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FIFTH
SECTION
CASE OF LUTSENKO v. UKRAINE
(Application
no. 30663/04)
JUDGMENT
STRASBOURG
18 December 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Lutsenko v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait
Maruste,
President,
Volodymyr
Butkevych,
Renate
Jaeger,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 25 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30663/04) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Stanislav Nikolayevich
Lutsenko (“the applicant”), on 5 August 2004.
- The
applicant, who had been granted legal aid, was represented by Mr A.P.
Bushchenko, a lawyer practising in Kharkiv. The Ukrainian Government
(“the Government”) were represented by their Agent,
Mr Y. Zaytsev.
- The
applicant alleged, in particular, that he had been convicted in
violation of Article 6 § 1 of the Convention, on
the basis of statements given by his absentee co-accused during the
pre-trial investigation, then retracted as having been made under
duress.
- On
6 July 2007 the Court decided to give notice of the
application to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1977 and lives in Makiyivka.
- At
about 6.30 a.m. on 13 November 1995 Mr O.M. was found in a
cultivated forest near a railway station, with four gunshot wounds,
from which he died the same day in a hospital some two hours later.
- On
17 November 1995 the applicant was arrested on suspicion of having
murdered Mr O.M. In the course of a subsequent search of the
applicant's house 1,500 dollars (USD) were seized.
- Between
17 November 1995 and 13 December 1996 the applicant was held in
custody in the Donetsk Investigative Isolation Unit (SIZO). According
to the applicant, the conditions in which he was held were inhuman
and degrading. Furthermore, the police allegedly tortured him to
obtain a confession.
- The
applicant consistently denied any involvement in the murder. He
acknowledged that on 12 November 1995 his classmate Mr A.F.
had driven him to the site of the incident, as he had wanted to see
the place, where he had planned a business meeting for 13 November
1995 with a certain Andrey, whose other details he did not know. The
following day Mr A.F again accompanied the applicant to the same
place along with his father in their car and waited for him nearby.
The applicant met Andrey on the railroad bridge as agreed. Andrey
took the applicant's jacket. When the applicant saw two men fire at a
passer-by, he became scared and ran through the forest to Mr A.F.'s
car and they drove away. During the trip, the applicant threw away
his boots and his gloves, as he had realised that other passers-by
could have seen him and implicated him in the incident.
- On
18 November 1995 Mr N.L., the applicant's
acquaintance, who was a shareholder and a driver in a company managed
by Mrs O.M., the victim's widow, was questioned by the police
concerning the murder. As he was questioned as a witness, Mr N.L.
was warned of his obligation to provide all the information known to
him on pain of criminal sanctions and was not offered the option to
consult with a lawyer. He confessed to having hired the applicant to
kill Mr O.M. and to having paid him USD 2,000 in advance
and USD 10,000 post factum. He also testified that on the
eve of the murder the applicant had shown him the gun he had acquired
to kill Mr O.M. Soon afterwards Mr N.L. was indicted for
incitement to murder. Following his indictment and purportedly a
consultation with a lawyer, he retracted his confession and
subsequently consistently denied his or the applicant's involvement
in the events throughout the course of the proceedings.
- On
21 November 1995 Mr N.L. complained to the
prosecutor's office that the police officers who had questioned him
had put him under severe psychological pressure, including threats to
accuse him of a capital offence, to have him beaten and raped and to
harm his wife and daughter unless he identified the applicant as the
killer of Mr O.M. On an unspecified date Mr N.L. also
complained that two unknown individuals had attacked him on the porch
of his house and told him to confess to his involvement in the murder
if he wanted to spare his family serious trouble. The parties did not
provide any information concerning the authorities' reaction to these
complaints.
- On
an unspecified date the case against the applicant and Mr N.L.
was referred for trial to the Donetsk Regional Court. According to
the prosecution, the applicant was guilty of murder for profit,
unlawful possession of firearms and unlawful transactions in foreign
currency. According to the prosecution's version of events, Mrs O.M.,
grossly upset about her husband's inappropriate behaviour towards
her, had requested Mr N.L. to find somebody to talk to him,
threaten and, if necessary, beat him. She allowed him to take some
money from 1.5 billion karbovantsi
which she had earlier given him for safekeeping, to hire a suitable
person. Mr N.L., who was on bad personal terms with Mr O.M.
and was afraid to lose his job in his wife's company, decided to use
the money to have Mr O.M. killed. On an unknown date Mr N.L.
gave the applicant USD 2,000 for preparation of the murder,
including the purchase of a gun, and informed him of the usual time
and route by which Mr O.M. walked to work. On an unknown date
the applicant acquired from an unknown source a 7.65-calibre foreign
gun of an unknown make, and on 13 November 1995 he fired several
shots into the victim. On 15 November 1995 Mr N.L. gave the applicant
another USD 10,000 in payment for the murder.
