FIFTH SECTION

DECISION

Application no . 23275/06 Anatoliy Alekseyevich KRAVCHENKO against Ukraine

The European Court of Human Rights ( Fifth Section ), sitting on 24 June 2014 as a Chamber composed of:

Mark Villiger, President,

Angelika Nußberger,

Boštjan M. Zupančič,

Ann Power-Forde,

Helena Jäderblom,

Aleš Pejchal , judges,

Myroslava Antonovych , ad hoc judge, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 29 May 2006,

Having regard to the observations submitted by the respondent Government and noting the applicant ’ s failure to submit any observations in reply,

Having regard to the decision of the President of the Chamber to appoint Ms Myroslava Antonovych to sit in the case as an ad hoc judge (Rule 29 § 1(b)) since Ms G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court),

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Anatoliy Alekseyevich Kravchenko, is a Ukrainian national, born in 1956 and liv ing in Zhytomyr. He was represented before the Court by Mr S.O. Dubas, a lawyer practising in Kyiv.

2 . The Ukrainian Government (“the Government”) were represented by their Agent, most recently M s Nataly Sevostianova .

3. The applicant alleged, in particular, that he had been convicted in violation of Article 6 §§ 1 and 3 (c) of the Convention, on the basis of a confession extracted from him against his will and in the absence of a lawyer.

4. On 23 March 2011 the above complaints were communicated to the Government.

A. The circumstances of the case

5 . The facts of the case, as submitted by the parties, may be summarised as follows.

6 . In 1982 the applicant was deprived of his legal capacity as he suffered from schizophrenia. He was also registered as “category 2” disab led (on a four-category scale) for that reason.

7 . In 1984 the applicant was convicted for theft and attempted rape of a minor. He was, however, relieved of criminal liability by reason of his mental condition. The courts ordered his compulsory medical treatment in a psychiatric hospital. The applicant underwent such treatment on several occasions, most recently in August 2003.

8 . On 23 March 2004, at approximately 4.30 p.m., a group of teenagers from the Zhytomyr orphanage, as well as their two teachers, saw the applicant aggressing a young girl in a nearby forest. The girl, who was partly undressed and covered in blood, was crying for help. The applicant tried to flee, but without success. A fight broke out, and he was apprehended and handed over to the police , who someone had called in the mean time .

9 . On the same day the applicant waived his right to legal assistance and confessed to attempt ing to rape a minor (the girl in question, P., was eleven years old ). His handwritten confessi on statement mentioned his past criminal convictions, but did not contain any reference to his mental condition or legal incapacity. The applicant also wrote that his confession had not been made under duress.

10 . According to the applicant ’ s submissions to the Court, he was coerced in to both signing the waiver and confessing . H e further alleged that he had immediately informed the police that he was legally incapable on account of his schizophrenia, but that information had remained ignored.

11 . Also on 23 March 2004 the police questioned the eyewitnesses, who gave a detailed account of the incident and the circumstances of the applicant ’ s apprehension.

12 . On 24 March 2004 the applicant was formally detained as a suspect , having been caught in flagrante delicto . He signed a statement as confirmation that his procedural rights, including his right to a lawyer, had been explained to him. He again waived his right to legal assistance.

13 . During his questioning on 24 March 2004 and a reconstruction of the crime on 25 March 2004, the applicant reiterated his initial confession , specifi cally stating that he had realised the victim ’ s age.

14 . On 25 March 2004 an identity parade took place, at which the witnesses recognised the applicant as the attacke r.

15 . On 26 March 2004 the investigator appointed a lawyer for the applicant , having been notified by the Information Bureau of the Ministry of the Interior that he had a history of compulsory psychiatric treatment.

16 . On the same day the Zhytomyr City Court (“the Zhytomyr Court”), in a hearing which the applicant and his lawyer attended, remanded the applicant in custody pending trial. He again repeated his confession statements, and agreed that the preventive measure chosen was appropriate.

