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FIFTH
SECTION
CASE OF TRYMBACH v. UKRAINE
(Application
no. 44385/02)
JUDGMENT
STRASBOURG
12
January 2012
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 Trymbach v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann, President,
Karel
Jungwiert,
Mark Villiger,
Ann
Power-Forde,
Angelika Nußberger,
André
Potocki, judges,
Mykhaylo Buromenskiy, ad hoc
judge,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 6 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 44385/02) 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 Viktor Alekseyevich
Trymbach (“the applicant”), on 2 October 2002.
- The
applicant was represented by Mr Y.V. Fedorchuk, a lawyer practising
in Dnipropetrovsk. The Ukrainian Government (“the Government”)
were represented by their Agent, Mr Y. Zaytsev, from the Ministry of
Justice.
- On 13 March 2006 the President of the Fifth Section
decided to give notice of the application to the Government. On 26
January 2010 the Court invited the parties to submit further
observations as regards the applicant’s complaint under Article
6 concerning his right to defence. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1). Due to the absence of a national Judge at the relevant
time, Mr M. Buromenskiy was appointed to sit as ad hoc judge
(Rule 29 § 1(b)).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1954 and lives in Krivyy Rig.
- In
the early morning of 23 May 2000 the applicant noticed three people
trying to dismantle an electricity sub-station not far from his farm.
According to the applicant, he approached them with a gun and warned
them, but they threatened him and fired at him, forcing him to use
his shotgun against them in self-defence. As a result, all three of
them died.
- The
same day criminal proceedings were instituted and the applicant was
questioned by the police.
- According
to the applicant, the investigator told him that it would take a lot
of time to fetch a lawyer and he therefore agreed to be without a
lawyer since he wanted to help the investigation.
- On
24 May 2000 the applicant was arrested on suspicion of murder.
- According
to the applicant, on 24 May 2000 the Prosecutor of Kherson Region
gave an interview to a TV channel and informed the public that the
applicant was guilty of murdering three people and that he would be
punished with up to fifteen years’ imprisonment. In the
proceedings before the Court, the Government could not confirm or
deny this.
- On
the same day several people were questioned about the circumstances
of the case. One of them, fifteen-year-old Mr R., said that two or
four years previously he had seen an object which resembled a rifle
in the possession of Mr K., one of the victims. However, he could not
describe it and did not know whether anyone in the village had seen a
small-bore rifle recently.
- On
27 May 2000 the applicant was questioned by an investigator. Before
being questioned he was given a paper explaining his right to be
represented and not to incriminate himself, with an explanation of
the pertinent legal provisions of the Constitution and the Code of
Criminal Procedure. He signed this paper and wrote that he would
defend himself. According to the applicant, he wrote this at the
request of the investigator.
- On
6 June 2000 the lawyer chosen by the applicant entered the
proceedings.
- The
same day the Hryvnia newspaper published an article entitled
‘Volnaya Ukraina is bleeding’ (‘Bольная
Украина истекает
кровью’) about the
incident of 23 May 2000 and about problems with power cuts caused by
the theft of electric power cables for scrap metal. The article
described the applicant’s version of events, in which he stated
that the victims had been trying to steal metal parts from an
electricity transformer and he had warned them and then fired at
their motorcycle with his shotgun. They had fired back with a rifle
and he had fired two shots in their direction. The article continued
as follows:
“The investigation is not able to confirm that
there was an EXCHANGE OF FIRE near the sub-station. The Prosecutor of
Golopristansky District, Sergey Mikhalkov, stresses: ‘Despite
the efforts made, we did not find any spent cases from the sawn-off
small-bore rifle. On the other hand, there were two unused
cartridges. Searches in the houses of those killed produced no
results either: neither ammunition packaging nor spare parts for the
weapon have been found. The fingerprints did not stay on the rifle –
it was raining, and the barrel was oiled. Incidentally, none of the
acquaintances of the deceased ever saw the sawn-off rifle in their
possession. Therefore, the criminal proceedings against Victor
Trymbach were initiated not on account of his exceeding the limits of
self-defence, but under Article 93 ‘d’ of the C[riminal]
C[ode]. Under this Article the sentence can be up to life
imprisonment. In previous years a person could even risk execution
(by shooting).’”