- On
29 May 1996 the Donetsk Regional Court referred the case for
additional investigation, having found that the facts of the case
were insufficiently established and the evidence of the defendants'
involvement in the incriminated offences was insufficient. On an
unspecified date the case was referred back to the court for trial.
- On
13 December 1996 the Donetsk Regional Court acquitted the
defendants, having found, in particular, that the prosecution had
failed to account for inconsistencies between the available sources
of evidence and to secure sufficient proof of the defendants' guilt.
In particular, a number of facts, such as Mr N.L.'s alleged
involvement in the crimes and the sums purportedly received by the
applicant to commit the murder were lacking in any evidentiary basis
save for Mr N.L.'s initial confessions, which he had
subsequently retracted as given under duress. Accordingly, the court
found the evidence unreliable and, as no other evidence was
available, interpreted all the doubts in favour of the defence.
- The
applicant was released from custody on the day of his acquittal and
soon afterwards left the country and settled in Uzbekistan, allegedly
fearing reprisals on the part of the police. On an unspecified date
Mr N.L. disappeared.
- On
9 June 1997 the Donetsk Regional Court placed the applicant and
Mr N.L. on the wanted list. According to the applicant, he was
unaware of this fact and was never in hiding. He settled, worked,
married, had a child and obtained a driver's licence in his own name.
- On
13 December 1997 the Supreme Court allowed the appeal in cassation by
the prosecution and remitted the case for fresh consideration to the
Donetsk Regional Court.
- In
2002, when the applicant applied to the Ukrainian authorities to
renew his expired passport, he was arrested and detained in Ukraine
pending trial.
- As
Mr N.L. was not found, on 9 December 2002 the Donetsk Regional
Court of Appeal (the former Donetsk Regional Court) solicited the
applicant's opinion about holding a trial in his absence, to which
the applicant, represented by a lawyer, agreed. In the course of the
trial, the prosecution requested the court to read out depositions by
Mr N.L., to which the defence did not object. The court granted
the request by the prosecution.
- On
3 October 2003 the Donetsk Regional Court of Appeal accepted the
prosecution's version of events as filed in 1996. It convicted the
applicant of murder for profit and unlawful possession of firearms
and acquitted him of unlawful transactions in foreign currency, which
was by then no longer a criminal offence.
- The
court found that the applicant's guilt of having committed the murder
as charged was apparent, in particular, on the strength of the
following evidence:
- Mrs
O.M.'s testimony that in October 1995 she had requested Mr N.L.
to find a person to threaten her husband and had authorised him to
pay that person out of 1.5 billion karbovantsi given to him for
safekeeping. After her husband had been murdered, Mr N.L. had
advised her to be quiet about the matter;
- Mrs
A.L.'s (the applicant's mother's) testimony that on 12 November 1995
her son had bought gloves, tennis shoes and a sports bag. On 13
November 1995 her son had told her that he was going to play tennis
in the morning, but had subsequently changed his plans and left the
town for two days. The 1,500 USD which were seized from the house
belonged to the entire family and were long-term savings;
- Mrs
V.V.'s and Mrs O.O.'s testimony that on 13 November 1995, at about
6.30 a.m., they had heard several gunshots and then discovered
Mr O.M. wounded near the railroad bridge, and that they had not
seen any suspicious men around;
- Mr
M.F.'s testimony that on 13 November 1995, at about 6.30 a.m.,
he had heard three gunshots and some 20 seconds later had seen a man
running across the bridge. He was unable, however, to provide a
description of the man and refused to speculate whether it could have
been the applicant;
- Mr
A.F.'s testimony that on 12 November 1995 he had driven the applicant
to a market in his father's car, where the applicant had bought a
bag, a jacket, tennis shoes and gloves. Subsequently they had gone on
to the neighbourhood where the murder would take place the following
day, as the applicant had business there. The applicant went into the
forest and was absent for some 10 to 12 minutes, after which they
returned home and agreed that Mr A.F. would give the applicant a
ride the following morning “to meet the boss”. They drove
to the place the next day and Mr A.F. and his father waited for
the applicant in the car. The applicant returned without his jacket,
very agitated, and informed them that he had encountered suspicious
individuals. During the trip the applicant threw away his boots and
his gloves out of the window. Mr A.F.'s father gave an analogous
statement;
- Mrs
A.I.'s depositions, given during the pre-trial investigation, that on
13 November 1995 at 6:15 she had seen a man standing on the railroad
bridge with a big dark bag near him, his hands in the pockets;
- an
expert assessment of the bullets fired at Mr O.M., according to
which the bullets could have been shot from a gun of one of some
eight foreign models;
- an
expert assessment that it was not impossible to fire one of those
guns when wearing gloves similar to the ones which the applicant had
had on him, as identified by Mr A.F. (his driver);
- two
forensic assessments of the circumstances and causes of Mr O.M.'s
death, which described his wounds and found that the shots had been
fired from various distances;
- the
testimony by the applicant's boss, in charge of a currency exchange
business, concerning the applicant's low income;
- the
record of the currency exchange transactions performed by the
business in the relevant time, according to which nobody had
exchanged any sum higher than USD 500 in a single transaction; and
- the
applicant's psychiatric assessment, according to which he suffered
from no disorder and was answerable for his actions.
