FIFTH SECTION
CASE OF
YEROKHINA v. UKRAINE
(Application no.
12167/04)
JUDGMENT
STRASBOURG
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 Yerokhina 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.
12167/04) against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mrs Elena Vyacheslavovna Yerokhina (“the
applicant”), on 10 March 2004.
The applicant was represented by Mr G.M.
Avramenko, a lawyer practising in Chernihiv. The Ukrainian Government (“the
Government”) were represented by their Agent, Mr N. Kulchytskyy.
The applicant alleged, in particular, that she
had been subjected to psychological ill-treatment and that there had been no
effective investigation in that respect. The applicant further complained of
violations of the right to have a lawyer and of the right to a fair trial.
On 12 January 2010 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
A. Background to the case
The applicant was born in 1963 and lives in Chernihiv.
The applicant is a single woman and for many years she maintained friendly
relationships with Z. and her parents.
In 1999 the flat where Z. and her parents lived was
robbed and Z.’s mother was killed. After it had been found that the crime had
been committed by certain male perpetrators, the investigation was stayed as the
culprits could not be identified.
B. Murder of Z. and ensuing criminal proceedings
On 10 August 2001 Z. was found dead in the flat
with several knife wounds.
On 11 August 2001 the Chernihiv Prosecutor’s
Office (“the prosecutor’s office”) instituted criminal proceedings concerning Z.’s
murder.
On 17 August 2001 the applicant was questioned as
a witness in respect of the murder. The applicant noted that she had been
friend with Z. and stated that she did not know who might have killed her.
On 3 November 2001 the applicant was arrested on
suspicion of the murder of Z. She was questioned by the investigator of the prosecutor’s
office between 11.10 a.m. and 3.15 p.m., following which a written record
of the interview was prepared, which was two pages long. According to the record,
the applicant’s right to remain silent under Article 63 of the Constitution had
been explained to her, following which she denied any involvement in the crime.
At 3.30 p.m. an arrest report was prepared. At
the same time the investigator explained to the applicant her rights to a
lawyer and to remain silent. The applicant signed the record and wrote as
follows: “at the present moment I refuse the services of defence counsel”. The
investigator accepted this waiver by issuing a separate ruling.
After the questioning session, the applicant was
placed in the local temporary detention centre, where she allegedly suffered as
a result of a lack of appropriate sanitary and hygienic conditions; the cell
was dark, damp and dirty; the water supply was irregular.
Between 3 and 5 November 2001, the applicant was
regularly visited by the investigator and police officers, who allegedly
compelled her to confess to the murder. According to the applicant, they explained
to her that if she confessed to the crime and cooperated with the investigation
they would arrange her release under an obligation not to abscond, she would
not be dismissed from her job, and they would mitigate her responsibility to
the extent of getting her released from imprisonment. On the contrary, if she
continued claiming innocence, she would in any event be charged with the murder
as, in the absence of any alibi, no one would believe her. They would also arrange
for her to have the worst cell in the pre-trial detention centre and
subsequently in prison. The transportation to the prison would be the most horrible
experience.
In the course of these discussions, the
applicant was allowed to telephone her friend M. The applicant asked M. to find
a lawyer. Following the conversation, M., together with P. (the applicant’s
relative), hired a lawyer for the applicant.
On 5 November 2001 the lawyer requested the
prosecutor’s office to give him access to the applicant. As he could not find
the investigator in charge of the applicant’s criminal case, he gave the
relevant authorisation document to another investigator and asked the latter to
pass it on to the investigator dealing with the applicant’s case.
On 5 November 2001 the applicant, assuming that
her friend had not found a lawyer, wrote a confession to the murder of Z. According
to the applicant, she plotted the story with the assistance of police officers,
after acceding to their demands that she take on the guilt.
The same day the confession was included in the
record of the interview which was conducted by the prosecutor’s office investigator,
without a lawyer. Before the interview the applicant had had her rights under
Article 63 of the Constitution explained to her.
On 6 November 2001 the applicant confirmed
her self-incriminating statements during a reconstruction of the crime: this
too was conducted without a lawyer.
On the same day the court extended the applicant’s
preliminary detention in the local temporary detention centre to ten days. The
applicant was further examined by a forensic medical expert, who did not find
any injuries on her body.
