FIFTH SECTION
CASE OF
SERGEY AFANASYEV v. UKRAINE
(Application no.
48057/06)
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 Sergey Afanasyev v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Dean Spielmann, President,
Mark Villiger,
Karel Jungwiert,
Boštjan M. Zupančič,
Angelika Nußberger,
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
The case originated in an application (no.
48057/06) 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 Russian national, Mr Sergey Gennadyevich Afanasyev (“the
applicant”), on 2 November 2006.
The applicant, who had been granted legal aid,
was represented by Mr M.O. Tarakhkalo, a lawyer practising in Kharkiv. The
Ukrainian Government (“the Government”) were represented by their Agent, Mr. N. Kulchytskyy.
The applicant alleged, in particular, that he had
been ill-treated after his arrest and that there had been no effective
investigation on that account. He further complained that the privilege against
self-incrimination, the principle of equality of arms, his right to have a
lawyer and his right to examine a witness had been violated.
On 7 February 2011 the application was
communicated to the Government.
The Russian Government, having been informed of
their right to intervene in the proceedings (Article 36 § 1 of the Convention
and Rule 44 of the Rules of Court), indicated that they did not wish to
exercise their right at that stage. 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 Stanislav Shevchuk to sit as an ad hoc judge (Rule 29 § 1(b)).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1963 and is currently
serving a prison sentence. Before his arrest, the applicant had been living as
a vagrant in Yevpatoriya for several years.
During the evening of 19 April 2005 L., a vagrant
woman, was murdered by suffocation. Her corpse was found on the morning of 20 April
2005 beneath a balcony of a multi-storey building in Yevpatoriya. A criminal
investigation was opened.
The police started by
interviewing the victim’s relatives and acquaintances and the residents of the
building where the corpse was found. A number of interviewees stated that throughout
the day and the evening of 19 April 2005, they had seen L. with the
applicant; some of them had seen the applicant quarrelling with L. and drinking
alcohol on that day; certain interviewees described L. as a very aggressive
woman.
In the afternoon of 20
April 2005 the police found the applicant and his acquaintance, V., and took
them to a police station for questioning about the incident. When questioned,
V. stated that he, L., and the applicant had been living as vagrants. In the
evening of 19 April 2005 they had been drinking alcohol with another man
under the balcony of the building where L. used to sleep. He and the applicant had
decided to buy some more alcohol and left the company for that purpose. When
they returned, L. was alone. They had offered her some more drink and then
decided to leave her. V. had walked away, but had had to wait for the applicant
at a distance. When the applicant rejoined V. about fifteen minutes later, the
applicant said that L. had insulted him. The next morning the applicant had called
an ambulance for L.
The police then
questioned the applicant. They allegedly ill-treated him and forced him to
confess to the crime. The applicant stated in particular that in the evening of
19 April 2005 L. had insulted him and hit him in the face; in reply, he had squeezed
her throat. The next morning he had called an ambulance.
Following those statements, V. was released and the
applicant was taken to the prosecutor’s office for further questioning by an
investigator.
At 7.30 p.m. on 20
April 2005 the investigator formally arrested the applicant. The applicant
admitted in the arrest report that L. could have died as a result of his action.
At 7.40 on the same date the investigator started
to question the applicant in the presence of a legal-aid lawyer. The applicant
repeated his statements. According to the applicant, the lawyer arrived only at
the end of the questioning.
The applicant was then presented for examination
to a forensic medical expert, whose report stated that the applicant had a bruised
left eye and a granulating wound on his upper lip. The applicant explained that
those injuries had been caused by L. and a man. The expert opined that the
injuries had been light and that the bruise on the eye had been sustained two to
four days before the examination while the wound on the lip could have been
sustained on 19 April 2005.
At 8.30 on 20 April 2005 the applicant and his
lawyer participated in a reconstruction of the crime, in which the applicant
showed how he had committed the crime.
On 21 April 2005 the applicant was charged with
the murder of L. When questioned on that day in the presence of his lawyer, the
applicant admitted that his actions might have caused L.’s death but insisted
that he had had no intention of killing her.
On 23 April 2005 the Yevpatoriya Town Court
(“the town court”) extended the applicant’s preliminary detention to ten days.
On 30 April 2005 the town court ordered the
applicant’s detention pending trial.
On 25 June 2005 the applicant was questioned again
in the presence of his lawyer. The applicant confirmed his earlier statements
and emphasised that he had had no intention of killing L.