- No
reference in the text of the judgment was made to the confessional
statements by Mr N.L. or to the applicant's allegations that
they had been given under duress.
- Having
recited the aforementioned evidence, the court concluded:
“Having assessed
the evidence in the case, the court considers it established that
[the applicant].... had committed murder for profit, which is to be
qualified under Section 93(a) of the Criminal Code. His
intentional actions, manifested in acquisition, carrying and storage
of firearm and ammunition without a respective permit, which have
been fully confirmed, fall under Section 222 paragraph 1 of the
Criminal Code of Ukraine...”
- The
applicant appealed in cassation. He maintained, inter alia,
that his conviction lacked evidentiary basis and de facto
relied to a decisive extent on the initial depositions by Mr N.L.,
given by him in the absence of a lawyer when interrogated as a
witness without privilege against self-incrimination, and which he
had subsequently retracted as given under duress. He maintained that
without a reference to those depositions all the other evidence was
insufficient to establish the facts, in particular concerning the
possession of the gun and the payment of money for the murder.
- The
applicant's lawyer lodged a separate cassation appeal in which he
supported the applicant's allegations concerning the insufficiency of
the inculpating evidence. He noted, in particular, that there
was no evidence whatsoever that the applicant had ever had a gun,
much less fired it, or that the USD 12,000 allegedly given to the
applicant had ever existed, much less been transferred to him as
suggested, and submitted that it was not possible to establish
exactly where the applicant had been at the time when Mr O.M.
had been wounded.
- On
11 March 2004 the Supreme Court upheld the judgment of
3 October 2003. In the text of its decision it summarised
the evidence on which the conviction was based, as well as referring
to the confession made by Mr N.L., as follows:
“During the hearing [the trial court] also
examined the statement of [Mr N. L.] given during the pre-trial
proceedings, in which he confirmed that after having talked with [Mrs
O. M.] he informed [the applicant] about that, and the latter said
that in order to prepare the murder he needed USD 2,000 and USD
10,000 for its committal. He gave [the applicant] USD 2,000, and the
latter showed him a gun he had acquired. After the murder of [Mr
O.M.], on 15 November 1995 he paid [the applicant] USD 10,000 and the
latter told him that he had disposed of the gun, the jacket, the
gloves and the boots.
The arguments of [the applicant] that [Mr N.L.] had
falsely accused him and himself under physical pressure by police
officers had also been examined and had been found
unsubstantiated...”
- In
concluding its reasoning, the Supreme Court stated:
“Therefore, the [trial] court has examined all the
circumstances of the case. Having assessed the evidence in its
totality, the [trial] court concluded that [the applicant] had
committed the premeditated murder for profit of [Mr O.M.] and
correctly qualified it as an offence defined in Article 93 (a) of the
1960 Criminal Code.”
II. RELEVANT DOMESTIC LAW
1. Criminal Code of 1960 (partly repealed by the new
Criminal Code of 2001)
- Section
93 (Aggravated murder), paragraph (a), defined “murder for
profit” as an offence punishable by a term of imprisonment of
up to life and by confiscation of property;
- Section
94 (Murder) defined “murder committed in the absence of the
aggravating circumstances listed in Section 93”, as an offence,
punishable by a term of imprisonment of up to fifteen years;
- Section
179 (Refusal of a witness to testify or of an expert or a translator
to perform his duties) defined a witness's refusal to testify as an
offence punishable by correctional labour or a fine.
