16.04.2019 | Автор: Зеров Костянтин
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«Щербаков проти України»: Неподання особою скарги на жорстоке поводження не звільняє органи влади від обов`язку здійснити розслідування (ст. 3, ст. 6 Конвенції, заява № 39708/13, від 20.09.2018 р.)

Фабула судового акта: Заявник, громадянин України О.Є. Щербаков, скаржився на жорстоке поводження з боку працівників міліції, неефективне розслідування жорстокого поводження, використання для його засудження отриманих під тиском показань.

Заявника було затримано у зв’язку з вчиненням підпалу будинку. Заявник стверджував, що після затримання працівники міліції жорстоко поводилися з ним, примушуючи зізнатися у замаху на вбивство – били, залишали без їжі та води. Експерти встановили численні забиття на тілі Заявника, які виникли у зазначений Заявником період. Згодом Заявник зізнався у підпалі, проте пояснення щодо походження тілесних ушкоджень не надав. Заявника було визнано винним у замаху на вбивство пари, яка знаходилася в будинку, умисному заподіянні тяжких тілесних ушкоджень та підпалі, що спричинив тяжкі наслідки та засуджено до п’ятнадцяти років позбавлення волі. Заявник оскаржив вирок до суду апеляційної інстанції.

Під час апеляційного провадження суд доручив прокуратурі перевірити твердження Заявника щодо жорстокого поводження. Після перевірки у порушенні кримінальної справи щодо працівників міліції було відмовлено через відсутність в їхніх діях складу злочину. Суд апеляційної інстанції, Верховний Суд України залишили вирок щодо Заявника без змін.

Уряд стверджував, що скарги Заявника на жорстоке поводження є недостовіними, зокрема тому, що були непослідовними, Заявник відмовлявся надати слідчому пояснення щодо походження ушкоджень, а скарга щодо жорстокого поводження була подана із значним запізненням. ЄСПЛ підкреслив, що обов’язок органів влади провести розслідування виникає незалежно від наявності безпосередньої скарги, з огляду на що затримка у поданні скарги щодо факту жорстокого поводження не є вирішальним фактором для визнання тверджень Заявника про жорстоке поводження недостовірними.

ЄСПЛ наголосив, що оскільки слідчому було відомо про висновки судово-медичної експертизи, обов’язок провести перевірку щодо жорстокого поводження виник у органів влади через кілька днів після настання таких обставин. Відмова Заявника надавати пояснення щодо походження тілесних ушкоджень не виправдовує недоліки розслідування. Зокрема, прокурор належним чином (в тому числі шляхом запитань експерту) не обґрунтував висновок щодо невідповідності тверджень Заявника наявним тілесним ушкодженням, не виявив належного рівня ретельності щодо перевірки суперечливих показань працівників міліції та ін.

З огляду на вказане, ЄСПЛ дійшов висновку про порушення процесуального аспекту статті 3 Конвенції у звязку з нефеективністю розслідування тверджень Заявника про жорстоке поводження на національному рівні.

ЄСПЛ також встановив порушення матеріального аспекту статті 3 Конвенції. На думку ЄСПЛ, зізнання у вчиненні злочину після незадокументованого тримання під вартою протягом декількох днів у сукупності з медичними висновками щодо наявності тілесних ушкоджень незрозумілого походження ставить під сумнів добровільність надання Заявником показань.

ЄСПЛ дійшов висновку, що було порушено пункт 1 статті 6 Конвенції у зв’язку з використанням для засудження Заявника його зізнавальних показань, отриманих під тиском.

