FIFTH SECTION

CASE OF LEONID LAZARENKO v. UKRAINE

(Application no. 22313/04)

JUDGMENT

STRASBOURG

28 October 2010

FINAL

28/01/2011

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Leonid Lazarenko 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 , Ganna Yudkivska , judges, and Claudia Westerdiek, Section Registrar ,

Having deliberated in private on 5 October 2010 ,

Delivers the following judgment:

PROCEDURE

1 . The case originated in an application (no. 22313/04) 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 Leonid Leonidovich Lazarenko (“the applicant”), on 5 June 2004.

2 . The applicant, who had been granted l egal aid, was represented by Ms A. Mukanova, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.

3 . The applicant alleged, in particular, that he had been convicted in violation of Article 6 of the Convention, on the basis of a confession allegedly extracted from him by coercion and in the absence of a lawyer.

4 . On 12 May 2009 the Court 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 § 1 ).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1968 and is currently serving life imprisonment in Yenakiyeve Prison no. 52 .

A. Background events as established by the domestic courts

6 . In its judgment of 14 November 2002 the Donetsk Regional Court of Appeal (“the Donetsk Court ”) outlined the factual background of this case as follows. On 22 December 2001 the applicant and an acquaintance , G. , stopped a taxi and asked the driver, L., to take them to a destination out of town. According to the applicant, they were planning a robbery and carjacking. The applicant had a knife hidden in his sleeve, which he had prepared in advance, and G. had a rope with him. Once the car reached a forest, the applicant and G. ordered the driver to stop. G. put the rope around the driver ' s throat while the applicant threaten ed him with the knife. The applicant got into the driver ' s seat and drove further into the forest, where they removed L., unconscious by that time, from the car. Later in December 2001 the dead body of L. was found in the forest with multiple stab wound s.

7 . After the applicant and G. had unsuccessfully tried to sell L. ' s car, it was found and seized by the police on 4 January 2002.

B. The arrest and alleged ill-treatment of the applicant

8 . T he applicant submitted that he had been arrested on 4 January 2002. According to the arre st report, he was arrested on 5 January 2002 on suspicion of the murder of L., which the investigator classified as falling under Article 115 § 1 of the Criminal Code (a premeditated murder). The applicant was recorded in the arrest report as having stated that he had no complaints or requests. The case file also contains a waiver of legal assistance by the applicant dated 5 January 2002.

9 . On 8 January 2002 the applicant was examined by a doctor, who found his right wrist to be injured. The applicant explained that he had sustained th e injury as a result of a fall during his arrest.

10 . As confirmed in a note by the town hospital, on 11 January 2002 the applicant was taken there by the police for an examination of the aforementioned injury. An X-ray revealed that he had a closed fracture of a bone in his right wrist , and the wrist was put in plaster.

11 . Between 5 and 16 January 2002 the applicant was held in the Petrovskyy District Police Station of Donetsk (“the police station”), after which he was moved to Donetsk Pre-Trial Detention Centre no. 5 (“the SIZO”) . During that period, in the absence of a lawyer and allegedly after being subjected to beatings and threats, the applicant signed a confession, which was further confirmed in the course of a reconstruction of the events. He confessed that, acting together with G. and by their prior conspiracy , he had robbed and murdered L. The applicant admitted, in particular, that he had stabbed L. once with a knife. Later on, apparently after moving to another place of detention, the applicant withdrew his confessio n to murder , stating that it had been given under duress. He continued, however, to admit to the robbery and carjacking throughout the proceedings.

12 . On 16 January 2002 the applicant wrote a note to the investigator, in which he stated that he had injured his wrist on 3 January 2002 after accidentally fall ing down some stairs. He also stated that he had no complaints against the police.

13 . On an unspecified date , after the applicant ' s confession and after the reconstruction of the events, a lawyer was appointed for him.

14 . On 20 May 2002 the Petrovskyy District Prosecutor ' s Office dismissed as unsubstantiated the applicant ' s complaint regarding his alleged ill-treatment by the police. The applicant did not challenge that decision. At some stage of the pre-trial investigation the charges against the applicant were reclassified to premeditated murder for profit, robbery, and carjacking, carried out by an organised group.

