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FIFTH
SECTION
CASE OF BALITSKIY v. UKRAINE
(Application
no. 12793/03)
JUDGMENT
STRASBOURG
3 November
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Balitskiy v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean
Spielmann,
President,
Elisabet
Fura,
Karel
Jungwiert,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Ann
Power-Forde,
Ganna
Yudkivska,
judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 11 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 12793/03) 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 Andrey Vladimirovich
Balitskiy (“the applicant”), on 18 March 2003.
- The
applicant was represented by Mr V.I. Olevsky, succeeded by Mr A.P.
Bushchenko, lawyers practising in Kharkiv. The Ukrainian Government
(“the Government”) were represented by their Agent,
Mr Y. Zaytsev, from the Ministry of Justice.
- The
applicant alleged, in particular, that his conviction had been based
on self-incriminating statements obtained under duress and in the
absence of a lawyer and that the courts had not questioned important
witnesses.
- On
3 September 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1979 and lives in Kharkiv.
- On
9 May 1998 the Frunzenskiy District Prosecutor’s Office
instituted criminal proceedings in connection with the murder of Mr
T.
- On
the same day the applicant was arrested by the police for hooliganism
and taken to the police station. According to the applicant, the
police severely beat him in order to force him to confess to the
murder of Mr T. who had lived with him in the same apartment block.
- On
11 May 1998 the applicant was brought before the Frunzenskiy District
Court. The court found him guilty of an administrative offence
(hooliganism), committed on 9 May 1998 at 1 p.m., and ordered his
administrative arrest for fifteen days. The applicant was then
returned to the police station, where, according to him, the police
ill-treated him again. On the same day he was questioned as a witness
in connection with the murder of Mr T.
- On
12 May 1998 the applicant confessed to the murder and theft. He was
questioned from 6.45 p.m. to 8 p.m. on suspicion of the murder
of Mr T. At 9 p.m. he was formally arrested as a suspect. The
applicant also signed a waiver from a lawyer indicating that he did
not need legal representation at that point and would decide on his
representation later.
- On
13 May 1998 the applicant underwent a medical examination. In his
opinion of 14 May 1998, the forensic expert noted that the applicant
had abrasions on his wrists that could have been caused by handcuffs.
He further had three abrasions on his left elbow, one abrasion on the
lower part of the abdomen and one abrasion on his leg. According to
the expert opinion, the applicant had maintained that the police had
not applied force to him and that the abrasion on his abdomen had
been caused by falling in his garage two weeks prior to the
examination. The expert concluded that the abrasions on the wrists
could have been caused by handcuffs one to three days prior to the
examination and the other injuries had no relevance to the events
indicated in the referral for the medical examination.
- On
15 May 1998 the applicant was charged with murder. During the
questioning he refused the assistance of lawyer T., who had been
engaged by his father, and was questioned as an accused without a
lawyer.
- On
1 June 1998 the criminal case against the applicant was transferred
to the Kharkiv City Prosecutor’s Office for further
investigation. Shortly afterwards, the applicant received assistance
from lawyer G.
- On
22 June 1998 the applicant was examined by a forensic expert who
established that the applicant had a broken rib, a scar on his head
and three scars on his left arm, two scars on his right arm and a
broken tooth. On some later date another X-ray examination was
carried out which found that the applicant’s rib was not
broken.
- On
26 June 1998 the applicant was examined by a dentist who established
that the applicant’s tooth had split into two as a result of
tooth decay.
- On
27 July 1998 the investigator reclassified the applicant’s
offence as murder for profit, which was punishable by life
imprisonment and required the obligatory legal representation of the
applicant.
- On
10 January 1999 the investigation was completed and the case against
the applicant was referred to the Kharkiv Regional Court.
- On
9 September 1999 the Kharkiv Regional Court referred the case for
further investigation. In so deciding, the court noted, in
particular, that the applicant’s allegations of ill-treatment
had not been properly investigated and the time of death of Mr T.
mentioned in the medical forensic report did not correspond to the
police version of the events. It also noted that, although the
official time of the applicant’s arrest as a suspect was 9 p.m.
on 12 May 1998, the applicant had been arrested on 9 May 1998 by the
police officers who were investigating the murder of Mr T.
