FIFTH SECTION
CASE OF
KHAYROV v. UKRAINE
(Application no.
19157/06)
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 Khayrov 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.
19157/06) 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 Ramil Kamilyevich Khayrov (“the
applicant”), on 26 April 2006.
The applicant was represented by his brother, Mr Rail
Khayrov. 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 of violations of the privilege
against self-incrimination, the right to have a lawyer and the right to examine
a witness. The applicant also complained of a lack of medical treatment during his
detention.
On 14 February 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 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 1968 and is currently
serving a prison sentence.
A. Criminal proceedings against the applicant
On the evening of 3 March 2004 the applicant and
two of his acquaintances, H. and L., had a party in L.’s flat. They drank large
quantities of alcohol. At some point a fight broke out among them, which
resulted in H. being stabbed and suffocated.
At about 10 p.m. that evening the police
found the body of H. in the flat. They also found the applicant drunk and
asleep in the flat. The police decided to arrest the applicant on suspicion of
having killed H.
At the police station the applicant was given an
explanation of the provisions of Article 63 of the Constitution and then
questioned on account of the incident. The applicant stated that during the
party he was repeatedly humiliated by H. At certain point the applicant lost
his patience and started to beat H. to the extent that H. lost his
consciousness. However, L. considered that it had not been enough for H. and killed
him. After that L. left the flat and the applicant fell asleep. The questioning
session was carried out by police officers without a lawyer being present.
At 2.30 a.m. on 4 March 2004 an investigator from
the prosecutor’s office prepared an arrest report in respect of the applicant. The
applicant’s defence rights were explained to him by the investigator, including
the right to remain silent and the right to have a lawyer. The applicant signed
the relevant explanatory note stating that he did not need the assistance of a
lawyer. The investigator accepted the waiver of legal assistance by issuing a
separate ruling. The ruling provided that the applicant had refused legal
assistance as he did not need it and entirely trusted the investigative authorities.
According to the applicant, that waiver was
given by him as a result of psychological pressure exercised by the police
officers.
Between 9.30 a.m. and 10.55 a.m. on 4 March 2004
the applicant was questioned by the investigator. The applicant stated that it
had been L. who had killed H.
At 12.50 p.m. on 4 March 2004 the investigator
arrested L. on suspicion of having killed H. During questioning, L. explained
that he had gone out of the flat to buy some more alcohol and, while he was
away, the applicant had killed H.
According to the applicant, on 6 March 2004 he
was beaten up by police officers for the first time with the purpose of making
him confess to the murder of H. The applicant felt ill and therefore demanded a
medical examination.
On the same date a forensic medical expert
examined the applicant. According to the report issued by that expert, the
applicant had sustained an abrasion to his chest, which was considered to be a
light injury that could have been inflicted seven to ten days before the
examination; and during the examination the applicant had stated that he had had
a fight with H. and that after his arrest he had not been beaten by anyone.
Again on the same date the Bakhchysaray District
Court (the “District Court”) ordered the applicant’s pre-trial detention for
two months.
On 7 March 2004 the applicant confessed to the
murder. According to the applicant, he wrote the confession after he had been
beaten up by a police officer again.
On the same date the investigator carried out a
confrontation between the applicant and L., in the course of which the
applicant admitted his guilt. Following this investigatory action L. was
released.
The investigator further questioned L.’s
acquaintances, the seller of the alcohol, and other individuals who might have known
something about the events in question. Expert examinations were carried out.
The knife did not have any fingerprints on it.
On 13 March and 26 April 2004 the applicant was
questioned as an accused. He stated that he did not need a lawyer at that time
and referred to his statements given during the confrontation with L.
On 27 April 2004 the investigation was completed
and the case was sent to the District Court for trial.
On 14 June 2004 the applicant complained to the
prosecutor’s office on account of ill-treatment by the police officers. In his
complaint the applicant alleged that immediately after his arrest he had been
beaten up by the police officers, who had also threatened to kill him. Allegedly,
they had further forced him to confess to the murder.
On 6 July 2004, at the request of the applicant,
his brother was admitted to the proceedings as defence counsel.
When examined by the District Court, the
applicant denied any involvement in the crime. He stated that he had been
subjected to ill-treatment and that his right to a lawyer had been breached.
According to the applicant, he also orally requested that L. be examined by the
court. The request was refused.
During the trial the District Court examined the
evidence in the file. It did not question L. but read out his statements given during
the pre-trial investigation.
