FIFTH SECTION

DECISION

Application no. 30180/11 Pavel Yevgenyevich FAMULYAK against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 26 March 2019 as a Chamber composed of:

Angelika Nußberger, President, Yonko Grozev, Ganna Yudkivska, Síofra O ’ Leary, Mārtiņš Mits, Lәtif Hüseynov, Lado Chanturia, judges, and Claudia Westerdiek, Section Registrar

Having regard to the application lodged on 6 May 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Pavel Yevgenyevich Famulyak, is a Ukrainian national who was born in 1980 and lives in Lviv. He was represented before the Court by Ms K.O. Bilevych, a lawyer practising in Lviv.

2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.

A. The circumstances of the case

4 . In the early hours of the morning of 1 July 2007 a certain Mr A.B.K. (“the victim”) was attacked and robbed. He sustained numerous injuries including a fractured skull. A team of three police officers instigated an investigation. According to their testimony as given at the applicant ’ s trial (see paragraph 15 below), they visited the victim in hospital and found that he had a piece of paper with a telephone number on it which, it transpired, belonged to a certain Mr B., who subsequently became the applicant ’ s co ‑ defendant.

5 . On 5 July 2007 the officers ar rested the applicant and B. The applicant submitted copies of police reports documenting their arrest on that date to the Court. A mobile phone was seized from the applicant and a silver neck chain from B. The domestic courts subsequently established that those items had been taken from the victim.

6 . On the same day the applicant gave a statement to the police in which he explained that he had spent time with the victim and B. on the night of the attack. He denied any wrongdoing on either his own part or on the part of B. and stated he had seen two strangers near the victim around the time of the attack. A written statement signed by the applicant contained a note to the effect that, before making the statement, he had been warned of his constitutional right not to make self-incrimin ating statements (see paragraph 26 below). He maintained the account given in that statement throughout the subsequent proceedings, including at the trial.

7 . On the same day B. also gave a statement to the police in which he explained that he had spent time with the victim and the applicant on the night of the attack. He denied any wrongdoing either on his own part or on the part of the applicant. However, he added that there had been a short period of time when both the applicant and the victim had been out of his sight and, when the applicant had rejoined B., he had stated that he had seen the victim being attacked by two strangers. It appears that B. largely maintained that account throughout the subsequent proceedings.

8 . On 6 July 2007 the applicant ’ s arrest was recorded and his rights, including his right to a lawyer and the right to remain silent, were explained to him. He signed a statement waiving those rights and gave a statement reaffirming his previous declarations.

9 . On 9 July 2007 the Lviv Shevchenkivsky District Court (“the District Court”) remanded the applicant in custody. On the same day, at the applicant ’ s request, a defence lawyer was engaged .

10 . On 17 July 2007 the applicant was charged with aggravated robbery and was questioned in the presence of his lawyer. He reaffirmed his previous statements.

11 . In the course of the investigation the victim identified the applicant and his co-defendant as the perpetrators in a photographic identification parade and identified the mobile phone and neck chain that had been found on them as his own. The co-defendant ’ s girlfriend was questioned concerning the neck chain. She stated that she had given the co-defendant a neck chain as a gift. However, when shown three neck chains, including the one found on him on his arrest, she did not recognise it and stated that its length did not match her gift.

12 . The applicant and his co-defendant stood trial before the District Court (hereinafter also “the trial court”), sitting in a single-judge formation, on charges of robbery combined with life-threatening violence.

13 . The victim testified at the trial and was cross-examined by the parties, including the applicant ’ s lawyer. He explained in detail how the applicant and the co-defendant had attacked and robbed him.

14 . The victim ’ s wife gave evidence to the effect that the victim had been attacked and his silver neck chain and mobile phone had been stolen.

15 . The three police officers gave evidence describing the beginnings of the investigation, the defendants ’ arrest and the items found in their possession, as set out in paragraphs 4 and 5 above.

16 . It appears that one of the key points of contention at the trial was the provenance of the neck chain found on the co-defendant. The prosecution asserted that that neck chain had been taken from the victim, the defence that it belonged to B. During an examination at the trial, the co-defendant ’ s girlfriend stated that, even though in the course of the pre-trial investigation she had failed to identify the neck chain seized from the co-defendant as her gift (see paragraph 11 above), she could have been mistaken.