Furthermore, according to the testimony of the witnesses, the arrest
had taken place at around 8 a.m., while the police had recorded that
the applicant had been arrested for hooliganism at 1 p.m.
- On
2 November 1999 the Supreme Court upheld the decision of 9 September
1999 with minor amendments.
- On
8 February 2000 a board of forensic experts conducted an additional
forensic examination. The board established that the applicant had
minor bodily injuries that might have been caused by handcuffs and a
truncheon and it could not be excluded that they might have been
inflicted during the period 10 to 13 May 1998. They further noted
that following the conflicting findings of the previous X-ray
examinations, the latest one had been conducted in the presence of
testifying witnesses and the result showed no fractures in the
applicant’s ribs.
- Between
February 2000 and July 2001 the criminal case against the applicant
was referred to the Kharkiv Regional Court several times for
examination and remitted by that court for further investigation.
- On
10 July 2001 the case was referred to the Sumy Regional Court, which
assumed jurisdiction over the case.
- During
the examination of the case the court rendered a separate ruling
ordering the prosecutor to look into the applicant’s
allegations of ill-treatment. On 14 December 2001 the Frunzenskiy
Prosecutor’s Office refused to institute criminal proceedings
against the police for lack of proof of a crime. The prosecutor
referred to the testimony of the police officers, who had denied any
ill-treatment of the applicant. The applicant did not appeal against
that decision to the court but raised the issue of ill-treatment in
the ensuing criminal proceedings against him.
- On
20 June 2002 the Sumy Regional Court found the applicant guilty of
murder and robbery and sentenced him to fifteen years’
imprisonment. The court based its findings on the confessions of the
applicant made between 12 and 15 May 1998 and other pieces of
evidence, including the testimony of Mr Sh. and Mr To., who had seen
the applicant shortly after the murder. The court rejected the
applicant’s allegations of ill treatment as
unsubstantiated and noted that the applicant had voluntarily waived
his right to legal representation at the initial stage of the
proceedings.
- The
applicant and his lawyers appealed. In their appeals they complained,
among other things, that the court had based its finding on the
applicant’s self-incriminatory statements, that the applicant’s
right to defence had been violated, and that the court had assessed
the evidence selectively. They further complained that the court
refused to question a number of witnesses who could have proved an
alibi for the applicant, or whose testimony needed clarification as
to the exact time they had seen the applicant and the victim on the
day of murder. In particular number of witnesses saw the victim until
8 p.m. and they had not been questioned by the court or their
testimonies had not been included in the criminal case-file.
Furthermore, several witnesses saw the applicant near the house or at
home for some time between 7 p.m. and 8 p.m. when the applicant was
coming and leaving.
- On
22 October 2002 the Supreme Court upheld the judgment of 20 June
2002. The court rejected the applicant’s complaints. It noted
that the time the witnesses had last seen the victim alive had been
approximate and the murder, according to the applicant’s
confessions, had happened quickly, in a matter of minutes. In the
court’s opinion, the fact that the witnesses indicated by the
applicant had not been summoned and questioned by the lower court did
not require the quashing of the judgment, given that their testimony
did not refute that the murder had been committed by the applicant.
As to the confessions made by the applicant while under
administrative arrest, the court noted that this fact did not render
his confessions inadmissible and that not all of them had been made
during the administrative arrest. As to unlawfulness of the actions
of the police during the applicant’s initial arrest, the court
noted that it was for the prosecutor to look into the matter.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the cases of Yaremenko v.
Ukraine (no. 32092/02, §§ 45-53, 12 June 2008) and
Zhoglo v. Ukraine (no. 17988/02, § 21, 24 April 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that his conviction had been based on
self-incriminating statements obtained under duress and in the
absence of a lawyer and that the courts had not questioned important
witnesses in his defence. He relied on Article 6 §§ 1 and 3
(c) and (d) of the Convention, which read 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;
(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 ...”
