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FIFTH
SECTION
CASE OF BORTNIK v. UKRAINE
(Application
no. 39582/04)
JUDGMENT
STRASBOURG
27 January 2011
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 Bortnik v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva,
Ganna
Yudkivska, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 6 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39582/04) 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 Valentyn Ivanovych
Bortnik (“the applicant”), on 29 October 2004.
- The
applicant, who had been granted legal aid, was represented by Mr M.
Anikin, a lawyer practising in Kerch, Ukraine. The Ukrainian
Government (“the Government”) were represented by their
Agent, Mr Y. Zaytsev, of the Ministry of Justice of
Ukraine.
- The
applicant alleged, in particular, that his right to defence under
Article 6 § 3 (c) of the Convention has been breached.
- On
19 January 2009 the President of the Fifth Section decided to give
notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960 and is currently serving a sentence in
Correctional Colony no. 32 (Виправна
колонія №32)
in Makiyivka, Ukraine. He is disabled (his feet were partly amputated
in 2001) and walks with a stick.
- Late in the evening of 27 September 2002 P., the
applicant's neighbour, was severely beaten in her house and received
several knife wounds, concussion and broken bones. She died in
hospital three days later.
- On 30 September 2002 criminal proceedings for grievous
bodily harm causing death were instituted by the police. On the same
day the applicant was questioned. He submitted that he knew P. as she
was his neighbour. She had lived alone and communicated with nobody.
He further submitted that in September 2002 two persons, K. and M.,
had built an extension to P.'s house and on 28-29 September 2002
there had been a party in the neighbourhood.
- On 1 October 2002 the applicant was arrested. In the
report drawn upon his arrest it was indicated, without any further
details, that the applicant had been arrested on suspicion of causing
grievous bodily harm to P. The applicant was further questioned as a
suspect. He submitted that in the evening of 27 September 2002 he had
wanted to buy some home-made alcohol or to borrow some money from P.
As the latter had refused, he had hit her with his wooden walking
stick. P. told him that she would inform the police. The applicant
decided that if she did that he would get a criminal record, he had
taken a knife and struck P. several times “in order to
intimidate her and take revenge”. In his written statements he
also wrote that he “refused to be represented by a lawyer and
this was not related to his financial state”.
- On the next day the police held an on-site
reconstruction of events with the participation of the applicant and
witnesses Ku. and L.
- On 4 October 2002 the applicant was charged with
inflicting grievous bodily harm causing P.'s death; he pleaded
guilty. The maximum possible punishment for this crime was ten years'
imprisonment. The applicant again confirmed that he did not need a
lawyer.
- On the same day Konstyantinovskiy Town Court remanded
the applicant in pre-trial custody.
- On 13 November 2002, during a forensic psychiatric
examination, the applicant stated that he had not committed the crime
and had been subjected to physical and psychological pressure from
the police. The experts stated that the applicant was lying and
insincere. They also indicated that although the applicant was
“socially dysfunctional” and suffered from chronic
alcoholism, he was able to control his actions.
- On 21 and 26 November 2002 the applicant submitted
that he did not want to be legally represented and “would
defend his rights himself”. On the latter date he also pleaded
guilty and indicated that he had not wanted to kill P.
- On 25 November 2002 the Konstyantinovka town
prosecutor decided not to qualify the applicant's actions as murder.
- On an unknown date the case was transferred to the
court.
- On 14 January 2003 during the preliminary examination
of the case by the court the applicant lodged a request for a lawyer.
- On 28 January 2003 the applicant's representative, Mr
Anikin, joined the proceedings as his lawyer.
- On 26 February 2003 the court returned the case for
further investigation. In the court hearing the prosecutor indicated
that more witnesses should be questioned, the construction workers
who built an extension to P.'s house in September 2002 should be
found, and there should be a further forensic examination of samples
of P.'s skin, hair and nails and the applicant's stick. The applicant
submitted that he had not committed the crime in question. He had
confessed to it only because, being disabled, he was afraid that the
police officers would ill-treat him. The ambulance doctor, G.,
testified that P. had said that she had been beaten by “men”
without giving any names. G. insisted that the word was used in the
plural. P.'s neighbours testified that P. lived alone and would never
let strangers, including the applicant, who had lived on their street
for a month, into her house.
- On 11 April 2003 the applicant's actions were
reclassified as murder committed for financial gain, since the nature
of the victim's injuries confirmed the attacker's intention to kill
her. The possible penalties for this crime included a life sentence.
- On 12 May 2003 the applicant was questioned in the
presence of his lawyer and denied guilt.
- On 25 November 2003 the Donetsk Regional Court of
Appeal found the applicant guilty of murder and robbery. In
particular, it found that the applicant had hit P. with his walking
stick and with a knife, and had stolen a half-litre of home-made
alcohol, an apple and a glass. In a court hearing the applicant
contested the charges and submitted that he had pleaded guilty
because the police officer Ki. had beaten him and the investigation
officer Ko. had promised him the minimum punishment if he pleaded
guilty. In the applicant's opinion, P. had been murdered by the
people who had built the house extension, because she had not paid
them.