17 . On 28 December 2007 the trial court convicted the applicant and his co-defendant as charged. It sentenced the applicant to nine years ’ imprisonment – to run from 5 July 2007, when the applicant had in fact been taken into custody – together with confiscation of his prop erty. The trial court relied, in particular, on

(i) the testimony given in court by the victim, his wife, the officers and the co-defendant ’ s girlfriend (see paragraphs 13–16 above);

(ii) the fact that the victim ’ s mobile phone had been found in the applicant ’ s possession;

(iii) the results of the identification of the seized items by the victim (see paragraph 16 above); and

(iv) the results of forensic medical and psychiatric examinations of the victim, the former showing numerous injuries and the latter concluding that, despite his cerebral injury, the victim ’ s cognitive function was not so impaired as to prevent him from being able to recall the events and to testify about them.

18 . On 8 July 2008 the Lviv Regional Court of Appeal (“the Court of Appeal”) quashed the judgment and remitted it for retrial to the District Court, before a different judge. By way of reasoning the Court of Appeal stated that the trial court ’ s decision had contained no explanation as to why the court believed the victim and not the defendants. The trial court had not cited any probative evidence to support its conclusion as to the amount of money stolen from the victim. In addition, the evidence had shown that the applicant had thrown a brick at the victim and hit him with a bottle. However, the trial court had not set out those elements in describing the charges. Finally, the trial court had not specified whether all, or only part, of the defendants ’ property was to be confiscated.

19 . The case was retried before the District Court, with a new single judge sitting on the bench. All witness evidence given in the course of the first trial was recorded in the trial transcript and available to the new judge who relied on it in part (see paragraph 23 below).

20 . In the course of the retrial, from at least September 2008, the trial court made considerable efforts to summon the victim, who failed to respond to repeated summons. The court repeatedly solicited the assistance of the police in finding the victim.

On 23 March 2009 the victim finally appeared at the trial. At the beginning of the hearing on that date the court decided, on the application of the defence, that an audio recording should be made of the proceedings. At some point during the hearing the electricity cut out at the courthouse and the defence agreed to proceed with the hearing in the absence of the ability to make the audio recording.

The victim was then examined by the trial judge, to whom he stated that he reaffirmed his previous testimony, that he knew the defendants and that they were the persons who had attacked him. He answered a number of questions concerning the details of the events and the physical evidence (the telephone and the neck chain) from the trial judge and the prosecutor. He also submitted to the court a document showing his medical history, to which the defence objected.

The co-defendant ’ s lawyer then started his cross-examination of the victim. The lawyer apparently believed that the trial judge had interfered with his cross-examination and asked that an audio recording be made of the subsequent proceedings. As there was still no electricity at the courthouse, the court asked the parties whether the h earing should be adjourned. The defence, including the applicant and his lawyer, insisted that the hearing be adjourned and the victim be summoned to the next hearing.

The court adjourned the hearing, scheduling the next hearing for 6 April 2009.

21. The victim, despite having been repeatedly summoned, failed to appear for the subsequent hearings. Likewise, the three police officers were summoned but repeatedly failed to appear.

22 . On 10 June 2009 the trial court again convicted the applicant and his co-defendant as charged, sentencing the applicant to the same term of imprisonment, again to run from 5 July 2007, and clarifying, in line with the Court of Appeal ’ s instructions, that the confiscation concerned all of his property. Also as instructed, it added to the description of the charges by referring to the applicant throwing a brick at the victim, and hitting him with a bottle.

23 . In addition to the evidence relied on in the first judgment (see paragraph 17 above), the trial court also referred to the co-defendant ’ s original statement to the police, mad e on 5 July 2007 (see paragraph 7 above), and to the fact that, in the course of the pre-trial investigation, the victim ’ s wife had also identified the neck chain found on the co-defendant as her husband ’ s, from the three shown to her. The trial court explained that it believed the victim because his evidence was corroborated by the other evidence in the file and the defendants ’ accounts were merely an effort to avoid punishment.

24. The applicant appealed, contesting the assessment of the evidence by the trial court and alleging that various procedural irregularities had occurred in the course of the pre-trial investigation. He also complained that he had not been provided with a lawyer when originally detained on 5 July 2007 and that the prosecution witnesses had not been cross-examined in the course of the retrial.

