objections to the procedure that had been followed (see paragraph 11 above).<\/p>\n 53.\u00a0\u00a0The Court further notes that when he was brought before the investigating judge the following day, the applicant stated that, apart from their having used force during his arrest, he did not have any objections regarding the police conduct during his stay in the police station (seeparagraph 15 above). The Court does not have at its disposal any evidence to conclude that the applicant stated this out of fear, as alleged by him.<\/p>\n 54.\u00a0\u00a0The Court observes that following his questioning by the investigating judge on 22 October 2010, the applicant was released, and that from 3 December 2010 onwards he was represented by a lawyer of his own choosing (see paragraphs 15 and 17 above). However, it was not until 1\u00a0July2011 that the lawyer submitted the applicant\u2019s medical certificate to the trial court, stressing that it was relevant in respect of establishing the conduct of the police towards the applicant (see paragraph 23 above). Then, at the hearing held on 4 July 2011, the applicant for the first time stated that he had been ill-treated during his stay in the police station (seeparagraphs\u00a025\u201126 above). The Court notes that the applicant\u2019s allegations of ill-treatment in the police station were made in the course of his retracting the statements given to the investigating judge by which he had incriminated D.\u0160.<\/p>\n 55.\u00a0\u00a0The Court notes that the applicant gave conflicting statements as to the conduct of the police officers during his arrest and stay in the police station. In particular, at the hearing held on 4 July 2011 the applicant stated, when asked by the prosecutor, that during his arrest and transportation to the police station the police officers had used force against him and had beaten him (see paragraph 26 above). However, in his appeal and constitutional complaint, as well as in his submissions before the Court, he maintained that he had not resisted his arrest and had not sustained injuries during his arrest. As soon as he had been brought to the police station he had confessed to his crime. Only after his confession had the police officers told him that he was of no interest to them, and then ill-treated him in order to pressure him into incriminating D.\u0160. It was then that he had sustained his injuries (see paragraphs 30, 32 and 44 above).<\/p>\n 56.\u00a0\u00a0The Court further notes that the applicant never provided any details as to the manner in which the police officers had allegedly ill-treated him during his stay in the police station. In particular, at the hearing held on 4\u00a0July 2011 the applicant stated that he had been beaten by L.D., S.D. and I.R. (see paragraph 25 above). However, the Court notes that he never \u2013 neither before the domestic courts nor before this Court \u2013 substantiated this allegation or explained the manner in which he had sustained his particular injuries \u2013 excoriations on his left elbow, on the left side of his chest and behind his left ear \u2013under circumstances in which S.D., one of the police officer who had arrested him,had also sustained excoriations on his right knee and elbow (see paragraph 9 above).<\/p>\n 57.\u00a0\u00a0When viewed against the applicant\u2019s version of events, the Court accepts the Government\u2019s detailed explanation as to the course of the applicant\u2019s arrest and stay in the police station and the manner in which he and S.D. had sustained their particular injuries (see paragraphs 10 and 40 above).<\/p>\n 58.\u00a0\u00a0In view of the foregoing considerations, and having regard to the particular circumstances of the present case,the Court is of the view thatthe applicant\u2019s complaints are not \u201carguable\u201d for the purposes of Article 3 of the Convention and thatthe domestic authorities were not required to carry out an effective investigation into his alleged ill-treatment in the police station (compare Zherdev v. Ukraine, no. 34015\/07, \u00a7 76, 27 April 2017 and Sadkov v. Ukraine, no. 21987\/05, \u00a7 81, 6 July 2017).<\/p>\n 59.\u00a0\u00a0Accordingly, the Court finds that the applicant\u2019s complaints of ill\u2011treatment, under both the substantive and the procedural limbs of Article\u00a03, should be rejected as manifestly ill-founded, pursuant to Article\u00a035 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7\u00a7 1 AND 3 (c) OF THE CONVENTION<\/p>\n 60.\u00a0\u00a0The applicant complained that his trial had been unfair because during his stay in the police station he had been denied access to a lawyer and had been pressured into making incriminating statements against his co\u2011accused. He relied on Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention, which, in so far as relevant, read as follows:<\/p>\n \u201c1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …<\/p>\n 3. Everyone charged with a criminal offence has the following minimum rights:<\/p>\n …<\/p>\n (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;…\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 61.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 arguments<\/em><\/p>\n (a)\u00a0\u00a0The applicant<\/p>\n 62.\u00a0\u00a0The applicant submitted that when he had been arrested on 21\u00a0October 2010 and taken to the police station, he had immediately confessed to the crime of which he was accused, namely that in August 2010 he had on two occasions acted as an intermediary in the selling of amphetamines. However, when the police had started questioning him about D.