On 7 November 2001 the applicant was informed
that her friend had found a lawyer for her. At the applicant’s request, the
investigator admitted the lawyer to the case and the lawyer was allowed to see
the applicant for the first time.
On the same day the applicant retracted her
confession and complained to the prosecutor that her self-incriminating
statements and waiver of the right to a lawyer had been given as a result of
psychological pressure by the police officers and the prosecutor’s office. She
also claimed that the investigator had not informed her that M. had found the
lawyer for her and that the latter had been trying to see her as from 5 November
2001.
On 9 November 2001 the head of the investigation
department of the prosecutor’s office informed the applicant that her complaint
of psychological pressure by the investigator was unsubstantiated; her allegations
that pressure had been exerted on her by police officers would be examined in the
course of the pre-trial investigation.
On the same day the applicant’s lawyer
complained to the prosecutor that between 5 and 7 November 2001 he had been unlawfully
impeded from gaining access to the applicant.
On the same day the applicant applied to the
investigator for release. She claimed that she had not committed any crime and had
given the self-incriminating statements as a result of psychological pressure
exercised on her by police officers. The investigator replied that her
submissions would be examined in the course of the pre-trial investigation.
On 13 November 2001 the Desnyanskyy District
Court of Chernihiv (“the District Court”) ordered the applicant’s pre-trial
detention for two months. The applicant was moved to the Chernihiv pre-trial
detention centre.
On 14 November 2001 the head of the
investigation department of the prosecutor’s office, in reply to the lawyer’s
complaint of 9 November 2001, found that there had been no violations in
respect of the lawyer’s delayed access to the applicant. He noted that on 5
November 2011 the lawyer had handed the authority document to an investigator who
was not responsible for the applicant’s case, and the latter only managed to find
the right investigator on 7 November 2001; on the same date the lawyer was
admitted to the case. On 23 November 2001 the lawyer was given the same answer
by the Chernihiv prosecutor.
On 14 December 2001 the investigator opened
criminal proceedings against the applicant for theft of jewellery from Z. He
joined both cases against the applicant in one set of proceedings.
On 18 December 2001 the applicant changed her
lawyer.
On 28 December 2001 the investigator of the
prosecutor’s office issued a decision refusing to open criminal proceedings
against the police officers for abuse of powers in connection with the applicant’s
allegations of psychological ill-treatment and violation of her rights of
defence. The investigator found that the applicant’s allegations against the police
officers had been an attempt to escape criminal responsibility. He further
noted that the police officers were assisting the investigator on a lawful
basis and the medical evidence available in the file suggested that the
applicant had no bodily injuries on the dates concerned.
On 31 January 2002 the District Court extended
the applicant’s pre-trial detention to four months.
On 11 February 2002 the prosecutor’s office investigator
questioned the investigator who had been in charge of the applicant’s case in
November 2001. At the time of the interview he had been transferred, within the
same office, to the position of senior assistant to the prosecutor. The
interviewee explained that he had decided to have the applicant arrested on 3
November 2001, as by that time he had collected sufficient information
suggesting that she might have committed the crime. During the questioning he exerted
no physical or psychological pressure on the applicant, and the self-incriminatory
statements were given by the applicant of her own free will.
On 13 March 2002 the investigator questioned two
police officers, who denied the applicant’s allegations that they had
psychologically attacked her.
On 18 March 2002 the prosecutor’s office investigator
refused to open criminal proceedings against the former investigator in
connection with the applicant’s allegations. The decision was based on the
statements given by the former investigator and the police officers.
In March 2002 the investigation in the applicant’s
case was completed and the case file was referred to the District Court for trial.
On 31 July 2002 the District Court remitted the
case for additional investigation after finding that the investigation had not
been thorough and that the applicant’s allegations about violation of her
rights had not been properly examined.
On 4 November 2002 the Supreme Court quashed the
decision of 31 July 2002 as unsubstantiated, and noted that the procedural
issues indicated by the first-instance court could be resolved during the
trial. The case was therefore remitted to the first-instance court.
During the trial the applicant denied any involvement
in the crimes she was charged with. She complained of psychological
ill-treatment and violation of her rights of defence at the initial stage of
the investigation. The court questioned the police officers and the
investigator concerned, who declared that the applicant had confessed to the
murder without any pressure from them.