25 . The Court of Appeal and the Supreme Court upheld the trial court ’ s judgment on 15 December 2009 and 5 April 2011 respectively, finding that the evidence of the defendants ’ guilt was sufficient and there had been no breaches of the procedural rules which would cast doubt on the result. In finding that the guilt was proven the courts referred, in particular, to the victim ’ s evidence incriminating the defendants. The Supreme Court held, in particular, that the applicant and his co-defendant had been arrested not on 5 July but on 6 July 2001.

B. Relevant domestic law

26 . Article 63 of the Constitution provides that no one may be held liable for refusing to testify or to explain anything about himself or herself, members of his or her family or close relatives, as defined by law.

27 . Article 374 of the Code of Criminal Procedure of 1960 (as worded at the material time) provided that, if a judgment was quashed on appeal and remitted for retrial on account of an error committed by the trial court, the case was to be tried by a different judge.

Article 87 of the Code required that transcript of the trial be kept in the case file and that the transcript contain, in particular, a detailed record of all witness testimony given in the course of the trial.

COMPLAINTS

28. The applicant complained under Article 6 §§ 1 and 3 (c) and (d) of the Convention that the proceedings against him had been unfair in that his right to legal assistance had been breached during the initial days of his detention, in that the domestic courts had admitted into evidence the statement which his co-defendant had made during those initial days, also in the absence of a lawyer, and in that he had been unable to cross-examine the victim and the three police officers in the course of the retrial.

THE LAW

29. The applicant relied on Article 6 §§ 1 and 3 (c) and (d) of the Convention which reads, in so far as relevant:

“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;

...”

30. According to the Court ’ s well-established case-law, the guarantees contained in Article 6 § 3 are specific aspects of the general concept of a fair trial set forth in Article 6 § 1. The various rights, of which a non ‑ exhaustive list appears in Article 6 § 3, reflect certain of the aspects of the notion of a fair trial in criminal proceedings. When compliance with Article 6 § 3 is being reviewed, its basic purpose must not be forgotten, nor must it be severed from its roots. The Court therefore considers complaints under Article 6 § 3 under Article 6 §§ 1 and 3 taken together (see Correia de Matos v. Portugal [GC], no. 56402/12, § 119, 4 April 2018).

A. Cross-examination of witnesses at the retrial

1. The parties ’ submissions

31. The Government pointed out that the victim and the police officers had been examined at the trial and maintained that the complaint was manifestly ill-founded.

32. The applicant submitted that, because the retrial had been conducted before a different judge from the one who had been on the bench during the initial trial (see paragraph 19 above), the prosecution witnesses should have been re-examined.

33 . It was the applicant ’ s position that the victim and the police officers needed to be re-examined because they could throw light on whether the neck chain that had supposedly been stolen from the victim had really belonged to him or whether it had belonged to the applicant ’ s co-defendant, as the defence had maintained. This was relevant, in particular, in the light of the fact that the co-defendant ’ s girlfriend had retracted her pre-trial statement concerning the neck chain (see paragraph 16 above).

2. The Court ’ s assessment

(a) Relevant general principles

34 . The Court reiterates that the opportunity for the accused to examine the witness in the presence of the judge who ultimately decides the case is also an important element of fair criminal proceedings. Such a principle of immediacy is an important guarantee in criminal proceedings, in which the observations made by the court about the demeanour and credibility of a witness may have important consequences for the accused. Therefore, a change in the composition of the trial court after the hearing of an important witness should normally lead to the rehearing of that witness (see P.K. v. Finland (dec.), no. 37442/97, 9 July 2002).

36. The Court observes that, even though the present case, unlike the cases cited above, concerns a change in the composition of the trial court as part of the ordinary appeal and remittal process, the situation is sufficiently similar to make it unnecessary for the Court to adopt a different approach.

37. Moreover, the Court considers that the principles of its case-law concerning the right to examine witnesses for the prosecution are also of relevance in the present case. The Court formulated the general principles to be applied in cases where a prosecution witness did not attend a trial but statements previously made by him or her were admitted in evidence in the cases of Al ‑ Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 119-47, ECHR 2011), and Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 110-31, ECHR 2015).