C . The trial

15 . On 14 November 2002 the Donetsk Court , acting as a first-instance court, found the applicant and G. guilty of premeditated murder for profit, robbery , and carjacking, carried out by an organised group , and it sentenced each of them to fifteen years ' imprisonment with confiscation of all personal property . As to the applicant ' s guilt, the court based its findings on the confession he had given at the initial stages of the pre-trial investigation , the test imon y given by G. during the pre-trial investigation (although retracted by him at the trial as untruthful), according to which the applicant had stabbed L. once , and the test imon y of several persons to whom the defendants had tried to sell L. ' s car. The court examined the applicant ' s allegation of ill-treatment and found it to be no more than defence tactics. The police officer responsible for the applicant ' s arrest was questioned at the hearing and denied having coerced him in any way. The court noted that the applicant ' s injury could not be considered evidence of his ill-treatment in custody since he had given several inconsisten t explanations as to its cause .

16 . The prosecutor appealed against the aforementioned verdict in the part regarding the applicant , considering that it was too lenient giv en the seriousness of the crimes committed and in the light of the applicant ' s personality.

17 . On 3 April 2003 the Supreme Court allowed that appeal. It quashed the verdict of 1 4 November 2002 in the part pertaining to the applicant and remitted the case for fresh examination t o the same court .

18 . On 2 September 2003 the Donetsk Court issued a new verdict with findings concerning the applicant ' s guilt identical to those it had made before. H owever , it changed his sentence to one of life imprisonment , referring to the seriousness of the crimes at issue and the personality of the applicant, who had committed the crimes some two months after his release from prison on probation. The court considered the fact that the applicant had repeatedly committed robbery with assault to be an aggravating circumstance.

19 . On an unspecified date the lawyer acting on the applicant ' s behalf appealed. She submitted , inter alia , that the first-instance court had failed to duly examine the applicant ' s allegation of ill-treatment. On 13 October 2003 the applicant also introduced a n appeal in cassation , in which he complained that the trial court had wrongly relied on a confession allegedly ex tracted by coercion, as well as on G. ' s allegedly contradictory statements about him . He noted that as soon as he had been able to gain access to a lawyer after his transfer from the police station to the SIZO he had stopped giv ing any statements or sign ing any documents. On 19 January 2004 the applicant added a supplement to his appeal in cassation, complaining that he had not been legally represented during the initial stages of the pre-trial investigation , contrary to Article 45 of the Code of Criminal Procedure , and request ing the court not to accept his confession as evidence in the case. C opies of the applicant ' s appeal in cassation and the supplements to it were submitted to the Court by the Government along with their observations on the admissibility and merits of the application.

20 . On 8 April 2004 the Supreme Court upheld the verdict subject to a minor amendment , n amely, the removal of the reference to the repeated offence of robbery as an aggravating circumstance , since it had already been included in the classification of the crimes of which the applicant had been found guilty. The Supreme Court noted that the finding of guilt had been “based on evidence obtained in compliance with the requirements of the criminal procedural legislation and which had been explored at the hearings and properly evaluated by the court”. Furthermore, it saw “no indication of any gross violations of the provisions of the Code of Criminal Procedure during the investigation , or any misapplication by the court of the criminal law” . Lastly, the Supreme Court noted that the Donetsk Court had rightly dismissed as unsubstantiated the applicant ' s all e gation that he had incriminat ed himself under duress .

D . The applicant ' s HIV infection and related facts

21 . After his conviction the applicant was moved to Yenakiyeve Prison no. 52 to serve his sentence.

22 . After complaining that he was suffering from shortness of breath and a sore throat, on 11 February 2008 the applicant was taken to t he Donetsk Regional Hospital at Prison no. 124 for a medical examination and treatment. He was diagnosed with chronic pharyngitis, iron deficiency, anaemia and hypertension. Furthermore, th e applicant tested HIV-positive and was registered as an asymptomatic HIV carrier at the first clinical stage of the disease according to the WHO classification.

23 . In March 2008, after blood tests had confirmed the HIV diagnosis, a doctor specialising in HIV/Aids met with the applicant and explained to him, in particular, that his disease was at such an early stage that no medical treatment was required, and that at a more advanced stage antiretroviral therapy would be considered.

24 . Later in March 2008 the applicant was moved back to Prison no. 52 , where he continue d to serve his sentence.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A . Criminal Code (2001)

25 . Under p aragraph 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 for profit and/or committed by a group of persons upon prior conspiracy , is punishable by imprisonment for a term of ten to fifteen years , or life imprisonment.

