PROCEDURE

1.  The case originated in an application (no. 23377/08) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Greek national, Mr Athanasios Alexakis (“the applicant”), on 6 May 2008.

2.  The applicant was represented by Ms A. Giannopoulou, a lawyer practising in . The Greek Government (“the Government”) were represented by their Agent’s delegates, Mr M. Apessos, Senior Adviser at the State Legal Council, and Ms M. Germani, Legal Assistant at the State Legal Council.

3.  On 6 November 2009 the President of the First Section decided to give notice of the application to the Government. In accordance with Protocol 14, the application is assigned to a committee of three Judges.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1940 and lives in .

5.  On 15 June 1999 he brought an action for declaratory judgment (αναγνωριστική αγωγή) before the First Instance Administrative Court of Athens. In particular, he asked the court to declare that the Welfare fund of the Staff of the Greek Railways Organisation (Ταμείο Πρόνοιας Προσωπικού ΟΣΕ), which is a legal person governed by public law, owed him € 3,901.10. This sum corresponded to an allowance the applicant alleged he was entitled to when he retired.

6.  On 30 May 2001 the action was dismissed (judgment no. 3648/2001).

7.  On 10 April 2002 the applicant filed an appeal before the Athens Administrative Court of Appeal challenging the court’s findings and its evaluation of the evidence.

8.  By judgment dated 11 March 2004 the court dismissed the applicant’s appeal and upheld the findings of the First Instance Court (judgment no. 898/2004).

9.  On 8 December 2004 the applicant lodged an appeal on cassation with the . On 6 November 2007 he withdrew his appeal and a relevant report, to that effect, was delivered by the  on 19 November 2007.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

10.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

11.  The period to be taken into consideration began on 15 June 1999 when the applicant lodged his action with the First Instance Administrative Court of Athens and ended on 19 November 2007 when a report was delivered by the  stating that the applicant had withdrawn his appeal on cassation on 6 November 2007. It thus lasted more than eight years and five months for three levels of jurisdiction.

A.  Admissibility

12.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

13.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

14.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).

15.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

16.  Lastly the applicant complained of the lack of an effective domestic judicial remedy for excessive length of proceedings. He relied on Article 13 of the Convention which provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

17.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

18.  The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). It notes that objections and arguments put forward by the Government have been presented and rejected in earlier cases (see Konti-Arvaniti v. Greece, no. 53401/99, §§ 29-30, 10 April 2003) and sees no reason to reach a different conclusion in the present case.

19.  Accordingly, the Court considers that in the present case there has been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding his right to have his case heard within a reasonable time, as set forth in Article 6 § 1 of the Convention.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

20.  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

21.  The applicant claimed 6,000 euros (EUR) in respect of non-pecuniary damage.

22.  The Government considered the amount claimed exorbitant and submitteds that the finding of a violation would constitute sufficient just satisfaction. They submitted, however, that if the Court heldholds that an amount should be awarded to the applicant, an amount of EUR 2,000 would be adequate and reasonable.

23.  The Court considers that the applicant must have sustained nonpecuniary damage. Ruling on an equitable basis, it awards him EUR 4,000 under that head, plus any tax that may be chargeable on this amounts.

B.  Costs and expenses

24.  The applicant also claimed EUR 6,000 for the costs and expenses incurred before the domestic courts and for those incurred before the Court. He produced an invoice for EUR 1,000 regarding the costs and expenses incurred in the proceedings before the Court.

25.  The Government did not express an opinion on the matter.

26.  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 were reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000XI). In the present case, regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 500 for the proceedings before the Court, plus any tax that may be chargeable to the applicant.

C.  Default interest

27.  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

1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds that there has been a violation of Article 13 of the Convention;

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months EUR 4,000 (four thousand euros) in respect of non-pecuniary damage and EUR 500 (five hundred euros) in respect of costs and expenses, plus any tax that may be chargeable on these amounts;

(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;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 21 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 17735/06) 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 Valeriy Grigoryevich Chopenko (“the applicant”), on 14 April 2006.

2.  The applicant, who had been granted legal aid, was represented by Mr A.N. Dyatlov, a lawyer practising in Nikopol, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Ms Nataly Sevostianova, of the Ministry of Justice of Ukraine.

3.  The applicant alleged, in particular, that the criminal proceedings against him had been unfair on account of a breach of his rights to defence and to personal participation in the appeal hearing.

4.  On 17 October 2011 the application was communicated to the Government.

5.  On 10 December 2013 the Chamber decided, under Rule 54 § 2 (c) of the Rules of Court, that the parties should be invited to submit further written observations on the admissibility and merits of the application.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The applicant was born in 1970. He is currently serving a life sentence in Dnipropetrovsk.

7.  On 23 June 2005 O.K., a young woman, was found hanged on a tree in a forested area near a bus station. It was also discovered that her mobile phone, earrings and ring were missing and that she had had sexual intercourse shortly before her death.

8.  At about 2 p.m. on 27 June 2005, officers of the Apostolovskiy District Police took the applicant to the police station for questioning in connection with the investigation into O.K.’s death.

9.  On the same day, the applicant signed a confession statement according to which on the afternoon of 22 June 2005 he had met O.K. at a bus station and asked her to have sex with him in the nearby forest. O.K. had agreed to his proposal and volunteered her ring and earrings after intercourse. As the applicant was leaving, she had threatened to complain that she had been raped and robbed. In order to get away, the applicant had grabbed her by the neck; O.K., still alive, had lost consciousness and he had taken her mobile phone and left the scene.

10.  According to the applicant, between 27 and 28 June 2005 he remained in police custody without any record being drawn up or his relatives being notified.

11.  On 28 June 2005 the applicant was questioned by an investigating officer of the Apostolovskiy District Prosecutor’s Office and gave further details of his encounter with O.K. He stated that after she had lost consciousness he had taken the cord from her umbrella, tied it round her neck and hung her on the tree. The applicant’s statements were recorded on a form headed “Explanation”, which did not refer to any criminal proceedings against him, but stated that the applicant had been informed of his right under Article 63 of the Constitution not to incriminate himself.

12.  At an unspecified time on the same date an investigating officer of the District Prosecutor’s Office instituted criminal proceedings against the applicant on suspicion that he had committed a non-aggravated murder within the meaning of Article 115 § 1 of the Criminal Code of Ukraine and notified the applicant of his right to legal assistance. He further drafted an arrest report according to which the applicant had been arrested as a suspect at 6.15 p.m. on that date at the premises of the prosecutor’s office.

13.  After the applicant’s arrest he was assigned a legal-aid lawyer, M., and was officially questioned as a suspect in her presence from 6.35 p.m. until 8.50 p.m. During the questioning, the applicant largely reiterated his previous statements.