17 . On 31 March 2004 the applicant was charged with attempted rape of a minor. He was questioned as an accused in the presence of his lawyer. The applicant repeated his confession. He stated that he had been apprehended by a group of six to eight teenagers, who he had tried to fight off with a stick and who had hit him several times.

18 . On 1 April 2004 the applicant underwent a forensic medical examination, which revealed three bruises on his face and two bruises on his back, possibly inflicted in the ten days leading up to the examination.

19 . On 21 April 2004 the applicant complained to the Zhytomyr Regional Prosecutor ’ s Office (“the Zhytomyr Prosecutor”) that he had been coerced into incriminating himself through “physical and psychological pressure by the police”, without giving further details.

20 . On 27 April 2004 the applicant underwent a psychiatric examination, which found him to be of limited criminal capacity (обмежено осудний) . It was concluded that he required regular psychiatric monitoring, although there was no need for compulsory medical treatment for the time being.

21 . In April 2004 (the exact date is illegible) the management of the applicant ’ s local neighbourhood housing department, drew up a written character reference, describing the applicant as a quiet person about whom there had been no complaints.

22 . On 11 May 2004 the applicant ’ s employer, a company for whom the applicant worked as a technician at the time of the events, issued a similar character reference, describing him as a responsible employee complying entirely with his job requirements.

23 . On 15 May 2004 the Zhytomyr Prosecutor, having examined the applicant ’ s allegation of ill-treatment, decided not to institute criminal proceedings against the police officers for lack of corpus delicti in their actions.

24 . On 18 May 2004 the forensic medical examination of P. was completed. Her injuries – multiple facial bruises and post-asphyxia syndrome – were found to fit with the applicant ’ s description of events.

25 . On the same day the victim ’ s neighbour, a sixteen-year-old girl, Sh., was questioned as a witness. She submitted that on 23 March 2004, at approximately 4 p.m., near to where the incident with P. had taken place, she had also been attacked by a man, whose description corresponded with the applicant ’ s appearance. Sh. had however managed to escape. She stated that she was unable to recognise her attacker.

26 . On 19 May 2004 the Zhytomyr Prosecutor refused to institute criminal proceedings against the individuals for injuring the applicant while apprehending him. It was held that under the circumstances there had been nothing criminal in their actions.

27 . On the same day the prosecutor refused to institute criminal proceedings against the applicant in respect of the attempted rape of Sh., having found that there was no case to be examined.

28 . Later that day the applicant ’ s colleague, who had been working with him on 23 March 2004, was questioned. He submitted that the applicant had left at approximately 3.40 p.m. under the pretext that he needed to go to the toilet, and had not returned thereafter.

29 . On 24 May 2004 the applicant was indicted, and the case was sent for trial in the Zhytomyr Court.

30 . On 27 May 2004 the applicant complained to the Zhytomyr Court that, following his apprehension on 23 March 2004, he had been ill-treated by the police. He alleged that he had been suspended from a bar between two tables while handcuffed, punched in the face, and thrown onto the floor with his hands handcuffed. He also complained that four officers had kicked him all over, put a gas mask on him and blocked the nose vent, twisted his arms, and struck him with a truncheon on his legs and knees. The applicant submitted that he had signed his waiver of legal assistance, and had had his confession extracted under duress. He stated that his injuries had been documented in the report of his forensic medical examination.

31 . On 16 June 2004 the applicant asked to be represented by a different lawyer. His request was granted.

32 . On 21 June 2004 the Zhytomyr Prosecutor wrote to the trial court, it appears in response to a request for information, stating that there was no reason to review the decision of 15 May 2004 (in which it refused to institute criminal proceedings in respect of the applicant ’ s allegation of ill-treatment – see paragraph 23 above).

33 . On 16 September 2004 the applicant ’ s lawyer was replaced again, upon a request by him to that effect.

34 . On 27 October 2004 the charge against the applicant was amended to include, in addition to attempted rape of a minor, grievous bodily harm.

