Communicated on 26 March 2020 Published on 25 May 2020

FIFTH SECTION

Application no. 45547/13 Sergey Ivanovich MAKSIMENKO against Ukraine lodged on 9 July 2013

STATEMENT OF FACTS

The applicant, Mr Sergey Ivanovich Maksimenko , is a Ukrainian national who was born in 1972 and is serving a life sentence in Temnivka Prison no. 100. He is represented before the Court by Mr M. Tarakhkalo , a lawyer practising in Kyiv.

The circumstances of the case

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

On 3 December 2001 the dead body of Mr L. was found, with a blood ‑ stained axe lying beside it. A criminal investigation was initiated in respect of premeditated murder.

On 20 February 2006 the police reported to the investigator at Yagotyn District Prosecutor ’ s Office (Kyiv Region), who had been in charge of that criminal case, that fingerprints discovered at the crime scene belonged to the applicant.

On 3 March 2006 the Prosecutor of Yagotyn District of Kyiv Region requested that the applicant, who was at the time serving a fixed-term prison sentence for several counts of premeditated murder, be questioned in relation to that new incident.

On 14 March 2006 the applicant confessed in writing that he had hit L. on the head with the back of an axe. The confession was submitted to a prison officer.

On 23 March 2006 the applicant was questioned as a witness in the criminal case. The questioning was carried out without a lawyer present. Before being questioned the applicant had been warned that refusing to give evidence and giving false evidence were criminal offences. At the same time he was apprised of Article 63 of the Constitution, which provides that a person is not liable for refusing to give evidence regarding himself or herself and his or her relatives. During questioning the applicant provided further details as to how he had hit the victim using the axe.

On 23 June 2006 free legal counsel was appointed for the applicant.

On 7 November 2006 the Kyiv Regional Court of Appeal, sitting as a court of first instance, found the applicant guilty of premeditated murder committed repeatedly and sentenced him to life imprisonment. During the trial the court had examined the applicant ’ s confession of 14 March 2006 and his witness statements of 23 March 2006. In the judgment the court expressly referred to the applicant ’ s confession, noting that it had been made voluntarily.

In December 2006 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. The applicant expressed remorse and asked for mitigation of his sentence.

On 22 February 2007 the Supreme Court, following a hearing in which the applicant participated, upheld his conviction.

On 20 August 2007 the applicant lodged an application with the Court (no. 39488/07) complaining, in particular, of the lack of free legal assistance for him during the cassation appeal proceedings after he was sentenced to life imprisonment by the first-instance court.

On 20 December 2011 the Court declared the application partly admissible and found a violation of Article 6 § 3 (c) of the Convention. The Court found, in particular, that the applicant had been unfairly denied free legal assistance in the proceedings before the Supreme Court.

On 20 March 2012 the Maksimenko judgment became final.

On 20 March 2012 the applicant applied to the Higher Specialised Court on Civil and Criminal Matters (the HSCU), seeking the reopening of his case in the light of the above Court judgment. The applicant requested that the Supreme Court ’ s decision of 22 February 2007 be reversed and the time ‑ limit for appealing against his conviction be renewed and further hearings be held in the presence of his lawyer.

On 27 November 2012 the HSCU quashed the Supreme Court ’ s decision of 22 February 2007 and ordered a new cassation review of the applicant ’ s case. The HSCU did not rule on the renewal of the time-limit for lodging a cassation appeal.

On 28 January 2013 the applicant ’ s lawyer submitted an addendum to the applicant ’ s original cassation appeal, which had been lodged in 2006. The lawyer argued, inter alia , that the applicant ’ s self-incriminating evidence given at the initial stage of the investigation had been obtained in breach of the applicant ’ s defence rights.

The HSCU did not entertain the lawyer ’ s addendum, on the grounds that the lawyer had not been the author of the original cassation appeal. It suggested that the addendum to the cassation appeal could only be lodged by the applicant, as the author of the principal document.

On 14 February 2013 the HSCU, in the presence of the applicant and his lawyer, conducted a cassation review of the applicant ’ s criminal case. The lawyer made oral representations, arguing that the applicant had been convicted on the basis of his initial self-incriminating evidence, which had been obtained in breach of his defence rights.

The HSCU upheld the applicant ’ s conviction. However, it slightly amended the reasoning on the basis of which the life sentence had to be imposed. The HSCU did not address the lawyer ’ s arguments as regards the inadmissibility of the initial self-incriminating evidence.

During the hearing before the HSCU the applicant was placed in a glass cabin where he remained handcuffed throughout. The other defendants arriving for their hearings on the same day were held in the same cabin, without handcuffs.

COMPLAINTS

1. The applicant complained that, in the reopened proceedings which followed the ECHR judgment in his first case, the domestic courts had not ensured his right to effective legal representation and his right to a reasoned decision in his criminal case. The applicant argued in that regard that (i) the HSCU had not renewed the time-limit for lodging a cassation appeal, on the one hand, and it had not entertained the lawyer ’ s written addendum to the applicant ’ s original cassation appeal, on the other hand; (ii) in any event, the HSCU had not addressed the lawyer ’ s arguments which he repeated orally at the hearing.

2. The applicant complained under Articles 3 and 8 of the Convention that, on the day of the hearing in his reopened case, he had remained handcuffed in the glass cabin throughout, while the other defendants, arriving for the other hearings, had not been handcuffed. He contended that his handcuffing was a severe measure which amounted to ill-treatment and infringed his private life as he had been exposed to the public as an extremely dangerous person.

3. The applicant complained that, at the initial investigation stage in 2006, he had not been given access to a lawyer, while during that period he had (a) confessed to a crime and (b) made further self-incriminating statements during his questioning as a witness, in breach of his right to remain silent.

QUESTIONS TO THE PARTIES

1. With regard to the reopened proceedings before the Higher Specialised Court on Civil and Criminal Matters (the HSCU):

(a) Did the HSCU comply with its obligation under Article 6 § 1 of the Convention to give reasons for its decision and to reply to specific, pertinent and important arguments by the parties?

(b) Did the HSCU respect the applicant ’ s right to legal assistance within the meaning of Article 6 § 3 (c) of the Convention, taken in conjunction with Article 6 § 1 of the Convention? Did the applicant benefit from “practical and effective” legal representation for the purpose of those provisions of the Convention? In particular:

- Did the HSCU address the applicant ’ s lawyer ’ s request for the renewal of the time-limit for lodging a cassation appeal?

- Was the lawyer ’ s written addendum to the applicant ’ s original cassation appeal rejected on excessively formalistic grounds?

- Did the HSCU address the lawyer ’ s arguments which he made orally at the hearing?

(c) Did the application of restraints (handcuffs) to the applicant during his stay on the premises of the HSCU constitute inhuman or degrading treatment, within the meaning of Article 3 of the Convention? Is Article 8 applicable on this account? If so, has there been a violation of that provision of the Convention?

The Government are invited to provide a copy of the legal regulations on handcuffing of defendants in courtrooms, as applicable at the relevant time.

2. With regard to the initial stages of the criminal investigation in 2006:

(a) Has the applicant exhausted domestic remedies in respect of his complaint of lack of access to a lawyer?

(b) Was the applicant provided with access to a lawyer in accordance with the requirements of Article 6 §§ 1 and 3 (c) of the Convention?

(c) Was the applicant ’ s privilege against self-incrimination violated on account of his being questioned on 23 March 2006 with the prior warning that refusing to give evidence and giving wrong evidence were criminal offences?

(d) Has the principle of fairness of pr oceedings, enshrined in Article 6 § 1, been impaired on account of these alleged facts?