Аналізуйте судовий акт: «Каверзін проти України» (Kaverzin v. Ukraine), заява № 23893/03

«Яременко проти України» (Yaremenko v. Ukraine), заява № 32092/02

«Буїд проти Бельгії» [ВП] (Bouyid v. Belgium) [GC], заява № 23380/09

«Лабіта проти Італії» [ВП] (Labita v. Italy) [GC], заява № 26772/95

«Мокану та інші проти Румунії» [ВП] (Mocanu and Others v. Romania) [GC], заяви № 10865/09, № 45886/07 та № 32431/08

«Зякун проти України» (Zyakun v. Ukraine), заява № 34006/06

Із перекладом тексту рішення на українську мову можна ознайомитися на офіційному веб-сайті Міністерства юстиції України за посиланням: https://minjust.gov.ua/files/general/2018/11/01/20181101095824-70.docx

 

FIFTH SECTION

CASE OF SHCHERBAKOV v. UKRAINE

(Application no. 39708/13)

JUDGMENT

STRASBOURG

20 September 2018

This judgment is final but it may be subject to editorial revision.

In the case of Shcherbakov v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

André Potocki, President,
Mārtiņš Mits,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 28 August 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 39708/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Oleg Yevgeniyovych Shcherbakov (“the applicant”), on 11 June 2013.

2. The applicant, who had been granted legal aid, was represented by Ms N.G. Okhotnikova, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.

3. The applicant complained under Article 3 of the Convention that he had been subjected to torture by police officers and that there had been no effective investigation in that respect, and under Article 6 § 1 that the domestic courts had admitted in evidence his and a third party’s incriminating statements allegedly obtained under duress in the course of the pre-trial investigation. On 29 May 2015 those complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

4. The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1964 and is detained in Gorodyshche in the Rivne region.

6. In the late hours of 11 July 2010 the applicant broke a window in the home of Mr and Mrs Ma. (“the victims”) and threw a jar of petrol with a burning fuse into the room where Mrs Ma. was sleeping. As a result, she was seriously burned.

7. On 19 July 2010 the applicant was arrested.

8. According to the applicant, following his arrest, from 19 to 22 July 2010 police officers ill-treated him in order to force him to confess to attempted murder of the victims. In particular, he alleged that the police officers hit him, put a plastic bag over his head cutting off his air supply, and subjected him to electric shocks. He also alleged that during that period he had been kept without food and water, tightly handcuffed and had not been allowed to use the toilet.

9. On 21 July 2010 the applicant gave a statement to the police confessing that he had thrown a firebomb into the window of the victims’ house because he believed that a person with whom he had had a conflict, Mr Ma., lived there.

10. On 22 July 2010 an arrest report was drawn up documenting the applicant’s arrest on suspicion of attempted murder. O., a legal aid lawyer, was appointed for the applicant. The applicant signed a document that explained his rights as a suspect, including the right to remain silent and to consult a lawyer before his first questioning.

11. Later on the same day the applicant was questioned as a suspect in the presence of lawyer O. He repeated his confession in essentially the same terms. The investigator asked him how he had chosen the window into which to throw his firebomb. He responded that he had chosen the window which had been lit up by light from a computer, indicating that people were living there. At the close of the interview the lawyer asked the applicant whether he was making his statements of his own free will and the applicant responded in the affirmative.

12. On 24 July 2010 the applicant refused the services of lawyer O. and asked that S. be admitted as his lawyer instead. The investigator admitted S. as the applicant’s lawyer on the same day.

13. On 26 July 2010 the applicant’s lawyer asked that the applicant be directed to a forensic medical expert to determine whether he had any injuries and, if so, how they had been inflicted.

14. A report drawn up by a forensic medical expert dated 29 July 2010 stated that, other than bruises on the wrists, which could be explained by handcuffing, the applicant had a hematoma on his back, and red spots on the back of his thighs. The applicant explained the injuries by saying that he had been ill-treated at the police station after his arrest on 19 July 2010: officers had hit him on the torso and back, twisted his arms, put a plastic bag over his head cutting off his air supply, and, using an electroshock device, subjected him to electric shocks on the back and legs. The expert believed that the spots were the result of the healing of bruises which could have been inflicted either by blunt objects or by electric shocks and that all the documented injuries could have been inflicted at the time indicated by the applicant.

15. On 29 July 2010 the applicant was charged with attempted murder and the investigator attempted to question him. He refused to give evidence.

16. On 3 September 2010 the applicant stated, in an interview, that he had intended to set fire to what he thought to be an empty summer cottage, without endangering anyone’s life.