2. The Code of Criminal Procedure
- According
to Sections 43 (An Accused and his Rights) and 43-1 (A Suspect) of
the Code, a suspect and an accused have the right to refuse to
testify and to consult a lawyer before being questioned for the first
time;
- Sections
70 (Duties of a Witness) and 71 (Liability of a Witness) provide no
such guarantees. On 13 June 2000 the Code was supplemented with
Section 69-1 (Rights of a witness), which enabled witnesses to refuse
to testify against themselves, their family members and close
relatives.
THE LAW
I. SCOPE OF THE CASE
- The
Court notes that in August 2007, after the communication of the case
to the respondent Government, the applicant additionally complained
under Article 3 of the Convention about the conditions of his
detention pending trial between 2002 and 2004.
- In
the Court's view, this new complaint is not an elaboration of the
applicant's original complaints, lodged with the Court three years
earlier, on which the parties have commented. The Court considers,
therefore, that it is not appropriate now to take this matter up in
the present context (see Skubenko v. Ukraine
(dec.), no. 41152/98,
6 April 2004).
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION
- The
applicant complained that he did not have a fair trial; he alleged,
in particular, that he was convicted on no evidence except the
confessions of Mr N.L., which had been extracted by unlawful
pressure. He relied on Article 6 § 1 of the
Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. Admissibility
- The
Government alleged that the applicant had failed to exhaust all
available domestic remedies in respect of his complaint. In
particular, in his cassation appeal he had failed to complain about
having been unable to cross-examine Mr N.L. before the trial
court.
- The
applicant disagreed. He submitted that if he had, as suggested by the
Government, complained about the impossibility of questioning
Mr N.L., whose whereabouts were by then unknown, he would have
insisted in substance on the postponement of the trial for an
indefinite period of time. This would have been contrary to his
interests, as he would have been left in a state of uncertainty about
his fate. Moreover, in this case his detention could have been
prolonged. Finally, the passage of time would have rendered it
increasingly difficult to examine other sources of evidence. On the
other hand, the applicant believed that the impossibility to
cross-examine Mr N.L. could have been remedied by other
procedural means, such as the exclusion of his initial confessions
from the body of evidence. When the applicant found out that these
confessions formed the basis of his conviction, he properly raised
the matter in his cassation appeal.
- The
Court recalls that the issue in the present case is not the
applicant's trial and conviction in the absence of his co-accused,
but the alleged unfair use of the co-accused's confessional
depositions as the basis for the applicant's conviction. The Court
observes that the applicant extensively elaborated on this issue in
his cassation appeal. It therefore dismisses the Government's
objection.
- The Court considers that the applicant's complaint is
not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
1. The submissions of the parties
- The
applicant submitted that despite the fact that the trial court had
not explicitly referred to Mr N.L.'s depositions in its
judgment, they were the main source of inculpating evidence. Not only
had these depositions been extensively elaborated upon in the
judgment given by the court of cassation but, without them, all the
other available evidence in its entirety could not have resulted in
the applicant's conviction as formulated. The applicant had found no
reason to object to the examination of Mr N.L.'s depositions at
his trial because Mr N.L. had retracted his initial confession
as soon as he had been relieved of pressure from the police, and had
subsequently consistently pleaded – before both the prosecution
and the court – that the applicant and himself were innocent.
However, the judicial authorities had seen fit to rely solely on the
initial depositions given by Mr N.L. under duress and in the
absence of procedural guarantees against self-incrimination,
completely disregarding his subsequent pleas of innocence; the
applicant's conviction, based on these depositions, was accordingly
unfair.
- The
Government objected to this view. They contended that the applicant's
conviction was not based to a decisive extent on Mr N.L.'s
depositions. The courts disposed of an ample array of sources of
evidence, including numerous witnesses and several forensic
assessments. However, even assuming that the initial depositions by
Mr N.L. had provided a basis, among other sources of evidence,
for the applicant's conviction, the use of these depositions was not
unfair. In particular, before resorting to the depositions in
question as a means of establishing the facts, the authorities had
reasonably attempted to locate Mr N.L. and bring him before the
court. As these attempts had been unsuccessful, the trial court had
first consulted with the parties as to whether it was feasible to
start the trial in Mr N.L.'s absence and, subsequently, whether
they had any objections to the examination of his earlier statements.