- As
the requirements of Article 6 § 3, as mentioned above, are to be
seen as particular aspects of the right to a fair trial guaranteed by
Article 6 § 1, the Court will examine the complaints under
those two provisions taken together (see, among many other
authorities, Van Mechelen and Others v. the Netherlands, 23
April 1997, § 49, Reports of Judgments and
Decisions 1997 III).
A. Privilege against self-incrimination and right to
defence
1. Admissibility
- The
Government maintained that the applicant’s complaints about a
violation of his right to defence and his privilege against
self-incrimination during the investigative procedures on 12 May 1998
were incompatible ratione materiae with the provisions of
Article 6 §§ 1 and 3 (c) of the Convention. They considered
that the criminal proceedings against the applicant had only begun in
the late evening of that day and prior to that he had not been a
suspect but a person voluntarily testifying about the circumstances
of the crime.
- The
applicant disagreed. He referred to the Court’s findings in the
case of Shabelnik v. Ukraine (no. 16404/03, § 57, 19
February 2009) and submitted that he had been treated as a murder
suspect from the moment of his “administrative arrest” on
9 May 1998.
- The
Court notes that a similar contention by the Government was examined
and rejected in the case of Shabelnik (cited above, §
57), in which the applicant was under the control of the police for
other purposes in the capacity of a witness when he confessed to a
crime. The Court concluded in that case that in such circumstances
Article 6 was applicable from the moment a person confessed to a
crime and not from the moment when such person was formally charged
with it. The Court sees no reason to reach a different conclusion in
the instant case.
- The
Court notes that this part of the application 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.
2. Merits
- The
applicant maintained that his right not to incriminate himself had
been violated. He submitted that there were medical documents
confirming that he had been ill-treated and forced to confess, but
that these allegations had never been properly investigated. He
further pointed to the fact that he had been apprehended for alleged
hooliganism by the same police officers who had been conducting the
investigation into the murder of T.
- The
applicant noted that since 9 May 1998 he had been held incommunicado
and had had no practical possibility of arranging for his legal
representation without positive steps being taken by the authorities.
According to him, neither his waiver of legal assistance signed on 12
May 1998 nor his refusal of a particular lawyer – Mr T. on 15
May 1998 (see paragraphs 9 and 11 above) – could be considered
a clear and unequivocal waiver within the meaning of the Court’s
case-law. Furthermore, his waiver had not been permissible under
domestic law, given that he was suspected of a crime for which the
maximum penalty was life imprisonment, and, therefore, for which his
legal representation was obligatory. He added that the initial
classification of the crime as a less serious one had been incorrect
given that the murder had been combined with theft and the
authorities investigating the case had been aware of that from the
beginning.
- The
Government maintained that there was no evidence that the
investigator had forced the applicant to confess. They submitted that
the applicant had been first questioned as a witness since the
investigation had believed that he might know something about the
murder. They further noted that once the applicant was questioned as
a suspect, that is from 9 p.m. on 12 April 1998, he had been
informed of his right not to testify against himself.
- The
Government further noted that the applicant had signed a waiver
refusing a lawyer during the questioning of 12 and 15 April 1998.
Furthermore, on the latter date the applicant had been represented by
a lawyer engaged by his farther and had talked to him before
questioning but refused his services during the questioning. They
also submitted that the applicant had never requested free legal
assistance and that by the time his actions had been reclassified as
a crime that required obligatory legal representation of the suspect,
the applicant was represented.
- The
Court reiterates that, although not absolute, the right of everyone
charged with a criminal offence to be effectively defended by a
lawyer, assigned officially if need be, is one of the fundamental
features of a fair trial (see Krombach v. France, no.
29731/96, § 89, ECHR 2001-II). The rights of the defence will in
principle be irretrievably prejudiced when incriminating statements
made during police interrogation without access to a lawyer are used
for a conviction (see Salduz v. Turkey [GC], no. 36391/02,
§ 55, 27 November 2008).