14.  On the same date the applicant surrendered a gold ring to the police, which, as subsequently confirmed by her relatives, had belonged to O.K. O.K.’s former phone was also either seized from the applicant’s home or surrendered by him.

15.  On 1 July 2005 the Dnipropetrovsk Apostolovskiy District Court ordered the applicant’s remand in custody as a preventive measure. It appears from the case-file materials that that decision was not appealed against.

16.  On 2 July 2005 the applicant, questioned in M.’s presence, provided further details concerning his sexual encounter with O.K. He also stated that all his confessions had been voluntary and no pressure had been applied by the authorities to make him confess. Feeling remorse for his crimes, he wounded himself with a pen top in an attempt to cut his veins and commit suicide, but his cellmate intervened.

17.  On 5 July 2005 M. was replaced by Sh., another legal-aid lawyer.

18.  On the same date the applicant was taken to the site of the crime and participated in a reconstruction of the crime scene in Sh.’s presence.

19.  On 6 July 2005 the applicant was examined by a medical expert, who found that he had a wound on the inner side of his left elbow, inflicted on or about 1 July 2005. The expert further recorded that, according to the applicant, the wound was self-inflicted and he had not been ill-treated by the authorities either during his arrest or in detention.

20.  On 7 July 2005 the applicant was indicted of non-aggravated murder. On the same date he was questioned as an accused in the presence of Sh. and confirmed his previous statements.

21.  On 12 August 2005 the applicant was placed in a psychiatric hospital for an assessment of his mental state, where he stayed until 9 September 2005. According to him, during that period of time he was administered psychotropic drugs.

22.  On 23 September 2005 the charges against the applicant were reclassified as aggravated murder, within the meaning of Article 115 paragraph 2, rape, and robbery.

23.  On 26 September 2005 a new lawyer, N., hired by the applicant’s family, was admitted to the proceedings to replace the legal-aid lawyer Sh. On the same date the applicant, when questioned in presence of N., claimed he was innocent and refused to provide any further explanations.

24.  In the autumn of 2005 the applicant was committed for trial at the Dnipropetrovsk Regional Court of Appeal (“the Regional Court”), acting as a first-instance court.

25.  During the trial the applicant pleaded not guilty. He maintained that on 27 June 2005 he had confessed to murdering O.K. as a result of psychological and physical ill-treatment by police officers; in fact, he had never met O.K. On 22 June 2005 he had purchased a mobile phone, a ring and earrings from a stranger on the street.

26.  On 16 December 2005 the Regional Court found the applicant guilty of rape, theft, robbery and aggravated murder. It referred to various sources of evidence, including the applicant’s confession statements given on 27 June 2005 and during the further course of the investigation, witness statements, forensic assessments, and DNA evidence. The court dismissed the applicant’s allegations of ill-treatment as unsubstantiated and sentenced him to life imprisonment.

27.  On 21 December 2005 the applicant received a copy of the Regional Court’s judgment of 16 December 2005.

28.  On 10 January 2006 the applicant submitted a cassation appeal against that judgment. He maintained his innocence and alleged that on 27 June 2005 he had been beaten and given electric shocks by the police officers to break his moral resistance and make him confess to the murder, and that they had also threatened to plant narcotics on his wife if he refused to cooperate.

29.  Subsequently (on 8 February, 2, 6 and 9 March 2006), the applicant submitted supplementary pleadings in which he challenged the validity of the various sources of evidence relied on for his conviction. He also complained that he had not been provided with an opportunity to contact his relatives or with access to a lawyer before his first questioning, and that he had been administered psychotropic drugs during his psychiatric assessment. He also maintained that N., the lawyer hired by his family, had performed his duties in bad faith. In particular, he had hardly visited the applicant and had completely failed to participate in the cassation proceedings.

30.  On 20 January 2006 the applicant received a rectified copy of the judgment of 16 December 2005, as the previous copy had been found to contain some technical errors.

31.  On 17 February 2006 the applicant filed an application with the Supreme Court requesting it to ensure his personal presence at the cassation hearing.

32.  On 6, 14 and 28 March 2006 the applicant lodged further requests to be present at the hearing. He also requested the Supreme Court to summon his first lawyer, M., for the hearing and noted that he had never refused her services and did not know why she had been excluded from the proceedings.

33.  On 27 March 2006 the Supreme Court rejected the applicant’s request to be present at the hearing, finding that it had been lodged outside the one-month statutory time-limit.

34.  On 14 April 2006 the applicant re-lodged the request to be present at the hearing, stating that he had obtained the final copy of the judgment only on 20 January 2006 and had lodged his request within one month of that date.

35.  On 18 April 2006 the Supreme Court held a hearing in the applicant’s case. The hearing was not attended by either the applicant or a lawyer on his behalf.

36.  On the same date the Supreme Court dismissed the applicant’s cassation appeal and upheld the previous judgment. It noted, in particular, that there was no evidence that the applicant had been subjected to illtreatment or that his right to defence had been breached in a way incompatible with his right to a fair trial. It further noted that the case file contained sufficient evidence of the applicant’s guilt, including his own confession statements given in the presence of his lawyers. According to the text of the judgment, the prosecutor, who had been present at the hearing, had requested that the applicant’s appeal be dismissed and the first-instance court’s judgment be upheld.

37.  On various dates after his conviction, the applicant unsuccessfully complained to various authorities, including the prosecutor’s office and the Advocate Qualification Commission, about his alleged ill-treatment, the poor performance of his lawyer N., and other alleged breaches of his procedural rights.

II.  RELEVANT DOMESTIC LAW

A.  Constitution of Ukraine of 1996

38.  The relevant provisions of the Constitution read as follows:

“Everyone has the right to legal assistance. Such assistance is provided free of charge in the cases provided for by law. Everyone is free to choose the defender of his or her rights.

In , 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.”

“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.”

B.  Criminal Code of 2001

39.  Under paragraph 1 of Article 115, premeditated murder is punishable by imprisonment for a term of seven to fifteen years. Under paragraph 2 of Article 115, premeditated murder in the aggravating circumstances listed in that paragraph is punishable by imprisonment for a term of ten to fifteen years, or life imprisonment.

C.  Code of Criminal Procedure of 1960 (repealed with effect from 19 November 2012)

40.  Article 45 of the Code of Criminal Procedure of 1960, in force at the material time, provided that legal representation during the inquiry, pre-trial investigation and trial before the first-instance court was mandatory if, inter alia, the possible penalty was a life sentence. It further specified that in such a case legal representation should be provided from the moment of the arrest or the bringing of charges against the person.

41.  The provisions governing the cassation review of criminal cases, as in force before 7 February 2006 and in so far as relevant, read as follows:

“Cassation proceedings may be instituted in respect of:

1)  judgments, decisions and rulings taken by an appeal court acting as a first-instance court;

...”