The defence had never objected to these proposals. After all,
Mr N.L.'s depositions had been read out at a public hearing and
the applicant had had every opportunity to challenge them.
2. The Court's assessment
- The
Court reiterates that while Article 6 guarantees the right to a fair
hearing, it does not lay down any rules on the admissibility of
evidence as such, which is primarily a matter for regulation under
national law (see, amongst other authorities, Schenk v.
Switzerland, 12 July 1988, § 46, Series A
no. 140, and Teixeira de Castro v. Portugal, 9 June
1998, § 34, Reports 1998-IV). It is therefore not the
role of the Court to determine, as a matter of principle, whether
particular types of evidence, including statements by an absentee
co-accused may be admissible or, indeed, whether the applicant was
guilty or not. The question which must be answered is whether the
proceedings as a whole, including the way in which the evidence was
obtained, were fair (see, inter alia, Jalloh v. Germany
[GC], no. 54810/00, § 95, ECHR 2006 ...).
- The impossibility of securing the appearance of a
witness at the trial, in the autonomous meaning of the term, does not
in itself make it necessary to halt the prosecution. In such a
situation it is open to the domestic courts, subject to the rights of
the defence being respected, to have regard to the statements
obtained during pre-trial investigation, in particular if the courts
can consider those statements to be corroborated by other evidence
before them. An issue may, however, arise if the conviction is based
solely or to a decisive extent on those statements (see, amongst
other authorities, Asch v. Austria, 26 April 1991, §§ 25,
27, Series A no. 203; Artner v. Austria, 28 August
1992, § 21, Series A no. 242-A; Doorson v.
the Netherlands, 26 March 1996, § 80, Reports
of Judgments and Decisions 1996-II; and Luca v. Italy, no.
33354/96, § 40, ECHR 2001-II).
- With
regard to the circumstances of the present case, the Court notes at
the outset that Mr N.L.'s depositions, although read out at
trial as part of the case-file, were not explicitly mentioned in the
text of the judgment of 3 October 2003. The Court recalls, on the
other hand, that the applicant was convicted, in particular, of
aggravated murder “for profit” as opposed, for instance,
to unqualified murder, governed by a different criminal statute. The
trial court deemed it established that the applicant had had a
pecuniary motive and noted that he had actually been paid USD 12,000
in two instalments of USD 2,000 and USD 10,000 respectively. In his
cassation appeal, the applicant maintained that save for Mr N.L.'s
depositions and in the light of other available evidence, the
allegation of his pecuniary agreement with Mr N.L., the actual
payment and the amounts referred to, remained mere speculation.
Likewise, apart from the fact that Mr O.M. was wounded by
several shots from a gun of an unknown make, Mr N.L.'s initial
depositions were the only source of evidence that the applicant might
actually have had a gun on him.
- Responding
to the applicant's arguments, in its judgment of 11 March 2004
the Supreme Court explicitly referred to the contested depositions
and noted that there was no reason to consider them inadmissible, as
there had never been a conclusive finding that they had been given
under duress. The Supreme Court further noted that the trial court
had “properly assessed the evidence in its totality”,
thus referring to the entire body of evidence examined at trial.
- In
light of the above, the Court considers that the confessional
depositions by Mr N.L. were important for the purposes of
securing the applicant's conviction as it was formulated.
- The Court must, therefore, examine whether the use of
these depositions was consistent with the requirements of fairness
laid down in Article 6 § 1 of the Convention.
- In this regard the Court reiterates that in
determining whether the proceedings as a whole were fair, the quality
of the evidence must be taken into consideration, including whether
the circumstances in which it was obtained cast doubts on its
reliability or accuracy.
- The Court has previously found that where the domestic
judicial authorities are confronted by several conflicting versions
of truth offered by the same person, their final preference for a
statement given to the investigative authorities over one given in an
open court does not in itself raise an issue under the Convention
where this preference is substantiated and the statement itself was
given of the person's own volition (see Camilleri v. Malta
(dec.), no. 51760/99, 16 March 2000). On the other hand,
the reliability of evidence would be compromised where it was
obtained in breach of the right to silence and the privilege against
self-incrimination. The right not to incriminate oneself, in
particular, presupposes that the prosecution in a criminal case seek
to prove their case against the accused without recourse to evidence
obtained through methods of coercion or oppression in defiance of the
will of the accused (see, inter alia, Saunders v. the
United Kingdom, 17 December 1996, § 68,
Reports 1996-VI, and Jalloh, cited above, § 100).