On 21 April 2003 the District Court found the
applicant guilty of the murder and theft and sentenced her to ten years’
imprisonment. The court based its judgment on the self-incriminatory statements
given by the applicant without the lawyer on 5 and 6 November 2001. It also
referred to some indirect evidence. The court rejected the applicant’s
allegations of psychological ill-treatment, having regard to the results of
enquiries carried out by the prosecutor’s office and to the statements given by
the police officers and the investigator during the trial. It further found
that there had been no breach of the applicant’s rights of defence at the
initial stage of the proceedings, as the applicant had waived her right to a
lawyer at that time.
The applicant appealed
against the judgement, claiming, inter alia, that her self-incriminating
statements had been made as a result of psychological pressure and in the
absence of a lawyer.
On 11 September 2003 the Chernihiv Region Court
of Appeal (“the Court of Appeal”) upheld the applicant’s conviction, noting, inter
alia, that the District Court had legitimately based its judgment on the
self-incriminatory statements given by the applicant on 5 and 6 November 2001. The
Court of Appeal rejected the applicant’s contentions that there had been psychological
ill-treatment, after examining the available material and after questioning the
investigator and the police officers again. As to the absence of legal assistance
at the time of self-incrimination, the Court of Appeal noted that the applicant
had been given access to a lawyer once she had requested it and the authority
document had been submitted.
A separate opinion given by one of the judges
considering the case was annexed to the decision of the Court of Appeal.
According to the applicant, her lawyer was not provided with a copy of the
separate opinion.
On 15 March 2005 the
Supreme Court endorsed the judgment of 21 April 2003 as substantiated. The
applicant’s contentions that there had been psychological ill-treatment and that
her rights of defence had been violated were rejected as unfounded.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. 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, the advocacy acts to ensure the
right to a defence against accusation, and to provide legal assistance in
deciding cases in 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 a
defence.
A convicted person shall enjoy all human and citizen’s rights,
except for the restrictions as determined by the law and established in the
court judgment.”
B. Code of Criminal Procedure of 28 December 1960
The relevant provisions of the Code can be found
in the judgment in the case of Davydov and Others v. Ukraine (nos.
17674/02 and 39081/02, § 112, 1
July 2010).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that between 3 and 6
November 2001 she had been psychologically attacked and threatened by the
law-enforcement authorities and that there had been no effective investigation
in that respect.
The applicant did not refer to any Convention
provision. The Court decided to examine the complaint under Article 3 of the
Convention, which provides 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’s
complaints under Article 3 were inadmissible. They maintained that the
applicant should have challenged the decisions of 28 December 2001 and 18
March 2002, by which the investigator refused to investigate her allegations of
psychological ill-treatment, under Article 236-1 of the Code of Criminal
Procedure. They further contended that while the above decisions had been taken
in 2001 and 2002 the applicant had applied to the Court in 2004. Accordingly,
the complaints had to be dismissed on the grounds of non-exhaustion of domestic
remedies or failure to comply with the six-month time-limit.
The Government further submitted that the allegations
of psychological ill-treatment were manifestly ill-founded and that Article 3
of the Convention was not applicable, given that the alleged ill-treatment had
not reached the minimum level of severity required by that Convention provision.
In this regard the Government submitted that the applicant had not specified in
sufficient detail the manner and extent of the alleged psychological
ill-treatment and its consequences. However, the fact that the law-enforcement
officers had explained to her the negative legal consequences of the crime
could not be interpreted as treatment prohibited by the Convention. Moreover,
no indications of ill-treatment had been found by the domestic authorities, who
had carried out a thorough examination of the matter.
The applicant disagreed with the Government’s
objections. She claimed that the remedy indicated by the Government had not
been available to her, as copies of the decisions refusing to investigate the
allegations of ill-treatment had not been given to her. She further claimed
that she had raised the issue of ill-treatment before the courts dealing with
her criminal case. She insisted that she had been subjected to treatment
prohibited by Article 3 of the Convention. In support of that contention, the
applicant referred to procedural shortcomings by the authorities in that period,
emphasising that they had failed to provide her with access to a lawyer.