17. On 19 October 2010 the investigator attempted to question the applicant in the presence of his lawyer concerning the origin of his injuries revealed by the forensic medical investigation. He refused to give evidence and stated that he would testify on that point in the course of the trial.

18. Also on 19 October 2010 the investigator, having noted the results of the forensic medical examination, stated that if the applicant’s statements to the expert were confirmed, they would indicate that official misconduct had been committed. Accordingly, he forwarded the results of the examination to the Slovyansk prosecutor, requesting that he conduct an investigation. The prosecutor questioned several police officers, who denied any ill‑treatment. Two officers stated that the applicant had been arrested on 19 July 2010 but had refused to follow the arresting officers to the police station, so he had been handcuffed. He had then been released and had come back to the station voluntarily when summoned on 22 July 2010.

19. On 3 November 2010 an investigator of the prosecutor’s office refused to institute criminal proceedings against the police officers in connection with the applicant’s allegations of ill-treatment for lack of a corpus delicti in their actions. He referred to the officers’ statements and the applicant’s refusal to give evidence on that point, and stated that the applicant had been handcuffed lawfully and there was no proof that his injuries had been inflicted by the police.

20. In the course of the pre-trial investigation against the applicant witness Mi. was questioned. He testified that on the night of the crime he had taken the applicant to the vicinity of the victims’ house in his car. The applicant had had in his bag a jar of petrol, which he had equipped with a fuse in Mi.’s presence. He had then gone in the direction of the victims’ house and had quickly returned.

21. On 21 October 2010, on completion of the investigation, the applicant and his lawyer studied the file and stated that they had no statements or requests to make.

22. The bill of indictment submitted to the trial court stated, in particular, that although the applicant had pleaded not guilty to the charges, his guilt was corroborated by the evidence, including his own statement made at the early stages of the investigation.

23. At his trial, the applicant testified that he had intended to set on fire what he thought to be an empty summer cottage, without endangering the victims’ lives. Witness Mi. testified that on the night of the crime he had taken the applicant to the victims’ house in his car and that the applicant had had a bag with him. However, contrary to his statement made during the pre-trial investigation, Mi. testified at trial that he had not seen the bag’s contents. He stated that the applicant had gone in the direction of the victims’ house and had quickly returned. When asked about the contradiction in his statements made during the pre-trial investigation and during the trial, Mi. said that he had been subjected to “psychological and physical influence” by the police during the pre-trial investigation.

24. On 23 February 2012 the Slovyansk Court convicted the applicant of attempted murder, intentional infliction of grievous bodily harm and arson which had had grievous consequences. It sentenced him to fifteen years’ imprisonment. In convicting the applicant the court relied, in particular, on the applicant’s statements made during the pre-trial investigation, which the trial court interpreted to mean that the applicant had realised that the house he had set on fire had been the victims’ home and that they might have been inside at the time, in particular the applicant’s statement to the effect that he had seen lights on in the house. The trial court also relied on Mi.’s statements made during the pre-trial investigation, finding them more credible than his testimony during the trial, in particular because they had been repeated in the course of confrontations with the applicant. His allegations of pressure had been verified by the prosecutor’s office but no proof had been found to corroborate them.

25. The applicant appealed, arguing, primarily, that he had not intended to murder the victims and had set their house on fire only after attempting to verify that there had been nobody inside. He insisted that he had been ill‑treated in order to extract his confession.

26. On 29 May 2012 the Donetsk Regional Court of Appeal (“the Court of Appeal”) requested the Slovyansk prosecutor to investigate the applicant’s ill-treatment allegations.

27. On 5 June 2012 the Slovyansk prosecutor quashed the investigator’s decision of 3 November 2010 and conducted a new round of pre‑investigation enquiries. In the course of the enquiries the prosecutor’s office took statements from the applicant, the police officers, lawyer O. and the medical expert who had issued the report of 29 July 2010, and examined the premises of the police station where the alleged ill-treatment had taken place and its entry records.

