JOINT CONCURRING OPINION OF JUDGES NUSSBERGER AND RANZONI

We have voted with the majority in finding a violation of Article 6 §§ 1 and 3 (c) of the Convention (point 2 of the operative provisions), but on the basis of a different reasoning. Moreover, we disagree with the majority ’ s finding “ that there is no need to examine the applicant ’ s complaint concerning the alleged denial of the applicant ’ s request for a lawyer at the hearing of the Court of Appeal ” (point 3 of the operative provisions). We are of the opinion that this should have been analysed.

Before the trial court, the applicant waived his right to legal assistance and consequently received a lenient sentence. In his reply to the appeal, the applicant submitted that his guilty plea had been “ genuine ” and that the sentence imposed, namely six and a half years ’ imprisonment, had been “ correct and justified ” (see paragraph 21 of the judgment). Even at the hearing before the Court of Appeal, the applicant “ regretted the offence he had committed, and requested that the trial court ’ s verdict be left in force ” (see paragraph 22 of the judgment). He therefore fully agreed with the trial court ’ s judgment.

Under these circumstances we consider that the applicant ’ s waiver of his right to legal assistance at the investigation and the trial stage could be seen as valid and we doubt that the proceedings up to the first-instance judgment were unfair.

However, the Court should have examined also the applicant ’ s complaints concerning the alleged denial of his request for a lawyer at the later stage of the proceedings. On an appeal by one of the victims, the Court of Appeal increased the prison sentence to twelve years. The Supreme Court ultimately fixed the term of imprisonment at nine years. Because of the (foreseeable) risk of a harsher punishment at the appeal instances, the applicant should have been represented by a lawyer at this stage of the proceedings, as requested. In our view, it was this failure which made the proceedings unfair and led to the finding of a violation of Article 6 §§ 1 and 3 (c).

DISSENTING OPINION OF JUDGE VEHABOVIĆ

I am unable to share the view of the majority of the Chamber that the facts complained of by the applicant disclose a violation of Article 6 §§ 1 and 3 (c) of the Convention, which provides:

“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;

...“

On 16 January 2005 the applicant was presented with an arrest report giving the reason for his arrest, and was then informed of his right to have access to a lawyer as from the first interrogation. After initially requesting a lawyer the applicant decided, and confirmed in writing by hand, that he would defend himself, not for financial reasons. He confirmed on several occasions that he had been informed about his rights as an accused person and stated – using the same wording – that he would defend himself.

At the beginning of the hearing before the Dnipropetrovsk Regional Court of Appeal the applicant reaffirmed his initial submissions, said that he regretted the offence he had committed and requested that the trial court ’ s verdict be left in force. Only when the Court of Appeal quashed the sentence of the Pavlograd Court as “unduly lenient” did the applicant start complaining about a violation of his right to legal assistance.

This case must be clearly distinguished from the main line of Salduz case-law which provides that an accused at the initial stages of police interrogation, which are decisive for the prospects of the defence in any subsequent criminal proceedings, should normally be allowed to have the effective benefit of the assistance of a lawyer.

Obviously, the entire present case is about two basic questions: whether the applicant ’ s choice was made free of any pressure or duress by the police and, if no pressure or duress was applied by the police, whether the applicant should have been given the opportunity to defend himself if he so wished.

There is no evidence in the case file supporting the applicant ’ s allegation that the authorities in any way influenced him in making his choice to defend himself.

In Dvorski v. Croatia ([GC], no. 25703/11, ECHR 2015) the Court decided to assess whether, in the light of the proceedings as a whole, the rights of the defence had been “adversely affected” to such an extent as to undermine the overall fairness of the proceedings.

Without going into all the details of that test, I consider that the applicant ’ s wish to defend himself was respected (at the beginning his conduct of his own defence was very successful) throughout the entire criminal proceedings against him. While the nature of the proceedings against the applicant, which concerned a crime that had been committed, was serious, that does not mean that there should be different requirements for a fair hearing depending on the seriousness of the nature of the proceedings. When the applicant gave his first self-incriminatory statement in the circumstances of the present case, the reality was that he did so of his own free will in the absence of any sign of physical or psychological pressure by the police or any other State officials.

The applicant ’ s confession was not the central platform of the prosecution ’ s case (see, by contrast, Magee v. the United Kingdom , no. 28135/95, § 45, ECHR 2000 ‑ VI), and the trial court interpreted his statement in the light of a complex body of evidence assessed by the court (compare Bykov v. Russia [GC], no. 4378/02, 10 March 2009).

In such circumstances it would be difficult for me to conclude that the proceedings against the applicant were unfair (compare O ’ Kane v. the United Kingdom (dec.), no. 30550/96, 6 July 1999), since all the applicant ’ s rights were adequately secured during the trial and his confession was not the sole, let alone the decisive, evidence in the case and as such did not call into question his conviction and sentence (compare Gäfgen v. Germany [GC], no. 22978/05, § 187, ECHR 2010, and, by contrast, Martin v. Estonia , no. 35985/09, §§ 95-96, 30 May 2013).

Against this background, and in view of the principle that the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1 of the Convention (see, for example, Zagorodniy v. Ukraine , no. 27004/06 , § 51, 24 November 2011 ) and the requirement to evaluate the fairness of the criminal proceedings as a whole (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011), I find that it has not been shown that the applicant ’ s defence rights were irretrievably prejudiced or that his right to a fair trial under Article 6 was adversely affected (see, mutatis mutandis , Mamaç and Others v. Turkey , nos. 29486/95, 29487/95 and 29853/96, § 48, 20 April 2004, and Sarıkaya v. Turkey , no. 36115/97, § 67, 22 April 2004; see also, by contrast, Martin , cited above).

The applicant ’ s right to defend himself in person was guaranteed by Article 6 § 3 (c) and he effectively made use of that right. I disagree with the majority ’ s conclusion in paragraph 51 that the trial record shows that the applicant ’ s waiver and his guilty plea followed each other closely at the opening of his trial and both occurred prior to the arrival of the prosecutor in the courtroom. As far as I know the opposite situation might be problematic from an Article 6 perspective, if the applicant were absent from the hearing while the prosecutor was present. The Chamber found in the situation complained of a crucial contradiction that led it to find a violation of Article 6 § 3 (c).

The burden of proof is on the applicant to submit sufficient evidence in support of his allegations. That is exactly what is missing in this case.