FIFTH SECTION

CASE OF NIKOLAYENKO v. UKRAINE

(Application no. 39994/06)

JUDGMENT

STRASBOURG

15 November 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 Nikolayenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
	Dean Spielmann, President,
	Mark Villiger,
	Boštjan M. Zupančič,
	Angelika Nußberger,
	André Potocki,
	Paul Lemmens, judges,
	Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 16 October 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 39994/06) 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 Vyacheslav Ivanovich Nikolayenko (“the applicant”), on 31 August 2006.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr. N. Kulchytskyy.
3.  The applicant alleged, in particular, that he had been ill-treated by the police, in violation of Article 3 of the Convention. He further complained under Article 6 of the Convention that his right to legal assistance right and his right not to incriminate himself had been violated.
4.  On 23 March 2011 the application was communicated to the Government. Mrs G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Chamber decided to appoint Mr S. Shevchuk to sit as an ad hoc judge (Rule 29 § 1(b)).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
A.  Background to the case
5.  The applicant was born in 1968 and is currently serving a life sentence in prison.
6.  The applicant completed five years of secondary school. In 1992 he was convicted of murder and theft. In 2000 he was released.
B.  Attempted murder of M.M., murders of R. and Ya., and ensuing criminal proceedings
7.  On 5 February 2004 the Hlobyne District Prosecutor’s Office, the Poltava Region (“the Hlobyne Prosecutor’s Office”), opened an investigation in connection with the murder of R., an elderly single woman who was found suffocated in her house in the village of Gradyzk with her hands and legs tied up. A forensic medical expert noted the injuries on R.’s corpse, including broken ribs.
8.  On the same date, the Svitlovodsk Inter-District Prosecutor’s Office, the Kirovograd Region (“the Svitlovodsk Prosecutor’s Office”), opened an investigation in connection with the murder of Ya., another elderly single woman. Ya. was found dead in her house in the village of Pavlivka with her hands and legs tied up. The forensic medical expert concluded that Ya. had died due to a pneumothorax which had been caused by serious injuries, including numerous broken ribs and a fracture of the chest.
9.  On 20 May 2004 the investigation in connection with the murder of R. was suspended, as no suspects could be identified.
10.  On 29 May 2004 an investigator from the Svitlovodsk Prosecutor’s Office arrested B., a woman who was living with the applicant, on suspicion of having murdered Ya. After B. had her rights explained to her, she asked to be provided with a lawyer. A legal-aid lawyer was admitted to the proceedings the same day and assisted B. during the first questioning session. When questioned, B. confessed that she and the applicant had visited an elderly woman and that the applicant had beaten up and tied up that woman, after which he had searched the house for money. B insisted that the applicant had forced her to go with him on that day and that she had been afraid of refusing to follow his orders.
11.  On 31 May 2004 the investigator from the Svitlovodsk Prosecutor’s Office arrested the applicant on suspicion of having murdered Ya. He was provided with a legal-aid lawyer, H., that same day.
12.  According to the applicant, following his arrest, he was beaten up by the police with the purpose of making him confess to the crime.
13.  On 1 June 2004 the applicant was questioned for the first time on account of Ya.’s murder. Assisted by his lawyer, the applicant stated that B. had pushed the elderly woman to the floor and had tied her up while he had been looking for money.
14.  On the same date, B. and her lawyer participated in a reconstruction of the crime committed in respect of Ya. in the village of Pavlivka. B. showed those present where in the house the applicant had beaten and tied up Ya.
15.  On 3 and 8 June 2004 the Svitlovodsk District Court, the Poltava Region, ordered, respectively, that the applicant and B. be held in custody.
16.  On 9 June 2004 the applicant was charged with the murder of Ya. He was further questioned in the presence of his lawyer. The applicant admitted that he and B. had visited Ya. but denied that he had inflicted any injuries on the victim.
17.  On 14 June 2004 the applicant and his lawyer participated in a reconstruction of the crime committed in respect of Ya. in the village of Pavlivka. Upon arriving at the village, the applicant failed to identify the house where the elderly woman had lived, claiming that he could not remember which house it was.