\u0160. and the cocaine, he had asked for a lawyer but the police officers had forced him to waive this right. He was then pressured into making incriminating statements against his co-accused in the trial, D.\u0160. Those statements had later on been used in the trial. He submitted that he had not complained about this to the investigating judge in view of the fact that the same police officers who had ill-treated him had later on brought him to the investigating judge.<\/p>\n 63.\u00a0\u00a0The applicant added that on the day of his arrest his sister had hireda lawyer, D.H., to represent him, but that the police officers had refused to allow D.H. to enter the police station. He averred that at the hearing held on 1 July 2011 he had submitted a power of attorney dating from 21\u00a0October 2010 under which his sister had hired D.H. to represent him. However, the trial court had disregarded this evidence and had also refused to hear his sister and D.H. in respect of these circumstances.<\/p>\n 64.\u00a0\u00a0The applicantfinally explained that he had not submitted his complaints in this respect earlier in the trial because, underthe rules on criminal procedure, the accused was only heard by the court at the end of the trial.<\/p>\n (b)\u00a0\u00a0The Government<\/p>\n 65.\u00a0\u00a0The Government submitted thatthe applicant had had a fair trial. In particular, the Government averredthat before the applicant had been questioned by the police and the investigating judge he had been advised of his right to remain silent and to hire a lawyer of his own choosing. On both occasions he had stated that he understood his rights and that he did not wish to hire a lawyer andhad signed the records of his questioning without any objections.<\/p>\n 66.\u00a0\u00a0The Government further submitted that the applicant had given his statements to the police and the investigating judge of his own free will. As to his conviction, the Government claimed that the statements given to the police had been cumulative to other evidence against the applicant, including his own statements made during the trial.<\/p>\n 67.\u00a0\u00a0Lastly, the Government submitted that after his release on 22\u00a0October 2010 the applicant had not hireda lawyer until 3 December 2010. Even then he had not hired D.H., who had allegedly been hiredby his sisteron 21 October 2010, but D.P., who had actively representedhim until the end of the criminal proceedings against him.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n (a)\u00a0\u00a0General principles<\/p>\n 68.\u00a0\u00a0The Court reiterates that the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, as guaranteed by Article 6 \u00a7 3 (c), is one of the fundamental features of a fair trial (see Simeonovi v. Bulgaria [GC], no. 21980\/04, \u00a7 112, 12 May 2017; Salduz v. Turkey [GC], no. 36391\/02, \u00a7 51, ECHR 2008, and Dvorski v. Croatia [GC], no. 25703\/11, \u00a7 76, ECHR 2015). Prompt access to a lawyer constitutes an important counterweight to the vulnerability of suspects in police custody and provides a fundamental safeguard against coercion and ill-treatment of suspects by the police (see Simeonovi, cited above, \u00a7 112; Salduz, cited above, \u00a7\u00a7 53\u201154, and Ibrahim and Others v.\u00a0the\u00a0United Kingdom [GC], nos. 50541\/08 and 3 others, \u00a7 255, ECHR\u00a02016).<\/p>\n 69.\u00a0\u00a0Like the other guarantees of Article 6, the right to legal assistance is applicable from the moment that a \u201ccriminal charge\u201d exists within the meaning of this Court\u2019s case-law (see Simeonovi, cited above, \u00a7\u00a7 110 and\u00a0111) and may therefore be relevant during pre-trial proceedings if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to observe it (ibid., \u00a7 114; see also Ibrahim and Others,cited above, \u00a7 253).<\/p>\n 70.\u00a0\u00a0Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. That also applies to the right to legal assistance (see, among other authorities, Simeonovi, cited above, \u00a7 115, and Dvorski, cited above, \u00a7\u00a7 100 and 101). However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. The waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right. Moreover, the waiver must not run counter to any important public interest (see Simeonovi, cited above, \u00a7 115 with further references).<\/p>\n (b)\u00a0\u00a0Application of these principles to the present case<\/p>\n 71.\u00a0\u00a0The Court observes in the present case that the applicant was questioned by the police on 22 October 2010. In the report on his questioning it was noted that he had been advised of his right to remain silent and to hirea lawyer of his own choosing who could be present during his questioning, and that he had refused to hire a lawyer (see paragraph 14 above). He then confessed that in August 2010 he had on two occasions acted as an intermediary in the selling of amphetamines and that between 2008 and 2010 he had on several occasions bought cocaine from D.\u0160. The Court notes that the applicant signed the report on his questioning without any objections.<\/p>\n 72.