26 . Under Article 187 , robbery by a group of persons upon prior conspiracy , or by a person who has previously committed robbery, is punishable by imprisonment for a term of seven to ten years, with confiscation of property (paragraph 2); the penalty is increased to fifteen years ' imprisonment in the case of a robbery of large amounts of property, or committed by an organised group, or coupled with the infliction of serious bodily injuries (paragraph 4).

27 . Under paragraph 3 of Article 289 , car jacking coupled with violence endangering the victim ' s life or health, or under the threat of such violence, or committed by an organised group, involving of a vehicle whose value exceeds two hundred and fifty times the minimum non-taxable income, is punishable by imprisonment for a term of ten to fifteen years, with confiscation of property.

28 . According to paragraph 1 of Article 64, life imprisonment is envisaged as a penalty for particularly serious crimes and is applied only in the cases explicitly provided for by the Criminal Code, where the court does not find it appropriate to apply a fixed term of imprisonment. Paragraph 2 of this Article exempts from life imprisonment certain categories of person (pregnant women, minors and the elderly ) .

29 . Under Article 70, the total penalty for several criminal offences must be established by the absorption by the most severe punishment of th e less severe one(s) .

B . Code of Criminal Procedure (1960)

31 . Under Article 46, a suspect, accused or defendant ma y dispense with the invited or appointed counsel at any stage of the proceedings. Such a waiver is possible only at the initiative of the suspect, accused or defendant and does not preclude him/her from appointing the same or a different counsel at a later stage of the proceedings (paragraph 1) . However, a waiver of counsel in the cases covered by Article 45 should be based on reasoning found to be satisfactory by the inquiry officer, the investigator or the court (paragraph 3) . Should it be accepted, the suspect, accused or defendant has up to three days to replace the counsel (paragraph 4). If he/she fails to do so within the set time-limit and if his/her legal representation is mandatory under Article 45 of the Code, a legal representative must be appointed by the inquiry officer, investigator or judge , depending on the stage of the proceedings (paragraph 5).

32 . According to Article 103, the inquiry comprises operational and investigative activities aimed at establishing the facts of a crime and the suspected offenders.

34 . Article 390 provides for a person having lodged a n appeal in cassation the right to supplement, amend or withdraw it before the beginning of the examination of the case in the cassation court.

C . Other documents

36 . The Rules on Medical and Sanitary Care in Detention Centres and Penitentiaries , approved by Decree no. 3/6 of 18 January 2000 of the State Department for Execution of Sentences , stipulate that m edical assistance to HIV-infected persons is to be provided on the same basis as to everybody else (paragraph 4.3.4). The Rules also contain recommendations on counselling before and after HIV-testing , according to which this should be accessible, informative and supportive (annex 28 to paragraph 4.3.4 ). Paragraph 6.1.9 of these Rules provide s for preventive medical examinations of detainees on an annual basis, with the participation of a therapist, psychiatrist and dentist, as well as a doctor of an other speciality, possibly from outside the detention facility, as required.

37 . The relevant provisions of Decree No 186/607 of 15 November 2005 of the Ministry of Health and the State Department for Execution of Sentences on the Antiretroviral Treatment of Persons with HIV /AIDS Detained in Prisons and Pre-Trial Detention Centres are summarised in the case of Yakovenko ( cited above , §§ 49-52).

III. RELEVANT INTERNATIONAL DOCUMENTS

38 . The relevant international documents concerning access to a lawyer during police custody are summarised in the judgments of Salduz v. Turkey [GC] , no. 36391/02, §§ 37-38, 41 and 44, 27 November 2008 , and Panovits v. Cyprus , no. 4268/04, § 45, 11 December 2008).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 OF THE CONVENTION

39 . The applicant complained, relying on Article 6 of the Convention, that he had been convicted of murder on the basis of self-incriminating statements obtained under duress and without the presence of a lawyer. This complaint falls to be examined under Article 6 §§ 1 and 3 (c) , which read s as follows in the 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.”

A . Admissibility

40 . According to the Government, the applicant did not exhaust domestic remedies . They submitted, in particular, that he had failed to bring separate proceedings against the investigator in respect of the alleged violation of his right to defence , or to raise that issue in the framework of his own trial. In so far as the alleged violation of the applicant ' s right not to incriminate himself is concerned, the Government contended that he could have sought a criminal investigation into the matter by challenging before a court the decision of the Petrovskyy District Prosecutor ' s Office of 20 May 2002 by which such an investigation had been refused.