28. Police officers stated that the applicant had been arrested and handcuffed on 19 July 2012 but had then been released and invited back for a new interview on either 21 or 22 July 2010. Officer F. stated that he could not explain the discrepancy between the date of the applicant’s initial confession, 21 July 2010, and the date of his official arrest, 22 July 2010, insisting that the applicant had been handed over to the investigator, who had put him under arrest immediately following his confession.

29. The record of the interview with the medical expert is one page long. Two questions were put to the expert. First, he was asked on what grounds he had concluded that the applicant’s injuries could have been caused by electric shocks. The expert responded that his conclusion had been based on the applicant’s statements and the results of the examination. Secondly, he was asked whether the injuries noted in the report could have been inflicted by different blunt objects and under different circumstances. The expert responded that they could.

30. Lawyer O. stated that the applicant had not complained to him of any ill-treatment.

31. On 15 July 2012 the prosecutor refused to institute criminal proceedings against the police officers for lack of a corpus delicti in their actions. By way of reasoning, the prosecutor stated, in particular, that the records of the police station where the applicant had allegedly been ill‑treated did not show that he had entered the station during the relevant period. The prosecutor referred to the police officers’, lawyer O.’s and the expert’s statements. The prosecutor considered that the applicant’s account of ill-treatment was not consistent with his injuries.

32. On 12 July 2012 the Donetsk Regional Court of Appeal upheld the applicant’s conviction. It also noted that according to the findings of the prosecutor’s office, the applicant had been handcuffed on 19 July 2010 and there was no evidence that he had been released afterwards. In view of those findings, the Court of Appeal concluded that the applicant’s allegations that he had been kept in detention from 19 to 22 July 2010 were credible and that that period of detention was to be deducted from his sentence. However, the Court of Appeal did not establish any causal link between that irregular detention and his confession. The Court of Appeal also held that the trial court had not erred in admitting the applicant’s statement given during the pre-trial investigation, since the applicant’s rights had been explained to him prior to questioning, a lawyer had been present and the applicant had not told him of any ill-treatment.

33. The applicant appealed on points of law, raising the same arguments as those raised before the Court of Appeal and also arguing that the discrepancies between his statements made during the pre-trial investigation and the testimony given during the trial were due to the ill-treatment to which he had been subjected.

34. On 19 March 2013 the High Specialised Civil and Criminal Court upheld the judgment of the trial court and the ruling of the Court of Appeal.

II. RELEVANT DOMESTIC LAW

35. The relevant domestic law is summarised in the cases of Yaremenko v. Ukraine (no. 32092/02, §§ 45-47, 12 June 2008) and Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

36. The applicant complained that police officers had ill-treated him to extract his confession and that there had been no effective domestic investigation in that respect. 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.”

A. The parties’ submissions

37. The applicant submitted that he had been kept in unrecorded detention from 19 to 22 July 2010 and ill-treated, resulting in the injuries recorded in the medical expert’s report of 29 July 2010. According to the Court’s case-law, such injuries created a presumption of ill-treatment unless they were sufficiently explained, which the Government had failed to do. To explain the delay in lodging his complaint about ill-treatment, the applicant submitted that he had considered legal aid lawyer O. to be “part of the system” so had not trusted him to make the complaint. As soon as he had engaged a new lawyer, he had started complaining about ill-treatment and had taken measures to document his injuries by means of a forensic medical examination.

38. The applicant further submitted that the investigation into his complaint had been one-sided, its results being based on acceptance of the police officers’ denials. It had also been conducted in the form of pre‑investigation enquiries, which allowed for only a limited range of investigative steps to be conducted.

39. The Government submitted that the applicant’s complaint of ill‑treatment lacked credibility. They stressed, notably, the fact that the applicant, despite being represented, had refused to comment on the origin of his injuries in the course of the investigation and that neither he nor his lawyer had raised any specific complaint in that respect until the trial. Also, whereas initially he had alleged that he had been ill-treated on 19 July 2010, he had subsequently modified that allegation to say that the ill-treatment had continued from 19 to 22 July. The domestic investigation had found the applicant’s allegations unsubstantiated.