18.  On 24 August 2004 the applicant was allegedly beaten up with the purpose of extracting a confession.
19.  On 31 August 2004 an investigator from the Hlobyne Prosecutor’s Office received operative information from police officers that the applicant and B. could have murdered R. He resumed the investigation in respect of R.’s murder and decided to question the applicant.
20.  On the same date and in the presence of his lawyer, the applicant denied any involvement in the murder of R. and refused to answer any questions. He demanded that another lawyer be appointed to represent him.
21.  Following that questioning, the applicant and B. were escorted to the Hlobyne Temporary Detention Centre pending further investigation.
22.  On 2 September 2004 the investigator from the Hlobyne Prosecutor’s Office appraised B. of her rights. B. stated that she wished to be assisted by another legal-aid lawyer from then on.
23.  On 3 September 2004 the investigator from the Hlobyne Prosecutor’s Office questioned B. in the presence of a new legal-aid lawyer. B. stated that, before the incident with Ya., the applicant had forced her to visit R., another elderly woman. The applicant had beaten up, tied up, and suffocated R. and had taken money and jewellery. B. repeated these statements during a reconstruction of the crime. This investigatory action was carried out in the presence of her lawyer.
24.  On 6 September 2004 the criminal proceedings concerning the two murders were consolidated into one criminal case.
25.  On 9 September 2004 the applicant was provided with another legal-aid lawyer, V.M. When questioned on the same date in the presence of the lawyer, the applicant claimed that B. had killed R.
26.  On 29 September 2004 the investigator granted the applicant’s request to have a new legal-aid lawyer appointed and appointed D., a lawyer with twenty years of experience, to act as the applicant’s defence counsel.
27.  On 4 November 2004 the investigator from the Hlobyne Prosecutor’s Office started an investigation in respect of the attempted murder and robbery of M.M., another elderly woman. The investigator found that on 25 January 2004 the applicant and B. had entered M.M.’s home, pushed her to the floor and started to beat her. They had tied up her hands and had covered her with a mattress and other things, had taken money and had left, assuming that M.M. had died. However, after a while M.M. had come around and had called neighbours for help. This criminal case was joined to the consolidated proceedings against the applicant and B.
28.  In November 2004 the investigation was completed and the case file was referred to the Poltava Regional Court of Appeal (“the first-instance court”) for trial.
29.  On 6 January 2005 the first-instance court committed the applicant and B. for trial.
30.  On 3 February 2005 the first-instance court adjourned the trial, as the defendants’ lawyers failed to appear. The court ordered that the regional bar association provide the defendants with legal‑aid lawyers.
31.  On 14 February 2005 the first-instance court again adjourned the trial, as the applicant’s lawyer did not appear.
32.  On 17 February 2005 the first-instance court resumed the trial in the presence of the applicant’s and B.’s lawyers.
33.  During the trial the applicant and B. each stated that the other had been the perpetrator of the murders, both trying to reduce their own role in the events. The applicant admitted tying up M. and R. with a rope and beating R. He occasionally denied B.’s statements that he had tied up Ya. At one of the court hearings M.M. identified both defendants as those who had attacked and robbed her. The defence lawyers attended the hearings and put questions to the defendants, victims and witnesses.
34.  On 21 November 2005 the first-instance court found that the applicant and B. had committed the aggravated murders of Ya. and R., the attempted murder of M.M., and the robberies of those victims. It also found B. guilty of theft. It sentenced the applicant to life imprisonment and B. to fifteen years’ imprisonment and ordered the confiscation of all of the defendants’ property. The first-instance court based its judgment on expert opinions and documentary, oral, and material evidence, including the self-incriminating statements given by B. and the applicant during the pre-trial investigation and the trial. In its judgment, the first-instance court also noted that the applicant suffered from a slight learning disability, which, however, had not affected his mental capacity to be aware of his actions and control them when committing the crimes.
35.  On 19 December 2005 the applicant appealed in cassation, claiming that the first-instance court had misinterpreted the facts, had not questioned all the witnesses and had disregarded violations of his defence rights. B. did not appeal in cassation.
36.  On 14 February 2006 the applicant supplemented his cassation appeal, claiming that he had been subjected to ill-treatment at the investigation stage. He complained that he no longer had legal representation, which had made it difficult for him to prepare his cassation appeal properly.