- On
13 July 2000 the applicant was questioned in the presence of his
lawyer and confirmed his version of events, which had been stated
when he had previously been questioned.
- On
9 September 2000 the applicant’s lawyer lodged an application
in which, among other things, he requested that a witness, K., be
examined, and this request was granted.
- According
to the applicant, as the police were unable to prove his guilt they
threatened to turn him into a drug addict. During the night of 30 31
October 2000 his cellmates, who were criminals collaborating with the
police, tortured him physically and psychologically to extract a
confession from him. They persuaded him to write a note to his friend
and even assisted him in drafting it. The note read:
“Hello B.! I met P. and he told me that you were
interested in my problems. Thank you for your man’s attention.
I will immediately answer your questions. I am sharing a cell with
normal pals, the relations are normal. I know P. and trust him. As to
what I said to the lawyer, it is my business. You should understand
that I am accused under Article 93 and it is not a joke. Therefore I
have to talk about prison pressure, but really everything is OK. P.
advised me that before the court I should deny my testimony and say
that they were killing (torturing) me here. That’s it, thank
you for your concern. Yours, Viktor.”
- On
2 November 2000 the applicant was transferred to a different cell.
- On
3 November 2000 the applicant’s lawyer complained to the
prosecutor that the applicant had been ill-treated by his cellmates,
who were forcing him to confess.
- According
to the report prepared by the prosecutor from the Kherson Regional
Prosecutor’s Office on 20 November 2000, on 3 November he
proposed that the applicant undergo a medical examination in order to
establish any signs of physical violence. The applicant refused and
made a written statement in the presence of his lawyer that he had
not been subjected to any physical violence.
- On
22 November 2000 the Deputy Prosecutor of the Kherson Region informed
the applicant’s lawyer that his complaint that the applicant
had been ill-treated had been checked and the account could not be
confirmed.
- On
27 November 2000 the Kherson Regional Prosecutor’s Office
charged the applicant with three murders and unlawful possession of
weapons (additional proceedings concerning the latter offence were
instituted on 20 November 2000). The indictment mentioned that
relatives and friends of the victims, including those who had seen
them just before they left to dismantle the sub-station, did not see
and were not told about any weapon in the possession of the victims.
Searches of the victims’ homes produced no result either. The
indictment also mentioned three anonymous witnesses questioned by the
prosecution under assumed names: Mr Ivanov, Mr Petrov and Mr
Sergeyev, who were detained in the same cell as the applicant and to
whom he had apparently confessed that on 23 May 2000 he had
intentionally killed three people as they were trying to steal
electric cables from the local electricity sub-station which supplied
electricity to his farm. The applicant alleged that he had acted in
self-defence and that he was responding to gunshots fired at him. The
investigation revealed no evidence to corroborate the applicant’s
allegations.
- On
4 December 2000 Kherson Regional Court opened judicial proceedings.
- On
15 February 2001 the applicant’s lawyer lodged an application
for the examination of the anonymous witnesses. This application was
granted and during the proceedings the three anonymous witnesses were
examined in the presence of the applicant’s lawyer, while the
applicant himself was removed from the courtroom. Later, one of the
witnesses agreed to disclose his identity; he participated in the
proceedings under his real name and was questioned in the presence of
the applicant.
- On
30 May 2001 Kherson Regional Court remitted the case for further
investigation, to check the applicant’s allegations that his
cellmates had forced him to write a note and even assisted him in
drafting it and to conduct a handwriting analysis of a correction on
the draft note which had allegedly been made by Mr N. On 17 July 2001
the Supreme Court overruled the above decision, considering that the
handwriting analysis could be conducted within the judicial
proceedings and therefore that there was no need to return the case
for investigation.
- The
above-mentioned analysis could not establish who had written the
corrections on the draft note, whether it was Mr N., the applicant or
someone else.