On 8 July 2005 the town court committed the case
for trial.
During the trial the applicant, assisted by his
lawyer, contended that there had been no fight between him and L. on the
evening of 19 April 2005. He claimed that L. had hit him in the mouth only
once, and that in response he had squeezed her throat for a while but had had no
intention of killing her. The next morning he had approached L. assuming that
she was well, but instead had discovered her dead. He had therefore called an ambulance.
Had he known that L. had died, he would never have returned to her that morning.
On 26 July 2005 the town court found the
applicant guilty of murder and sentenced him to ten years’ imprisonment. The
court allowed a civil claim in favour of L.’s mother in the amount of 10,000
Ukrainian hryvnias (UAH). The court found that on the night of 19 April 2005
the applicant and L. had been preparing to sleep under the balcony of a building;
a quarrel had started between them and L. had hit the applicant in the face. In
response, the applicant had squeezed L.’s throat, which had caused her death.
The court made those findings on the basis of
the initial confession that the applicant had made to the police on 20 April
2005; the self-incriminatory explanations that he had given in the course of further
questioning and during a reconstruction of the crime; his submissions during
the trial that he had squeezed L.’s throat; the indirect witness evidence,
material and documentary evidence; and the assessments of the forensic medical
expert, including his opinion as to the injuries to the applicant’s face. The
court did not call or question V. as a witness. According to the applicant, he had
requested that V. be examined in the courtroom.
The applicant appealed, claiming that the town court
had failed properly to assess the evidence in the case. V. had not been heard
during the trial, despite the fact that he had accompanied the applicant
throughout the day and evening of 19 April 2005, and could therefore have
clarified many important facts. According to the applicant, he had informed the
court of appeal that he would like to be present at the appeal hearing.
On 4 October 2005 the Court of Appeal of the
Autonomous Republic of Crimea (“the Court of Appeal”) dismissed the applicant’s
appeal as unsubstantiated. It found that the conclusions of the first-instance
court had been well-founded on the material of the case file and that the
applicant’s guilt had been properly established by various pieces of evidence,
including his initial confession to the police. There had been nothing to
suggest that the applicant’s self-incriminatory statements had been obtained
unlawfully. The appeal hearing was held without the presence of the applicant and
his lawyer but with the participation of the prosecutor, who made oral
representations.
The applicant appealed on points of law to the
Supreme Court, expressing his general disagreement with the earlier proceedings.
He claimed that on 20 April 2005 he had been forcibly arrested by police
officers and had made self-incriminating statements at the police station while
“under the influence of police officers”. He had then been taken to the prosecutor’s
office where he had been questioned by an investigator. The applicant contended
that a legal-aid lawyer had not appeared until the end of the questioning at
the prosecutor’s office. He further claimed that V. had not been questioned by
the lower courts even though his evidence might have changed the outcome of the
case. The applicant also requested that he be summoned for a hearing concerning
his cassation appeal.
On 17 October 2005 the applicant wrote to the
Minister of Internal Affairs claiming that on 20 April 2005 he had been arrested
by force and then pressed by police officers to incriminate himself. The
applicant contended that the investigation of his case had been conducted
improperly, the material had been falsified, the courts had not considered the
case fairly, and in particular had not examined V. as a witness. This complaint
was redirected to the Supreme Court for consideration together with the
applicant’s appeal.
On 25 July 2006 a
panel of three judges of the Supreme Court considered the applicant’s case in
private. Having examined the case file, it found that the applicant’s
submissions were unsubstantiated. His contentions of ill-treatment were not
supported by the material of the case file. He had been assisted by a lawyer but
had not previously complained of ill-treatment. V.’s testimony would not have been
relevant to the applicant’s alibi, as the applicant and L. had been alone at
the time of the crime; the applicant had rejoined V. fifteen minutes after
communicating with L. The panel concluded that there had been no grounds for
scheduling an oral hearing and dismissed the applicant’s appeal.
. After
his conviction the applicant requested copies of various procedural documents
from his case file, which he said were essential for his application to the
Court. Some time later the applicant was sent copies of the requested
documents.
II. RELEVANT DOMESTIC LAW
Code of Criminal Procedure, 28 December 1960
Article 358 of the Code provides, inter alia,
that the court of appeal must summon a defendant held in custody for a hearing
if he or she has made a request to that effect.
