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FIFTH
SECTION
CASE OF OLEG KOLESNIK v. UKRAINE
(Application
no. 17551/02)
JUDGMENT
STRASBOURG
19 November 2009
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 Oleg Kolesnik v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva, judges,
Mykhaylo Buromenskiy, ad hoc
judge,
and Stephen Phillips,
Deputy
Section Registrar,
Having
deliberated in private on 20 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17551/02) 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 Oleg Rebazovich
Kolesnik (“the applicant”), on 2 November 2001.
- The
applicant, who had been granted legal aid, was represented by
Mr I. Pogasiy, a lawyer practising in Kirovograd. 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 trial had been unfair,
that he had been questioned in the absence of a lawyer and forced to
confess and that he had not been able to question important witnesses
for the prosecution.
- On
8 September 2006 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963. He is currently detained in Zhytomyr
Prison No. 8 in Ukraine.
- On
7 November 1998 according to the applicant (on 10 November 1998
according to the documents), the applicant, together with three other
persons, was arrested on suspicion of two counts of aggravated murder
and robbery. According to the applicant, the police ill-treated him,
forcing him to confess and to waive his right to a lawyer.
- During
initial questioning on 10 November 1998 the applicant confessed that
on 19 August 1998 he and other suspects had killed Mrs
C. (hereinafter “victim C.”) whilst under the
influence of alcohol. He also confessed that on 2 October 1998 he and
other suspects had killed Mr B. (hereinafter “victim B.”).
He made similar admissions during the reconstruction of the events on
11 November 1998. On 13 November 1998 the applicant was questioned
again. During the questioning he maintained his confessions. Similar
confessions were made by the suspects T., U. and B. All these
investigation measures were conducted without legal assistance.
- On
18 November 1998 the applicant was assigned a lawyer.
- On an unknown date the applicant’s mother lodged
a complaint with the Kirovograd Prosecutor’s Office, seeking
to institute criminal proceedings against several police officers,
alleging that they had subjected the applicant to inhuman treatment.
On 24 December 1998 the Prosecutor’s Office refused to
institute criminal proceedings owing to the lack of corpus
delicti in the actions of the police officers. Neither the
applicant nor his mother appealed against this decision to the court.
- On
29 March 1999, being questioned as an accused, the applicant denied
his original confessions and claimed his innocence, stating that he
had been forced to confess to crimes which he had not committed.
- On
2 June 1999 the preliminary investigation was completed and the case
against the applicant and four other suspects – T., U., B. and
I. – was referred to the Kirovogradskiy Regional Court
(Кіровоградський
обласний суд,
“the Regional Court”).
- On
1 July 1999 the Regional Court remitted the case to the Prosecutor of
the Kirovogradskiy Region for additional investigation, as it found
that the investigation authorities had violated certain provisions of
the Code of Criminal Procedure, breaches which could not be remedied
during the trial. In its decision the court noted, inter alia,
that the investigation authorities had violated the defence rights of
the accused. The court found that the criminal charges against the
applicant and the co-defendants had required their obligatory legal
representation at the initial stage of the proceedings, whereas they
had not been provided with any. In particular, the court underlined
that the applicant’s questioning on 10 and 13 November 1998 and
the reconstruction of the events on 11 November 1998 had been
conducted without legal assistance. The same considerations applied
to the self-incriminating statements made by the co-defendants. The
court also noted that the investigating authorities had failed to
find the murder weapon and other physical evidence. By virtue of this
decision, the Prosecutor’s Office was obliged to repeat all the
investigative measures in the presence of the defendants’
lawyers.
- On
10 May 2000 the additional investigation was completed and the case
was referred to the Regional Court.
- The
applicant and the co-defendants withdrew their self-incriminating
statements both during the additional investigation and during the
trial, and pleaded innocent. They also stated that they had been
forced to incriminate themselves.
- On 6 February 2001 the Regional Court, acting as a
first-instance court, convicted the applicant of two counts of
aggravated murder and robbery and sentenced him to fourteen years’
imprisonment. The applicant’s conviction was based on his
self-incriminating statements obtained on 10, 11 and 13 November
1998, similar self-incriminating statements made by the co-defendants
and statements by the witnesses.
- As regards the first count of murder, the Regional
Court also took into account the testimony of Mrs V., who stated that
she had seen the crime and had been warned by the co-defendant T. to
keep silent. The Regional Court further considered that during the
pre-trial investigation Mrs V. had identified the co-defendants
T. and U. (she was shown their photos); however, she had failed to
attend the trial. The Regional Court also relied on the testimony of
Mr C., the son of victim C., who had identified three pieces of the
handle of a mattock which had been found at the crime scene and could
allegedly have been the murder weapon; and the results of the
additional forensic medical examination, according to which the death
of victim C. could have occurred under the circumstances described by
the applicant during the reconstruction of events on 11 November
1998.