38. To summarise, application of the Al Khawaja and Tahery and Schatschaschwili principles involves, generally speaking, answering three questions: (i) whether there was a good reason for the non-attendance of the witness and for the admission of the absent witness ’ s statement as evidence (see Schatschaschwili , cited above, §§ 119-125); (ii) whether the evidence of the absent witness was the sole or decisive b asis for the conviction (ibid., §§ 119 and 126-147); and (iii) whether there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps faced by the defence as a result of the admission of the untested evidence and to ensure that the trial, judged as a whole, was fair (ibid., § 147).

39 . In the latter context the Court has held that the ability to confront a witness for the prosecution who is absent from the trial at the investigation stage is an important procedural safeguard which can compensate for the handicaps faced by the defence on account of absence of such a witness from the trial (see Chmura v. Poland , no. 18475/05, §§ 56 and 57, 3 April 2012; Aigner v. Austria , no. 28328/03, §§ 41-46, 10 May 2012; Gani v. Spain , no. 61800/08, §§ 48-50, 19 February 2013; and Schatschaschwili , cited above, § 130). Based on this principle, the Court, for example, found no violation of Article 6 §§ 1 and 3 (d) of the Convention where the applicant enjoyed such an opportunity to confront the witness at the pre-trial stage even though no good reason was shown for a witness ’ s subsequent absence from the trial and even though his statement was decisive for conviction (see Palchik v. Ukraine , no. 16980/06, §§ 42, 46, 50-52, 2 March 2017).

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

41. Even though the reasons for the quashing of the initial trial court ’ s judgment were technical, the domestic law required, in an imperative manner, that the composition of the trial court be changed (see paragraph 27 above).

43. In that sense, the handicap for the defence created by the absence of certain witnesses from the retrial and the lack of a practical opportunity for the applicant to cross-examine them in the course of the retrial was overcome by the fact that the applicant had had an opportunity to examine them in the course of the initial trial. In that respect, the Court considers that the principle, established in its case-law, according to which the ability to confront a witness for the prosecution at the investigation stage is an important procedural safeguard which can compensate for the handicaps faced by the defence on account of absence of such a witness from the trial (see the case-law cited in paragraph 39 above is a fortiori relevant in the present case ) .

44. For the same reasons there was not such a deviation from the principle of immediacy as to undermine the fairness of proceedings as a whole (see the relevant principles cited in paragraphs 34 and 35 above).

45. The victim, whose testimony was indeed a key element in the evidence against the applicant, was in fact examined in the course of the retrial (see paragraph 20 above).

46. The new trial judge had an opportunity to observe the victim and, to some extent, to form an opinion of his evidence, even if the applicant was not able to cross-examine him in the presence of that judge. The new judge also had before her all witness evidence, including that of a witness under cross-examination, given in the course of the first trial, recorded in the trial transcript.

B. Legal assistance

1. The parties ’ submissions

48. The Government submitted that the applicant had been arrested on 6 July 2007. His right to a lawyer had been explained to him and he had waived it. Accordingly, the complaint was manifestly ill-founded.

49. The applicant submitted that he had been arrested on 5 July 2007 and questioned without a lawyer. He had spoken to the police voluntarily, being confident in his innocence and wishing to clarify the situation. Since there had been no justification for the restriction of his right to a lawyer, there was no need to examine the impact of that restriction on the overall fairness of the proceedings (citing Shamardakov v. Russia , no. 13810/04 , § 167, 30 April 2015). He had only understood the seriousness of his situation on 9 July 2007, when his pre-trial detention had been ordered, which was why he had only reque sted a lawyer on that date (see par agraph 9 above). Likewise, his co-defendant ’ s statement – made on 5 July 2007 in circumstances similar to those under which the applicant ’ s statement had been made and, accordingly, in the absence of the requisite procedural safeguards – had been used against the applicant.

2. The Court ’ s assessment

(a) Relevant general principles

50. The Court recently summarised the general principles concerning the right to legal assistance in Beuze v. Belgium [GC], no. 71409/10, §§ 119-50, 9 November 2018 ).

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

51. The Court observes that there is a disagreement between the domestic courts as to the exact date of the applicant ’ s arrest (contrast the findings of the trial court, in paragraphs 17 and 22 above, with the finding of the Supreme Court, in paragraph 25 above).