- As
regards the use or exclusion of evidence obtained in breach of the
right to silence and the privilege against self-incrimination, the
Court reiterates that these are generally recognised international
standards which lie at the heart of the notion of a fair trial under
Article 6. Their rationale lies, inter alia, in the
protection of the accused against improper compulsion by the
authorities, thereby contributing to the avoidance of miscarriages of
justice and to the fulfilment of the aims of Article 6. The
right not to incriminate oneself, in particular, presupposes that the
prosecution in a criminal case seek to prove their case against the
accused without resort to evidence obtained through methods of
coercion or oppression in defiance of the will of the accused (see
Shabelnik, cited above, § 55, with further references).
- The
Court notes that the applicant’s initial placement under
administrative arrest had been conducted in questionable
circumstances, as he had been apprehended by the same police officers
who were investigating the murder of Mr T. and as he allegedly
committed an administrative offence several hours after he had been
arrested (see paragraph 17). Following his arrest he was questioned
in connection with the above murder and gave self-incriminating
statements in the absence of a lawyer and in circumstances that give
rise to a suspicion that the applicant gave them in defiance of his
will. Furthermore, the waiver whereby the applicant allegedly
renounced his right to a lawyer was signed under the same
circumstances cannot be considered as clear and unequivocal.
- The Court also notes the applicant’s submissions
that the initial classification of the crime as a simple murder
rather than a murder for profit had been incorrect and allowed the
investigation to avoid the requirement of his obligatory legal
representation. The Court notes that it examined similar allegations
in several cases against Ukraine in which the circumstances give rise
to strong suspicion as to the existence of an ulterior purpose in the
initial classification of the offence and the applicants were
effectively denied appropriate legal assistance owing to the way in
which the investigator exercised his discretionary power concerning
the classification of the investigated crime (see Yaremenko v.
Ukraine, cited above, §§ 87 and 88; and
Leonid Lazarenko v. Ukraine, no. 22313/04, §
54, 28 October 2010). Similar to the above mentioned cases, in
the present case the authorities had information, including the
confession of the applicant (see paragraph 9 above), that the murder
of Mr T. had been combined with theft of jewellery and money.
Nevertheless, following the above confession of 12 May 1998 the
applicant was charged with an ordinary murder and only more than two
months later, the investigator reclassified the applicant’s
offence as murder for profit which required obligatory legal
representation. In this connection, the Court expresses, once again,
its serious concern with yet another example of this malpractice,
according to which, despite the initial arrest in respect of a more
serious criminal charge, the investigative authorities, thereafter,
“artificially” decrease the severity of the charge in
order to classify it under an article of the Criminal Code which
would not require them to ensure obligatory legal representation of
the suspect.
- In
the view of the above considerations, the Court concludes that there
has been a violation of Article 6 §§ 1 and 3 (c) of the
Convention.
B. Questioning of witnesses
- The
applicant maintained that the investigation changed the estimated
time of murder several times, which required the attendance of
witnesses who could testify that they had seen the applicant
elsewhere at the relevant time.
- The
Government maintained that the case-file materials held no
information that the applicant had requested the attendance of those
witnesses. Furthermore, his complaints about the failure to summon
the witnesses had been examined by the Supreme Court, which had found
that that failure had not been a ground for quashing the judgment
given that the testimony of those witnesses had not refuted that the
murder had been committed by the applicant. They considered that the
applicant had not proved that the testimony of these witnesses was
necessary to prove his innocence or to establish the truth in the
case.
- The
Court reiterates that all the evidence must normally be produced at a
public hearing, in the presence of the accused, with a view to
adversarial argument. There are exceptions to this principle, but
they must not infringe the rights of the defence. It may prove
necessary in certain circumstances to refer to statements made during
the investigative stage. If the defendant has been given an adequate
and proper opportunity to challenge such statements, either when made
or at a later stage, their admission in evidence will not in itself
contravene Article 6 §§ 1 and 3 (d). The corollary of that,
however, is that the defendant’s conviction should not be based
either solely or to a decisive extent on statements which the defence
has not been able to challenge (see Zhoglo, cited above, §§
38-40 with further references).
- The
Court notes that in the instant case some witnesses were not examined
by the court and the applicant had no opportunity to confront them;
however, the Supreme Court concluded in its decision that the
testimony of the above-mentioned witnesses had not been decisive for
the lower courts’ conclusions (see paragraph 25 above). Nor
does it appear from the circumstances of the case that the witnesses
in question could have created an alibi for the applicant as they all
saw him only episodically and always near the crime scene, given that
the applicant and the victim lived in the same apartment block (see
paragraphs 7 and 24 above). The Court is therefore not persuaded that
the failure of the domestic courts to hear the witnesses to whom the
applicant referred was significant enough to compromise the outcome
of the criminal proceedings. 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 3 of the Convention about
ill-treatment by the police and the lack of any investigation into
such ill-treatment. Relying on Article 5 § 1 of the Convention,
he complained that his pre-trial detention had been unlawful and
arbitrary. He further complained under Article 6 §§ 1 and 2
of the Convention that his case had been unlawfully transferred to
the Sumy Regional Court, which had no territorial jurisdiction over
the case; that the investigation had concealed important pieces of
evidence; that the courts had been biased; and that the proceedings
had been excessively long.
- Having
carefully examined the applicants’ submissions in the light of
all the material in its possession, and in so far as the matters
complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention. It follows that this part of the
application must be declared inadmissible, pursuant to Article 35 §§
1, 3 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 46 OF THE CONVENTION
- Before examining the claims for just satisfaction
submitted by the applicant under Article 41 of the Convention, and
having regard to the circumstances of the case, the Court considers
it necessary to determine what consequences may be drawn from Article
46 of the Convention for the respondent State. Article 46 of the
Convention reads as follows:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
- The Court reiterates that Article 46 of the
Convention, as interpreted in the light of Article 1, imposes on the
respondent State a legal obligation to implement, under the
supervision of the Committee of Ministers, appropriate general and/or
individual measures to secure the right of the applicant which the
Court has found to have been violated. Such measures must also be
taken in respect of other persons in the applicant’s position,
notably by solving the problems that have led to the Court’s
findings (see Scozzari and Giunta v. Italy [GC], nos. 39221/98
and 41963/98, § 249, ECHR 2000-VIII; Christine Goodwin
v. the United Kingdom [GC], no. 28957/95, § 120, ECHR
2002-VI; Lukenda v. Slovenia, no. 23032/02, § 94,
ECHR 2005-X; and S. and Marper v. the United Kingdom [GC],
nos. 30562/04 and 30566/04, § 134, ECHR 2008-...). This
obligation has been consistently emphasised by the Committee of
Ministers in the supervision of the execution of the Court’s
judgments (see, for example, ResDH(97)336, IntResDH(99)434,
IntResDH(2001)65 and ResDH(2006)1). In theory it is not for the Court
to determine what measures of redress may be appropriate for a
respondent State to take in accordance with its obligations under
Article 46 of the Convention. However, the Court’s concern is
to facilitate the rapid and effective suppression of a shortcoming
found in the national system of protection of human rights (see Driza
v. Albania, no. 33771/02, § 125, ECHR 2007 XII
(extracts)).
- In
the present case the Court found violation under Article 6 §§
1 and 3 (c) of the Convention concerning the applicant’s
administrative arrest and initial classification of a crime of which
he was suspected. Both issues can be said to be recurrent in the
case-law against Ukraine.
- The
practice of placing a person under administrative arrest to ensure
his availability for questioning as a criminal suspect had been
previously found by this Court to be arbitrary under Article 5 as the
authorities failed to ensure the applicant’s procedural rights
as a criminal suspect (Doronin v. Ukraine, no. 16505/02,
§ 56, 19 February 2009 and Oleksiy Mykhaylovych
Zakharkin v. Ukraine, no. 1727/04, § 88, 24 June 2010). In
the case Nechiporuk and Yonkalo v. Ukraine (no. 42310/04,
§ 264, 21 April 2011) the Court emphasised that by having
formally placed the applicant in administrative detention but in fact
treating him as a criminal suspect, the police deprived him of access
to a lawyer, which would have been obligatory under the Ukrainian
legislation had he been charged with the offence of murder committed
by a group of persons and/or for profit, an offence in respect of
which he was in fact being questioned.