- On
21 March 2002 the Kherson Regional Court of Appeal sentenced the
applicant to fifteen years’ imprisonment for multiple murder
and unlawful possession of a weapon. The Court of Appeal based the
applicant’s conviction on the following: the rifle found near
one of the deceased was not loaded, there were only two full
cartridges near it and no empty cases; the police officer who arrived
first at the scene of the crime testified that the rifle was clean,
although everything around, including the hands of the deceased, was
covered in oil; statements by the applicant’s cellmates Mr N.
and Mr Y,. who maintained that the applicant had told them that the
rifle had been taken to the scene of the crime after the shooting;
the statements of Mr and Mrs Shch., the applicant’s neighbours,
who stated that they had heard four shots, the forensic examination
which concluded that the applicant had fired at the victims four
times; all three victims were hit in the vital organs from a
distance of ten to fifteen metres (the first two shots) and four
metres (the last two shots) and not from the place indicated by the
applicant, which was thirty-one metres away from the bodies; the fact
that the applicant had cartridges loaded with salt but actually used
cartridges loaded with lead shot; and the testimony of two witnesses
about previous aggressive behaviour by the applicant.
- The
applicant appealed in cassation. He complained, inter alia,
that the authorities had not made enough effort to bring to the court
Mr R., who was outside the territory of Ukraine, and that witnesses
who could have given positive character references for him had not
been summoned to the court. He also complained that due to his lack
of knowledge and experience the investigation had left him without a
lawyer until 6 June 2000.
- On
25 June 2002 the Supreme Court rejected the applicant’s appeal
against the judgment of 21 March 2002, finding no infringements of
procedural or substantive law in the examination of the case. It
noted in particular that Mr and Mrs Shch had only heard shots from a
shotgun and not shots from a small-bore rifle, and they had confirmed
this during the on-site reconstitution. The Supreme Court also
observed that there had been no serious procedural violations that
would require quashing of the judgment. It decided, however, to
reduce the applicant’s sentence to ten years’
imprisonment, given that the victims had also been acting unlawfully.
- On
31 August 2005 the President of Ukraine issued a decree granting
amnesty to a number of convicted persons, including the applicant,
whose sentence was reduced to eight years’ imprisonment.
II. RELEVANT DOMESTIC LAW
A. Criminal Code (1960) (in force at the material time)
- Under
Article 93 of the Code, the murder of several people was punishable
by imprisonment for eight to fifteen years or by a life sentence.
B. Code of Criminal Procedure (1960)
- Article
46 of the CCP, as worded at the time of the initial stage of the
investigation, provided that a suspect, accused or defendant was
entitled to waive his or her right to defence counsel. Such a waiver
was permissible only on the initiative of the suspect, accused or
defendant himself or herself. A waiver was not permitted, inter
alia, if the possible penalty was a life sentence.
- According
to paragraph 1 of Article 370, as worded at the time of the trial,
substantial violations of the requirements of the criminal procedural
legislation are considered to be those which have impeded or could
have impeded the court in the complete and thorough examination of a
case and in issuing a lawful, reasoned and just verdict. Paragraph 2
of this Article lists a violation of the right of an accused to
defence among the substantial violations of the requirements of the
criminal procedural legislation which warrant the quashing of a
verdict in any event (that is, regardless of whether the requirements
of paragraph 1 have been met).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 2 AND 13 OF THE
CONVENTION
- The
applicant complained that the day after the incident the Regional
Prosecutor had declared in a TV interview that the applicant was
definitely guilty and had guaranteed that he would be sentenced to
fifteen years’ imprisonment. Furthermore, a local newspaper had
published an article two weeks after the tragedy in which the
prosecutor allegedly called him a serial killer who would be
sentenced to life imprisonment. The applicant invoked Article 6 §
2 of the Convention, which reads:
“Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.”
- The
Court further considered that this complaint might raise an issue
under Article 13, which read as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government submitted an article, a copy of which was kept in the
applicant’s criminal case file and to which the applicant
referred. They neither confirmed nor denied the existence of a TV
interview with the Regional Prosecutor.