Where doubts arise as to reliability of a certain source of evidence,
the need to corroborate it by evidence from other sources is
correspondingly greater (see mutatis mutandis Jalloh,
cited above, § 96).
- As
regards the facts of the present case, the Court recalls that Mr N.L.
gave his confessional depositions when questioned as a witness. In
the absence of any conclusive evidence concerning his ill-treatment,
the Court cannot establish beyond a reasonable doubt that he gave his
testimony under duress. On the other hand, the Court notes that,
unlike a suspect or an accused, who enjoyed a right to remain silent
according to the applicable law, a witness was under obligation to
reveal all information known to him on pain of criminal punishment.
Moreover, unlike a suspect or an accused, a witness had no statutory
right to consult a lawyer before the first interrogation.
- Although
the issue in the present case is not the conviction of the author of
the confessions, but that of his co-accused, the Court finds that the
underlying principles are broadly similar, and these statements,
obtained in the absence of procedural guarantees, should have been
treated with extreme caution, regard being had, in particular, to the
fact that Mr N.L. had promptly retracted them, complaining
before the competent authorities that he had given them under duress.
Further, Mr N.L. had consistently denied his initial confessions
not only during his first trial in open court, but yet at the stage
of the pre-trial investigation.
- Regard
being had to the fact that, as noted above, the confessional
depositions of Mr N.L., whom the applicant was unable to
confront in an open court, given by him in the absence of procedural
guarantees against self-incrimination, were used to a decisive degree
for establishing the facts material for the qualification of the
applicant's actions, the Court finds that the rights of the defence
were restricted to an extent which compromised the fairness of the
proceedings as a whole.
- There
was, therefore, a breach of Article 6 § 1 of the
Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 3 of the Convention that
he had been subjected to ill-treatment in police custody in 1995 and
that, during his detention in the Donetsk SIZO from November 1995 to
December 1996 he had suffered from gravely inadequate conditions of
detention. Lastly, the applicant alleged that his second trial after
his acquittal in 1996 had been contrary to his rights under Article 4
of Protocol No. 7.
- Having
considered the applicant's submissions in the light of all the
material in its possession, the Court finds that, in so far as the
matters complained of are within its competence, they do not disclose
any appearance of a violation of the rights and freedoms set out in
the Convention.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant requested a retrial and claimed 100,000 euros (EUR) in
respect of non-pecuniary damage suffered on account of his
purportedly unfair conviction.
- The
Government contested this claim.
- The Court notes that in the present case it has found
a violation of Article 6 § 1 of the Convention. Inasmuch as the
applicant's claim relates to the finding of that violation, the Court
reiterates that when an applicant has been convicted despite a
potential infringement of his rights as guaranteed by Article 6 of
the Convention, he should, as far as possible, be put in the position
in which he would have been had the requirements of that provision
not been disregarded, and that the most appropriate form of redress
would, in principle, be trial de
novo, if requested (see Öcalan v. Turkey [GC],
no. 46221/99, § 210 in fine, ECHR 2005-IV and Popov
v. Russia, no. 26853/04, § 263, 13 July 2006). The
Court notes, in this connection, that Article 10 of Ukraine's “Law
on Enforcement of Judgments and Application of the Jurisprudence of
the European Court of Human Rights” provides that court
proceedings may be reopened if the Court finds a violation of the
Convention.
- As regards the applicant's claim for a monetary award
in respect of non-pecuniary damage, the Court finds that the
applicant has suffered some non-pecuniary damage on account of the
lengthy criminal proceedings against him in violation of Article
6 § 1 of the Convention. The Court finds that, in the
particular circumstances of the case, it is feasible to award the
applicant EUR 2,000 in this respect plus any tax that may be
chargeable.
B. Costs and expenses
- The
applicant, who had also been granted legal aid, claimed EUR 2,500
in legal fees for his representation before the Court.
- The
Government noted that the applicant had not provided any documents in
support of his claim.
- According
to the Court's 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 were
reasonable as to quantum. In the present case, regard being had to
the fact that the applicant had been granted legal aid and to the
fact that he did not provide any evidence in support of his claim,
the Court gives no award.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 6 § 1
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
3. Holds
(a) that
the respondent State is to pay the applicant within three months from
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention EUR 2,000 (two
thousand euros) in respect of non-pecuniary damage plus any tax that
may be chargeable, to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 18 December 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Rait Maruste
Registrar President