- The
practice of the initial classification of a crime as a less serious
one which did not require obligatory legal representation had also
been found to be used in such a manner that applicants were
effectively denied appropriate legal assistance owing to the way in
which the investigator exercised his discretionary power concerning
the classification of the investigated crime (see Yaremenko v.
Ukraine, cited above, §§ 87 and 88; Leonid
Lazarenko v. Ukraine, cited above, § 54;
and Bortnik v. Ukraine, no. 39582/04,
§ 45, 27 January 2011).
- The
Court is not in a position to advise on specific measures to be taken
in this context, but it notes that the above issues should be
addressed by the domestic authorities to avoid further repetitive
complaints of this type.
- It
has been the Court’s practice, when discovering a shortcoming
in the national legal system, to identify its source in order to
assist the Contracting States in finding an appropriate solution and
the Committee of Ministers in supervising the execution of judgments
(see, for example, Maria Violeta Lăzărescu v. Romania,
no. 10636/06, § 27, 23 February 2010; Driza, cited above,
§§ 122-126; and Ürper and Others v. Turkey,
nos. 14526/07, 14747/07, 15022/07, 15737/07, 36137/07, 47245/07,
50371/07, 50372/07 and 54637/07, §§ 51 and 52, 20 October
2009). Having regard to the structural nature of
the problem disclosed in the present case, the Court stresses that
specific reforms in Ukraine’s legislation and administrative
practice should be urgently implemented in order to bring such
legislation and practice into line with the
Court’s conclusions in the present judgment to
ensure their compliance with the requirements of Article 6.
The Court leaves it to the State, under the supervision of the
Committee of Ministers, to determine
what would be the most appropriate way
to address the problems.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 100,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government considered this claim unsubstantiated and unsupported by
any material evidence.
- Given
its findings regarding the unfairness of the domestic proceedings
resulting in the applicant’s conviction, the Court considers it
indispensable for the proper protection of human rights that a
retrial (a possibility of which is envisaged in the Ukrainian
legislation) be provided forthwith should the first applicant so
request. Any such trial must observe, strictly, the substantive and
procedural safeguards enshrined in Article 6 of the Convention. Such
retrial represents in principle an appropriate way of redressing the
violation (see Nadtochiy v. Ukraine, no. 7460/03, § 55,
15 May 2008). Therefore, the Court considers that the finding of
a violation constitutes in itself sufficient just satisfaction.
B. Costs and expenses
- The
applicant also claimed EUR 4,400 for the costs and expenses incurred
before the Court. He submitted a copy of the legal aid contract
concluded with Mr Bushchenko on 12 February 2003 and copies of two
acceptance certificates: of 20 March 2003 for the total amount of
EUR 3,200 and of 27 March 2010 for the total amount of EUR
1,200. Both acceptance certificates refer to the legal aid contract.
- The
Government disagreed, questioning the genuine character of the
submitted documents, in which the different amounts had been
indicated and the dates of legal services provided did not correspond
to other documents concerning the applicant’s legal
representation.
- In
the light of the materials in its possession and the parties’
submissions, the Court considers that the documents submitted by the
applicant in support of his claim for costs and expenses are
unreliable and, therefore, rejects the applicant’s claim under
this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the applicant’s complaints under
Article 6 §§ 1 and 3 of the Convention that his conviction
was based on incriminating evidence obtained in violation of his
right to remain silent and the privilege against self-incrimination,
and that he was hindered in the effective exercise of his right of
defence when questioned during the initial stage of the investigation
admissible, and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 §§ 1 and 3 (c) of the Convention in respect of the
applicant’s right to defence and the privilege against
self-incrimination;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 3 November 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann Registrar President