\u00a0\u00a0The Court further observes that according to the report on the applicant\u2019s questioning before the investigating judge on 22 October 2010, the applicant was twice advised of his rights to remain silent and to hire a lawyer of his own choosing (see paragraph 15 above). However, he maintained that he did not require a lawyer and reiterated the statements he had given to the police. He further stated that apart from the use of force during his arrest he did not have any objections about the police conduct during his stay in the police station, and he did not make any objections regarding his lack of legal representation during his questioning by the police. He signed the report on his questioning without raising any objections.<\/p>\n 73.\u00a0\u00a0The Court notes that after being questioned by the investigating judge on 22 October 2010 the applicant was released (see paragraph 15 above). In the Court\u2019s view, the applicant could already at that point have raised the issue of his allegedly having been denied access to a lawyer during his questioning by the police. However, he remained silent in this respect. The Court furthermore notes that from 3 December 2010 onwards he was represented by a lawyer of his own choosing (see paragraph 17 above). It was therefore expected that he would receive legal advice regarding his position at pre-trial. Nevertheless, even with the support of his lawyer, he did not make any complaints regarding his allegedly having been denied access to a lawyer during his questioning by the police.<\/p>\n 74.\u00a0\u00a0The Court furthermore observes that the trial against the applicant began on 4\u00a0January 2011 (see paragraph 18 above) and that it was not until a hearing held on 1 July 2011 that he raised the issue of his lack of legal representation during his questioning by the police (see paragraph 23 above). The Court cannot see any reasonable justification for the delay in making this complaint. In the Court\u2019s view the fact that the applicant gave an oral statement only at the end of the trial did not mean that he could not have brought this complaint earlier in the proceedings. This is particularly so given that prior to the hearing held on 1 July 2011 the applicant and his lawyer, D.P., attended two hearings during which the trial court took statements from the accused, heard witnesses and examined other evidence, without the applicant or his lawyer ever mentioning the issue of the applicant having allegedly been denied access to a lawyer during his questioning by the police (see paragraphs 21-22 above).<\/p>\n 75.\u00a0\u00a0Therefore, (i) given that following his arrest on 21 October 2010 the applicant was several times advised of his right to hire a lawyer of his own choosing who could be present during his questioning, but (ii) given that the applicant nevertheless maintained before the police and the investigating judge that he did not require a lawyer, and (iii) having taken into account the fact that the applicant only raised the issue of his lack of legal representation during the police questioning at the end of the trial, even though he had been represented by a lawyer of his own choosing, D.P., from 3 December 2010 onwards, the Court concludes that the applicant explicitly and unequivocally waived his right to be represented by a lawyer during his questioning by the police.<\/p>\n 76.\u00a0\u00a0As to the applicant\u2019s complaints that on the day of his arrest his sister had hired a lawyer, D.H., to represent him, but that the police officers refused to allow D.H. to enter the police station, the Court cannot take it against the domestic courts that they dismissed such complaints as not being credible. In particular,although being represented by a lawyer of his own choosing, D.P., from 3 December 2010 onwards, it was not until a hearing held on 1 July 2011 that the applicant raised this issue for the first time. Moreover, D.H., the lawyer allegedly hired by the applicant\u2019s sister, who represented D.\u0160., the applicant\u2019s co-accused in the trial, also raised this issuefor the first time atthe hearing of 1 July 2011.The Court is thus of the opinion that the applicant did not raise an arguable complaint that his waiver had not been knowing and intelligent (see, by contrast, Dvorski, cited above, \u00a7 102).<\/p>\n 77.\u00a0\u00a0As to the applicant\u2019s complaint that he had been pressured into making incriminating statements against his co-accused, in view of the fact that this complaint was linked to the questions dealt with by the Court under Article 3 of the Convention (see paragraphs 45-59 above), the Court considers that it is not necessary to examine the same question separately under Article 6 \u00a7 1 of the Convention.<\/p>\n 78.\u00a0\u00a0Having regard to the foregoing, the Court concludes that there has been no violation of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention in the present case.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declaresthe complaint under Article 3 of the Convention inadmissible and the complaint under Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention admissible;<\/p>\n 2.\u00a0\u00a0Holds that there has been no violation of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention.<\/p>\n Done in English, and notified in writing on 12 April 2018, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.<\/p>\n Abel Campos\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Linos-Alexandre Sicilianos
\nKristina Pardalos,
\nAle\u0161 Pejchal,
\nKsenija Turkovi\u0107,
\nArmen Harutyunyan,
\nPauliine Koskelo,
\nTim Eicke, judges,
\nandAbel Campos, Section Registrar,<\/p>\n
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n