40. The Government further submitted that, as far as the investigation was concerned, it had met the requirements of Article 3. Despite the fact that the applicant had delayed raising a complaint of ill-treatment until the trial, an investigation had been launched ex officio due to the statements he had made to the medical expert. Police officers had been questioned and it had been decided, as early as 3 November 2010, not to institute criminal proceedings as the applicant’s allegations had not been borne out by the evidence. That conclusion had been later confirmed by the investigation conducted at the request of the Court of Appeal.

B. The Courts’ assessment

1. Admissibility

41. The Court notes that this complaint raises serious issues of fact and law requiring an examination of the merits. Therefore, this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) Relevant principles

42. The Court reiterates that allegations of ill-treatment contrary to Article 3 must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Bouyid v. Belgium [GC], no. 23380/09, § 82, ECHR 2015). On this latter point the Court has explained that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim. In the absence of such explanation, the Court can draw inferences which may be unfavourable for the Government (ibid., § 83).

43. According to the Court’s established case-law, when an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. Such an investigation should be capable of leading to the identification and punishment of those responsible (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).

44. Any investigation into serious allegations of ill-treatment must be both prompt and thorough. That means that the authorities must always make a serious attempt to find out what has happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis for their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see, for example, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 183, ECHR 2012).

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

(i) Procedural aspect

45. A key argument which the Government put forward for doubting the credibility of the applicant’s allegations of ill-treatment was the fact that he had delayed formally raising that complaint. In assessing that argument, the Court first reiterates that in accordance with its case-law, the scope of the obligation to apply promptly to the domestic authorities in connection with allegations of ill-treatment, which is part of the duty of diligence incumbent on applicants, must be assessed in the light of the circumstances of the case. In this regard, the Court has held that delay on the part of an applicant in lodging a complaint is not decisive where the authorities ought to have been aware that an individual could have been subjected to ill-treatment, as the authorities’ duty to investigate arises even in the absence of an express complaint (seeMocanu and Others v. Romania [GC], nos. 10865/0945886/07 and 32431/08, § 265, ECHR 2014 (extracts)).

46. In the present case the applicant first said that he had been ill-treated by the police when he was interviewed by the forensic medical expert on 29 July 2010, shortly after the alleged events. The investigator in charge of the applicant’s case was no doubt aware of the content of the expert’s report containing that statement, as the report had been ordered within the framework of the proceedings against the applicant. In other words, the authorities were made aware of the applicant’s allegations, and their obligation to investigate them was thus triggered, within days of the alleged events.

47. The initial domestic investigation at the pre-trial stage was no doubt hindered, to a certain extent, by the fact that the applicant refused to discuss the origin of his injuries throughout the period of pre-trial investigation (see paragraph 17 above). However, it cannot alone explain the deficiencies of the investigation which followed after the applicant had started cooperating with the investigation (compare Drozd v. Ukraine, no. 12174/03, § 65, 30 July 2009, and Kapustyak v. Ukraine, no. 26230/11, § 77, 3 March 2016).

48. The Court observes that there were several deficiencies in the domestic investigation which were not in any way attributable to the applicant’s conduct.

49. Most notably, the prosecutor, in taking the decision on 15 June 2012 not to institute criminal proceedings, concluded that the applicant’s account of ill-treatment was not consistent with his injuries (see paragraph 31 above). It appears that no specialist evidence was proffered in support of that conclusion. Indeed, the very form in which the domestic investigation took place, the “pre-investigation enquiries” procedure, prevented the prosecutor from ordering a formal expert assessment on this point (see Yevgeniy Petrenko v. Ukraine, no.55749/08, §§ 67 and 68, 29 January 2015, and Grigoryan and Sergeyeva v. Ukraine, no. 63409/11, §§ 61-63, 28 March 2017). It is not clear why the prosecutor apparently did not even attempt to put that question to the medical expert he did interview (see paragraph 29 above). Moreover, in his decision the prosecutor accepted that the applicant had been released on 19 July and re-arrested on 22 July 2010, a conclusion which was hardly credible for the reasons stated by the Court of Appeal (see paragraph 32 above). The fact that the prosecutor was willing to accept without criticism the police officers’ contradictory statements on that point demonstrates a lack of thoroughness in his approach to the investigation in general (see Kaverzin v. Ukraine, no. 23893/03, § 175, 15 May 2012).