“Cassation appeals and pleadings with respect to the court decisions listed in paragraph 1 of Article 383 of the present Code may be lodged within one month of the date of delivery of the judgment or pronouncement of the decision or ruling which is being appealed against; a convicted defendant who is held in custody [may lodge an appeal] ... within the same time-limit from the date of receipt of a copy of the judgment or decision.”

“...A request by a convicted defendant who is held in custody to be summoned to submit observations in the course of the cassation review of a court decision listed in paragraph 1 of Article 383 of the present Code shall be binding on the cassation court.

Participants in the court proceedings who appear at the court hearing shall have the right to make oral submissions.”

“The cassation court shall review the lawfulness and reasonableness of the court judgment in the light of the materials on file and additionally submitted materials, within the limits of the appeal. ...”

“Following cassation review of the case the court shall take one of the following decisions:

1)  to uphold the judgment, ... and dismiss the cassation appeal or pleadings;

2)  to quash the judgment ... and remit the case for a new investigation or trial or an appellate review;

3)  to quash the judgment ... and discontinue the proceedings;

4)  to amend the judgment...”

“Grounds for quashing or amending the judgment, decision or ruling shall be as follows:

1)  a substantial breach of the law of criminal procedure;

2)  incorrect application of the criminal law;

3)  incompatibility of the punishment imposed with the gravity of the offence or the character of the convicted defendant.

A judgment given by an appeal court acting as a first-instance court may be quashed or amended on account of bias, an incomplete inquiry, pre-trial or judicial investigation, or where the conclusions of the court stated in the judgment are incompatible with the factual circumstances of the case.

...”

42.  On 12 January 2006 the Law “On Introduction of Changes to the Criminal Procedure Code” which came into force on 7 February 2006, amended Article 391 by adding the following line to the first paragraph: “if it is submitted within the time-limit for lodging a cassation appeal”.

THE LAW

I.   ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION ON ACCOUNT OF LACK OF ACCESS TO A LAWYER AT THE BEGINNING OF THE INVESTIGATION AND THE APPLICANT’S INABILITY TO TAKE PART IN THE CASSATION HEARING

43.  The applicant complained that he had not been provided with legal assistance during the initial questioning sessions and that he had been unfairly deprived of an opportunity to take part in the cassation hearing. He referred to Article 6 §§ 1 and 3 (c) of the Convention, which, in so far as relevant, reads as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...

...

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

44.  The Government have not submitted any comments concerning the admissibility of the above complaints.

45.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

1.  Access to a lawyer

46.  The applicant submitted that he had confessed to crimes of which he was innocent, in breach of the basic guarantees of a fair trial. He submitted that on 27 June 2005 the police had placed him in off-the-record detention and had extorted a confession statement by means of torture. On the following day he had been informally questioned by the investigator at the prosecutor’s office and his confession statements had been arbitrarily recorded on an “explanation” form. Only after obtaining the “explanation” had the investigative authorities regularised his status as a suspect and a detainee, notified him of his procedural rights and provided a legal-aid lawyer. However, when questioned as a suspect in that lawyer’s presence he had been afraid to protest his innocence since he had believed that a lawyer appointed by the police would not be willing to represent his interests in good faith and that unless he cooperated with the investigation he would be subjected to further ill-treatment once he returned to the police detention facility. Moreover, at the material time he was being questioned as a suspect of non-aggravated murder only. He could not foresee that the investigation, which already had substantial information on the details of the crime, would subsequently reclassify the charges as aggravated murder, rape and robbery. Once the charges had been so reclassified and he had obtained access to a privately hired lawyer, he had retracted his confessions and pleaded innocent. However, the confessions had been decisive for his conviction, as there was no other direct evidence of his involvement in the offence. As the initial confessions had been obtained in breach of basic procedural guarantees and had affected his further defence strategy, he considered that the domestic judicial authorities should have excluded them from the body of evidence.

47.  The Government contested the applicant’s arguments. They noted that the applicant had initially been suspected and accused of non-aggravated murder. This charge did not require legal representation under domestic law. Nevertheless, the applicant had been provided with a lawyer, M., on the day of his arrest and had volunteered confession statements in her presence. Subsequently the applicant had volunteered statements on numerous other occasions in the presence of both lawyer M. and lawyer Sh., who had replaced her. The applicant had not complained about the performance of either of these lawyers at the material time. Moreover, he had requested the Supreme Court to summon his first lawyer, M., to take part in the cassation proceedings. This showed that he had full confidence in her. It could therefore not be said that the applicant’s confessions had been made in breach of his privilege against self-incrimination or right to defend himself. In these circumstances there was no basis for the domestic courts to exclude them from the body of evidence. Moreover, the domestic courts had based their judgments on numerous other sources, including witness testimony and forensic and material evidence.

48.  The Court reiterates that, even if the primary purpose of Article 6 of the Convention, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 – especially paragraph 3 thereof – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275; Öcalan v. Turkey [GC], no. 46221/99, § 131, ECHR 2005IV; Salduz v. Turkey [GC], no. 36391/02, § 50, ECHR 2008). The Court further recalls that the guarantees in paragraph 3 (c) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision which must be taken into account in any assessment of the fairness of proceedings (Martin v. Estonia, no. 35985/09, § 94, 30 May 2013). In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see, as recent authorities, Taxquet v. Belgium [GC], no. 926/05, § 84, ECHR 2010, with further references therein; Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011; Martin, ibid.).

49.  The Court notes 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 2001II). As a rule, access to a lawyer should be provided from the first questioning of a suspect by the police, unless it can be demonstrated in the light of the particular circumstances of each case that there were compelling reasons to restrict this right (see Salduz v. Turkey [GC], cited above, § 55). The right to defence will in principle be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer are used for a conviction (ibid.).

50.  Turning to the facts of the present case, the Court notes that the applicant’s first formal questioning as a suspect in the murder of O.K. took place in the evening of 28 June 2005, in the presence of the lawyer M. However, it is clear from the applicant’s submissions, and was not rebutted by the Government, that the day before that questioning he had already been placed in unrecorded police custody and questioned concerning his involvement in the murder in issue. As can be seen from the case file, on 27 June 2005 he signed a statement at the police station attesting to his involvement in the crime against O.K. In addition, on 28 June 2005 the applicant was questioned by the investigator at the prosecutor’s office, who recorded his detailed self-incriminating submissions as “explanations”. The timing of this questioning is unclear. However, absent any clarifications from the Government, the Court accepts the applicant’s version, according to which the questioning preceded his formal arrest on that date.

51.  It follows that by virtue of the above-mentioned principles as enshrined in the Court’s case-law, the applicant was entitled to have access to a lawyer during his questioning on 27 and 28 June 2005. However, at that time he was questioned without a lawyer and there is no record indicating that before the questioning sessions in issue he was notified of his right to obtain legal assistance. On the facts of the case, the Court does not find any compelling reason justifying such a restriction of the applicant’s right of access to a lawyer. It follows that this right was not respected during the period in issue.