- The court rejected the applicant's submissions and
referred to the applicant's testimony given during the pre-trial
investigation. It also based its decision on the following evidence.
- G., the ambulance doctor, testified that P. had told
her that she had been attacked by a man, without giving a name. Ku.
and L. testified that they had been present at the on-site
reconstruction of events during which the applicant had explained how
had he committed the crime. He was not subjected to any pressure. The
police officer, Ki., explained that he had never met the applicant.
The investigation officer, Ko., testified that the applicant had not
been subjected to any pressure. K. and M. submitted that P. had paid
them for their work. When they played football with the applicant he
told them that they had not been paid enough. The forensic medical
examination confirmed that some of P.'s injuries could have been
inflicted in the circumstances described by the applicant earlier.
According to the DNA examination the blood from the blood spots on
the applicant's trousers could have been P.'s, with a degree of
probability of 1/2000.
- The court finally sentenced the applicant to thirteen
years' imprisonment, with obligatory treatment for alcoholism.
- The applicant appealed against this decision. He
complained, inter alia, that his actions had been wrongly
classified at the pre-trial stage of the proceedings, which had
breached his right to defence. The applicant indicated that P. knew
him but while still alive she had never identified him as her
attacker. Also, P.'s neighbours, including Pu. and Ma., who were
drinking in the house next to the victim's, were not questioned at
all, or only perfunctorily.
- On 18 March 2004 the Supreme Court of Ukraine, in the
presence of a prosecutor, upheld the applicant's sentence. Neither
the applicant nor his lawyer were present at the hearing. The
applicant was apprised of this decision on 3 August 2004.
II. RELEVANT DOMESTIC LAW
Code of Criminal Procedure (“the CCP”) 1960
- The
relevant extracts from Article 45 of the CCP as worded at the
material time read as follows:
Article 45
Compulsory
participation of a defence lawyer
“Participation of a defence lawyer in the inquiry,
pre-trial investigations and trial by the first-instance court is
compulsory:
...
(2) in
cases related to crimes committed by persons who, because of their
physical or mental disabilities (dumbness, deafness, blindness,
etc), are unable to realize themselves their right to defence –
upon apprehension of, or bringing charges against, such person or
upon establishing such disabilities;
...
(4) from the moment of the person's arrest or
when he or she is [officially] charged with a criminal offence
carrying a penalty of life imprisonment...”
- Article 46 of the CCP as worded at the material time
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 if the participation of a defence lawyer was
compulsory.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 3 (c) OF THE
CONVENTION
- The
applicant complained that his right to defence had been violated
under Article 6 § 3 (c) of the Convention, which reads as
follows:
“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;”
A. Admissibility
- The
Court notes that this complaint 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 applicant's submissions
- The
applicant maintained that neither at the time of his arrest nor later
had he been properly informed about his right to a lawyer.
- The
applicant stated that he had been ill-treated by the police officers
(hit on the heels with a stick, forced to drink vodka and
threatened). He did not complain about that treatment because he was
afraid of the police officers. Also at that time the applicant was
not legally represented and, having no legal knowledge, he did not
know how to lodge complaints.
- The
applicant further indicated that he had had no “plan of
defence” as stated by the Government but he had been a
desperate person in a hopeless state, given that even the Government
in their observations had not excluded the possibility of
ill-treatment of detainees by police officers.
- As
for the evidence in support of the applicant's guilt, the applicant
noted that the DNA-analysis had not confirmed that the bloodstains on
his trousers belonged to the victim. Moreover, the victim had
numerous knife wounds, including one which was 10.5 cm deep, and in
those circumstances he should have been covered with blood. The
national court had looked into the possibility that K. and M. had
committed the crime, but had not looked into the hypothesis that P.
was killed by people who had been drinking in the neighbouring house.
2. The Government's submissions
- The
Government maintained that the present case differed from the case of
Yaremenko v. Ukraine (no. 32092/02, 12 June 2008), in which
the Court held that because of a deliberately incorrect qualification
of the applicant's actions he had not benefited from the requirement
of obligatory representation in violation of Article 6 § 3 (c)
of the Convention. In particular, in the present case the applicant
had a prepared line of defence. Being a disabled person and fearing
that he could be ill-treated by the police officers, the applicant
decided “not to provoke” them and to confess as charged.
However, when the case arrived at the court, the applicant
“implemented his plan” - pleaded not guilty and requested
the court to be provided with a lawyer, who would help him to prove
his innocence.
- The
Government, however, further maintained that the applicant had not
been ill-treated, since he had made no complaint to the national
authorities.
- The
Government concluded that there were no reasons to doubt the
applicant's waiver of his right to have a lawyer. Moreover, the
applicant's confession was supported by other evidence indicated in
the court decision of 25 November 2003.