50. The above considerations are sufficient for the Court to conclude that the domestic investigation into the applicant’s allegations was not effective.

51. There has accordingly been a violation of Article 3 of the Convention under its procedural aspect.

(ii) Substantive aspect

52. The Court finds no reason to doubt the conclusion of the Court of Appeal that the applicant was arrested on 19 July 2010 and kept in unrecorded detention until 22 July 2010.

53. The Court observes that there is nothing in the case file to indicate that the applicant had any injuries prior to his contact with the police. The Court further notes that no medical examination of the applicant was performed immediately upon his arrest.

54. In such circumstances, the Court finds it established that the applicant sustained injuries while under the control of the authorities.

55. The Court reiterates that it is for the State to provide a plausible explanation for injuries sustained by a person under its control. The origin of the applicant’s injuries, other than on his wrists, has never been established by the authorities.

56. What is more, the fact that the applicant confessed after remaining in unrecorded detention for several days, combined with the medical evidence of unexplained injuries, creates an appearance that his confession may not have been given freely (compare Belousov v. Ukraine, no. 4494/07, § 63, 7 November 2013, and Zyakun v. Ukraine, no. 34006/06, § 52, 25 February 2016).

57. In the circumstances of the case, the presence of a lawyer at the actual time of the applicant’s original confession on 22 July 2010 does not of itself rule out the possibility that the applicant could have been ill-treated prior to his contact with the lawyer and remained fearful of the police at the time of the interview, given that he remained under their control (compare Ushakov and Ushakova v. Ukraine, no.10705/12, § 107, 18 June 2015, and Zyakun, cited above, § 53).

58. The Court is mindful of the particular cruelness of the ill-treatment suffered by the applicant according to his version of the events (see paragraph 8 above). Undoubtedly, if sufficiently established, it would be classified as torture (see, for example, Zhyzitskyy v. Ukraine, no.57980/11, § 43, 19 February 2015, with further references, as concerns in particular the use of electric shocks). However, the Court has no evidential basis before it enabling it to establish to the required standard, “beyond reasonable doubt”, that the treatment the applicant suffered reached the level of “torture”.

59. That being the case, the Court considers it established that the applicant sustained the injuries as a result of ill-treatment for which the Government must bear responsibility under the Convention and which must be classified as inhuman and degrading.

60. There has accordingly been a violation of Article 3 of the Convention under its substantive aspect.

II. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION

61. The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against him had been unfair in that his conviction had been based on the statements of witness Mi. and his own statements allegedly made under duress. The relevant part of that provision reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”.

A. Admission in evidence of Mi.’s incriminating statements

62. The applicant alleged that Mi. had been subjected to ill-treatment in the course of the pre-trial investigation and his statements obtained under duress had been used in evidence against the applicant.

63. The Government contested that argument.

64. The Court notes that the applicant’s allegation is wholly unsubstantiated. There is no domestic finding or finding of this Court establishing that Mi. was ill-treated (contrast, respectively, Harutyunyan v. Armenia, no. 36549/03, §§ 29 and 58, ECHR 2007‑III, and Kaçiu and Kotorri v. Albania, nos. 33192/07 and 33194/07, §§ 99 and 129, 25 June 2013) and no proof of ill-treatment.

65. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Admission in evidence of the applicant’s own incriminating statements

1. The parties’ submissions

66. The applicant submitted that the statements he had made in July 2010 had not been the sole evidence against him but had played a role in his conviction, as the courts had relied on them. Irrespective of the weight of those confessions, in accordance with the Court’s case-law this had extinguished the very essence of his privilege against self-incrimination. Prior to his confession, there had been no independent evidence pointing to his presence at the scene on the crime. The domestic courts had failed to duly examine the applicant’s complaint that his confession had been made under duress.