Article 395
of the Code provides, inter alia, that the court of cassation shall
review whether a challenged court decision is lawful and substantiated, based
on the case file and additionally submitted material. The scope of the review is
limited by the arguments of the cassation appeal(s). The court is empowered to
review the case beyond the arguments of the cassation appeal(s) provided that
this does not worsen the position of the convicted or acquitted person.
Article 396 of the
Code provides, in so far as relevant, as follows:
Article 396
Outcome of consideration of a case by the court of cassation
“Having considered a case in cassation, the court of cassation
shall adopt one of the following decisions:
(1) a decision leaving the judgment, resolution or
ruling unchanged and dismissing appeals in cassation;
(2) a decision quashing the judgment, resolution or
ruling and remitting the case for additional investigation or fresh trial or
consideration on appeal;
(3) a decision quashing the judgment, resolution or
ruling and discontinuing the proceedings;
(4) a decision changing the judgment, resolution or
ruling.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained under Article 3 of the
Convention that on 20 April 2005 he had been ill-treated by police
officers and that there had been no effective investigation on that account.
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.”
A. The parties’ submissions
The Government submitted that the applicant had
lodged a complaint of ill-treatment only in his appeal on a point of law to the
Supreme Court and in his complaint to the Minister of Internal Affairs of
17 October 2005. He had not made that complaint to the prosecutor’s office,
which was vested with the power to examine such matters. The applicant had therefore
failed to exhaust domestic remedies. If he had considered that domestic remedy ineffective,
he should have applied to the Court within the six-month time-limit from the
date of the alleged ill-treatment.
The Government further maintained that the
applicant’s complaint of ill-treatment before the above-mentioned domestic
authorities and the Court had been too vague. He had provided no description or
details of the means of ill-treatment, nor was the complaint supported by any
evidence. They emphasised that during the forensic medical examination carried
out on the same day, and later during the investigation, the applicant had
claimed that his injuries had been caused in another way. Moreover, the forensic
expert had concluded that the injuries could not have been sustained by the
applicant on 20 April 2005. Therefore, the applicant’s complaint of
ill-treatment was wholly unsubstantiated. His submissions before the domestic
authorities had not been arguable and had not generated the procedural
obligation of the State under Article 3 of the Convention to carry out an
effective investigation of his allegations of ill-treatment.
The applicant disagreed, stating that he had complained
of ill-treatment to the investigator of the Prosecutor’s Office during his
questioning on 20 April 2005, but the investigator had not included his
complaint in the record. The applicant insisted that, given his vulnerable
social status, he had properly raised the issue of his ill-treatment before the
domestic authorities. Likewise, there had been no grounds for dismissing the
complaint under the six-month rule.
The applicant also argued that his medical
examination of 20 April 2005 had not been conducted adequately and that he
had not been in a position to challenge it. He submitted that he had made an arguable
complaint of ill-treatment before the domestic courts and that the authorities should
have taken the appropriate measures to investigate his allegation.
B. The Court’s assessment
The Court 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). The Court also
recalls that the procedural obligation under Article 3 of the Convention to
investigate an allegation of ill-treatment only arises where an individual
raises an arguable claim that he has been subjected to ill-treatment prohibited
by that provision (see, among many authorities, Assenov and Others v. Bulgaria,
28 October 1998, Reports of Judgments and Decisions 1998-VIII, §§
102 et seq.).
The Court first considers that the applicant’s
complaint of ill-treatment has not been sufficiently explained in his
submissions to the Court. He did not elaborate on the circumstances in which he
was allegedly ill-treated or specify any methods of ill-treatment. Nor did he set
out the exact sequence of events on 20 April 2005, the date when he was
allegedly ill-treated. The applicant’s complaint consisted merely of short
phrases stating that he had been subjected to ill-treatment.
Likewise, the complaint of ill-treatment that
the applicant made before the domestic authorities also lacked precision and
detail. In particular, the allegations of ill-treatment in his complaint to the
Ministry of Internal Affairs, which was passed to the Supreme Court, were
limited to general assertions that provided little information on the facts.
In addition, the applicant’s vague and imprecise
allegations are not supported by any evidence. On the contrary, the forensic
expert who carried out a medical examination on 20 April 2005, immediately
after the alleged ill-treatment on the same date, found that the applicant had
sustained only light injuries that could not be attributable to the State, as their
origin predated the applicant’s arrest. The Court finds no reason to doubt the
credibility of those findings, especially given the fact that the applicant has
never questioned the expert’s impartiality at the domestic level. Moreover, for
a long period of time the applicant admitted that his injuries had been caused
outside the police station.