- With
respect to the article in question (see paragraph 13 above) the
Government noted that it did not contain any reference to the
applicant as a “serial killer” and the prosecutor had not
said anything about the applicant’s guilt.
- The
Government maintained that the applicant could institute defamation
proceedings against the relevant prosecutors and media if he
considered any statements to be defamatory. This was provided for by
Article 7 of the Civil Code and this remedy was effective.
- The
applicant considered that the article in question contained a
statement of his guilt and also reiterated that there had been a TV
interview with the Regional Prosecutor. He further stated that he had
no effective remedies as he had no press or TV set in his cell.
- The
Court reiterates that Article 6 § 2 requires that no
representative of a State or a public authority should declare a
person guilty of an offence before their guilt has been established
by a “court” (see, among other authorities, Allenet de
Ribemont v. France, 10 February 1995, §§ 35-36, Series
A no. 308). Whether a statement by a public official is in breach of
the principle of the presumption of innocence must be determined in
the context of the particular circumstances in which the impugned
statement was made (see Daktaras v. Lithuania, no. 42095/98,
§ 43, ECHR 2000-X).
- In
the instant case the applicant alleged that there had been two
statements that he was guilty made by the prosecutors through the
media.
- The
Court will proceed first with the newspaper publication which is
available to it. The Court notes that the prosecutor’s
statement, as quoted in the facts, does not appear to contain any
statement of the applicant’s guilt but explains why the
criminal proceedings were initiated on a charge of murder rather than
excessive self-defence. The Court considers that the quote from the
prosecutor was couched in terms that cannot be characterised as a
statement of the applicant’s guilt and, therefore, that the
statement by the prosecutor in his interview given to the newspaper
did not breach the principle of the presumption of innocence.
- As
to the alleged TV interview with the Regional Prosecutor, the
applicant gave no details as to what channel had broadcast it or what
exactly had been said. Furthermore, in view of the applicant’s
own admission that he had had no access to television while in
detention, the applicant’s allegations appeared to be hearsay,
without any reference to a source. Lastly, the applicant’s
interpretation of the above-mentioned newspaper article leaves doubts
as to the applicant’s accuracy in presenting the essence of the
prosecutor’s TV interview, even assuming that it actually took
place. Therefore, this complaint by the applicant is unsubstantiated.
- In
the absence of any arguable claim under Article 6 § 2 of the
Convention, the Court is not required to consider whether there were
effective domestic remedies, as required by Article 13, in respect of
the above complaint.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF
THE CONVENTION
- The
applicant complained under Article 6 § 1 that the trial
proceedings against him had been too long and unfair and in
particular that the courts, in violation of Article 6 § 3 (d),
had based their findings, that he had planted the sawn-off rifle at
the crime scene to pretend that there had been an exchange of fire,
on the testimony of three anonymous witnesses, whom he personally had
not been allowed to question at the hearing. He complained that the
courts had not summoned witnesses in his defence.
- The
applicant also complained under Article 6 § 3 (b) and (c) of the
Convention that at the initial stage of investigation he had not had
a lawyer, although legal representation was obligatory under the
domestic law. The Court considers that this complaint shall be
examined under Article 6 § 3 (c), which is the relevant
provision.
- Article
6 provides, in so far as relevant, as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing within a reasonable time by [a] ... tribunal ...
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(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;
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him...”
A. Admissibility
1. Length of the proceedings
- The
applicant complained that the proceedings against him had been
unreasonably long.
- The
Court notes that the impugned proceedings lasted from 23 May 2000 to
25 June 2002, that is two years, one month and two days. They
included investigation and hearings at two levels of jurisdiction. In
the Court’s opinion, this period is not so excessive as to
raise an arguable claim under Article 6 § 1 of the Convention.
It follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention..