52.  In so far as the applicant alleges that his confession statements should have been excluded from the body of evidence, the Court notes that the applicant repeatedly gave confession statements in presence of two lawyers and did not retract them until the third lawyer was admitted in the proceedings. There is also no proof that the initial confessions given by the applicant without a lawyer were extracted by ill-treatment or under the threat thereof. On the other hand, the Court notes that at the time when the applicant volunteered his original confessions, he might not have been fully aware of their significance, as the initial charges against him concerned non-aggravated murder only. Once they were reclassified as aggravated murder, rape and robbery he chose, possibly on the advice of his lawyer, to remain silent and subsequently retracted his confessions. What is even more important is that the original confessions which, as noted above, were obtained in breach of the applicant’s right to legal assistance, formed part of the case file. Thus, they affected the investigation strategy and set the framework within which the applicant’s further defence had to be mounted. It follows that regardless of whether the applicant chose to retract or maintain these confessions, the initial breach of his right to defence could not be remedied by the mere fact that he was subsequently provided with legal assistance. It necessitated further remedial action on behalf of the authorities involved.

53.  Nevertheless, the domestic courts relied on the applicant’s confessions as the main basis for his conviction and failed to act upon his complaints about a breach of his right to defend himself. It is true that the confession statements were not the sole basis for the applicant’s conviction. However, absent any court ruling as to the role of the initial submissions obtained from the applicant in breach of his right to legal assistance and included in the case file, this breach was not remedied in the judicial proceedings.

54.  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 on account of the restriction of the applicant’s right of access to a lawyer during his initial questionings and the use of his self-incriminating statements as a basis for his conviction.

2.  Inability to take part in the hearing before the Supreme Court

55.  The applicant maintained that the refusal by the Supreme Court of his request to take part in the cassation hearing had breached his right to defence and violated the principle of equality of arms. He submitted, in particular, that by rejecting the said request as lodged belatedly, the Supreme Court had interpreted the applicable law with excessive formalism and had in any event acted unfairly. In particular, it had not taken account of the fact that the request had been lodged within the one-month time-limit from the date on which the applicant had received the final rectified version of the trial court’s judgment, or of the crucial importance of the hearing for him. Finally, the applicant pointed out that he had no longer been legally represented by the time of the cassation proceedings. However, the cassation hearing had been attended by the prosecutor, who had given oral submissions. Therefore, his own absence had seriously undermined the equality of arms between the parties.

56.  The Government disagreed. They submitted that the applicant had had ample opportunity to present all his oral arguments in the first-instance proceedings. His personal presence at the cassation hearing had therefore not been crucial. In fact, at that hearing the Supreme Court had simply reviewed the arguments presented by the parties in their written pleadings in the light of the case-file materials. Although the prosecutor had been present at the hearing in question, he had submitted no new material and presented no new arguments. The principle of equality of arms had therefore not been violated. The Government also noted that the applicant had received a copy of the judgment on 21 December 2005. Under the applicable procedural law, he had therefore had until 21 January 2006 to lodge his request to attend the cassation hearing in person. However, although he had lodged his cassation appeal within the above-mentioned time-limit (on 10 January 2006), he had lodged the request to take part in the hearing only on 17 February 2006, that is, with a significant and unexplained delay. The Supreme Court had therefore acted lawfully and fairly in dismissing that request.

57.  In their additional observations the Government reiterated their position that the applicant had submitted his request for participation in the Supreme Court’s hearing too late and that such a request was binding on the Supreme Court only if submitted within the time-limit for lodging a cassation appeal. Therefore, the applicant had to submit his request “before 23 January 2006”.

58.  In reply the applicant insisted that the time limit for lodging his cassation appeal had to be counted starting on 20 January 2006.

59.  The Court observes that the Supreme Court of Ukraine rejected the applicant’s request for participation in the cassation hearing on the basis of the procedural provision which made it mandatory to summon an imprisoned defendant to a hearing only where he had submitted a request within one month of receipt of his copy of the trial court’s judgment (see Articles 386 and 391 of the Code of Criminal Procedure, cited in paragraphs 41 and 42 above).

60.  The Court notes, however, that the above time-limit for the request to participate in the hearing was introduced on 7 February 2006 while the appealed decision in the applicant’s case was adopted on 21 December 2005 when no such time-limit existed.

61.  The Court further notes that the parties did not make any observations as for the impact of these changes on the applicant’s case. The Court, however, will proceed taking into account the relevant changes in the domestic law.

62.  In this respect the Court reiterates that it is not its task to rule on whether the domestic judicial authorities correctly applied the domestic law in the applicant’s case. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. However, the Court is required to verify whether the way in which the domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention, as interpreted in the light of the Court’s case-law (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 190-191, ECHR 2006V).

63.  The Court further reiterates that Article 6 of the Convention does not expressly provide for the right of a defendant in criminal proceedings to attend the hearing in person; rather, it is implicit in the more general notion of a fair trial (see, for example, Colozza v. Italy, 12 February 1985, § 27, Series A no. 89). The personal attendance of the defendant does not take on the same crucial significance for an appeal hearing as it does for a trial hearing (see, for example, Kamasinski v. Austria, 19 December 1989, § 106, Series A no. 168).

64.  However, on several occasions the Court has stated that in the determination of criminal charges, the hearing of the defendant in person should be the general rule. Any derogation from this principle should be exceptional and subjected to restrictive interpretation (see, for example, Sándor Lajos Kiss v. Hungary, no. 26958/05, § 22, 29 September 2009, and Popa and Tănăsescu v. Romania, no. 19946/04, § 46, 10 April 2012). In order to decide whether the restriction was compatible with the Convention, regard must be had, among other considerations, to the specific features of the proceedings in question and to the manner in which the applicant’s interests were actually presented and protected before the appellate court, particularly in the light of the nature of the issues to be decided by it and of their importance to the appellant (see Hermi v. Italy [GC], no. , § 62, ECHR 2006XII). The personal participation of the defendant in the appeal hearing takes on particular importance where the appellate review concerns an assessment of their personality and character (see, for example, Kremzow v. Austria, 21 September 1993, § 67, Series A no. 268B), or where they claim that they did not commit the offences imputed to them and an appellate court is called upon to make a full assessment of the question of their guilt or innocence (see, among other authorities, Dondarini v. San Marino, no. , § 27, 6 July 2004). Further issues of importance are the extent to which the conviction bears social stigma and whether the defendant’s personal liberty is at stake (see, among other authorities, Belziuk v. Poland, 25 March 1998, § 38, Reports 1998II; Jussila v. Finland [GC], no. 73053/01, § 43, ECHR 2006XIV; Suuripää v. Finland, no. 43151/02, § 45, 12 January 2010; and Popa and Tănăsescu, cited above).