41 . The applicant disagreed. He maintained that he had adequately raised in the course of his trial the allegation s of various gross violations of the criminal procedural legislation committed during the pre-trial investigation of his case, including the alleged violations of his right to defence and of his right not to incriminate himself.

43 . As to the applicant ' s complaint about the alleged violation of his right not to incriminate himself, the Court notes that both he and his lawyer raised it in the appeal in cassation, a fact which is not disputed by the Government.

44 . The Court has already held that an appeal in cassation to the Supreme Court in Ukraine is considered an effective remedy for complaints concerning various aspects of the fairness of criminal proceedings guaranteed by Article 6 §§ 1 and 3 of the Convention (see, for example, Arkhipov v. Ukraine (dec.), no. 25660/02, 18 May 2004 , and Oleg Kolesnik v. Ukraine , no. 17551/02 , § 28, 1 9 November 2009 ). It thus notes that , having raised his complaint – in respect of both his right to defence and his privilege against self- incriminat ion – before the Supreme Court , the applicant had exhausted one of the remedies referred to by the Government (see, conversely, Melnik v. Ukraine , n o. 72286/01, §§ 82-83, 28 March 2006). That being so, the Court does not find it necessary to analyse whether the other avenues suggested by the Government meet the criteria of an effective domestic remedy, since in any event, where several remedies are available, the applicant is not required to pursue more than one (see Karakó v. Hungary , no. 39311/05, § 14, 28 April 2009, with further references).

45 . In the light of the foregoing considerations, the Court dismisses the Government ' s objection concerning the non-exhaustion of domestic remedies. It further notes that the applicant ' s complaint under Article 6 §§ 1 and 3 (c) of the Convention is neither manifestly ill-founde d within the meaning of Article 35 § 3 of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties ' submissions

46 . The applicant maintained that although the seriousness of the charges against him had warranted mandatory legal representation immediately after his arrest, the investigator had circumvented that legal requirement by artificially mitigat ing those charges in order to obtain a confession. The applicant further contended that the courts had been overly formalistic and conniv ing in resorting to such a practice. He maintained his allegation of coercion by the police, which he believed had not receive d due examination by the courts during his trial ; the applicant submitted that the trial court had confined itself to questioning the police officer involved, who had denied any coercion. The court had also relied heavily on the prosecutor ' s refusal to institute criminal proceedings in the matter , and had not verif ied the thoroughness of the investigation and the accuracy of its findings. As to the weight given to the confession the applicant had made at the initial stages of his detention, he insisted that it had been an essential foundation of his conviction, the only additional evidence being the allegedly inconsistent statements of his co-defendant , in the absence of any direct witnesses or material evidence .

47 . The Government confined their submissions on the merits of the case to commenting on the applicant ' s complaint about the alleged violation of his privilege against self-incrimination. They contended that he had failed to make an arguable claim in that regard , having given contradictory statements concerning the circumstances in which he had sustained the injury to his wrist . The Government further submitted that the applicant ' s confession had not been decisive for his conviction , which had also been based on the statements of a co-defendant and a number of witnesses, as well as a n expert forensic report. Lastly, the Government emphasised that the applicant had had an adversarial trial , which had given him the opportunity to raise any arguments he considered relevant as well as to challenge any evidence.

2. The Court ' s assessment

(a) General principles

49 . The Court emphasises 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 fair trial (see Krombach v. France , no. 29731/96, § 89, ECHR 2001 ‑ II). As a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right (see Salduz , cited above , § 55). The right to defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (ibid).

51 . The aforementioned principles of the right to defence and the privilege against self-incrimination are in line with the generally recognised international human rights standards (see paragraph 3 8 above) which are at the core of the concept of a fair trial and whose rationale relates in particular to the protection of the accused against abusive coercion on the part of the authorities. They also contribute to the prevention of miscarriages of justice and to the fu lfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused (see Salduz , cited above, § 53, Bykov v. Russia [GC], no. 4378/02, § 92, ECHR 2009-..., with further references, and Pishchalnikov v. Russia , no. 7025/04 , § 68, 24 September 2009). 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 Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006 ‑ IX, with further references).