2. Right to summon witnesses
- The
Government noted that the three witnesses in question had agreed to
testify in court only on condition that they were protected as
witnesses. It was therefore decided that they would participate
anonymously and under false names. The Government submitted records
of the hearings, testifying that although the applicant and his
relatives had been removed from the courtroom when the anonymous
witnesses were questioned, the applicant’s lawyer had been
present and had been able to put any questions to them. Furthermore,
one of the anonymous witnesses later agreed to reveal his identity
and participated in the proceedings under his real name and in
presence of the applicant. The Government noted that all witnesses
had been questioned on an equal footing and the applications of the
applicant’s lawyer to question particular witnesses had been
granted.
- The
applicant challenged the reliability of the anonymous witnesses,
alleging that he knew their identity anyway and that they were all
criminals who had collaborated with the police and who had testified
against him at the request of the investigator. He also complained
that Mr R., who had testified during the pre-trial investigation that
he had seen a rifle in the possession of the victim, had not been
summoned before the court, and that other witnesses for the defence
had not been summoned either.
- The
Court reiterates that all the evidence must normally be produced at a
public hearing, in the presence of the accused, with a view to
adversarial argument. There are exceptions to this principle, but
they must not infringe the rights of the defence. As a general rule,
paragraphs 1 and 3 (d) of Article 6 require that the defendant be
given an adequate and proper opportunity to challenge and question
witnesses against him, either when they make their statements or at a
later stage (see Lüdi v. Switzerland, judgment of 15 June
1992, § 49, Series A no. 238). A conviction should not be based
either solely or to a decisive extent on statements which the defence
has not been able to challenge (see, mutatis mutandis, Doorson
v. the Netherlands, 26 March 1996, § 76, Reports
1996 II).
- Turning
to the facts of the present case, it should be noted that the
arrangements made by the domestic authorities to question the
anonymous witnesses in court and with the direct involvement of the
applicant’s lawyer seems to be compatible with the requirements
of Article 6 § 3 (d). Furthermore, one of the anonymous
witnesses further agreed to reveal his identity, and participated in
the proceedings under his real name and gave evidence in the
applicant’s presence. Therefore, it could not be said that the
courts’ findings in this part were based on the statements of
witnesses whom the defence could not challenge. The Court concludes
that this complaint of the applicant is manifestly ill-founded.
- As
to the witnesses who did not appear before the court, the applicant’s
allegations focus on the failure to summon Mr R., who had been
questioned during the pre-trial investigation at the age of fifteen
and who said that he had seen some object resembling a rifle in the
possession of one of the deceased two or four years prior to the
events but could not give any more details. As is apparent from the
case file material, Mr R. could not be summoned because he was
abroad. As to the other witnesses, the applicant did not specify why
their appearance before the court was crucial for his case. In this
connection the Court observes that the domestic courts are better
placed to assess the evidence before them, that the applicant did not
challenge the Government’s contentions that all the requests of
the defence to hear particular witnesses had been satisfied, and
lastly, neither in his appeal to the Supreme Court nor in his
application to this Court did the applicant substantiate his argument
that the failure of the above-mentioned witnesses to appear had
affected the fairness of the proceedings in their entirety.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
3. Right to defence
- The
Court notes that the applicant’s complaint about lack of legal
assistance at the initial stage of investigation is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) 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 parties’ submissions
- The
applicant noted that he had agreed to be without a lawyer at the
beginning of the investigation, because he wanted to help the
investigation. However, legal representation was obligatory under the
law, given the gravity of the charges against him. He maintained that
because of the absence of a lawyer, the gathering of evidence at the
initial stage had been unsatisfactory and had influenced the outcome
of the proceedings.
- The
Government stated that the absence of a lawyer at the initial stage
of the investigation did not affect the fairness of the proceedings.
The applicant’s statements during the investigation and trial
had been the same whether the lawyer was present or not. The only
issue that had to be decided was whether it was intentional killing
or killing in self-defence, and the domestic authorities had proved
that the applicant had intentionally killed three people, on the
basis of material evidence and witness statements. Furthermore, the
Supreme Court found no procedural violations which could call into
question the first-instance court’s findings as to the
applicant’s guilt in respect of the offences with which he had
been charged. They concluded that the present case did not disclose
any circumstance capable of giving rise to doubts as to the fairness
of the proceedings as a whole.
2. The Court’s assessment
(a) General principles
- The
Court reiterates that the requirements of paragraph 3 of Article 6
are to be seen as particular aspects of the right to a fair trial
guaranteed by paragraph 1 of that Article and thus they are to be
examined together (see Van Geyseghem v. Belgium [GC], no.
26103/95, § 27, ECHR 1999 I). On the whole, the Court is
called upon to examine whether proceedings in their entirety were
fair (see Balliu v. Albania, no. 74727/01, § 25, 16 June
2005).
- The Court emphasises that, although not absolute, the
right of everyone charged with a criminal offence to be effectively
defended by a lawyer, assigned officially if need be, is one of the
fundamental features of fair trial (see Krombach v. France,
no. 29731/96, § 89, ECHR 2001 II). As a rule, access to a
lawyer should be provided from the first time a suspect is questioned
by the police, unless it can be demonstrated in the light of the
particular circumstances of each case that there are compelling
reasons to restrict this right (see Salduz v. Turkey [GC], no.
36391/02, § 55, 27 November 2008). The right to defence
will in principle be irretrievably prejudiced when incriminating
statements made during police questioning without access to a lawyer
are used for a conviction (ibid).
- Lastly,
the Court reiterates that a waiver of a right guaranteed by the
Convention – in so far as it is permissible – must not
run counter to any important public interest, must be established in
an unequivocal manner, and must be attended by minimum safeguards
commensurate to the waiver’s importance (see Sejdovic v.
Italy [GC], no. 56581/00, § 86, ECHR 2006 II).
(b) Application of the above principles to
the present case
- The
Court notes that, at the time of the applicant’s arrest,
Ukrainian legislation provided for obligatory legal representation as
early as at the inquiry stage and namely from the moment of the
arrest if, inter alia, a possible penalty for the offence of
which the person was suspected was life imprisonment (see paragraphs
30 and 31 above). Although the applicant was ultimately sentenced to
ten years’ imprisonment, the above rule on obligatory
representation applied to him.
- The
Court further observes that the case file material it has in its
possession contains a waiver of legal representation and in his
submissions to this Court he confirmed that he agreed to be
questioned without a lawyer on 23 May 2000 (see paragraph 7 above).
On 27 May 2000, he further signed a paper describing in detail his
procedural right to defence and signed it confirming that he read
them and wished to represent himself (see paragraph 11 above).
- Although
the absence of a lawyer during the first two weeks of the
investigation were clearly not in compliance with the requirements of
the domestic law, the Court reiterates that while its duty, according
to Article 19 of the Convention, is to ensure the observance of
the engagements undertaken by the Contracting Parties to the
Convention, it is not its function to deal with errors of fact or law
allegedly committed by a national court unless and in so far as they
may have infringed the rights and freedoms protected by the
Convention (see, among many other authorities, Schenk v.
Switzerland, judgment of 12 July 1988, Series A
no. 140, p. 29, § 45, and Streletz, Kessler
and Krenz v. Germany [GC], no. 34044/96, 35532/97
and 44801/98, § 49, ECHR 2001-II). In the circumstances of
the present case, the violation of the procedural requirement as to
the applicant’s representation does not appear to have had any
bearing on the general fairness of the proceedings. There is no
indication or allegation that the applicant made any statements
against himself that he would later retract or change. It appears
that the applicant consistently advanced his version of events (see
paragraph 5 above), which did not change from the first time he was
questioned to the submission made before this Court. His version had
been overturned by the results of numerous forensic expert
examinations and not through any illicit means or methods.
Furthermore, in the appeal proceedings the applicant complained that
his right to defence had been violated on the sole ground that he had
to be legally represented under domestic law as the maximum possible
punishment for the crime he had been charged with had been a life
sentence. He did not advance any arguments and did not suggest the
existence of any concrete prejudice caused by lack of lawyer during
the initial stage of investigation. The higher courts did not find
any such prejudice either. In particular, the Supreme Court
established no procedural violations serious enough to necessitate a
referral of the case for re-investigation or retrial (see paragraph
28 above).