65.  In any event, it follows from the guarantees secured in Article 6 § 3 (c), and is of crucial importance for the fairness of the criminal justice system in general, that the accused must be adequately defended, both at first instance and on appeal (see Lala v. the Netherlands, 22 September 1994, § 33, Series A no. 297-A). The appearance of a representative of the prosecution at an appeal hearing not attended by either the defendant or a legal representative on his behalf, has been found to breach the applicant’s right to defend himself and to violate the principle of equality of arms inherent in the right to a fair trial (see, for example, Belziuk, cited above, § 38; Sinichkin v. Russia, no. 20508/03, §§ 38-45, 8 April 2010; Pirali Orujov v. Azerbaijan, no. 8460/07, § 44, 3 February 2011; and Nefedov v. Russia, no. 40962/04, § 41-48, 13 March 2012).

66.  Turning to the facts of the present case, the Court observes that under the rules of criminal procedure in force at the material time, in reviewing the applicant’s case the Supreme Court had jurisdiction to deal with questions of law and fact pertaining to both criminal liability and sentencing. It was empowered to examine the evidence on file and additional material submitted to it by the parties directly. Following such examination, the Supreme Court could dismiss the cassation appeal and uphold the judgment, quash the judgment and discontinue the criminal proceedings, quash the judgment and remit the case for a fresh investigation or trial, or amend the judgment (see Articles 396 and 398 of the Code of Criminal Procedure of 1960 cited in paragraph 41 above).

67.  In his cassation appeal the applicant denied having committed the offence he was accused of and maintained that the first-instance court had attached undue weight to his confession statements, which he claimed had been extracted from him by way of ill-treatment and in breach of his right to defence. He asked the Supreme Court to quash the conviction and remit the case for fresh investigation. Consequently, the issues to be determined by the Supreme Court in deciding the applicant’s liability were both factual and legal. It was called on to make a full assessment of the applicant’s guilt or innocence of the offences imputed to him.

68.  The Court further observes that the proceedings in question were of the utmost importance for the applicant, who had been sentenced to life imprisonment at first instance. It is also relevant to note that, while the applicant was not present at the hearing, nor represented by a lawyer, the prosecutor was present at the hearing. It can be seen from the text of the Supreme Court’s judgment of 18 April 2006 that the prosecutor made oral submissions during that hearing and urged the panel to uphold the judgment of the trial court.

69.  Having regard to the criminal proceedings against the applicant in their entirety in the light of the above considerations, the Court considers that the applicant’s presence at the cassation hearing was of particular importance in order to enable the Supreme Court to determine the issues before it properly and ensure equality of arms between the parties.

70.  The Court further notes that when rejecting the applicant’s request to be present at the hearing, the Supreme Court simply referred to the relevant provision of the Criminal Procedure Code, as in force at the date of its decision, without any further reasoning. However, the version of the provision upon which the Supreme Court relied had entered into force while the applicant’s appeal was already pending before the Supreme Court. If the newly introduced time-limit was to be calculated from the date of receipt of the first version of the appealed judgment on 21 December 2005, the new provision would have been applied retroactively in the applicant’s case, as the new rule which entered into force on 7 February 2006 required him to submit his request to participate in the proceedings by 21 January, that is, before the legislative amendment had come into force. Moreover, under the new law it seems that the Supreme Court, while not bound to allow the applicant to attend the hearing in the case of a request out of time, could still have used its discretion to accede to the applicant’s request. If the time-limit was to be calculated from the date of receipt of the final version of the appealed judgment, on 20 January 2006, it had not yet expired when the applicant lodged his request for attendance. Whichever of the two interpretations has been followed by the Supreme Court, it thus raises issues as to the justification of its decision in the light of the right to a fair trial. No alternative interpretation of the rules has been provided.

71.  The Court also notes that the applicant’s request to be present at the hearing was submitted on 17 February 2006 and the hearing was held two months later, on 18 April 2006. The Court further notes that the Government did not indicate that acceding to the applicant’s request would have resulted in a need to postpone the hearing (compare Hermi v. Italy, cited above, § 20).

72.  In the light of all the foregoing, the Court concludes that the Supreme Court’s rejection of the applicant’s request to take part in the cassation hearing resulted in a disproportionate restriction of his right to defence and, with a view to the presence of a representative of the prosecution, in breach of the principle of equality of arms. It was, thus, incompatible with the guarantees of a fair trial secured by Article 6 §§ 1 and 3 (c) of the Convention.

73.  There has, accordingly, also been a breach of Article 6 § 1 of the Convention taken together with Article 6 § 3 (c) of the Convention on account of the refusal of the applicant’s request to participate in the cassation hearing.

II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

74.  The applicant also complained that he had been ill-treated by the investigative authorities and administered psychotropic drugs which interfered with his power of concentration; that all his lawyers had performed poorly; that the prosecution had coerced witnesses to provide false statements; that the judicial authorities had been neither independent nor impartial as they had convicted him of crimes he had not committed; that his arrest had been unlawful in that he had been belatedly notified of the reasons for it and brought before a judge; that he had had no opportunity to bring proceedings to have the lawfulness of his detention decided speedily; that his mother had suffered immensely on account of his unlawful prosecution and the poor performance of the lawyer N., and that the authorities had ignored various requests and applications lodged by him. The applicant referred to Articles 1, 3, 5, 6, 8, 13, 14, 17 and 34 of the Convention in relation to the above complaints.

75.  Having considered these complaints in the light of all the material in its possession, the Court finds that, in so far as they are within its competence, the matters complained of do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

76.  It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

77.  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

78.  The applicant claimed 140,000 euros (EUR) in respect of non-pecuniary damage.

79.  The Government submitted that the applicant’s claims were exorbitant and unsubstantiated.

80.  The Court considers that the distress and frustration caused to the applicant cannot be compensated by the mere finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention. At the same time, it finds that the amount claimed by the applicant is excessive. 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

81.  The applicant did not submit any claims for costs and expenses within the time-limit fixed. Consequently, the Court does not make any award 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 complaints concerning lack of access to a lawyer at the beginning of the investigation and the applicant’s inability to take part in the cassation hearing (Article 6 §§ 1 and 3 (c) of the Convention) admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 taken together with Article 6 § 3 (c) of the Convention on account of lack of access to a lawyer at the beginning of the investigation;

3.  Holds that there has been a violation of Article 6 § 1 taken together with Article 6 § 3 (c) of the Convention on account of the applicant’s inability to take part in the cassation hearing;

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 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 9505/12) 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, Ms Marina Vladimirovna Barysheva (“the applicant”), on 7 February 2012.

2.  The applicant, who had been granted legal aid, was represented by Ms Y.V. Zayikina, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agents, most recently Mr I. Lishchyna.