B. The Court’s assessment
The Court
does not need to examine whether the applicant complied with the rule of
exhaustion of domestic remedy and the six-month rule as her complaints under
Article 3 of the Convention are in any
event inadmissible for the reasons set out below.
The Court reiterates that Article 3 of the
Convention prohibits in absolute terms torture and inhuman or degrading
treatment. Ill-treatment must attain a minimum level of severity if it is to fall
within the scope of Article 3. The assessment of this minimum is relative: it
depends on all the circumstances of the case, such as the duration of the
treatment, its physical and mental effects and, in some cases, the sex, age and
state of health of the victim (see Labita v. Italy [GC], no. 26772/95,
§§ 119-20, ECHR 2000-IV).
In assessing evidence, the Court has generally
applied the standard of proof “beyond reasonable doubt” (see Ireland v. the
United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64-65, §
161). However, proof may follow from the coexistence of sufficiently strong,
clear and concordant inferences or of similar unrebutted presumptions of fact
(see Ribitsch v. Austria, 4 December 1995, Series A no. 336, §
34, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR
2000-VII).
. In
the present case the complaint of ill-treatment is limited to the issues of
psychological influence allegedly exerted on the applicant by the
law-enforcement officers. While under certain circumstances this kind of impact
on an individual may amount to ill-treatment, prohibited by the Convention (see
Gäfgen v. Germany [GC], no. 22978/05, §§ 91 and 108, ECHR 2010),
the Court has no material at hand to find that the applicant was subjected to
any psychological attacks or that she had been seriously enough affected for the
threshold of Article 3 of the Convention to have been reached. The alleged lack
of access to a lawyer in that period of time, an issue which the Court shall
examine separately under Article 6 of the Convention, cannot conclusively
support these allegations. Accordingly, the applicant’s complaint of
ill-treatment is 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.
It follows that this part of application should
be declared inadmissible for being manifestly ill-founded, 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 under Article
6 § 1 of the Convention that she had not been given access to a
lawyer at the initial stage of the criminal proceedings against her, and that this
affected the fairness and outcome of those proceedings.
The Court decided to examine these complaints
under Article 6 §§ 1 and 3 (c) of the Convention which 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
The Government submitted that the applicant had
raised the present complaint before the prosecutor’s office, which adopted decisions
of 28 December 2001 and 18 March 2002 refusing to open an investigation in
connection with those allegations in particular. However, the applicant failed
to challenge those decisions under Article 236-1 of the Code of Criminal
Procedure and therefore did not exhaust domestic remedies. As an alternative,
the Government claimed that the applicant had missed the six-month time-limit,
given that the above decisions had been taken in 2001 and 2002, while the
applicant applied to the Court in 2004. The Government further asserted that this
complaint was manifestly ill-founded because the applicant had waived her right
to legal representation on 3 November 2001 and had not asked for it until 7 November
2001.
The applicant maintained that the complaints were
admissible.
2. The Court’s assessment
The Court notes that the applicant raised the present
complaint not only before the prosecutor’s office, but also before the courts
dealing with her criminal case. In particular, she made this complaint before
the Court of Appeal and the Supreme Court (see paragraphs 39 and 42 above). There
is no reason to consider that the applicant should have also used another
remedy suggested by the Government which, moreover, has recently been criticised
by the Court in another context (see Kaverzin v. Ukraine, no. 23893/03, §§ 93-98, 15 May 2012).
Likewise, no issue under the six-month rule arises in the present case. The
Court therefore rejects the Government’s objections in this respect.
The Court further notes that the complaint raises
serious issues requiring an examination on the merits. Therefore, contrary to
the Government’s submissions, 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
The Government submitted that there had been no
violation of Article 6 §§ 1 and 3 (c) of the Convention maintaining
that the complaint about lack of access to a lawyer was inadmissible.
The applicant argued that her right of access to
a lawyer had not been secured by the investigating authorities. In particular,
despite the fact that the prosecutor’s office had received the authority
document from the applicant’s lawyer on 5 November 2001, the applicant’s first
communication with him was only on 7 November 2001, that is after she had
incriminated herself.
2. The Court’s assessment
(a) General principles
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).