- The
Court also considers that it was not suggested by the applicant that
he had been forced to waive his right to legal representation or that
he had not been aware that he was suspected, and eventually accused,
of multiple murder which implied obligatory legal representation (see
and compare Leonid Lazarenko v. Ukraine, no. 22313/04, §
42, 28 October 2010). According to the applicant’s own
submissions, he agreed to be without a lawyer since he wanted to help
the investigation (see paragraphs 7 and 57 above). The Court,
therefore, concludes that the waiver was a genuine one.
In
these circumstances the Court concludes that there has been no
violation of Article 6 § 1 taken together with Article 6 §
3 (c) of the Convention in the present case.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 2 of the Convention that the
domestic authorities had disregarded his contention that he had acted
in self defence and was protecting his own life. Under Article 3
of the Convention, the applicant complained that he had been
threatened and tortured by his cellmates, who were collaborating with
the police and who were forcing him to confess.
- The
Court has examined the remainder of the applicant’s complaints
as submitted by him. However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance
of a violation of the rights and freedoms set out in the Convention
or its Protocols.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaint concerning
the lack of legal assistance at the initial stage of the
investigation admissible and the remainder of the application
inadmissible;
- Holds by four votes to three that there has been
no violation of Article 6 §§ 1 and 3 (c) of the
Convention.
Done in English, and notified in writing on 12 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges
Spielmann, Power-Forde and Buromenskiy is annexed to this judgment.
D.S.
C.W.
JOINT DISSENTING OPINION OF
JUDGES SPIELMANN,
POWER-FORDE AND BUROMENSKIY
The
lack of access to legal assistance during the first two weeks of the
applicant’s detention in custody, pending an investigation into
serious criminal charges, is not in dispute. The majority finds no
violation of Article 6 § 1 in conjunction with
Article 6 § 3 (c) of the Convention. Its finding is based,
essentially, upon the apparent absence of any concrete prejudice
caused to the applicant by the lack of legal representation during
this initial stage of investigation (§ 64). We consider that
there has been a violation of the said provisions. Our reasoning is
based upon what we deem to be well settled principles of this Court’s
jurisprudence.
Although
not absolute, the right of everyone charged with a criminal offence
to be effectively defended by a lawyer, assigned officially if need
be, is one of the fundamental features of a fair trial (see Salduz
v Turkey, [GC] no. 36391/02, §54, 27 November
2008, § 51; Poitrimol v. France, 23 November 1993, §
34, Series A no. 277 A; and Demebukov v. Bulgaria,
no. 68020/01, § 50, 28 February 2008). The Court has
frequently repeated that in order to determine whether the aim of
Article 6 – a fair trial – has been achieved, regard must
be had to the entirety of the proceedings, including, the pre-trial
proceedings (see Panovits v Cyprus, § 64, and
Imbrioscia v Switzerland, no. 13972/88, § 38, 24
November 1993).
That
the right of access to a lawyer is ‘triggered’ as from
the first interrogation of a suspect by the police is also firmly
established in the Court’s case law (see Panovits, cited
above, § 66, and Salduz, cited above, § 55).
Indeed, the concept of fairness enshrined in Article 6 “requires
that the accused be given the benefit of the assistance of a lawyer
already at the initial stages of police interrogation” (see
Panovits, cited above, § 66). This principle reflects the
Court’s recognition of the fact that evidence obtained during
the investigation stage can determine the framework in which the
offence charged will be considered at the trial (see Salduz,
cited above, § 54). From the moment of arrest until
the handing down of sentence, criminal proceedings form an organic
and interconnected whole and an event that occurs at one stage may
influence and, at times, determine what transpires at another. This
‘holistic’ approach to criminal proceedings is reflected
in the Grand Chamber’s finding in Salduz that neither
the legal assistance provided subsequently nor the adversarial nature
of the ensuing proceedings could cure the defects which had occurred
during the time spent in police custody (Salduz, cited above,
§ 58). Consequently, the Court proceeded to find a violation
of Article 6 in that case.