37.  On 16 March 2006 the Supreme Court dismissed the applicant’s cassation appeal as unsubstantiated, noting that the findings of the first-instance court were well-founded and properly corroborated by the evidence, including the defendants’ self-incriminating statements; no procedural violations had been found in the case. The Supreme Court held a hearing in the presence of the prosecutor and the applicant, who was not represented by a lawyer.
38.  On 11 September 2006 the applicant complained to the General Prosecutor’s Office, claiming, in particular, that after his arrest he had been beaten up and tortured by police officers during the following ten days with the purpose of making him confess to a crime which he had not committed; and that in August 2004 he had been beaten up again with the same purpose. By a letter of 9 November 2006 the General Prosecutor’s Office informed the applicant that his complaint was unsubstantiated.
II.  RELEVANT DOMESTIC LAW
39. The relevant provisions of domestic law can be found in the judgment in the case of Dovzhenko v. Ukraine (no. 36650/03, §§ 31 and 32, 12 January 2012).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
40.  The applicant complained under Article 3 of the Convention that he had been tortured by the police after his arrest and subsequently, in August 2004, during his pre-trial detention.
41.  Article 3 of the Convention reads as follows:
Article 3 (prohibition of torture)
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Admissibility
1.  The parties’ submissions
42.  The Government submitted that the applicant had raised the issue of ill-treatment too late and had not given the domestic authorities a reasonable opportunity to investigate the alleged ill-treatment and remedy the situation at the national level. In the alternative, the Government claimed that the applicant had failed to comply with the six-month time-limit, which they submitted should in both cases be calculated from the date of the alleged event.
43.  The Government further maintained that the applicant’s complaint of ill-treatment before the domestic authorities and the Court was too vague, as it did not give any description or details. Neither was it supported by any evidence. Moreover, at the relevant time the applicant had been assisted by a lawyer, who would have noticed signs of ill-treatment on the applicant and would have raised the matter accordingly. The Government concluded that the applicant’s complaint of ill-treatment was manifestly ill-founded.
44.  The applicant contended that he had complained of ill-treatment to the prosecutor’s office in November and December 2004 and February 2005 but those complaints had not been considered. The applicant maintained that he had complied with the rule of exhaustion of domestic remedies and the six-month rule. He further insisted that his complaint was well-founded.
2.  The Court’s assessment
45.  The Court notes that in his submissions of 14 February 2006 to the Supreme Court the applicant complained that he had been ill-treated by the police. Subsequently, on 11 September 2006 the applicant raised that issue before the General Prosecutor’s Office. However, there is no evidence in the case file that the applicant complained on this account to the domestic authorities earlier.
46.  In this context the Court considers that, by virtue of the requirements of Article 35 § 1 of the Convention, the applicant should have submitted his complaint of ill-treatment to the domestic authorities within a reasonable time and thereby enabled the authorities to address the complaint in an effective manner and provide appropriate redress. However, the applicant failed to raise the issue for more than one year and eight months after the first period of alleged ill-treatment and one year and five months from the second period of alleged ill-treatment. The Court does not find any reasonable justification for such a delay, especially given that the applicant had been assisted by lawyers throughout the investigation and the trial.
47.  Alternatively, if the applicant did not consider that there lay an effective remedy in respect of his complaint, he should have applied to the Court within six months of the dates of the alleged events. However, he did not do this either.
48.  Furthermore, the Court considers that the applicant’s complaint of ill-treatment was not sufficiently detailed in his submissions to the domestic authorities and the Court. His vague and imprecise allegations were not supported by any medical or other evidence. This is particularly disconcerting, given that the applicant stated that he had been tortured for ten days in a period when, as is evident from the file, he had been communicating with his lawyer, who would surely have noticed signs of the alleged torture.
49.  The Court further notes that the factual issues raised in the present complaint fall within the knowledge of the domestic authorities. Accordingly, it could be accepted that the applicant experienced certain difficulties in procuring evidence to substantiate his allegations. Nevertheless, in such cases applicants may well be expected to submit at least a detailed account of the facts complained of and provide – to the greatest possible extent – some evidence in support of their complaints (see, mutatis mutandis, Visloguzov v. Ukraine, no. 32362/02, § 45, 20 May 2010). In the circumstances of the present case, it appears that the applicant failed to properly develop and substantiate his complaint.