- As regards the second count of murder, the Regional
Court considered in particular the results of forensic biological and
medical examinations, which concluded that the blood on the jacket
seized from the applicant possibly belonged to victim B; statements
by Mr P. that in October 1998 the applicant and the accused T. had
sold him a cooking appliance belonging to victim B., for one litre of
alcohol, and statements by Mrs N., the mother of victim B., who had
found that a cooking appliance and money (35 Ukrainian hryvnias –
UAH) were missing from her son’s flat. Neither Mr P. nor Mrs N.
had attended the trial.
- The
Regional Court doubted the credibility of the testimonies of Mr M.
and Mr C.V. According to Mr M.’s statements in court, on 19
August 1998 the applicant had helped him to repair the house of his
partner from 8 a.m. until 7 p.m. According to Mr C.V.’s
statements in court, from 25 September until 6 October 1998 the
applicant had been repairing his barn.
- A
request by the lawyer for an examination of Mrs Ma., Mrs Ch.V. and
Mrs Ch., who could allegedly confirm the applicant’s alibi, was
dismissed as irrelevant.
- In
their appeals to the Supreme Court of Ukraine (Верховний
Суд України),
the applicant and his lawyer challenged the judgment on a number of
points. First, they contested the admissibility of the evidence
obtained in breach of the law – the applicant’s and the
co-defendants’ self-incriminating statements, as well as
witness statements made during the first pre-trial investigation. The
lawyer mentioned that on 1 July 1999 the Regional Court had referred
the case for additional investigation precisely because the
applicant’s and the co-defendants’ statements had been
obtained in breach of the law, which rendered them inadmissible. The
appeal also stated that the Regional Court had relied on statements
of witnesses who had not been questioned at the trial, had ignored
the statements of witnesses M. and C.V., who had confirmed the
applicant’s alibi, and had refused to call other witnesses
requested by the defence. The applicant also complained that he had
been forced to incriminate himself and had been allowed to see his
lawyer for the first time only on 29 March 1999.
- On
10 May 2001 the Supreme Court of Ukraine upheld the judgment of 6
February 2001. As to the applicant’s complaints, it found as
follows:
“... There is no cause to doubt the
credibility of witnesses V. and C.
Mrs V.’s depositions were examined by the court in
accordance with Article 306 of the Code of Criminal Procedure...
... There is no cause to doubt the credibility of
witness P.
... The complaints by the convicted persons alleging
unlawful methods of investigation are unsubstantiated. During the
pre-trial investigation a review was ordered following the convicted
persons’ complaints and no decision to institute criminal
proceedings was taken on account of the lack of corpus
delicti in the actions of the police officers of the
Kirovsky District Department of the Ministry of the Interior...
... The arguments of the convicted person Kolesnik and
his lawyer that the court disregarded the statements of witnesses M.
and C.V., who proved his alibi, are unsubstantiated. These witnesses’
statements were thoroughly examined and the court reasonably doubted
their veracity, because the convicted person Kolesnik did not mention
these witnesses during the pre-trial investigation and they could not
explain to the court the reason why they had remembered exact dates
and factual circumstances after a considerable lapse of time...
... The submissions of the convicted persons Kolesnik
and B. about an alleged violation of their defence rights are
unsubstantiated. The convicted persons failed to specify in what way
their defence rights were violated. It follows from the case file
that during the pre-trial investigation they were represented by
lawyers who were present during the most significant investigative
measures.”
- The
Supreme Court reaffirmed that the applicant’s and the
co-defendants’ guilt was proved by the statements they had made
during the first pre-trial investigation, by the statements of Mrs
V., Mr C., Mrs N. and Mr P. during the pre-trial investigation and by
the physical evidence – three pieces of the handle of the
mattock which had been found at the crime scene and belonged to the
victim C., the jacket seized from the applicant’s house and the
cooking appliance seized from Mr P. The court also relied on the
results of the forensic biological and medical examinations.
- Neither
the applicant nor his lawyer was present before
the Supreme Court during the hearings.
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 the proceedings against him had been
unfair. He submitted that at the initial stage of the investigation
he had been forced to incriminate himself and that the main
investigative measures had been conducted without a lawyer. He
further complained that he had not been able to examine key witnesses
against him as they had failed to attend the trial. According to him,
the evidence obtained as a result of the above violations had served
as a basis for his conviction. He referred to Article 6 §§
1 and 3 (c) and (d) of the Convention, which provides in its relevant
part:
“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...”