Indeed, the case file suggests that the first
time the applicant complained to the domestic authorities of ill-treatment was
in October 2005. This delay seriously undermined the chances of collecting any
proof in support of the allegation. However, the applicant has no reasonable
justification for protracting the case, especially given that he was assisted
by a lawyer.
In these circumstances the Court, having regard
to the available material, considers that the complaint of ill-treatment is too
vague, imprecise, and unsupported by any evidence. It has not been properly
substantiated and developed by the applicant and should be rejected as manifestly
ill-founded. The Court further considers that the applicant failed to make an
arguable complaint of ill-treatment before the domestic authorities, which
would have triggered their procedural obligation, under Article 3 of the
Convention, to carry out an effective investigation of the allegation.
Accordingly, the complaint should be rejected as
inadmissible, pursuant to Article 35 §§ 3 (a) and 4 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1
and 3 (c) OF THE CONVENTION
The applicant complained that he had had no
access to a lawyer at the first questioning on 20 April 2005.
The Court decided to examine the complaint under
Article 6 §§ 1 and 3 (c) of the Convention, which 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 ... 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
The Government submitted that the complaint had
been inadmissible as the applicant had not raised the issue in his appeals to
the Court of Appeal and the Supreme Court. Alternatively, they contended that
the applicant had overrun the six-month time-limit, which should have been
calculated from 20 April 2004, that is from the date of the alleged violation.
The applicant contended that he had raised the
matter in his appeals before the upper courts and had therefore exhausted domestic
remedies. He argued that there had been no grounds for dismissing this
complaint under the six-month rule.
2. The Court’s assessment
It appears from the case file that the applicant
did not raise the issue of lack of access to a lawyer before the Court of Appeal.
Nevertheless, a copy of the applicant’s cassation appeal submitted to the
Supreme Court, as provided by the Government, indicates that the applicant
raised this particular issue in substance when he stated that he had seen a
lawyer for the first time only at the end of his questioning on 20 April 2005
in the prosecutor’s office.
The Court further notes that the Supreme Court
had sufficient powers to deal effectively with the present complaint (see
paragraphs 31 and 32 above). After the Supreme Court’s decision, the
applicant had no further effective remedies to exhaust. The fact that the
applicant did not raise this issue before the Court of Appeal or at any other
stage preceding the cassation review may be regrettable but cannot be the basis
for concluding that the complaint is inadmissible on non-exhaustion grounds.
The Court considers that the applicant sufficiently informed the domestic authorities
of his complaint and that they were given appropriate opportunity to remedy the
issue before it was raised at international level.
The Court further notes that there is no ground for
dismissing the present complaint under the six-month rule, as the Supreme Court’s
decision was delivered on 25 July 2006, and the applicant applied to the Court
on 2 November 2006.
In the light of those considerations, the Court
rejects the Government’s objections.
The Court further notes that this 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
The Government submitted that the absence of a lawyer
during the initial questioning had not affected the overall fairness of the
proceedings because the applicant had continued to incriminate himself in the
presence of a lawyer. Apart from the initial confession, the applicant’s guilt
was well established by numerous pieces of evidence.
The applicant disagreed and claimed that, although
at the time of his actual arrest the police had had every reason to consider
him as a main suspect, they had not provided him with a lawyer in a timely
fashion. Accordingly, he had not received appropriate legal assistance and had
been unable to develop his defence strategy. The initial evidence obtained in
breach of his right to defence had influenced his further behaviour and
aggravated his situation.
2. The Court’s assessment
The Court reiterates that Article 6 § 1 of the
Convention requires that, as a rule, access to a lawyer should be provided from
the first time a suspect is questioned 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. Even where compelling reasons may
exceptionally justify denial of access to a lawyer, such a restriction -
whatever its justification - must not unduly prejudice the rights of the
accused under Article 6. The rights of the defence will in principle be
irretrievably prejudiced when incriminating statements made during questioning
by police without access to a lawyer are used for a conviction (see Salduz
v. Turkey [GC], no. 36391/02, § 55, 27 November
2008).
It has not been disputed by the parties that on
20 April 2005 the police brought the applicant to the police station because
they had suspected him of having committed the murder. Indeed, the statements collected
by the police from various interviewees earlier that day had thrown a strong
suspicion on the applicant. This suspicion was reinforced after V. had made his
own statements (see paragraphs 8 and 9 above). Accordingly, the Court finds it
established that at the relevant time the police treated the applicant as a
suspect (contrast Smolik v. Ukraine, no. 11778/05, § 54, 19 January 2012).