3.  On 24 August 2015 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1982 and lives in Kharkiv.

A.  The first episode of alleged police ill-treatment, ensuing investigation and the first set of criminal proceedings against the applicant

5.  According to the applicant, on 31 January 2009 she was arrested by a group of police officers in a café, K., and detained without record at a police station until 2 February 2009. She further alleged that during her detention, she was beaten and threatened by the police officers, notably A.A., who tried to obtain false confessions from her concerning her and other persons’ involvement in drug dealing. According to the applicant, she did not seek any medical assistance upon her release because she intended to file an illtreatment complaint and expected to be instructed by the prosecutor’s office on how to document the injuries properly.

6.  According to the Government, on 31 January 2009 the police officers seized some heroin from the applicant, which was the basis for the institution of criminal proceedings against her and her eventual committal for trial. However, the applicant was neither arrested, nor detained by the police at that time.

7.  On 10 February 2009 the applicant complained about the incident to the prosecutor’s office.

8.  On 17 April 2009 this complaint was rejected as unsubstantiated.

9.  On 31 March 2010 Kyivskyy District Court in Kharkiv, which examined the criminal case against the applicant, ordered the prosecutor’s office to inquire into her ill-treatment complaint lodged again during the trial.

10.  On 23 April 2010 the Kyivskyy District Prosecutor’s Office in Kharkiv decided not to institute criminal proceedings in relation to the applicant’s ill-treatment allegations. As appears from that document, the applicant had stated to the prosecutorial authority that she and V.J. (her partner) had been arrested on 29 January 2009 and that she had been illtreated by police officers and detained without record until 31 January 2009. V.J., questioned by the prosecutor’s office in connection with the inquiry into the applicant’s complaints, had likewise alleged that both of them had been arrested on 29 January 2009 and that the applicant had been subsequently detained until 31 January 2009.

11.  The applicant appealed against this decision to the General Prosecutor’s Office, which forwarded the case-file materials back to the local prosecutor’s office with a view for them to be joined to the criminal investigation of the applicant’s complaint concerning the second illtreatment episode (see below).

12.  According to the applicant, on 18 June 2010 the Kyivskyy District Court in Kharkiv, to which the criminal case against her had been referred for examination, returned it for additional investigation.

13.  There is no further information concerning the final outcome or present status of the aforementioned case against the applicant.

B.  The second episode of alleged police ill-treatment, ensuing investigation, and the second set of criminal proceedings against the applicant

14.  At 9.42 p.m. on 25 June 2009 the applicant sought medical aid at Kharkiv City Clinical Hospital no. 4.

15.  At 10 p.m. on the same date she was examined by a medical professional in that hospital and diagnosed as suffering from concussion and chest, stomach, and knee-joint contusions. She refused to be admitted as an inpatient for treatment, which was recommended to her, and left the hospital.

16.  On 26 June 2009 a new set of criminal proceedings was instituted against the applicant on suspicion of selling opium to three men on 24 June 2009 and of storing a jar of opium in her house (“the second set of criminal proceedings”).

17.  On the same date the applicant complained to the Kharkiv Regional Department of the Interior that she had been ill-treated by the police. She submitted, in particular, that on 24 June 2009 four police officers had forced their way into her house without a court order, searching for drugs. Officer A.A. had hit the applicant on the head with the grip of his gun and had struck her several times in the face with his hand in the presence of the applicant’s two-year-old son, her partner, brother, and two guests. The police officers had then taken the applicant to the police station, where she had been held from about 2 p.m. on 24 June until 5.30 p.m. on 25 June 2009 without a formal arrest record being drawn up. During that period, officer A.A. had demanded that she confess to dealing drugs under the protection of another police officer, Y.B. As the applicant had protested, he had threatened and punched her on various parts of her body. She had been released at about 5.30 p.m. on 25 June 2009 after confessing to drug-related offences and signing various documents at the demand of A.A.

18.  According to the applicant, during her visit to the Department of the Interior, she had felt so unwell that an ambulance had been called and she had been admitted as an urgent case to Hospital no. 4.

19.  According to the Government, it could be seen from the hospital records that no ambulance had been called for the applicant and she had arrived at the hospital on her own. They submitted hospital records, according to which the applicant had come to the hospital on her own from her home and was registered by the reception desk at 9.27 p.m. It can also be seen from those records that between 26 June and 20 July 2009 the applicant received inpatient treatment for a moderately serious case of concussion, accompanied by a traumatic subarachnoid haemorrhage, epileptic syndrome and several other neurological conditions.

20.  On 15 July 2009 a medical expert, having examined the applicant, reported that she had bruises on her right leg and left hip, which could be classified as minor injuries and which could have been sustained between seven and fifteen days prior to the assessment. He further concluded that he was not competent to decide on the cerebral trauma, in particular, as he had not been provided with a comprehensive medical record.

21.  On 27 July 2009 another medical expert, after examining the applicant and various medical records, concluded that the applicant’s cerebral trauma could be classified as a moderately serious injury. He further reported that the trauma could have been sustained in the circumstances described by the applicant.

22.  In July 2009 the Kharkiv Regional Department of the Interior carried out an internal investigation into the applicant’s ill-treatment complaints.

23.  On 10 August 2009 a report summarising the results of the investigation was transferred to the Kharkiv city prosecutor’s office for review and follow-up. According to the findings contained in the report there were, in particular, irregularities in the visitors’ log and other police records, making it difficult to determine the exact time of the applicant’s presence in the police station on 24 and 25 June 2009.

24.  On an unspecified date the prosecutor’s office began a preliminary investigation into the applicant’s complaints, in the course of which a number of people were questioned as potential witnesses, including the police officers implicated by the applicant in her ill-treatment, the lay witnesses, who had signed the police report concerning seizure of opium from the applicant on 24 June 2009, the three men implicated in buying opium from the applicant, the applicant’s partner, brother, guests, and the applicant herself.

25.  During the questionings, the four police officers implicated by the applicant in the forced entry to her house and ill-treating her, denied this accusation. They maintained that the applicant had willingly allowed them to inspect her house after they had caught her selling opium to three men at the entrance. In the presence of two lay witnesses, syringes full of opium had been seized from the men on the spot and a jar filled with opium had been seized from the applicant’s garage following a search of her house. In connection with those seizures, the applicant had subsequently been taken in for questioning and had been at the police station on 24 and 25 June 2009, however, she had neither been arrested, nor held there overnight. The officers also submitted that it was known to them that the applicant sold drugs under the protection of police officer Y.B.

26.  Two men identified as the lay witnesses gave statements largely consistent with the police officers’ submissions.

27.  The three men identified by the police officers as the drug buyers denied buying any opium from the applicant and submitted that they had visited her that day to borrow some money. Later on, they had been arbitrarily caught by the police and made to write false confessions, admitting that they had bought opium from the applicant, on pain of criminal sanctions.

