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FIFTH
SECTION
CASE OF MAKSIMENKO v. UKRAINE
(Application
no. 39488/07)
JUDGMENT
STRASBOURG
20
December 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Maksimenko v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Boštjan M.
Zupančič,
Ann Power-Forde,
Ganna
Yudkivska,
Angelika Nußberger,
André
Potocki, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 29 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39488/07)
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 Russian
national, Mr Sergey Ivanovich Maksimenko (“the applicant”),
on 20 August 2007.
- The
applicant, who had been granted legal aid, was represented by Mr M.O.
Tarakhkalo, a lawyer practising in Kharkiv. The Ukrainian
Government (“the Government”) were represented by their
Agent Mr Yuriy Zaytsev, succeeded by Ms Valeria Lutkovska.
3. The
applicant complained, in particular, about the lack of free
legal assistance for him during the cassation appeal proceedings
following his being sentenced to life imprisonment by the
first-instance court.
- On
24 November 2010 the President of the Fifth
Section decided to give notice of the application to the
Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 1).
- The
Russian Government, having been informed of their right to intervene
in the proceedings (Article 36 § 1 of the Convention and Rule 44
of the Rules of Court), indicated that they did not wish to exercise
that right.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1972 and is serving a
sentence of life imprisonment in Temnivka Prison no. 100.
- On
3 December 2001 the dead body of a Mr L. was found, with a
blood-stained axe lying next to it. A criminal investigation was
initiated in respect of a suspected premeditated murder.
- From
14 January to 13 March 2002 the applicant underwent medical treatment
for an unspecified psychiatric condition in the medical centre V.
- On
19 July 2002 he was arrested in the framework of an unrelated murder
investigation.
- In
March 2006 the applicant, who was at the time serving a fixed-term
prison sentence for several counts of premeditated murder, made a
confession, first to the prison administration and later to the
investigation authorities, that on 3 December 2001 he had twice hit
Mr L. on the head with the back of an axe without having the
intention of killing him.
- Free
legal counsel was appointed for, and represented, the applicant
during the pre-trial investigation and the proceedings before the
first-instance court.
- During
the pre-trial investigation the applicant unsuccessfully requested
the investigator to arrange for the translation into Russian of some
materials in the case file which were in Ukrainian.
- On
7 November 2006 the Kyiv Regional Court of Appeal (“the Kyiv
Court”), sitting as a court of first instance, found the
applicant guilty of premeditated murder committed repeatedly and
sentenced him to life imprisonment. It noted that although the
applicant had alleged that he had had no intention to kill, the fact
that he had hit the victim with an axe on a vital part of his body
twice and with considerable force, indicated the opposite. While
taking into account the applicant’s voluntary confession, the
Kyiv Court noted that it was the fourth murder he had committed and
considered life imprisonment to be the appropriate penalty. At the
applicant’s request, the proceedings before the Kyiv Court were
held in Russian.
- The
applicant, who was no longer represented, lodged a cassation appeal
in which he mentioned, inter alia, that he had no means to pay
for legal assistance.
- On
22 February 2007 the Supreme Court, following a hearing in which the
applicant participated, upheld his conviction.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Criminal Code (2001)
- Under
Article 115 § 2 (13), premeditated murder committed repeatedly
(with some exceptions not applicable to the circumstances of the
instant case) is punishable by imprisonment for a term of ten to
fifteen years, or life imprisonment.
B. Code of Criminal Procedure (1960)
- Article
45 § 1 provides that legal representation during an inquiry, a
pre-trial investigation and a trial before a court of first instance
is obligatory if, inter alia, a life sentence is a possible
penalty. Under Article 45 § 2, the legal
representation envisaged by Article 45 § 1 is obligatory in the
proceedings before the appellate court if the appeal could
potentially worsen the situation of the convicted (or acquitted)
person.
- According
to Article 383 § 1, verdicts of appellate courts delivered at
first instance may be reviewed under the cassation appeal procedure.
- Pursuant
to Article 398 § 2, a verdict delivered by an appellate court as
a court of first instance may be quashed or modified on the grounds
of partiality or incompleteness of the inquiry, pre-trial
investigation or trial, or because the court’s conclusions in
its verdict are not consistent with the circumstances of the case.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 3 (C) OF THE
CONVENTION IN RESPECT OF THE LACK OF FREE LEGAL ASSISTANCE FOR THE
APPLICANT IN THE PROCEEDINGS BEFORE THE SUPREME COURT
- The
applicant complained that he had not been
afforded free legal assistance during the proceedings before the
Supreme Court. He relied on Article 6 § 3 (c) of the Convention,
which reads as follows:
“Everyone charged with a criminal offence has the
following minimum rights:
...
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require...”
A. Admissibility
- The
Court notes that this complaint is neither manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention nor
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
applicant maintained that the complexity of his case, the risk of his
being sentenced to life imprisonment which was the gravest criminal
punishment, as well as his lack of any income, required that his free
legal representation be ensured by the State in the proceedings
before the Supreme Court. Given that the domestic legislation
recognised such a need during a pre-trial investigation and a trial
at the first-instance court, the applicant considered it
incomprehensible and unjustified that the free legal assistance was
not retained for him further on.