Also, it is not disputed that on 20 April 2005
the police questioned the applicant before the arrival of a lawyer. Meanwhile,
this questioning resulted in the applicant confessing to the crime. Similarly,
the applicant made self-incriminating statements without the presence of a
lawyer when his arrest was formalised by an investigator from the prosecutor’s office
later on the same date (see paragraphs 10 and 12 above).
The Court considers that, by virtue of the above-mentioned
Court’s principles, the applicant was entitled to have access to a lawyer as
from the first questioning that took place on 20 April 2005. There is no
indication that the applicant waived that right.
The question, therefore, is whether the absence
of a lawyer had been justified by a compelling reason. On the facts, the Court
does not find any compelling reason for restricting the applicant’s right to a
lawyer during that time. The Court further notes that the initial confession,
obtained without a lawyer, was used by the courts for the applicant’s
conviction (see paragraphs 23 and 25 above). In these circumstances the
applicant’s defence rights were prejudiced irretrievably.
There has therefore been a violation of Article
6 §§ 1 and 3 (c) of the Convention in this respect.
III. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3
(d) OF THE CONVENTION
The applicant complained that the courts had ignored
his requests to call and examine V. as a witness.
The relevant parts of Article 6 provide 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:
...
(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. The parties’ submissions
The Government contended that in asking the
domestic courts to call and examine V. as a witness, the applicant had failed
to explain why examination of this witness was necessary for the proper
determination of the case. Meanwhile, the Supreme Court had sufficiently
addressed that issue and explained why witness V. had not been examined by the
courts. The Government maintained that the domestic courts were better placed
to assess the evidence, and emphasised that the courts had not referred to the statements
given by V. during the pre-trial investigation.
The applicant contended that the examination of
witness V. could have affected both the legal characterisation of the crime and
the severity of the punishment. The reasons given in this respect by the
Supreme Court had not been sufficient.
B. The Court’s assessment
The Court reiterates that the right to call
witnesses is not absolute and can be limited in the interests of the proper
administration of justice. Article 6 § 3 (d) does not require the attendance
and examination of every witness on the accused’s behalf; its essential aim, as
indicated by the words “under the same conditions”, is full equality of arms in
the matter (see Vidal v. Belgium,
judgment of 25 March 1992, Series A no. 235-B, pp. 32-33, § 33). An
applicant claiming that his right to obtain the attendance and examination of a
defence witness has been violated should show
that the examination of that person was necessary for the establishment of the truth and that the refusal to call that witness was
prejudicial to his defence rights (see Guilloury
v. France, no. 62236/00, § 55, 22 June 2006). Although it is
normally for national courts to assess the evidence before them as well as the
relevance of the evidence which defendants seek to adduce, there might be
exceptional circumstances that could prompt the Court to conclude that the
failure to hear a person as a witness was incompatible with Article 6 (see Destrehem v. France, no. 56651/00,
§ 41, 18 May 2004, and Bricmont
v. Belgium, 7 July 1989, § 89, Series A no. 158).
In the present case, the applicant complained
that the courts had failed to examine V., who had been accompanying him on the
evening of 19 April 2005 and the following day. The applicant contended
that the examination of V. could have changed the outcome of the criminal case.
. The
Court notes that the applicant’s fifteen-minute communication with the victim,
which resulted in the latter’s death, was not observed by V. Therefore any
statements that V. might have made would not have been decisive in establishing
the circumstances that might have had impact on the legal characterisation of
the case or the severity of the punishment.
In refusing this complaint, the Supreme Court had
noted that V.’s statements had not been relevant to the
applicant’s alibi, as the applicant and L. had been alone at the time of the
crime; the applicant had rejoined V. fifteen minutes after communicating with
L. In the Court’s opinion, this reasoning sufficiently addressed the matter and
fairly suggested that the witness sought by the applicant would not have
provided any important information that might be relevant for the applicant’s
defence position.
. Given
that domestic courts are better placed to assess the relevance of
evidence, the Court considers that the facts of the instant case do not present
an exception that should prompt the Court to conclude that the failure to hear
V. as a witness was incompatible with Article 6 §§ 1 and 3 (d) 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.
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant complained that the courts had convicted
him on the basis of a self-incriminatory statement obtained by ill-treatment.
He also complained that his absence from the hearing before the Court of Appeal
had impaired his right to defend himself in person and violated the principle
of equality of arms. He relied on Article 6 § 1 of the Convention.