A waiver of a right guaranteed
by the Convention - in so far as it is permissible - must not run counter to
any important public interest, must be established in an unequivocal manner and
must be attended by minimum safeguards commensurate to the waiver’s
importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR
2006-II, and Hermi v. Italy [GC], no. 18114/02, § 73, ECHR
2006-XII). Moreover, before an accused can be said to have by implication,
through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what
the consequences of his conduct would be (see Talat Tunç v. Turkey,
no. 32432/96, § 59, 27 March 2007, and Jones v. the United Kingdom
(dec.), no. 30900/02, 9 September 2003).
(b) Application of those principles to the present
case
The Court notes that between 11.10 and a.m. and
3.15 p.m. on 3 November 2001 the applicant was questioned as a suspect in
a criminal case. Before the questioning it was explained to the applicant that
she had the right to remain silent under Article 63 of the Constitution.
However, the right to legal representation had not been explained to her and
the questioning was carried out in the absence of a lawyer. No waiver of the
right to legal representation had been signed by the applicant until
3.30 p.m. on that day.
Furthermore, on 5 and 6 November 2001 the investigating
authorities obtained self-incriminating statements from the applicant when she was
still not represented by defence counsel. In so doing the authorities relied on
the fact that at 3.30 p.m. on 3 November 2001 the applicant had waived her
right to legal representation and had not requested it thereafter.
(i) Whether the applicant waived her right to a lawyer
on 5 and 6 November 2001
The Court notes that the applicant’s waiver of 3
November 2001 had been limited in time: the applicant noted that she had refused
the services of defence counsel “at the present moment”. Accordingly, the
investigating authorities could not legitimately rely on that waiver during the
investigative actions they conducted on 5 and 6 November 2001 and were obliged
to ascertain whether the applicant was still refusing legal representation.
Nevertheless, the applicant did not have her
right to legal representation explained to her on 5 and 6 November 2001, and
her alleged refusal from the legal representation on those dates was not
documented. Furthermore, the applicant was not informed that her friend had
hired a lawyer for her and that the latter had attempted to enter the
proceedings from 5 November 2001, which might have changed her position.
For these reasons the Court concludes that on 5
and 6 November 2001 there was no waiver of the right to a lawyer.
(ii) Justification for the absence of a lawyer at the
relevant time
The Court does not discern any compelling reason
why the applicant’s right of access to a lawyer had to be restricted at the
relevant time. It is remarkable that, although the applicant’s lawyer appeared
before the prosecutor’s office on 5 November 2001, notified them of his
intention to enter the proceedings and provided them with the authority
document, he was not admitted to the proceedings until 7 November 2001.
The Court further notes that the self-incriminating
statements obtained in the absence of a lawyer had been used by the courts for
the applicant’s conviction (see paragraphs 38 and 40 above). In these
circumstances the applicant’s defence rights were prejudiced irretrievably.
In the light of the above considerations the
Court holds that there has been a violation of Article 6 §§ 1
and 3 (c) of the Convention on account of the failure by the authorities to
ensure the applicant’s right of access to a lawyer during the initial period of
the applicant’s detention.
III. ALLEGED VIOLATION OF
ARTICLE 6 § 1 OF THE CONVENTION
The applicant complained under Article
6 § 1 of the Convention that she had been convicted on the basis of
evidence obtained by the investigating authorities by using ill-treatment.
The Government submitted that the complaint was
inadmissible in so far as there was no indication of the psychological
ill-treatment.
The applicant contended that the complaint was
admissible.
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 her contention
that she was convicted on the basis of evidence obtained through ill-treatment.
This complaint is therefore manifestly ill-founded and should be dismissed as
inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The Court has examined the remainder of the
applicant’s complaints. It 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.
It follows that this part of the application
must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and
4 of the Convention.
V. 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 70,000 euros (EUR) in
respect of non-pecuniary damage.
The Government submitted that this claim was
unsubstantiated.
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 5,000 Ukrainian
hryvnias (UAH, about EUR 495) for costs and expenses.
The Government considered this claim
unsubstantiated.
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 the sum of EUR 400 to cover costs under this head.
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 under Article 6 §§ 1
and 3 (c) of the Convention (concerning the absence of legal assistance during
the initial period of the applicant’s detention) 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 400 (four hundred euros), plus any tax that
may be chargeable to the applicant, in respect of costs and expenses;
(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
