DISSENTING OPINION OF JUDGE POWER-FORDE

Unlike the majority, I take the view that the applicant has suffered a substantive violation of Article 3 of the Convention. I also consider that his right to a fair trial was breached in contravention of the provisions of Article 6.

Article 3

The instant case is marked by the respondent State ’ s failure to investigate properly the applicant ’ s allegations of ill-treatment, its failure to produce evidence to show that it discharged its obligation to have the applicant examined, medically, when he was taken into custody and its failure to provide all relevant documentation to this Court, including, actual forensic reports of such medical examinations as were carried out on the applicant - whether in May or September 2003.

In addition to this litany of serious defaults of duty on the part of the State, such evidence as is before the Court confirms that the applicant repeatedly complained of having been ill treated by the police on 7 May 2003. He was, he claims, hit on the head, punched, threatened with murder and rape, forced to wear a smoke filled gas-mask and severely beaten, after which he confessed to having committed a crime. The evidence also establishes that, contemporaneous with his time in custody, bruising was evident on his body. It is further established that a forensic expert concluded that the bruising on his chest was caused by ‘ being punched ’ and that this conclusion was noted by the domestic court (§ 36).

Despite the foregoing, the majority refuses to draw a legal inference of culpability on the merits of the applicant ’ s complaint and declines to find that the ill-treatment did, in fact, occur. It cites, in § 73, the Tomasi principle that, where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent upon the State to provide a plausible explanation of the cause of his injury, failing which a clear issue arises under Article 3 of the Convention. [1] Immediately thereafter, however, the majority back-tracks and blames the applicant for not convincing us that he had no injuries when taken into custody and for not establishing ‘ beyond reasonable doubt ’ that it was, indeed, his gaolers who inflicted the injuries he bore.

It is difficult to envisage what supplementary proof the majority expected from the applicant. Ought he to have anticipated that he was in for a hiding when transported from Kyiv on 7 May 2003? Ought he then to have requested the police to do a detour en route to Pyryatyn so that he could consult with a doctor? Ought he to have known that he would need to have available a medical certificate testifying to the absence of bodily injuries as of that date so that, afterwards, he would in a position to prove that it was, indeed, the police who had inflicted injuries upon him? Ought he to have known that a court of human rights would expect of him this level of proof while acknowledging the authorities ’ utter failure to investigate his serious complaints in a proper and ti mely manner?

For the Court to demand of this applicant that he provide further proof of his allegations is to place upon him a burden ‘ that is as impossible to meet as it is unfair to request ’ . [2] If a detainee raises an arguable claim that he has been seriously ill-treated by the police in breach of Article 3 then it is for the State authorities to investigate the allegations made. [3] That includes providing rebuttal evidence that any injuries sustained were already present prior to entry into custody or were the result of legitimate action which has been documented. The authorities are obliged to keep proper records concerning a person ’ s detention and to place themselves in the position whereby they can account, convincingly, for any injuries. In this case, no rebuttal evidence has been adduced nor has any ‘ plausible explanation ’ been offered. ‘ Items in his surroundings ’ are blamed for injuries which the State ’ s own forensic expert described as ‘ bruises on his chest from being punched ’ . The explanation tendered by the Government is simply not plausible.

In circumstances where the respondent State has failed to produce any medical records confirming that this applicant was in good health when taken into custody, where its own courts take note of forensic evidence which confirms that injuries, evident whilst in custody, were caused by ‘ being punched ’ and where no proper or effective investigation into complaints of ill-treatment has been conducte – I cannot but conclude that a consequent inference of culpability on the part of the State must be drawn. An evidentiary rule that holds otherwise, in the circumstances of this case, provides what Judge Bonello described as ‘ an injurious escape from reality ’ . [4] I, therefore, find a violation of the substantive limb of Article 3 of the Convention.