67. The Government submitted that, before the applicant had been questioned on 22 July 2010, his rights, including the right not to incriminate himself, had been explained to him. He had had lawyers as from the time of his arrest on 22 July 2010. He had not changed his evidence as soon as his legal aid lawyer, O. had been replaced by a lawyer engaged by the applicant himself, but much later. The applicant had never raised the complaint that his lawyers had conducted his defence in an inadequate manner. There was plentiful evidence of the applicant’s guilt other than his statements, notably from witnesses and from the results of confrontations and reconstructions. For those reasons the domestic courts had had no grounds to doubt the voluntariness of the applicant’s statements and, in any event, it was up to them to assess the credibility of his pre-trial statements vis-à-vis those he made in court.

2. The Court’s assessment

(a) Admissibility

68. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

(b) Merits

69. The Court reiterates that the admission of statements obtained as a result of torture or of other ill-treatment in breach of Article 3 as evidence to establish the relevant facts in criminal proceedings renders the proceedings as a whole unfair. This finding applies irrespective of the probative value of the statements and irrespective of whether their use was decisive in securing the defendant’s conviction (see Gäfgen v. Germany [GC], no. 22978/05, § 166, ECHR 2010, with further references).

70. In the present case, the applicant appears never to have denied having committed arson. There is no essential divergence on that point in the statements he gave in the course of the pre-trial investigation and the testimony he gave in the course of the trial. The main point in dispute, on which his pre-trial and in-court statements diverge, appeared to be the matter of mens rea necessary for the charges of attempted murder and intentional infliction of grievous bodily harm. Starting on 3 September 2010 (see paragraph 16 above) and subsequently throughout the proceedings the applicant maintained that he had intended to set on fire an empty summer cottage, which would rule out a murder conviction. However, in convicting him the courts relied on statements he had made in the early stages of the investigation to the effect that he had been aware that the house, and more precisely the room where he had thrown the fire bomb, had been occupied. The applicant’s statement, on 22 July 2010, that he had selected the room in which to throw the firebomb precisely because it had appeared to be occupied (see paragraph 11 above) appears to have been of particular importance in that respect.

71. The Court refers to its findings above (paragraphs 57 to 59) to the effect that the applicant was subjected to ill-treatment in the period from 19 to 22 July 2010 and that, despite the presence of his lawyer at the questioning on the latter date, it could not be ruled out that the applicant remained fearful of the police. The Court concludes, therefore, that the applicant’s incriminating statements made in that period were obtained as a result of ill-treatment in breach of Article 3. Nevertheless, the domestic courts appeared to have relied on the statement of 22 July and at least failed to exclude explicitly from the body of evidence the statement of 21 July 2010 (compare Zyakun, cited above, § 63).

72. There was certainly other evidence of the applicant’s guilt, and the domestic courts could have inferred the requisite mens rea from other evidence in the case, such as the utter recklessness and dangerousness of his conduct. However, it is not for the Court to speculate as to the likely outcome of the proceedings, had the applicant’s tainted statements been excluded. In line with its well-established case-law on this point, it is sufficient for the Court to repeat that any role played in the conviction by such statements made as a result of ill-treatment irreversibly prejudices the fairness of proceedings as a whole.

73. In view of the above considerations, the Court concludes that there has been a violation of Article 6 § 1 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

74. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

75. The applicant claimed 100,000 euros (EUR) in respect of non‑pecuniary damage.

76. The Government submitted that there had been no causal link between any alleged violations and the amount claimed and that, in any event, the amount claimed was excessive.

77. The Court, ruling on an equitable basis, awards the applicant EUR 12,000 in respect of non-pecuniary damage.

B. Costs and expenses

78. The applicant made no claim for costs and expenses. Accordingly, the Court makes no award under this head.

C. Default interest

79. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints under Article 3 and under Article 6 § 1 concerning admission in evidence of the applicant’s statements admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention under its procedural aspect;

3. Holds that there has been a violation of Article 3 of the Convention under its substantive aspect;

4. Holds that there has been a violation of Article 6 § 1 of the Convention

5. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 20 September 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško                                                 André Potocki
Deputy Registrar                                           President

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