On 8 July 2004 the District Court found the
applicant guilty of having murdered H. and sentenced him to ten years’
imprisonment. In its findings the District Court relied on the applicant’s
confession and the other self-incriminating statements given by him during the
investigation. It also referred to L.’s statements given during the
investigation, including those given at the confrontation with the applicant,
to the forensic medical examination establishing the cause of H.’s death, and to
other indirect evidence.
The applicant appealed,
claiming that the District Court had failed to assess the evidence properly and
had misinterpreted the facts. In particular, the applicant asserted that the
District Court had failed to pay due attention to the fact that his submissions
during the trial had contradicted L.’s statements and that it had not
considered whether L. might have committed the murder. The applicant further
contended that his self-incriminating statements had been obtained through
ill-treatment and in breach of his right to legal assistance. He asserted that
his ill-treatment had been evidenced by the forensic medical report of 6 March
2004.
On 5 October 2004 the Court of Appeal of the
Autonomous Republic of Crimea (“the Court of Appeal”) considered the applicant’s
appeal and dismissed it as unsubstantiated. According to the applicant, during
the appeal proceedings he was assisted, in addition to the assistance provided
by his brother, by a legal-aid lawyer.
In its decision the Court of Appeal noted that
the applicant’s guilt had been well established by the District Court and his
contention of having been ill-treated by the police was unfounded. In
particular, the forensic medical report of 6 March 2004 suggested that the
abrasion on his chest had been sustained well before his arrest. As to the absence
of legal assistance during the investigation, the court noted that the case
file contained waivers of the right to legal assistance signed by the
applicant.
The applicant appealed
on points of law, claiming in particular that: he had been beaten up by police
officers to make him confess to the murder; his defence rights had not been assured
during the investigation; the lower courts had failed to question all the
witnesses and had not examined all the material and documentary evidence; and
the courts had not verified whether L. might have committed the murder.
On 17 July 2005 the prosecutor’s office refused
to open an investigation in respect of the alleged ill-treatment of the
applicant.
On 22 November 2005 the Supreme Court considered
the applicant’s appeal on points of law and dismissed it as unsubstantiated. It
found that the trial court had legitimately convicted the applicant on the
basis of his self-incriminating statements, which had been further corroborated
by L.’s statements and other indirect evidence. The Supreme Court did not find
any procedural violations which could give grounds for quashing the decisions
of the lower courts.
On 6 June 2006 the applicant asked the Supreme
Court for an extraordinary review of his case.
On 22 June 2006 the request was refused.
B. The applicant’s treatment for tuberculosis during
his detention
Following his arrest on 3 March 2004, the
applicant was placed in the Bakhchysaray Temprorary Detention Centre (“the
ITT”), where he was allegedly held with other detainees suffering from
tuberculosis.
On 10 March 2004 the applicant was diagnosed
with infiltrative tuberculosis of the upper part of the right lung.
On 16 March 2004 the applicant was transferred
to the Simferopol Pre-Trial Detention Centre (“the SIZO”).
On 5 April 2004 the applicant was diagnosed with
tuberculosis of the right lung and registered as a patient at the tuberculosis
dispensary.
On 27 April 2004 the doctor recommended that the
applicant be provided with anti-tuberculosis treatment at a specialised
hospital. The applicant stayed in the SIZO, where he was examined and treated at
the medical unit.
On 23 November 2004 the applicant was moved to Simferopol no. 102 Prison (“Simferopol Prison”), where he was regularly X-rayed and provided
with the following courses of medical treatment:
- from 1 April to 31 May 2005 (treatment with isoniazid);
- from 20 September to 10 October 2005 (treatment
with isoniazid);
- from 3 March to 31 May 2006 (treatment with isoniazid);
- from 1 September to 30 November 2006 (treatment
with isoniazid and pyrazinamide);
- from 3 March to 31 May 2007 (treatment with isoniazid
and pyrazinamide);
- from 3 September to 30 November 2007 (treatment
with isoniazid and pyrazinamide);
- from 3 March to 30 May 2008 (treatment with isoniazid
and ethambutol);
- from 1 September to 28 November 2008 (treatment
with isoniazid and ethambutol);
- from 2 March to 29 May 2009 (treatment with isoniazid
and ethambutol);
- from 3 September to 30 November 2009 (treatment
with isoniazid and ethambutol);
- from 3 March to 31 May 2010 (treatment with isoniazid
and ethambutol); and
- from 1 October to 28 November 2010 (treatment
with isoniazid and ethambutol).