(b) Application of the above principles to the present case

53 . The Court notes that at the time of the applicant ' s arrest the Ukrainian legislation provide d for obligatory legal representation as early as at the inquiry stage and namely from the moment of the arrest if, inter alia , a possible penalty for the crime ( s ) of which the person was s uspected was life imprisonment (see paragraph 3 0 above). Given the fact that the applicant was ultimately sentenced to life imprisonment, the Court will examine whether and, if so, when , the aforementioned ground was applicable to his situation.

55 . As to the question of when the applicant should have received legal representation under the Ukrainian legislation , the Court notes that, under the Code of Criminal Procedure (“the CCP”) , “ inquiry ” is a broadly construed term covering any “operational and investigative activities aimed at establishing the facts of a crime and the suspected offenders” (see paragraph 3 2 above). Moreover, pursuant to Article 45 of the CCP, such legal representation should have been ensured to the applicant immediately after his arrest and in any event before his first interrogation by the police.

57 . On the facts of the case, the Court notes that the applicant confessed to L. ' s murder in the course of his questioning and the reconstruction of the crime , held over several days following his arrest in the absence of a lawyer . Although he later retracted this confession, the trial courts relied on it as ground s for their finding of his guilt. It is to be underlined that the extent to which the applicant ' s initial confession affected his conviction is of no importance. That it irretrievabl y prejudice d the right of defence is presumed once it is established that it had some bearing on the conviction. While not being the sole basis for the applicant ' s conviction in the present case, the impugned confession undoubtedly influenced it and was relied on by the courts. It is not for the Court to speculate on what the applicant ' s reaction or his lawyer ' s advice would have been had he had access to a lawyer at the initial stage of the proceedings . It considers that , in view of the circumstances , both the safeguards envisaged by the national legislation and the guarantee of fairness enshrined in Article 6 of the Convention required that the applicant should have the benefit of the assistance of a lawyer from the very first stage of police questioning. This did not happen. Moreover, the early restriction s on the applicant ' s defence right, although having been pointed out by him in the appeal in cassation to the Supreme Court (see paragraph 19 above) and amounting under the domestic criminal procedural legislation to a gross violation calling f o r a quashing of the verdict (see paragraph 3 3 above), were ignored by the domestic courts. Nor could this deficiency be remedied by the subsequent legal assistance provided to the applicant , or by the adversarial nature of the ensuing proceedings (see Salduz , cited above, § 58, and Płonka v. Poland , no. 20310/02, §§ 39-41, 31 March 2009).

58 . As regards the alleged coercion of the applicant into self-incrimination, the Court observes that the domestic courts dismissed that allegation as unsubstantiated. The Court neither has the task nor is in the position to replace that finding with a one of its own. At the same time, it notes that the deprivation of the applicant of legal assistance and the use of incriminating statements he made during that period for his conviction are sufficient indications of a breach of the fair-trial guarantees (see Magee v. the United Kingdom , no. 28135/95, § 45, ECHR 2000 ‑ VI ).

59 . It follows that there has been a violation of Article 6 § 1 taken together with Arti cle 6 § 3 (c) of the Convention in the present case.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

60 . The app licant complained under Article 3 of the Convention that he had been tortured in police custody. He also complained, relying on Article 4 of Protocol No. 7 , that his sentence had been changed from fifteen years to life imprisonment on the basis of an aggravating circumstance ( the repeated offence of robbery) which had been excluded from the verdict. Lastly, the applicant complained, without referring to any provision of the Convention, of a lack of information and medical treatment in respect of his HIV infection .

61 . Having regard to all the material in its possession, the Court finds that the evidence discloses no 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 to Article 35 §§ 3 and 4 of the Convention.

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

62 . 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

63 . The applicant requested a retrial and claimed 50,000 euros in compensation for non-pecuniary damage.

64 . The Government contested this claim.

B. Costs and expenses

66 . The applicant did no t make any claim under this head. The Court therefore makes no award.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint under Article 6 §§ 1 and 3 of the Convention admissible and the remainder of the application inadmissible ;

2 . Holds that there has been a violation of A rticle 6 §§ 1 and 3 of the Convention ;

3 . Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary da mage sustained by the applicant, and accordingly d ismisses the applicant ' s claim for just satisfaction.

Done in English, and notified in writing on 28 October 2010 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Claudia Westerdiek Peer Lorenzen Registrar President