A. Admissibility
- The
Government raised a preliminary objection as to the admissibility of
the applicant’s complaint under Article 6 § 3 (c) of the
Convention. They maintained that the applicant’s complaints
concerning the lack of legal assistance during his questioning and
other investigative measures on 10, 11, and 13 November 1998 had been
submitted too late, given that from the above dates or even from the
date when the applicant raised this issue before the domestic court
(29 June 1999) more than six months had passed prior to the date on
which the application was lodged (2 November 2001).
- The
applicant maintained that he had submitted his application in time,
given that the final decision in the criminal case against him had
been given by the Supreme Court of Ukraine on 10 May 2001.
- The
Court reiterates that the requirements of Article 6 § 3 are to
be seen as particular aspects of the right to a fair trial guaranteed
by Article 6 § 1 and that its task is to
ascertain whether the proceedings in their entirety, including the
way in which evidence was permitted, were "fair" within the
meaning of Article 6 § 1 (see, among many other authorities,
Shabelnik v. Ukraine, no. 16404/03, § 51, 19 February
2009, and Laudon v. Germany, no. 14635/03, § 56, 26
April 2007). To assess to what extent the alleged violation of the
applicant’s procedural rights would affect the fairness of the
proceedings in their entirety, the applicant had to await the final
resolution of his case and could be reasonably expected to raise the
impugned complaints in his appeal to the Supreme Court, which is
considered an effective remedy for complaints about the unfairness of
criminal proceedings (see, mutatis mutandis, Arkhipov v.
Ukraine (dec.), no. 25660/02, 18 May 2004). The Court also
notes that the applicant did raise all the complaints in question in
his appeal to the Supreme Court (see paragraph 20 above). The Court
therefore dismisses the Government’s preliminary objection.
- The
Court further notes that the applicant’s complaints under
Article 6 §§ 1 and 3 (c) and (d) of the Convention are
not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It further notes that they are not inadmissible on
any other grounds. They must therefore be declared admissible.
B. Merits
- 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).
1. Privilege against self-incrimination and right to
defence
(a) The parties’ submissions
- The
Government maintained that the applicant had been represented during
the pre-trial investigation; however, at the initial stage of the
investigation, having been informed about his right to a lawyer, the
applicant had waived his right to representation and signed the
document confirming his wish to represent himself. Furthermore, the
applicant’s mother, who had been informed about the applicant’s
arrest, had not made any complaint about the absence of a lawyer.
During the investigative steps carried out on 10, 11 and 13 November
1998 the applicant had not made any complaints about the absence of a
lawyer either and from 18 November 1998 he had been provided with a
lawyer.
- The
Government further submitted that the applicant’s privilege
against self-incrimination and right of defence were protected by the
Constitution and the laws of Ukraine. They further contended that the
applicant could challenge any action taken by the investigator under
the Code of Criminal Procedure. Therefore, they contended that the
applicant’s above-mentioned rights had not been violated.
- The
applicant maintained that in view of the crimes of which he was
suspected, his legal representation had been obligatory from the
outset of the investigation. He further contended that the
authorities should first have provided him with a lawyer and only
after this should they have considered any waivers of legal
representation. He maintained that he had been coerced into such a
waiver and that the Regional Court, in its ruling of 1 July 1999, had
established a violation of his right to defence.
- The
applicant further submitted that his conviction had been based on
self-incriminating statements that had been obtained through coercion
and that he had been unable to complain about the matter, being in
the hands of the police. He further submitted that his mother had
unsuccessfully complained to the prosecutor about his ill-treatment
by the police.
(b) The Court’s assessment
- 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, ECHR 2008-...).
- As
regards the use 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 domestic courts acknowledged the violation of
the applicant’s procedural rights during the initial stage of
the investigation, in particular his right of defence (see paragraph
12 above). Nevertheless, despite the acknowledgment of this
violation, the applicant’s self-incriminating statements,
obtained in the absence of a lawyer and in circumstances that give
rise to a suspicion that both the original waiver of the right to
legal representation and the applicant’s confessions were
obtained in defiance of his will, served as a crucial element in his
conviction.
- Accordingly,
in this respect there has been a violation of Article 6 §§ 1
and 3 (c) of the Convention.
2. Questioning of witnesses
(a) The parties’ submissions
- The
Government maintained that the applicant and his lawyer had been able
to study the case file prior to the trial and acquaint themselves
with the testimonies of all the witnesses. Furthermore, when the
issue of the failure to secure the attendance of certain witnesses,
including those called by the applicant, had been raised in the court
proceedings, the trial judge had asked the parties whether they would
agree to hold the hearing in the absence of those witnesses, and
neither the applicant nor his lawyer had objected on that account.