According to the Government, the applicant was
X-rayed on 5 August 2010 and his chest did not display any signs of disease.
II. RELEVANT DOMESTIC LAW
Constitution of 28 June 1996
The relevant provisions of the Constitution read
as follows:
Article 59
“Everyone has the right to legal assistance. Such assistance is
provided free of charge in cases envisaged by law. Everyone is free to choose
the defender of his or her rights.
In Ukraine, advocacy acts to ensure the right
to mount a defence against an accusation, and to provide legal assistance during
the determination of cases by courts and other State bodies.”
Article 63
“A person shall not bear responsibility for refusing to testify
or to explain anything about himself or herself, members of his or her family
or close relatives in the degree determined by law.
A suspect, an accused, or a defendant shall have the right to mount
a defence.
A convicted person shall enjoy all human and citizens’ rights,
except for the restrictions determined by law and established in court judgments.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION ON ACCOUNT OF ILL-TREATMENT BY THE POLICE
The applicant complained under Article 3 of the
Convention that following his arrest he had been ill-treated by police officers
and that there had been no effective investigation in that respect.
Article 3 of the Convention reads as follows:
“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 failed
to exhaust domestic remedies because he had not challenged, either before the courts
or a superior prosecutor, the decision of 17 July 2005 by which the prosecutor’s
office had refused to open an investigation in connection with his allegations
of ill-treatment.
The Government further asserted that the
complaint of a substantive violation of Article 3 of the Convention was not
supported by any evidence. The applicant’s reference to the forensic medical
expert’s report of 6 March 2004 was irrelevant, as the report had only
evidenced a light injury which had clearly pre-dated the time of his arrest and
detention. Moreover, his complaints to the domestic authorities and the Court had
been too vague and inconsistent.
As regards the procedural limb of Article 3 of
the Convention, the Government contended that the applicant had not raised any
arguable complaint of ill-treatment before the domestic authorities which would
have required them to carry out an effective investigation in accordance with
Article 3 of the Convention. They emphasised that the allegations made before
the domestic authorities had been very general and wholly unsubstantiated.
Moreover, the absence of any evidence of ill-treatment had been subsequently
confirmed by the enquiries carried out by the prosecutor’s office and the
domestic courts.
The applicant disagreed with the Government’s
statements. He maintained that he had not been able to challenge the decision of
17 July 2005, as he had not been informed of it. He further insisted that he had
lodged many complaints with the domestic authorities on account of his
ill-treatment. He had not described the alleged ill-treatment in detail as he had
considered it unimportant. Nevertheless, the issue had been raised before the
domestic authorities and the rule of exhaustion of domestic remedies had been
complied with.
The applicant further claimed that he had been
ill-treated on 6 and 7 March 2004 and that the expert’s opinion of 6 March
2004 had wrongly determined the time when he had sustained the chest injury.
He also argued that the domestic authorities had
failed in their obligation to carry out an effective investigation of the
matter.
B. The Court’s assessment
As regards the Government’s contention that the
applicant failed to challenge the decision of 17 July 2005 by which the prosecutor’s
office refused to open an investigation in respect of his allegations of
ill-treatment, the Court notes that there is no evidence that the applicant was
actually informed of that decision, let alone given a copy thereof. It is
therefore doubtful that the applicant could have lodged an appeal against that
decision. Moreover, the Court has previously dealt with a similar objection and
concluded that the remedies indicated by the Government had not been proved to
be capable of providing adequate redress in respect of complaints of
ill-treatment by the police (see Kaverzin v. Ukraine, no. 23893/03, §§ 93-98, 15 May 2012).
The Court does not find any reason to hold otherwise in the present case and
finds that the applicant was not obliged to use the appeal procedures in
question. The Government’s objection in this respect should therefore be
dismissed.
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). 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 detailed in his
submissions to the Court. He did not elaborate on the nature of the
psychological pressure exerted on him and why it was serious enough to amount
to ill-treatment prohibited by Article 3 of the Convention. Neither did he lay
down the exact sequence of events on 6 and 7 March 2004, the dates on which he
was allegedly physically ill-treated. The applicant did not describe with
sufficient detail the methods of physical ill-treatment used against him and
did not mention the specific circumstances in which the alleged ill-treatment
took place.