Article 6

As to the complaints under Article 6, the applicant complains, generally, that his conviction and trial had been unlawful (§ 76) and, specifically, about the absence of his lawyer from the identification parade. My concern is with his general complaint. Whilst I have considerable doubts about the manner in which the identification parade was conducted, my main reason for finding a violation of Article 6 in conjunction with Article 6 § 3(c) rests upon the fact that the applicant was without any legal representation from the time he was taken into custody on 24 th April 2003 until the 11 th of May 2003. His lack of access to a lawyer during this critical period raises a serious question about the overall fa irness of his criminal trial.

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 a fair trial. [5] The Court has frequently repeated that in order to determine whether the aim of Article 6 – a fair trial – has been achieved, regard must be had to the entirety of the proceedings, including, the pre-trial proceedings. [6]

That the right of access to a lawyer is ‘ triggered ’ as from the first interrogation of a suspect by the police is also firmly established in the Court ’ s case law. [7] Indeed, the concept of fairness enshrined in Article 6 “requires that the accused be given the benefit of the assistance of a lawyer already at the initial stages of police interrogation”. [8] This principle reflects the Court ’ s recognition of the fact that evidence obtained during the investigation stage, including confession statements, can determine the framework in which the offence charged will be considered at the trial. [9] From the moment of arrest until the handing down of sentence, criminal proceedings form an organic and interconnected whole and an event that occurs at one stage may influence and, at times, determine what transpires at another. This ‘ holistic ’ approach to criminal proceedings is reflected in the Grand Chamber ’ s finding in Salduz that neither the legal assistance provided subsequently nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during the time spent in police custody. [10] Consequently, the Court proceeded to find a violation of Article 6 in that case.

In this case, whilst in administrative detention since 24 April 2003 for alleged ‘ disorderly conduct ’ , the applicant was, on 7 May 2003, taken from Kyiv and brought to a region some 150 kilometers. There, he claims to have been severely beaten and ill-treated by the police. It is not disputed that on the following day he confessed to the burglary (§ 9). The first time he had access to a lawyer was on 11 May 2003.

In my view, Article 6 §1 requires that, as a rule, a suspect has a right of access to a lawyer from his or her first interrogation 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. [11] In the present case, no such reasons have been adduced.

There is, to my mind, a presumption that a trial will be unfair unless access to a lawyer has been given from a suspect ’ s initial interrogation by police. Legal assistance includes an array of services which are put at an accused person ’ s disposal so that he can defend himself, effectively, in a criminal trial. As the Court has stated in Dayanan v . Turkey

Indeed, the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person ’ s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention. [12]

None of the above was available to the applicant prior to 11 May 2003 despite his having been in custody for 18 days. He has, to my mind, established that during this period he was ill-treated by the police and confessed. The absence of legal assistance during this critical period cannot have been cured by subsequent events. I am unconvinced that the applicant ’ s criminal trial was ‘ fair ’ w ithin the meaning of Article 6.

[1] Tomasi v. France , 27 August 1992, Series A no. 241 ‑ A .

[2] See the partly dissenting opinion of Bonello, J. in VeznedaroÄŸlu v. Turkey , no. 32357/96, 11 April 2000 .

[3] Assenov and Others v. Bulgaria , 28 October 1998, § 102 , Reports of Judgments and Decisions 1998 ‑ VIII .

[4] See dissenting opinion of Bonello, J., in Anguelova v. Bulgaria , no. 38361/97, ECHR 2002 ‑ IV .

[5] Salduz v . Turkey , [GC] no. 36391/02, §54, 27 November 2008, § 51; Poitrimol v. France , 23 November 1993, § 34, Series A no. 277 ‑ A; and Demebukov v. Bulgaria , no. 68020/01, § 50, 28 February 2008 .

[6] Panovits v . Cyprus , § 64, and Imbrioscia v . Switzerland , no. 13972/88, § 38, 24 November 1993.

[7] Panovits , § 66, and Salduz , § 55.

[8] Panovits ,  § 66.

[9] Salduz , § 54.

[10] Salduz , § 58.

[11] Salduz , §55.

[12] Dayanan v Turkey , no. 7377/03, 13 October 2009.