50.  In view of the above considerations the Court concludes that the complaint should be rejected as inadmissible, pursuant to Article 35 §§ 1, 3 (a), and 4 of the Convention.
II.  ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION
51.  The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that: (a) he had not been legally represented during the investigation and trial other than on certain occasions; (b) his legal‑aid lawyers had failed to provide him with effective representation; and (c) he had not been legally represented before the Supreme Court.
52.  Article 6 §§ 1 and 3 (c) of the Convention provide, in so far as relevant, as follows:
“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... 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; ...”
A.  Admissibility
1.  The parties’ submissions
53.  The Government contested the applicant’s allegation that he had not been provided with a lawyer for the majority of the investigation and the trial. They submitted all the volumes of the criminal case file, confirming that throughout the investigation and trial the applicant had been represented by a lawyer. They emphasised that, in view of the gravity of the crimes committed, it had been a mandatory requirement of domestic law that during the investigation and the trial the applicant be represented by defence counsel.
54.  They further contested the applicant’s allegation that the legal-aid lawyers had failed to provide him with appropriate legal representation. They argued that the applicant had had three lawyers who had been changed at his request. Prior to removal, all of them had been acting appropriately on his behalf.
55.  The applicant disagreed and claimed that the lawyers had failed to represent him effectively.
2.  The Court’s assessment
56.  As regards the alleged absence of legal representation during the majority of the investigatory and trial actions, the Court notes that the materials provided by the Government disprove this contention. It appears that the applicant was continually assisted by lawyers during the investigation and the trial. This element of the complaint should be rejected as manifestly ill-founded.
57.  As regards the alleged ineffectiveness of the lawyers’ assistance provided to the applicant by the authorities, the Court reiterates that a State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal-aid purposes or chosen by the accused. It follows from the independence of the legal profession from the State that the conduct of the defence is essentially a matter between the defendant and his counsel, whether counsel be appointed under a legal-aid scheme or be privately financed (see Cuscani v. the United Kingdom, no. 32771/96, § 39, 24 September 2002). The competent national authorities are required under Article 6 § 3 (c) to intervene only if a failure by legal-aid counsel to provide effective representation is manifest or sufficiently brought to their attention in some other way (see Kamasinski v. Austria, 19 December 1989, § 65, Series A no. 168, and Daud v. Portugal, 21 April 1998, § 38, Reports of Judgments and Decisions 1998-II). As to the present case, the Court considers that the case file does not suggest that the representation of the applicant by the legal-aid lawyers was manifestly inappropriate to the extent that the authorities were required to intervene. It follows that this element of the complaint is also manifestly ill-founded.
58.  As regards the applicant’s lack of legal assistance at the stage of the appeal, the Court considers that this part of the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
1.  The parties’ submissions
59.  The Government submitted that the first-instance court had sentenced the applicant to the severest punishment – life imprisonment with confiscation of property – possible and therefore the consideration of the case by the Supreme Court could not have resulted in a worsening of his situation. Accordingly, by virtue of Article 45 § 2 of the Code of Criminal Procedure, the legal representation of the applicant before the Supreme Court (acting as a court of appeal in that case) had not been compulsory. Moreover, the applicant had not raised this issue before the Supreme Court.
60.  The applicant disagreed and maintained that there had been a violation of his rights under Article 6 §§ 1 and 3 (c) of the Convention.
2.  The Court’s assessment
61.  The Court notes that sub-paragraph (c) of paragraph 3 of Article 6 attaches two conditions to a defendant’s right to receive legal aid. The first, “lack of sufficient means to pay for legal assistance”, is not in dispute in the present case. The only issue before the Court is therefore whether the “interests of justice” required that the applicant be granted such assistance free of charge.
62.  The manner in which Article 6 §§ 1 and 3 (c) are to be applied in relation to appellate or cassation courts depends upon the particular features of the proceedings involved: account must be taken of the entirety of the proceedings conducted in the domestic legal order and the role of the appellate or cassation court therein (see Twalib v. Greece, 9 June 1998, § 46, Reports 1998-IV, and Granger v. the United Kingdom, 28 March 1990, § 44, Series A no. 174).