35 . On 17 November 2004 the Zhytomyr Court found the applicant guilty as charged, and sentenced him to twelve years ’ imprisonment. It relied, among other things, on the confession statements he had made during the pre-trial investigation, even though he had retracted them during the judicial proceedings. The court noted that the bruises documented in the report of the applicant ’ s medical examination had been inflicted on him during his fight with the people who had apprehended him. The guilty verdict was also based on the statements of several eyewitnesses who had recognised him as P. ’ s attacker (she had been unable to recognise her attacker as she had been suffering from shock). Furthermore, the court relied on the statements of the applicant ’ s colleague confirming his absence from the workplace at the time of the incident. According to the applicant, he refused the services of a Ukrainian-Russian interpreter at the beginning of the trial, but later changed his mind. The later request he submitted for an interpreter had been unsuccessful.

36 . The applicant, who had legal representation, appealed. He complained, in particular, that his confession had been extracted from him by torture and that he had been coerced into waiving his right to legal representation, which was unacceptable given his mental illness and ran contrary to criminal procedural law.

37 . On 25 January 2005 the Zhytomyr Regional Court of Appeal upheld the applicant ’ s conviction, but reduced his sentence to eight years. It agreed with the first-instance court that there was no reason to consider that the applicant ’ s confession statements obtained during the pre-trial investigation had been made against his will. As regards the alleged restriction on his right to legal assistance, the appellate court noted that the applicant had himself waived that right and that the investigator had appointed a lawyer for him as soon as his mental illness had become known.

38 . On 29 November 2005 the Supreme Court upheld the lower courts ’ decisions and their reasoning. On 14 February 2006 the ruling was sent to the applicant.

B. Relevant domestic law and practice

39 . Article 45 § 2 of the Code of Criminal Procedure (“the CCP”) provides that if criminal proceedings are brought against persons unable to exercise their right to defend themselves on account of a physical or mental disability, their legal representation is obligatory starting from the moment they are arrested, charges are brought against them, or their disability becomes known.

40 . Under Article 46 § 1 of the CCP, a suspect, accused or defendant may dispense with 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 or her from appointing the same or a different counsel at a later stage of the proceedings. 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, investigator or the court (Article 46 § 3). Should it be accepted, the suspect, accused or defendant has up to three days to replace counsel (Article 46 § 4). If he or she fails to do so within the set time-limit, and if his or 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 (Article 46 § 5).

41 . According to paragraph 13 of Resolution of the Plenary Supreme Court of Ukraine no. 8 of 24 October 2003 on the application of legislation ensuring the right to defence in criminal proceedings, “persons who are unable to exercise their right to defend themselves because of a physical or mental disability” (Article 45 § 2 of the CCP) should be understood to be persons with considerable speech, sight, hearing or other defects, as well as persons who, even though recognised as having criminal capacity, have psychiatric conditions which would impede their ability to mount a defence against the charges brought against them. Such persons should be legally represented as soon as the aforementioned defects have been established.

COMPLAINTS

42 . The applicant complained under Article 3 of the Convention that he had been tortured by the police. He also complained under the same provision, as well as relying on Article 4, about the conditions of his detention in the police station in March 2004.

43 . He further complained that his pre-trial detention had been i n breach of Article 5 §§ 1 (a) and (c) and of Article 5 § 3 of the Convention.

44 . The applicant also raised a number of complaints that his trial had been unfair, relying on Article 6 §§ 1, 2, 3 (a), (b), (c) and (d).

45 . Lastly, he complained with reference to Article 13 of the Convention that the domestic authorities had failed to protect his rights.

THE LAW

A. Alleged violation of Article 3 of the Convention

46 . The applicant complained that he had been ill-treated by the police following his apprehension on 23 March 2004 and that the domestic investigation into the matter had been inadequate. He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

47 . In his application to the Court the applicant described his alleged ill-treatment in the same way he had done in his complaint to that effect raised with the trial court (see paragraph 30 above). He submitted that his forensic medical examination had not been thorough and had not assessed whether he had any internal injuries.