Furthermore, this vague complaint before the
Court does not correspond to his complaints of ill-treatment raised before the
domestic authorities, which also lacked precision and detail. In particular, in
his complaint to the prosecutor’s office of 14 June 2004, which appears to
be the most detailed, the applicant submitted that he had been beaten up
immediately after his arrest, that is on 3 March 2004, while before this Court
the applicant stated that he had been beaten on 6 and 7 March 2004.
Besides that, these inconsistent allegations are
not supported by any evidence. On the contrary, the medical examination of 6
March 2004, which was carried out at the applicant’s request immediately after
the alleged beating on the same day, recorded only one light injury which cannot
be attributed to the State as its origin clearly predated the applicant’s
arrest. The Court does not find any reason to doubt the credibility of the
expert’s findings, especially given that the applicant never questioned the
expert’s impartiality at the domestic level. Moreover, it should not be
overlooked that the applicant apparently had a serious fight with H. before he
came into the hands of the police.
Lastly, the material in the file suggests that
it was only on 14 June 2004 that the applicant complained for the first time to
the domestic authorities on account of the alleged ill-treatment. This delay of
more than three months undermined the chances of collecting any evidence in
support of physical, let alone psychological, ill-treatment. However, there is
no reasonable justification for why the applicant took such a long time to make
a complaint.
In these circumstances the Court, having regard
to the available material, considers that the present complaint is too vague,
inconsistent, 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 trigger the State’s procedural obligation under Article 3 of
the Convention to carry out an effective investigation of ill-treatment.
Accordingly, the complaint should be rejected as
inadmissible, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION ON ACCOUNT OF A LACK OF MEDICAL ASSISTANCE DURING DETENTION
The applicant complained that that his medical
treatment for tuberculosis had been insufficient during his detention.
The Court has decided to examine the complaint
under Article 3 of the Convention.
A. The parties’ submissions
The Government contended that the applicant had failed
to complain to a prosecutor on account of insufficient medical care and thus
had not exhausted domestic remedies.
They further maintained that the applicant had
been provided with adequate medical treatment during his detention and provided
medical records in support of their contentions. They emphasised that the
applicant could not have been infected with tuberculosis in the ITT, where he had
first been diagnosed with tuberculosis, as the incubation period for the tuberculosis
bacillus takes from seven weeks to several years, while the applicant had been diagnosed
with that illness several days after his arrest.
The applicant insisted that he had complied with
the rule of exhaustion of domestic remedies, as he had raised the matter before
the prison authorities. He further insisted that during his detention in the ITT
and the SIZO he had not been provided with adequate medical treatment.
B. The Court’s assessment
As to the Government’s plea of non-exhaustion,
the Court notes that it has rejected similar objections
in a number of other cases, where the complaints concerned problems of a
structural nature in the domestic prison system in question (see, for
instance, Melnik v. Ukraine, no. 72286/01, §§ 69-71, 28 March 2006;
Koktysh v. Ukraine, no. 43707/07, § 86,
10 December 2009; Pokhlebin v. Ukraine,
no. 35581/06, §§ 41-42, 20 May 2010; and Logvinenko v. Ukraine,
no. 13448/07, §§ 57-58, 14 October 2010). Similarly, in the present case the
Court does not consider that the remedy in question could have effectively dealt
with the applicant’s complaint. At the same time, the domestic authorities were
sufficiently aware of the applicant’s health problems. Accordingly, the complaint
cannot be rejected on the ground of non-exhaustion of domestic remedies. The Government’s
objection to this effect should be dismissed.
The Court further notes that the applicant’s
complaint concerning a lack of medical assistance in the ITT and the SIZO
refers to the period which ended with his transfer to Simerfopol Prison. Therefore
the period of the applicant’s detention prior to 23 November 2004 falls outside
the six-month time-limit within which an applicant is required to lodge a
complaint (see, for example, Malenko v. Ukraine, no. 18660/03, § 40,
19 February 2009, and Belyaev and Digtyar v. Ukraine, nos. 16984/04 and 9947/05, § 29, 16
February 2012).
The Court further notes that the applicant did
not extend this complaint to the issue of sufficiency of medical treatment at
Simferopol Prison. In any event, the Court is satisfied with the Government’s
submissions in this regard and does not find any indication of a violation of
Article 3 of the Convention during the applicant’s detention in that prison.