63.  The Court has already held that the situation in a case involving a heavy penalty where an appellant was left to present his own defence unassisted before the highest appeal court was not in conformity with the requirements of Article 6 (see Maxwell v. the United Kingdom, 28 October 1994, § 40, Series A no. 300-C).
64.  In the present case, it is not disputed that the applicant was not assisted by a lawyer following his conviction by the first-instance court. The hearing before the Supreme Court was held without a lawyer representing the applicant. The Court cannot accept the Government’s contention that the applicant did not raise this issue before the Supreme Court. His submissions to the Supreme Court expressly suggest that he wished to be legally represented at that stage of the proceedings (see paragraph 36 above).
65.  The Government, relying on Article 45 § 2 of the CCP, contended that legal representation of the applicant at that stage of proceedings had not been mandatory, as he had been sentenced to the heaviest penalty and his position could not have been worsened. This argument is immaterial for the Court, as even assuming that the applicant was not entitled to free legal assistance under domestic law, the question is whether he was entitled to that assistance under the Convention.
66.  According to the rules of criminal procedure (see paragraph 32 above), where a court of appeal has acted as a first-instance court in criminal proceedings, the jurisdiction of the Supreme Court reviewing the case in cassation proceedings extends to both legal and factual issues. The Supreme Court also had the power to consider additional arguments which had not been examined in the first-instance proceedings. Given the seriousness of the charges against the applicant and the severity of the sentence imposed on him by the trial court, the Court considers that the assistance of a lawyer at this stage was essential for the applicant.
67.  In these circumstances the Court finds that the interests of justice required that the applicant be legally represented before the Supreme Court. It holds, therefore, that there has been a violation of Article 6 § 3 (c) taken together with Article 6 § 1 of the Convention.
III.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
68.  The applicant further complained under Article 6 § 1 of the Convention that his right not to incriminate himself had been violated, as, during the investigation, he had been ill-treated with the purpose of making him confess to the crimes.
Admissibility
69.  The Government maintained that the applicant had not been subjected to any violence during the criminal proceedings and there had been no indication that his right not to incriminate himself had been impaired. They submitted that the complaint was manifestly ill-founded.
70.  The applicant disagreed.
71.  The Court has declared inadmissible the applicant’s complaint under Article 3 of the Convention concerning the alleged ill-treatment during the investigation of the criminal case. Accordingly, no issue arises under Article 6 § 1 of the Convention in connection with the applicant’s contention that his right not to incriminate himself had been violated as a result of the alleged ill-treatment. It follows that this part of the application should be declared inadmissible, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
IV.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
72.  The applicant complained under Articles 5 § 2 and 6 § 1 (a) of the Convention that the proceedings had been carried out in the Ukrainian language, which he stated he could not understand. He further complained under Article 6 §§ 1 and 3 (d) of the Convention that the courts had been biased, and that they had failed to question all of the witnesses and assess the evidence properly. Lastly, the applicant complained of violations of Articles 7, 8, 13, 17 and 18 of the Convention, without giving any details.
73.  The Court has examined these complaints and considers that, in the light of all the material in its possession and 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 or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
74.  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
75.  The applicant claimed that he had sustained serious damage in respect of the violations claimed. He further asked the Court to determine the amount of just satisfaction of its own motion.
76.  The Government maintained that the claim was unsubstantiated.
77.  The Court does not find any basis for an award of just satisfaction in respect of pecuniary damage. On the other hand, it considers that the applicant must have suffered distress as a result of the violation found. Making its assessment on an equitable basis, the Court awards the applicant 2,400 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable.
B.  Costs and expenses
78.  The applicant did not submit any claims under this head. The Court therefore makes no award.
C.  Default interest
79.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the complaint under Article 6 §§ 1 and 3 (c) of the Convention concerning the lack of legal assistance during the proceedings before the Supreme Court admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6  §§ 1 and 3 (c) 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 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, 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.

Done in English, and notified in writing on 15 November 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Claudia Westerdiek	Dean Spielmann
	Registrar	President