28.  The applicant herself, V.J. (her partner), A.B. (her brother), and two persons identified by the applicant as the guests present during the purported forced entry, gave statements similar to the ones the applicant had provided to the Department of the Interior on 26 June 2009. The applicant also submitted that there had been no lay witnesses present during the forced entry and search and that the jar and syringes with opium had been brought by the police officers and planted on her.

29.  On 18 September 2009 the Kharkiv city prosecutor’s office instituted criminal proceedings against “a group of unidentified police officers” suspected of abuse of authority accompanied by violence and the use of arms against the applicant on 24 June 2009.

30.  On 22 September 2009 the applicant joined those proceedings as an aggrieved party.

31.  On 1 March 2010, responding to a request from the applicant to be updated on the proceedings and to consult the case file, the Kharkiv city prosecutor’s office informed her that the investigation was in progress and that she would be able to consult the file after it had been completed.

32.  On 9 March 2010 a further medical report on the applicant was obtained, which stated that it was not possible to determine the gravity of her cerebral trauma, in particular because of the unavailability of her previous complete medical history. It also concluded that it was unlikely that the applicant’s injuries had been self-inflicted.

33.  On 8 December 2010 A.A. was indicted within the framework of the criminal proceedings concerning the applicant’s alleged ill-treatment. The three other police officers implicated by the applicant in assisting him on 24 June 2009 were referenced in the bill of indictment by name.

34.  On 9 December 2010 the investigator S. discontinued the second set of criminal proceedings against the applicant for want of any evidence that she had stored opium in her house or had sold it to anyone on 24 June 2009. In his decision, the investigator referred to various procedural irregularities in the collection of evidence by the police officers and discrepancies in the statements of the various persons questioned as witnesses, which he deemed irreconcilable. He further decided to transfer the file of the case against the applicant to the Kharkiv prosecutor’s office in order for it to be joined to the case concerning the applicant’s alleged ill-treatment.

35.  On 21 January 2011 a further medical report was obtained. It stated that it was not possible to determine the severity of the applicant’s cerebral injury because the medical history that had been provided to the expert writing the report had been incomplete, and because the applicant herself had not reported for an examination in person. It was also noted that, as regards the bruises which had been documented in July 2009, they could have been inflicted on the dates and in the manner reported by the applicant.

36.  On 11 August 2011 a further medical report, this time by a panel of three experts, was obtained, wherein the applicant’s cerebral trauma was classified as a minor injury, which could possibly have been sustained on 24 June 2009 and was unlikely to have been self-inflicted. It was further reported that the data concerning the other injuries (bruises and contusions) were inconclusive, but that based on the available information it was not improbable that the injuries had been self-inflicted.

37.  On 29 August 2011 the Kharkiv prosecutor withdrew the bill of indictment against officer A.A., noting that the three men earlier identified as the drug buyers and one of the two people identified as the applicant’s guests who had been present during the purported forced entry had retracted their testimony incriminating A.A. and his colleagues in the assault.

38.  On an unspecified date officer M.O., one of the four officers implicated by the applicant in the forced entry, appealed to the Kyivskyy District Court in Kharkiv, seeking the annulment of the decision to institute criminal proceedings.

39.  On 12 September 2011 the Kyivskyy District Court of Kharkiv allowed the appeal, referring the case for further preliminary inquiry. The court noted, in particular, that as the applicant’s complaint had been lodged against four named police officers, it had been wrong to institute proceedings into alleged abuse of office by a group of “unidentified officers”. Furthermore, while officer M.O. had de facto been implicated in the bill of indictment against officer A.A. as his accomplice, he had been given witness status only, which had restricted his procedural rights, including the right to defence.

40.  On various dates in September 2011 formal confrontations were organised between the applicant, two of the three men identified by the police as the “drug buyers”, and a woman identified by the applicant as one of her guests on 24 June 2009. During those confrontations, the applicant confirmed her previous testimony, while the other people maintained that because they had been regular clients of the applicant’s for drugs in 2009, they had earlier given statements in her favour for fear of reprisals from her and officer Y.B., who had protected her. In fact, the two men confirmed that they had bought opium from the applicant on 24 June 2009, while the woman maintained that she had not visited the applicant on that date and had not witnessed any forced entry by the police.

41.  V.J. (the applicant’s former partner) and A.B. (her brother), also questioned again in September 2011, confirmed their previous statements that they had witnessed a forced entry and assault on the applicant. Based on the case file, the second guest (the fourth person, who had earlier contended that he had witnessed the forced entry), was not questioned.

42.  On 26 November 2011 the Kharkiv prosecutor’s office refused to reopen the criminal investigation into the applicant’s ill-treatment complaints for want of any evidence that the police officers had committed a crime. They referred, in particular, to the retraction of several witness statements and to the re-classification of the applicant’s injuries as minor in the latest medical report. They further pointed out that, according to the experts’ findings, all of the applicant’s external injuries could technically have been self-inflicted. Accordingly, she could have lied to the police about her illtreatment to avoid charges of drug dealing.

43.  It appears that the applicant was not informed of the above decision in due time, as in 2012 the applicant’s lawyers unsuccessfully contacted the law-enforcement authorities to obtain information on whether there had been any progress in the proceedings.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

44.  The applicant complained that on two occasions in 2009 she had been subjected to police ill-treatment and that her complaints had not been properly investigated. She referred to Articles 3 and 13 of the Convention in respect of the above complaints.

45.  The Court, which is master of the characterisation to be given in law to the facts of a case (see, among other authorities, Drozd v. Ukraine, no. 12174/03, § 49, 30 July 2009) finds that the complaints at issue fall to be examined under Article 3 of the Convention only, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  First episode of alleged ill-treatment

46.  The Government submitted that there had been no breach of Article 3, as there was no evidence that the applicant had been subjected to police illtreatment. They noted that, contrary to the applicant’s allegations, she had been neither ill-treated, nor detained on 31 January 2009. In their view, the applicant had ample opportunities to complain about the purported illtreatment and to document her injuries, if any, before 10 February 2009 (the date on which she had lodged her complaint with the prosecutor’s office). The applicant had failed to do so and to provide any evidence of illtreatment. Her relevant complaints had therefore been rightfully dismissed by the domestic authorities as unsubstantiated.

47.  The applicant submitted that by lodging an ill-treatment complaint within a week of her release from unrecorded detention, she had acted promptly. She also submitted that her failure to document her injuries was due to a lack of appropriate instructions from the prosecutor’s office, which could not be held against her.