In the light of these considerations, the Court
dismisses this complaint as inadmissible, pursuant to Article 35 §§ 1,
3 (a) and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 §§ 1
AND 3 (c) OF THE CONVENTION
The applicant complained under Article 6 §§ 1
and 3 (c) of the Convention that he had not been provided with a lawyer at the
initial stage of the proceedings.
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:
...
(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 parties’ submissions
The Government submitted that while having his
rights under Article 63 of the Constitution explained to him on 3 March
2003, the applicant had not asked to be provided with a lawyer. Moreover,
during questioning that day the applicant had not made any self-incriminating
statements.
The Government further stated that on 4 March
2003 the applicant had expressly refused legal assistance after having had his
defence rights explained to him in detail. Subsequently, throughout the
investigation, he had confirmed the waiver of his right to a lawyer. Once he had
asked the domestic authorities to admit his defence counsel, that request had
been granted immediately.
The applicant disagreed and contended that his refusals
from legal assistance had not been genuine and insisted that he should have been
provided with a lawyer as from the first police questioning session.
2. The Court’s assessment
The Court reiterates that Article 6 § 1 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
3 March 2004 the police brought the applicant to the police station because
they suspected him of having committed the murder. The Court, for its part,
does not find any indication that the authorities treated him as anything other
than a suspect (contrast Smolik v. Ukraine, no. 11778/05, § 54, 19 January 2012).
The Court next observes that it was on 3 March
2004 that the police authorities questioned the applicant for the first time on
account of the murder.
Accordingly, by virtue of the above-mentioned
principles of the Court’s case-law, the applicant was entitled to have access
to a lawyer as from the interrogation which took place on 3 March 2004. However,
there is no indication that he was given access to a lawyer on that date.
The Court further reiterates that a waiver of a right guaranteed by the Convention - in so far as it
is permissible - 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, and Hermi v. Italy [GC], no. 18114/02, § 73, ECHR
2006-XII). However, on 3 March 2004 the applicant did not sign any document
waiving his right to a lawyer. The fact that the applicant was notified of the
general principles set out in Article 63 of the Constitution, which
predominantly concerns the right to remain silent, is not sufficient for an
assumption to be made that the applicant, having failed to expressly assert his
right to a lawyer, waived that right.
The question therefore is whether the absence of
a lawyer was 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 the first questioning of him as a suspect on 3 March 2004. Meanwhile,
during that questioning session the applicant made statements which gave
serious grounds to consider him at least as an accomplice to the murder. In
particular, his statements suggested that he had a motive to kill H. and the
applicant’s violent actions in respect of H. supported the existence of that
motive. Therefore, in the context of the applicant’s story his final remark
that it had been L. who had decided to kill H. could not shade off the
applicant. It follows that the initial statements, given by the applicant
without a lawyer, affected his position in the further criminal proceedings.
Moreover, in the absence of any court ruling as to the role of those statements
which were not expressly excluded from the case file, the Court considers that
they had a bearing on the applicant’s conviction.
The above considerations are sufficient for the
Court to conclude that there has been a violation of Article 6 §§ 1
and 3 (c) of the Convention in this respect. In the light of this finding the
Court does not need to examine whether the applicant’s right to legal
assistance was violated at the subsequent stages of the proceedings.
IV. ALLEGED VIOLATION OF ARTICLE 6 §§ 1
AND 3 (d) OF THE CONVENTION
Relying on Article 6 §§ 1 and 3 (d)
the applicant complained that the courts had failed to call and examine L. 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. Admissibility
The Government submitted that the complaint was not
compatible with the Court’s competence ratione personae, in so far as
the applicant had failed to show that he was a victim of the alleged violation.
They contended that there was no indication that the applicant had asked the
trial court to call and examine L. as a witness. Even if the applicant could be
considered as a victim of the alleged violation, he had not complained before
the higher courts that the trial court had failed to call and examine L. Therefore,
the complaint was also inadmissible on the ground of non-exhaustion of domestic
remedies.
The applicant disagreed and insisted that he was
a victim of the alleged violation and that he had sufficiently raised the
complaint before the domestic courts.
84. The Court reiterates that the word
“victim” in the context of Article 34 of the Convention denotes the person
directly affected by the act or omission in issue, the existence of a violation
of the Convention being conceivable even in the absence of prejudice (Brumărescu
v. Romania [GC], no. 28342/95, § 50, ECHR 1999-VII). In the present
case the applicant complained that the domestic courts failed to examine L.,
who could give a lot of details about the incident which gave rise to the
applicant’s prosecution and conviction. The case file suggests that L. was not
examined by the courts in person. Therefore, the Court is satisfied that the
applicant may claim to be a victim of the alleged violation of his rights under
Article 6 §§ 1 and 3 (d) of the Convention.