48 . The Court notes that, according to the applicant ’ s version of events, on 23 March 2004 he was suspended from a bar while handcuffed, punched numerous times, struck with a truncheon all over, had his arms twisted, and that a gas mask was put on him with a blocked nose vent. As further alleged by him, four police officers had been involved in his ill-treatment.

49 . The Court next observes that, according to the report of the applicant ’ s forensic medical examination of 1 April 2004, his injuries were limited to three bruises on his face and two bruises on his back (see paragraph 18 above). Those bruises can hardly be regarded as matching the applicant ’ s description of his alleged ill-treatment (see and compare with Vitruk v. Ukraine , no. 26127/03 , § 54, 16 September 2010). It appears however quite plausible that they resulted from his fight with the individuals who apprehended him and handed him over to the police (see paragraphs 8, 17 and 35 above).

50 . As to the credibility of that medical report, the Court notes that the applicant did not question it at domestic level. Moreover, he unreservedly relied on its findings in substantiation of his allegation of ill-treatment in police custody (see paragraph 30 above). While later, in his submissions before the Court, the applicant submitted that the examination had failed to assess whether he had any internal injuries, he has not mentioned any such injuries. Nor did he refer – either before this Court, the domestic authorities or in the course of any of his medical examinations – to any ailments he had been suffering from as a result of his alleged ill-treatment. It also does not escape the Court ’ s attention that the applicant ’ s examination on 1 April 2004 concerned his injuries in general and not only those which were visible.

B. Alleged violation of Article 6 §§ 1 and 3 (c) of the Convention

52 . The applicant complained that he had been convicted on the basis of self-incriminating statements extracted from him by torture and without the assistance of a lawyer. He further complained that he had been coerced into waiving his right to legal assistance, that his mental condition precluded him from realising the meaning and consequences of that waiver, and that the authorities, whom he submitted to have informed of his illness, should not have accepted his waiver under the applicable criminal procedural legislation. The applicant relied on Article 6 §§ 1 and 3 (c) of the Convention, which reads as follows in the relevant part:

“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 ... ”

53 . The Government referred to extensive evidence, including the statements of numerous eyewitnesses, which proved the applicant ’ s guilt. They argued that his confession therefore was not essential to secure his conviction and that there had been no need for the investigation to extract it at all.

54. In any event, the Government contended that the applicant had voluntarily decided to confess following his arrest on 23 March 2004. They pointed out that he had maintained the same version of events during numerous investigative activities conducted at a later stage, with the participation of the lawyer appointed for him on 26 April 2004.

55. The Government further submitted that the applicant had waived his right to legal assistance on 23 and 24 March 2004 of his own free will. They stated that there was no evidence that he had informed the police of his mental condition. The Government referred in this connection to the handwritten statement made by the applicant on 23 March 2004, in which he had mentioned his criminal record and submitted that he had not made the statement under duress. In their view, had the applicant wished to inform anybody of his mental condition, that information would have been included in his statement. Lastly, the Government pointed out that a lawyer had been immediately appointed for the applicant once his mental condition had become known to the investigator.

56. The applicant did not submit any observations in reply to those of the Government.

58 . It remains to be seen whether there were any restrictions on the applicant ’ s right to legal assistance and, if so, whether they complied with the safeguards of Article 6.

59. 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 Poitrimol v. France , 23 N ovember 1993, § 34, Series A no. 277 ‑ A ). As a rule, access to a lawyer should be provided as from the first questioning of a suspect by the police, unless it can be demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer are used to secure a conviction (see Salduz v. Turkey [GC], no. 36391/02, § 55, 27 November 2008).