In
the circumstances of the present case, we take the view that,
firstly, the test adopted by the majority in § 64 of the
judgment (namely, whether the lack of legal assistance had any
bearing on the general fairness of the proceedings) is not the
correct one. The correct test, in our view, is that Article 6 §1
requires, that as a rule, a suspect has a right of access to a lawyer
from his or her first interrogation by the police, unless it is
demonstrated in the light of the particular circumstances of each
case that there are compelling reasons to restrict this right
(Salduz, cited above, §55). In other words, there is a
presumption that a trial will be unfair unless access to a lawyer has
been given from a suspect’s initial interrogation by police.
However, even proceeding upon the test used by the majority, we
cannot share its view that the absence of legal assistance at the
early stage of investigation appears to have had no bearing on the
general fairness of the applicant’s trial. One simply cannot
speculate as to how that trial would have proceeded or how the
defence would have been conducted had the applicant been given access
to a lawyer at that initial stage of the proceedings.
We
can accept, as does the majority, that in the present case the
applicant did not retract any statements made during those early
weeks in custody when questioned without the benefit of access to a
lawyer. However, it does not follow that the lack of legal assistance
at such a crucial stage in the criminal investigation had no bearing
on the general fairness of the applicant’s trial. To draw such
a conclusion is to overlook the fact that access to a lawyer involves
much more than advice in relation to the making of statements. The
applicant complains that because of the absence of a lawyer the
gathering of evidence in support of his defence was unsatisfactory.
This submission appears to us to be entirely plausible. Legal
assistance includes a whole panoply of services which are put at an
accused person’s disposal so that he can defend himself,
effectively, in a criminal trial. As the Court has stated in Dayanan
v Turkey, no. 7377/03, 13 October 2009:
Indeed, the fairness of proceedings requires that an accused be
able to obtain the whole range of services specifically associated
with legal assistance. In this regard, counsel has to be able to
secure without restriction the fundamental aspects of that person’s
defence: discussion of the case, organisation of the defence,
collection of evidence favourable to the accused, preparation for
questioning, support of an accused in distress and checking of the
conditions of detention.
None
of the above was available to the applicant at the initial stage of
the criminal investigation and thus we are not convinced that his
criminal trial was ‘fair’ within the meaning of Article
6.
The
majority also rely on the fact that, notwithstanding the provisions
of domestic law (which required obligatory legal representation in
view of the gravity of the offence in issue) the applicant had waived
his right to legal assistance. It concludes that this waiver was a
genuine one (§ 64). The applicant, however, claims that, prior
to the waiver, he was informed by the investigator that ‘it
would take a lot of time to fetch a lawyer’ and that he
agreed to forsake such assistance “since he wanted to help
the investigation” (§ 7). The majority’s
conclusion as to the genuineness of the ‘waiver’ fails,
in our view, to pay sufficient regard to the reality of the
vulnerable position of an accused person at such a critical time. As
the Court noted in Salduz and subsequently reiterated in
Borotyuk c. Ukraine, no. 33579/04, 16 December 2010:
[A]n accused person often finds himself in a particularly
vulnerable position at that stage of the proceedings, the effect of
which is amplified by the fact that legislation on criminal procedure
tends to become increasingly complex, notably with respect to the
rules governing the gathering and use of evidence.
The
Court has held that in most cases, this particular vulnerability
could only be properly compensated for by the assistance of a lawyer
(see Salduz, cited above, § 54). Given the gravity
of the charges in question and the applicant’s admitted desire
to help the investigator, this, in our view, is such a case.
We
consider that both the safeguards envisaged by the national
legislation and the guarantee of fairness enshrined in Article 6 of
the Convention required that the applicant should have had the
benefit of access to a lawyer from his first interrogation as a
suspect by the police. This is what the case law of the Court
requires unless it is demonstrated, in the light of the particular
circumstances of each case, that there are compelling reasons to
restrict this right (see Salduz, cited above, §
55). We find no such reasons in this case.