A. The parties’ submissions
The Government argued that the applicant’s complaint,
that his confession to the crime had been obtained by means of ill-treatment,
was unfounded as Article 3 of the Convention had not been violated.
As to the complaint relating to the applicant’s absence
from the appeal hearing, the Government first contended that the applicant had misled
the Court by claiming that he had notified the Court of Appeal of his wish to
participate in the appeal hearing. They had produced copies of the applicant’s actual
submissions to the Court of Appeal that contained no such request. They further
contended that the applicant had failed to raise those issues in his cassation
appeal to the Supreme Court. As alternative, they contended that the applicant had
submitted his complaint to the Court outside the six-month time-limit, which
should have been calculated from the date of the alleged violation of his
rights.
The applicant disagreed and maintained his
complaints.
B. The Court’s assessment
The Court has rejected the applicant’s
allegations of ill-treatment as inadmissible. Accordingly, no issue under
Article 6 of the Convention can arise in connection with his contention
that he was convicted on the basis of evidence obtained by means of
ill-treatment. This complaint is therefore manifestly ill-founded.
As regards the applicant’s complaints relating
to the proceedings before the Court of Appeal, in the initial submissions to
the Court the applicant provided a handwritten uncertified copy of his appeal,
which contained a request to be present at the appeal hearing. However, the
Government submitted different copies of the applicant’s appeal, with
appendices and cover letters, which bear signatures attesting their receipt by
the Court of Appeal. In these circumstances the Court will rely on the material
submitted by the Government, which does not suggest that the applicant
requested that his appearance before the Court of Appeal be ensured.
Likewise, the case file does not suggest that
the applicant raised those issues before the Supreme Court: he did not complain
that he was not summoned for the appeal hearing; nor did he contend that the
Court of Appeal had not respected the principle of equality of arms.
Accordingly, these issues are inadmissible on the grounds of failure to exhaust
domestic remedies.
It follows that this part of the application
should be declared inadmissible, pursuant to Article 35 §§ 1, 3 (a),
and 4 of the Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant complained that his detention during
the investigation had contradicted Article 5 of the Convention. He complained under
Article 6 of the Convention that he had not had sufficient time to examine the
case file before the trial, the legal aid lawyer had failed to provide him with
effective legal representation, and the Supreme Court had considered his
cassation appeal in private. The applicant complained under Article 6 §§ 1
and 2 and Articles 13 and 17 of the Convention that the case file had been
falsified by the investigator, and that the courts had failed to assess the
evidence properly and to establish the facts correctly; the civil claim within
the criminal case had been determined wrongly. Relying on Article 14 of
the Convention, the applicant contended that the domestic authorities had discriminated
against him on the grounds of his nationality by failing to provide him with
appropriate responses to his requests. Lastly, the applicant alleged that,
contrary to Article 34 of the Convention, he had not been provided with copies
of the materials of the case file that were necessary for him to exercise his
right to apply to the Court.
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.
VI. 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 30,000 euros (EUR) in
respect of non-pecuniary damage.
The Government contended that the claim had been
unfounded.
The Court considers that the applicant must have
suffered distress and anxiety on account of the violation found. Ruling on an
equitable basis, as required by Article 41 of the Convention, it awards the
applicant EUR 2,400 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 2,872 for the
costs and expenses incurred before the Court.
The Government considered this claim
unsubstantiated and excessive.
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, regard being had to the
documents in its possession and the above criteria, the Court considers it
reasonable to award, in addition to the legal aid granted, the sum of EUR 700,
plus any tax that may be chargeable thereon, to reimburse the fees and expenses
of the applicant’s lawyer. The amount shall be paid directly into the bank
account of the applicant’s lawyer, Mr Mykhailo Tarakhkalo (see, for example, Hristovi
v. Bulgaria, no. 42697/05, § 109, 11 October 2011, and Singartiyski and Others v. Bulgaria, no. 48284/07, § 54, 18 October
2011).
C. Default interest
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 concerning the lack
of access to a lawyer (Article 6 §§ 1 and 3 (c) of the
Convention) 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, the following
amounts, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR 2,400 (two thousand four hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 700 (seven hundred euros), plus any tax
that may be chargeable, in respect of costs and expenses to the applicant, to
be paid into the bank account of the applicant’s lawyer, Mr. M. Tarakhkalo;
(b) that from the expiry of the above-mentioned
three months until settlement, simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
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