They had also made no objection to the completion of the hearing,
having left the issue to the court’s discretion.
- The
applicant contended that neither he nor the court had had an
opportunity to hear the witnesses in person and to question them, and
that therefore the testimonies of those witnesses could not be used
as evidence against him. He also maintained that he and the other
accused had insisted on questioning Mr P. in court.
(b) The Court’s assessment
- 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 the 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 where a conviction is based solely or to a decisive
degree on statements that have been made by a person whom the accused
has had no opportunity to examine or to have examined, whether during
the investigation or at the trial, the rights of the defence are
restricted to an extent that is incompatible with the guarantees
provided by Article 6. With respect to statements of witnesses who
proved to be unavailable for questioning in the presence of the
defendant or his counsel, the Court observes that paragraph 1 of
Article 6 taken together with paragraph 3 requires the
Contracting States to take positive steps so as to enable the accused
to examine or have examined witnesses against him. However, provided
that the authorities cannot be accused of a lack of diligence in
their efforts to afford the defendant an opportunity to examine the
witnesses in question, the witnesses’ unavailability as such
does not make it necessary to discontinue the prosecution. Evidence
obtained from a witness under conditions in which the rights of the
defence cannot be secured to the extent normally required by the
Convention should, however, be treated with extreme care. 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 the key witnesses for the
prosecution were not examined by the court and the applicant had no
opportunity to confront them either at the investigation stage or
during the trial. It does not appear from the evidence and
explanations presented by the Government that the domestic
authorities took sufficient steps to secure the presence of those
witnesses before the court. As to the Government’s contentions
that the applicant and his lawyer did not object to the continuation
of the proceedings without the witnesses in question being examined,
it does not appear to the Court that such actions could be
interpreted as implicit consent to the use of those witnesses’
statements as an important element in the applicant’s
conviction. Furthermore, it should be noted that the applicant and
his lawyer raised the issue of the impossibility of questioning
witnesses in their appeal to the Supreme Court. Despite the above
shortcomings, the testimonies of the witnesses Mrs V., Mr P. and Mrs
N. (see paragraphs 16 and 17 above) formed an important part of the
body of evidence for the applicant’s conviction, together with
the self-incriminating statements of the accused examined above.
- The
applicant was therefore denied a fair trial in this respect too.
Accordingly, there has been a violation of Article 6 §§ 1
and 3 (d) of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained that his pre-trial detention had been unlawful,
and relied on Article 5 §§ 3 and 4 of the Convention. He
also referred to Article 13 of the Convention without any further
substantiation. He lastly complained of ill-treatment by the police
during the initial stage of the investigation.
- The
Court has examined these complaints as submitted by the applicant.
However, in the light of all the material in its possession, and in
so far as the matters complained of were 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 or its
Protocols.
III. 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 UAH 98,388 (equivalent to approximately 8,720 euros
(EUR)) in respect of pecuniary damage and EUR 55,000 in respect of
non-pecuniary damage.
- The
Government considered these claims exorbitant and maintained that
there was no causal link between the non-pecuniary damage claimed and
the violations alleged. Therefore, they submitted that these claims
should be dismissed.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore dismisses this claim.
The Court also notes that where an individual, as in the instant
case, has been convicted by a court in proceedings which did not meet
the Convention requirement of fairness, a retrial, a reopening or a
review of the case, if requested, represents in principle an
appropriate way of redressing the violation (see Nadtochiy v.
Ukraine, no. 7460/03, § 55, 15 May 2008). Therefore, it
considers that the finding of a violation constitutes in itself
sufficient just satisfaction.
B. Costs and expenses
- The
applicant also claimed EUR 4,500 for costs and expenses.
- The
Government contended that this claim was not supported by any
documents. Therefore, in their opinion, this claim should be
dismissed.
- 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. In the present case, regard being had to
the information in its possession and the above criteria, the Court
dismisses the applicant’s claim under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Dismisses the respondent Government’s
preliminary objection;
- Declares admissible 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, that he was prevented from questioning most of
the witnesses against him and that he was hindered in the effective
exercise of his right of defence when questioned during the initial
stage of the investigation and the remainder of the application
inadmissible;
- Holds there has been a violation of Article 6 §§
1 and 3 (c) of the Convention concerning the applicant’s right
to defence and the privilege against self-incrimination;
- Holds there has been a violation of Article 6 §§
1 and 3 (d) of the Convention concerning the right to question
witnesses;
- 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 19 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