The Court further notes that it is evident from
the applicant’s appeals submitted before the higher courts that he was
dissatisfied with the fact that L. had not been questioned in court. Before the
Court of Appeal the applicant specifically contended that the trial court had
failed to pay due attention to the fact that his submissions during the trial had
contradicted L.’s statements and that it had not considered whether L. might
have committed the murder (see paragraph 26 above). In his appeal on points of
law to the Supreme Court, the applicant complained that the lower courts had
failed to question all the witnesses (see paragraph 29 above). Given the
substance of the applicant’s appeals, the Court considers that the applicant sufficiently
raised the present complaint before the higher courts and thus exhausted the
domestic remedy in question.
For these reasons, the Court rejects the
Government’s objections. It 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
The Government submitted that the applicant had
been given an opportunity to question L. at the pre-trial stage during the
confrontation which was carried out on 7 March 2004. Therefore, the applicant’s
right to examine that witness had not been infringed.
The applicant disagreed.
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,
25 March 1992, § 33, Series A no. 235-B). An applicant claiming a
violation of his right to obtain the attendance and examination of a defence witness
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 the
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 which 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 Court notes that H. was
murdered in a flat where he was drinking alcohol with the applicant and L.
Nobody else was present in the flat at that time. Therefore, the evidence given
by L. was of particular importance for the establishment of the truth.
Despite the importance of that witness, the
domestic courts did not call and question him and relied on his statements made
during the pre-trial investigation. In so doing, the courts did not give any reason
as to why L. did not need to be examined in court. In the absence of any such
reason, the Court is unable to conclude that the failure to examine L. in
person was justified.
Moreover, the applicant, having denied any involvement
in the crime, complained before the domestic courts that L. might have been the
real perpetrator. This allegation, which was a pertinent one, required the
domestic courts to address it in detail and to dispel any doubts as to the
reliability of L.’s statements. However, the courts ignored this contention
without providing any satisfactory explanation.
Even assuming that the courts refused to examine
L. for the reason that the applicant had been given a chance to cross-examine that
witness during the confrontation carried out by the investigator, the Court
notes that that confrontation was carried out at an earlier stage of the
proceedings when the applicant was not assisted by defence counsel. The
confrontation was only recorded on paper, which would not have allowed the
judges to assess the demeanour of the parties to the confrontation and properly
form their own opinion as to the reliability of the statements made during that
investigatory action (see, mutatis mutandis, Vladimir Romanov v. Russia, no. 41461/02, § 105, 24 July 2008).
The above considerations are sufficient for the
Court to conclude that there has been a violation of Article 6 §§ 1 and
3 (d) of the Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant complained under Article 6 § 1 of
the Convention that the courts had convicted him on the basis of evidence
obtained through ill-treatment. The applicant also complained that he had not
been given sufficient time to prepare for the trial, that his legal-aid lawyer
had not represented him effectively, and that his request for extraordinary
review of the case had been refused unfairly. The applicant relied on Article 6
§§ 1 and 3 (b) and (c) of the Convention.
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 through ill-treatment.
This complaint is therefore manifestly ill-founded.
The Court has examined the remainder of the
applicant’s 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 100,000 euros (EUR) in
respect of non-pecuniary damage.
The Government maintained that the claim was
unsubstantiated and excessive.
The Court considers
that the distress and frustration caused to the applicant cannot be compensated
for by the mere finding of violations of Article 6 §§ 1 and 3 (c) and (d) of
the Convention. Having regard to the nature of the issues in the present case
and making its assessment on an equitable basis, the Court awards the applicant
EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be
chargeable.
B. Costs and expenses
The applicant also claimed EUR 200 for costs
and expenses incurred before the domestic authorities and the Court.
The Government considered this claim
unsubstantiated.
In the present case, no evidence has been
presented concerning the costs and expenses claimed. The Court therefore
rejects the claim.
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 complaints concerning lack of
access to a lawyer (Article 6 §§ 1 and 3 (c) of the Convention) and the
courts’ failure to examine a witness (Article 6 §§ 1 and 3 (d)
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 that there has been a violation of Article 6 §§ 1
and 3 (d) of the Convention;
4. 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 3,000 (three
thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary
damage, to be converted into the 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;
5. 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