48.  The Court notes that it has not been presented with any medical or other objective evidence that the applicant might have been ill-treated by the police in either January or February 2009. It further notes that her submissions before the Court concerning the timing of the ill-treatment are contradictory. While in her statement to the Court the applicant has indicated that she had been arrested on 31 January 2009 and detained until 2 February 2009, in her submissions to the Kyivskyy district prosecutor’s office she had indicated different dates (29-31 January 2009; see paragraph 10 above). The applicant has not explained this discrepancy to the Court. The Court considers that the applicant’s submissions are insufficiently consistent, detailed and corroborated by necessary evidence to raise an arguable claim that she might have been ill-treated by the police in January or February 2009.

49.  The applicant’s complaints concerning the first episode of alleged illtreatment and lack of appropriate investigation of her relevant allegations must therefore be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B.  Second episode of alleged ill-treatment

1.  Admissibility

50.  The Government have not filed any objections concerning the admissibility of the present complaint.

51.  The Court considers that this complaint is not manifestly illfounded 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

52.  The applicant argued that on 24 June 2009 she had been assaulted by officer A.A. in her home, then detained without record until about 5.30 p.m. on 25 June 2009 and tortured with a view to extracting false confessions of drug dealing. She further noted that in order to give the appearance that she had not been detained, the police officers had on several occasions falsified her signature on the visitors’ log, as if she had been going in and out. Although the applicant had raised that argument before the investigative authorities, no graphologist had been asked to carry out an expert assessment. The applicant also submitted that in their decision of 26 November 2011 not to reinstitute criminal proceedings, the prosecutorial authorities had based their conclusion largely on testimony by the police officers implicated by her in the ill-treatment that had been taken at face value. In the applicant’s view, the domestic investigation of her ill-treatment complaint had been ineffective as it had not led to the punishment of A.A. and the other officers responsible for the offences of assault and torture.

53.  The Government alleged that there had been no breach of Article 3. Notably, after an exhaustive investigation, including the questioning of numerous witnesses and the examination of medical and other evidence, the competent domestic authorities had concluded that there was no illtreatment case to answer. The Government maintained that the records showing that the applicant had not been detained on either 24 or 25 June 2009 and had simply visited the police station on those dates, were accurate. They also contested the applicant’s submissions that she had been taken to hospital by ambulance on 26 June 2009.

.  The Court observes that on 25 June 2009, within several hours of the applicant’s encounter with the police, she was diagnosed with cerebral concussion and multiple contusions (see paragraph 15 above). Reviewing the facts of the present case in the light of its wellestablished jurisprudence (see, in particular, Kozinets v. Ukraine, no. 75520/01, §§ 51-54 and 59-60, 6 December 2007), the Court considers that the injuries she complained about raised an arguable ill-treatment claim, triggering an obligation on the part of the national authorities to investigate them.

.  At the same time, regard being had to the evidential gaps and contradictions in the domestic case file and in the factual submissions by the parties (see, in particular, paragraphs 18-19, 40-41 and 52-53 above), the Court finds it impossible to establish beyond a reasonable doubt that the applicant’s injuries were caused as alleged. For the reasons set out below, the Court considers that the difficulty in determining the substance of the applicant’s allegation of ill-treatment stems from the authorities’ failure to investigate her complaint effectively (see, in particular, Timofejevi v. Latvia, no. 45393/04, § 81, 11 December 2012 with further references).

.  The Court notes in this regard that while the applicant reported her injuries on 26 June 2009, that is, within two days of the purported illtreatment incident, the ensuing investigation, which lasted for nearly two and a half years, did not result in the identification of the persons responsible for the injuries or the circumstances in which they had been sustained.

.  The initial reaction by the competent authorities to the applicant’s complaint, while not particularly urgent, was nevertheless not marked by any excessive delay. Notably, the first medical reports were organised within several weeks of the incident (see paragraphs 20-21 above); numerous further steps, including questioning the applicant and all the key witnesses and examining the documentary evidence, were taken within two months (see paragraphs 22-28 above). Formal criminal proceedings were instituted within two and a half months (see paragraph 29 above).

.  However, it appears that once instituted, the criminal proceedings turned into a series of repeated questionings and assessments by medical experts, which were organised at rather important intervals and concerned largely the same set of questions (see paragraphs 20, 21, 32, 35, and 36 above). The Government did not present any documents which could justify the importance of ordering repeated assessments or the two-year delay in taking the proceedings forward.

.  The Court further observes that proceedings were instituted against a group of “unidentified police officers”, in spite of the fact that the names of the four officers implicated by the applicant in the incident of 2425 June 2009 had been known from the outset of the proceedings. It appears that none of the aforementioned police officers was suspended from duty for the period of the investigation. In that connection, the Court would once again underline the importance of the suspension from duty of an agent under investigation or on trial on charges of ill-treatment, as well as his or her dismissal if convicted (Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2 November 2004).

60.  In conjunction with this, the Court notes that the final decision in the case – the decision of 26 November 2011 not to reinstitute the criminal proceedings – was taken on the basis of a possibility that the applicant’s bruises could technically have been self-inflicted, her cerebral injury had been “minor”, and that some of her witnesses had changed their testimony. The Court cannot overlook the fact that this decision does not provide any definite answer as to how the applicant’s injuries were inflicted. Likewise, it does not refute a probability (also mentioned by the medical experts) that the injuries in question could have resulted from police violence.

61.  Lastly, the Court reiterates that the notion of an effective remedy in respect of an allegation of ill-treatment also entails effective access for the complainant to the investigation procedure (see Assenov and Others v. Bulgaria, 28 October 1998, § 117, Reports of Judgments and Decisions 1998VIII, and Savitskyy v. Ukraine, no. 38773/05, § 114, 26 July 2012). It appears that the applicant in the present case was not provided with satisfactory updates on the status of the investigation or given any access to documents (see paragraphs 31 and 43 above).

. The Court notes that in the case of Kaverzin v. Ukraine, (no. 23893/03, §§ 173-180, 15 May 2012) it found that the reluctance of the authorities to ensure a prompt and thorough investigation of ill-treatment complaints by criminal suspects constituted a systemic problem within the meaning of Article 46 of the Convention. In view of the circumstances of the present case and its earlier case-law, the Court considers that the present case constitutes another regrettable example of that practice.

63.  The Court’s findings in paragraphs 58-62 above are sufficient for it to conclude that there has been a breach of Article 3 of the Convention in respect of the second episode of the applicant’s purported ill-treatment.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

64.  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

65.  The applicant claimed 20,000 euros (EUR) in respect of nonpecuniary damage.

66.  The Government maintained that the claim was exorbitant and unsubstantiated.

67.  The Court, ruling on an equitable basis, awards the applicant EUR 7,500 in respect of non-pecuniary damage.

B.  Costs and expenses

68.  The applicant did not file any claim under this head. The Court therefore makes no award.

C.  Default interest

69.  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 the second episode of purported police ill-treatment admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 3 of the Convention;

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of nonpecuniary 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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 14 March 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.