52. In view of its conclusions below the Court sees no need to examine this matter in detail and is prepared to assume the position most favourable to the applicant ’ s case, namely that he was arrested on 5 July 2007. From that moment, he had to be regarded as having been “charged with a criminal offence” and therefore the Article 6 guarantees applied to him (see Simeonovi v. Bulgaria [GC], no. 21980/04, § 115, 12 May 2017 ).

53. However, on that date the applicant was interviewed while in custody, but without being informed of his right to legal assistance. The warning about the right not to give self-incriminating statements which was administered (see paragraph 6 above) was insufficient to establish an effective waiver of the right to legal assistance (see, for example, Yerokhina v. Ukraine , no. 12167/04 , § 66, 15 November 2012, and Khayrov v. Ukraine , no. 19157/06 , § 77, 15 November 2012 ).

54. Therefore, there was no effective waiver and the Court perceives no compelling reason justifying the absence of a lawyer at the interview conducted on 5 July 2007. Accordingly, the Court must apply a very strict scrutiny in assessing whether the overall fairness of the proceedings was not irretrievably prejudiced by the restriction on access to legal advice (see Simeonovi , cited above, § 118).

55. In conducting that analysis, the key consideration for the Court is that the applicant ’ s statement made on 5 July 2007 did not substantially affect his position, and accordingly could not be regarded as self ‑ incriminating (see Beuze , cited above, § 178): the domestic courts relied neither on any directly incriminating element in it nor on any contradictions between it and the applicant ’ s subsequent statements. The statement was never retracted. There is equally no evidence that it led the authorities to discover any other incriminating evidence, provided them with the narrative of what happened or framed the process of evidence-gathering ( see Artur Parkhomenko v. Ukraine , no. 40464/05, § 87, 16 February 2017).

56. The applicant waived his right to legal assistance on the following day, 6 July 2007, after his rights both to remain silent and to have legal assistance had been duly explained to him. There is no reason to doubt the validity of that waiver. Both at that time and later throughout the proceedings, while represented by a lawyer, the applicant maintained the account that he had initially given on 5 July 2007 (see paragraphs 8 and 10 above).

57. The other criteria also militate in favour of considering the proceedings fair. In particular: (i) the Court does not perceive any factors that would indicate that the applicant was particularly vulnerable; (ii) there is no indication that the applicant ’ s right to challenge the authenticity of all the evidence against him and to oppose its use was restricted in any way; (iii) there is no indication that any other Convention right has been violated; (iv) the evidence in the case was assessed by professional judges; and (v) the public interest in the prosecution of the offence imputed to the applicant – attempted robbery combined with life-threatening violence – was strong (see, mutatis mutandis , Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others , § 274, 13 September 2016, and Beuze , cited above, § 150) .

58. Accordingly, the Court considers that no arguable case has been made that the overall fairness of the trial was prejudiced on account of the absence of a lawyer on 5 and 6 July 2007.

59. The Court must reach the same conclusion as far as the co-defendant ’ s statement made in the absence of a lawyer on 5 July 2007 is concerned. The reliability of evidence can be compromised where it is established that it was obtained in breach of a third party ’ s right to remain silent and the privilege against self ‑ incrimination (see, for example, Lutsenko v. Ukraine , no. 30663/04, § 49, 18 December 2008). However, that is not the case here: the applicant ’ s co ‑ defendant has never lodged an application with this Court (compare Sitnevskiy and Chaykovskiy , cited above, § 130). Neither was any violation of his rights established at the domestic level.

60. Moreover, contrary to Lutsenko , in which the applicant was convicted on the basis of a flawed confession by a third party whom he could not confront and whose evidence played a decisive role in his conviction (see Lutsenko , cited above, § 52), in the present case the co-defendant ’ s statement of 5 July 2007 was not directly incriminating and was not a decisive element in the case against the applicant. Notably, the applicant was initially convicted without any reference being made to that statement (see paragraph 17 above). The co-defendant was tried together with the applicant and the latter could have examined him in court. Both he and the co-defendant had a genuine opportunity to challenge the use of that pre-trial statement.

61. Accordingly, this aspect of the complaint is also ill-founded.

C. Conclusion

62. In the light of the above considerations, the Court considers that all the above complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

Done in English and notified in writing on 2 May 2019 .

Claudia Westerdiek Angelika Nußberger Registrar President