- Therefore,
the Government considered that there had been no violation of Article
6 § 3 (c) of the Convention in the present case.
3. The Court's analysis
- The
Court emphasises the importance of the investigation stage for the
preparation of criminal proceedings, as the evidence obtained during
this stage determines the framework in which the offence charged will
be considered at the trial. Therefore, Article 6 § 1 of the
Convention requires that, as a rule, access to a lawyer should be
provided from the first questioning of a suspect 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 (see Salduz v. Turkey [GC], no. 36391/02,
§§ 54-55, 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.; see also Panovits v. Cyprus,
no. 4268/04, §§ 84-86, 11 December 2008, and Pishchalnikov
v. Russia, no. 7025/04, §§ 90-92, 24 September 2009).
- The
Court also observes that Article 6 of the Convention does not prevent
a person from waiving of his own free will, either expressly or
tacitly, the entitlement to certain guarantees of a fair trial
(see Kwiatkowska v. Italy (dec.), no. 52868/99, 30
November 2000, and Pishchalnikov v. Russia, no. 7025/04, §
77, 24 September 2009). However, if it is to be effective for
Convention purposes, a waiver of the right to take part in the trial
must be established in an unequivocal manner and be attended by
minimum safeguards commensurate to its importance (see Poitrimol
v. France, 23 November 1993, § 31, Series A no. 277-A).
- The
Court notes at the outset that in the present case the Government
recognised that the applicant had been afraid of possible
ill-treatment and thus had pleaded guilty. Accordingly, he saw no
need at that stage to be legally represented.
- Although
the applicant stated that he “would defend his rights himself”,
he had agreed with all actions and conclusions of the investigation
authorities and did not challenge any of them. However, every time
the applicant found himself outside the authority of investigation
bodies, he immediately claimed that he was innocent (see paragraph
12). Thus in the court the applicant immediately requested a lawyer
and pleaded not guilty. He did not change his position after that.
- In
should be also noted that the applicant has a physical disability,
was suffering from chronic alcoholism and belonged to a socially
disadvantaged group, which could lead to the conclusion that he was
particularly vulnerable, legally ignorant and susceptible to outside
influence.
- In
these circumstances the Court finds that the applicant's waiver of
legal representation at the initial stage was not genuine.
- The
Court further notes that initially the applicant's actions were
qualified as serious bodily harm. Later the crime was reclassified as
murder, because the nature of the victim's injuries clearly indicated
the attacker's intention to kill her (see paragraph 19) and the
applicant was convicted of premeditated murder. The nature of the
victim's injuries was not a new element, unknown before, which could
have explained the previous classification of the offence as less
serious crime for which legal representation was not necessary. In
these circumstances the applicant did not benefit from legal
assistance during a crucial initial part of the proceedings.
- Thus
the applicant's conviction for murder was based mainly on statements
he gave in the absence of his lawyer during the pre-trial
investigation. The applicant said he was guilty only in the presence
of the investigating officer and at the reconstruction of events,
where the applicant's lawyer was not present. Any other possible
evidence of the applicant's guilt was of an indirect nature.
- The Court has already held in similar situations that
even though the applicant had the opportunity to challenge the
evidence against him at the trial and subsequently on appeal, the
absence of a lawyer while he was in police custody could
irretrievably affect his defence rights (see Salduz, cited
above, § 56-62).
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of Article 6 § 3 (c) of
the Convention in the present case.
III. ALLEGED VIOLATION OF ARTICLES 3 AND 5 § 1 (c) OF THE
CONVENTION
- The
applicant complained under Article 5 § 1 (c) of the Convention
that there had been no grounds for his arrest. In his response to the
Government's observations the applicant also introduced new
complaints of ill-treatment by the police officers and invoked
Article 3 of the Convention.
- The
Court notes that the applicant was arrested on 1 October 2002. There
is no evidence that he has ever challenged his arrest and pre-trial
detention before the national authorities. In any event, the
application was brought before this Court more than six months later
(on 29 October 2004).
- Similarly,
the applicant's complaint of ill-treatment by the police officers was
introduced for the first time on 21 July 2009, while the final
decision in the applicant's case was adopted on 18 March 2004.
- The
Court considers that these complaints have been introduced out of
time and must be rejected in accordance with Article 35 §§ 1
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 claimed 156,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage. In particular, the applicant's claims for
pecuniary damages concerned his inability to receive a pension for
disabled persons while in detention.
- The
Government maintained that there was no causal link between the
alleged violations and the damages claimed by the applicant.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 3,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 850 for the costs and expenses incurred
before the Court.
- The
Government did not comment on this 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 are
reasonable as to quantum. In the present case, the Court notes that
the applicant has already obtained legal aid of EUR 850 from the
Council of Europe. Therefore, the Court rejects the claim for costs
and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 6 § 3 (c)
of the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 3 (c) of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros) to be converted into Ukrainian hryvnias at the
rate applicable on the date of settlement, plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(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 27 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