60 . The Court reiterates at the same time that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see Kwiatkowska v. Italy ( dec.), no. 52868/99, 30 November 2000). H owever, if it is to be effective for Convention purposes, a waiver of the right must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006 ‑ II ). A waiver of the right, once invoked, must not only be voluntary, but must also constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (see Jones v. the United Kingdom (dec.), no. 30900/02, 9 September 2003).

61 . It is not disputed in the present case that the applicant waived his right to legal assistance on 23 and 24 March 2004. Nor are there any doubts that he did so while being legally incapacitated on account of schizophrenia.

62 . The Court considers it established in the light of its earlier findings (see paragraphs 51 and 57 above) that the waiver was voluntary. It cannot, however, be regarded as constituting a knowing and intelligent relinquishment of the right to legal assistance on account of the applicant ’ s mental condition.

63 . The question is whether the authorities were aware of his mental illness to activate the safeguards of Article 6 of the Convention.

64 . The Court cannot but agree with the Government ’ s submission on the absence of any direct or indirect evidence proving or at least suggesting that the applicant had in fact informed the police of his condition. Indeed, the contents of his handwritten statements rather suggest that that was not the case.

65 . The Court also does not lose sight of the character references in respect of the applicant given by the local housing department and by his employer. They discerned nothing inadequate in his behaviour that would allow someone to recognise that he was suffering from schizophrenia . On the contrary, he was perceived to be a quiet person competent in his vocation.

66 . It follows that the applicant ’ s psychiatric disorder did not necessarily manifest itself in his behaviour and could not be expected to be easily recognisable .

67 . The Court therefore can hardly reproach the domestic authorities for not having immediately established that the applicant was in need of legal representation because of his mental condition.

68 . The Court notes that under Ukrainian law (see paragraphs 39-41 above) persons unable to defend themselves on account of a physical or mental disability must be legally represented as soon as the disability in question becomes known . The Court considers that this requirement, which is entirely consonant with Article 6 of the Convention, has been respected in the present case. Thus, a lawyer was appointed for the applicant as soon as the investigator had been notified of the applicant ’ s history of medical treatment for schizophrenia (see paragraph 15 above).

69 . The Court is also mindful of the fact that the applicant maintained his confession even when legally represented (see paragraph s 16 and 17 above). Nor does it escape the Court ’ s attention that, independently of that confession, there was extensive evidence against him (see paragraph 35 above).

70 . In sum, the Court finds nothing to suggest that the applicant ’ s trial was unfair or that his defence rights have been breached . It therefore considers that his complaints under Article 6 §§ 1 and 3 (c) of the Convention are manifestly ill-founded and should be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

C. Other complaints

71 . The applicant complained, with reference to Articles 3 and 4 of the Convention, that he had been detained in poor conditions in the police station for several days in March 2004.

72 . He next complained under Article 5 §§ 1 (c) and 3 that he had been detained without any reasonable suspicion of having committed a criminal offence, that his arrest had not been formalised until the day after he had been taken into custody , and that he had not been brought promptly before a judge. The applicant also relied on Article 5 § 1 (a), without being more specific.

73 . The applicant further complained under Article 6 § 1 that the domestic courts had been biased and had found him guilty of a crime which he had not committed, having erred in their assessment of the facts of the case. Relying on Article 6 § 2, he complained that he had been treated by the police as guilty , even before he had been convicted by the courts. The applicant also complained under Article 6 § 3 (a) that, although he had refused the services of a Ukrainian - Russian interpreter before the trial, his knowledge of Ukrainian had turned out to be insufficient for him to follow the proceedings thoroughly and the court had ignored his complaint to that effect. Furthermore, he complained under Article 6 § 3 (b) that he had been un able to study the case file thoroughly. Relying on Article 6 § 3 (d), the applicant also complained that not all the witnesses had been examined by the courts during his trial.

74 . Lastly, he complained under Article 13 of the Convention that the domestic authorities had not duly protected his rights.

75. 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 is also 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.

Claudia Westerdiek Mark Villiger Registrar President