- The
Government submitted that the domestic courts had acted in compliance
with the criminal procedural legislation, which did not provide for
obligatory legal representation in cassation proceedings where, as in
the applicant’s case, no possible worsening of the convicted
person’s situation was at stake. The Government noted, in this
connection, that the applicant had been sentenced by the
first-instance court to life imprisonment, the heaviest penalty,
which could not be worsened any further. They did not consider the
lack of free legal assistance for him at that stage to have run
counter to the interests of justice.
- The
Court notes at the outset that, according to its case-law, the
guarantees of Article 6 § 3 (c) of the Convention do not cease
to apply after the first-instance proceedings (see Meftah and
Others v. France [GC], nos. 32911/96, 35237/97 and 34595/97,
§ 40, ECHR 2002 VII).
- The
right of those charged with criminal offences to free legal
assistance, which is one of those guarantees, is subject to two
conditions: the person concerned must lack sufficient means to pay
for legal assistance, and the interests of justice must require that
he or she be granted such assistance (see, among other authorities,
Pham Hoang v. France, 25 September 1992, § 39,
Series A no. 243).
- As
regards the first-mentioned condition, the Court observes that the
applicant was confronted with the criminal proceedings in issue while
serving a prison sentence for a different offence, and there was no
indication that he had any source of income. Furthermore, free
counsel was appointed for him during the pre-trial investigation and
the proceedings before the lower court, which indicated the
acknowledgement by the authorities of his financial hardships.
Lastly, the applicant expressly stated that he could not afford to
retain counsel in his appeal in cassation to the Supreme Court (see
paragraph 14 above). There are therefore grounds to consider that he
indeed lacked sufficient means to pay for his legal representation in
the proceedings before the Supreme Court (see, and compare with,
Tsonyo Tsonev v. Bulgaria (no. 2), no. 2376/03, § 39,
14 January 2010).
- As
to whether “the interests of justice” required that the
free legal assistance, which had been provided to the applicant until
then, be retained for him during the proceedings before the Supreme
Court, the seriousness of the matter at stake and the nature of those
proceedings are the key points for consideration (see, for example,
Granger v. the United Kingdom, 28 March 1990, § 44,
Series A no. 174, and Boner v. the United Kingdom,
28 October 1994, § 41, Series A no. 300 B).
- The
seriousness of the applicant’s situation is obvious in the
present case. While, according to the Court’s case-law, the
interests of justice in principle call for legal representation where
a deprivation of liberty is at stake, the applicant was facing life
imprisonment as the maximum possible penalty (see also Shabelnik
v. Ukraine, no. 16404/03, § 58, 19 February 2009). It
is therefore beyond question that he required legal assistance.
- The
Court further notes that, under the Ukrainian Code of Criminal
Procedure, where the Supreme Court reviewed in cassation proceedings
a judgment which had been delivered by an appellate court acting as a
court of first instance – as in the present case – its
assessment concerned not only points of law, but also extended to
verifying the fairness and completeness of the pre-trial
investigation and the trial before the first-instance court, and the
consistency of the first-instance court’s conclusions with the
factual circumstances of the case. Accordingly, the nature of the
proceedings also warranted legal assistance to the applicant in the
interests of justice.
- This
leads the Court to conclude that the applicant was unfairly denied
free legal assistance in the proceedings before the Supreme Court.
- More
broadly, the Court considers that this limitation of his defence
rights resulted from the absence of any procedures for appointing
free legal representation at that stage of the proceedings where it
was not deemed mandatory any longer under the Code of Criminal
Procedure.
- There
has therefore been a violation of Article 6 § 3 (c)
of the Convention.
II. REMAINDER OF THE APPLICATION
- The
applicant complained, relying on Article 6 § 2 of the
Convention, that his actions had been wrongly classified under the
criminal legislation and that the domestic courts had sentenced him
to an excessively severe penalty, having failed to take due account
of his confession. He also complained under Article 6 § 3 (b)
that he had not had sufficient time for the preparation of his “last
plea” before the first-instance court and that many materials
in the case file had been in Ukrainian, a language which he did not
understand. Lastly, the applicant complained under Article 6 § 3
(d) that some witnesses (namely, the forensic expert who had
established the time and causes of the death of Mr L., and the staff
members of the V. medical centre) had not been examined during the
judicial proceedings.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols. It follows that
this part of the application must be rejected as being manifestly
ill-founded, pursuant Article 35 §§ 3 (a) and 4 of the
Convention.
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 10,000 euros (EUR) in respect
of non-pecuniary damage and requested a retrial in compliance with
Article 6 of the Convention.
- The
Government contested this claim.
- The
Court 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 in accordance with the requirements of the
Convention, if requested, represents in principle an appropriate way
of redressing the violation (see, for example, Leonid Lazarenko v.
Ukraine, cited above, § 65). The
Court observes that the possibility of a retrial as requested by the
applicant in the present case is envisaged in Ukrainian
legislation (see Nechiporuk and Yonkalo v. Ukraine, no.
42310/04, § 297, 21 April 2011). It
emphasises that such a trial must observe, strictly, the
substantive and procedural safeguards enshrined in Article 6 of the
Convention (ibid.).
- In
the light of these considerations and having regard to all the
circumstances of the case, the Court considers the finding of a
violation constitutes in itself sufficient just satisfaction.
B. Costs and expenses
- The
applicant did not submit any claims for legal costs and expenses.
Accordingly, the Court makes no award under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint about the lack of free
legal assistance during the cassation appeal proceedings admissible
and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 3 (c) of the Convention;
- 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 20 December 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Dean Spielmann Registrar President
