CEDH · CASELAW;CLIN;ENG — 12 juin 2008

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Ukraine - 32092/02 Judgment 12.6.2008 [Section V] Article 6 Article 6-3-c Defence through legal assistance Lawyer dismissed from the case for having advised his client not to testify against himself: violation   Article 6-1 Fair hearing Conviction based on confession made in the absence of a lawyer and retracted immediately the lawyer was present: violation   Facts : In January 2001 the applicant was arrested on suspicion of several crimes committed that month and questioned in the presence of his lawyer. In February 2001 he was questioned with a view to establishing his possible involvement in another crime that had been committed in 1998. The applicant alleges that during the questioning he was beaten by police officers, who forced him to waive his right to counsel and to confess to murder. The next day, in his lawyer’s presence, he denied his involvement in the 1998 crime. However, later that day he signed a waiver of his right to counsel on the ground that the latter had prevented him from confessing to the 1998 crime. His counsel was removed from his case. Subsequently, the applicant complained that he had signed the waiver under pressure from the police officers and the case investigator. His counsel was later allowed to return to the case and in June 2001 the applicant was questioned in his presence. He repeatedly claimed that he was innocent of the 1998 crime and explained that he had been forced to confess by police officers. In   November   2001 he was convicted, together with another person, of the 1998 and 2001 crimes and sentenced to life imprisonment. Law : Article 6 § 1 – The applicant’s lawyer had been dismissed from the case by the investigator for having advised his client to remain silent and not to testify against himself. A prosecutor, in reply to complaints by the lawyer, had observed that he had breached professional ethics by advising his client to claim his innocence and to retract part of his previous confession. Moreover, the Court found it remarkable that the applicant and a co-accused, over two years later, should have given very detailed testimony, which, according to investigator, contained no discrepancies or inconsistencies. That fact raised the suspicion that their accounts had been carefully coordinated. The domestic courts, however, had considered such detailed testimonies as undeniable proof of their veracity and made them the basis for the applicant’s conviction for the 1998 crime, despite the fact that his testimony had been given in the absence of a lawyer and retracted immediately after he was granted access to his counsel, and was not supported by other evidence. In those circumstances, there were serious reasons to suppose that the statement signed by the applicant had been obtained against his will. Taking into account that there had been no adequate investigation into the allegations by the applicant that the statement had been obtained by ill-treatment*, the Court found that its use at trial had impinged on his right to silence and privilege against self-incrimination. Conclusion : violation (unanimously). Article 6 § 3 (c) – The Court noted with concern the circumstances under which the initial questioning of the applicant about the 1998 crime had taken place. The law-enforcement authorities, investigating the violent death of a person, had initiated criminal proceedings for the infliction of grievous bodily harm causing death rather than for murder. The former was a less serious crime and therefore did not require the obligatory legal representation of a suspect. Immediately after the confession had been obtained, the crime had been reclassified as, and the applicant had been charged with, murder. As a result, he had been placed in a situation in which, as he had maintained, he had been coerced into waiving his right to counsel and incriminating himself. He had had a lawyer in the initial criminal proceedings, yet had waived his right to be represented during his questioning for another offence. The fact that he had made confessions without a lawyer being present and had retracted them immediately once his lawyer was present demonstrated the vulnerability of his position and the real need for appropriate legal assistance. The government’s argument that the counsel had been removed solely at the applicant’s request seemed scarcely credible, since it was not mentioned in the removal decision itself, and in the prosecutors’ replies it was referred to only as an additional ground. The other two lawyers who represented the applicant had seen him only once each, during questioning, and never before the questioning took place. That fact seemed to indicate the notional nature of their services. The manner of and reasoning for the lawyer’s removal from the case, as well as the alleged lack of legal grounds for it, raised serious questions as to the fairness of the proceedings in their entirety. Conclusion : violation (unanimously). * The Court found a violation of Article 3 (procedural aspect). For further details, see Press Release no. 432.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes