In the case of Dvorski v. Croatia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefčvre,
President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Mřse,
Ksenija Turković,
Dmitry Dedov, judges,
and Sřren Nielsen, Section Registrar,
Having deliberated in private on 5 November 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
25703/11) against the Republic of Croatia lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Croatian national, Mr Ivan Dvorski (“the
applicant”), on 16 April 2011.
The applicant was represented by Ms S. Maroševac
Čapko, a lawyer practising in Rijeka. The Croatian Government (“the
Government”) were represented by their Agent, Ms Š. Stažnik.
The applicant in particular alleged that his
right to a fair trial including the right to legal assistance of his own
choosing and his right not to incriminate himself, under Article 6 §§ 1 and 3
(c) of the Convention, had been violated.
On 28 June 2011 the applicant’s complaints were communicated
to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1986 and lives in Rijeka.
On 13 March 2007 between 2 and 3.30 a.m. in
Vežica, a residential neighbourhood of Rijeka, three murders, an armed robbery
and an arson attack were committed.
During the same day, a number of people from
Vežica were brought in for questioning at the Rijeka Third Police Station of
the Primorsko-Goranska Police Department (Policijska uprava
Primorsko-goranska, Treća policijska postaja Rijeka; hereinafter
“Rijeka Police Station”).
Around 1.00 p.m. the same day, the applicant was
brought to the Rijeka Police Station for an interview. Blood samples were taken
from him for DNA analysis and the police searched his flat and mobile phone and
seized a number of his personal items.
The applicant was kept at Rijeka Police Station
until his arrest on 14 March 2007 at 9.50 a.m. in connection with the
above offences.
According to the applicant, from the moment he
was brought to Rijeka Police Station, he was put in a windowless cell with no
light and kept without food and water until about 6 p.m. on 14 March 2007.
According to the Government, the applicant had
been kept in a detention room, although he had spent most of the time in an
interview room. The detention room had been under video surveillance. In the
interview room the applicant had been under the constant guard of a police
officer and therefore could have asked for food or drink or to go to the toilet
at any time. The detention room had been equipped with sanitary facilities and
artificial light, but it had also had a window which had been secured with
metal bars. There had also been a bed and a number of blankets to ensure rest.
The applicant had been provided with hot meals and drinks and the Government
submitted receipts for orders made in that respect.
Meanwhile, on 14 March 2007 the applicant’s
parents hired a lawyer, G.M., to represent the applicant. However, the police
denied him access to the applicant (see paragraph 21 below).
On the same date at 6 p.m. the applicant agreed to
be represented by a lawyer, M.R. who arrived at Rijeka Police Station at around
7.45 p.m. The questioning of the applicant began at 8.10 p.m. According to the
record of the applicant’s questioning, the police warned him of his right not
to incriminate himself and to remain silent and he expressly stated that his
lawyer was M.R.
In the presence of M.R., three police officers
and the Rijeka County State Attorney (Županijski državni odvjetnik u Rijeci),
the applicant confessed that he had, together with L.O. and R.L.J., gone to
Đ.V.’s flat in Vežica on the night of 13 March 2007, where he had taken a certain
amount of money from Đ.V. and had then shot and killed him, his girlfriend
and his father, after which he had set their flat on fire in order to destroy any
trace of him having been there. He also stated that he had promised L.O. and
R.LJ. that he would confess to the crimes and take the blame on him if they
would be arrested. The applicant further stated that he had confessed to the
crimes of his own free will and that he had not been under any form of pressure
or coercion. By signing the record of the statement he also attested that he
had been warned of his right not to incriminate himself. The questioning of the
applicant ended at 11 p.m., with a short break in between in which the
applicant had used the toilet.
The lawyer hired by the applicant’s parents,
G.M., lodged an action in the Rijeka County Court (Županijski sud u Rijeci)
on 15 March 2007 asking that he be allowed to contact the applicant.
On 15 March 2007 the Rijeka Police lodged a
criminal complaint against the applicant and L.O. and R.L.J. with the Rijeka
County State Attorney’s Office (Županijsko državno odvjetništvo u Rijeci)
concerning the above-mentioned three murders, armed robbery, and arson.
On the same date, the applicant was brought
before an investigating judge of the Rijeka County Court. When asked by the
investigating judge whether his lawyer was M.R., who had been present during
his police questioning, or G.M., who had a power of attorney signed by the
applicant’s parents, the applicant stated that he was revoking the power of
attorney to M.R. and granting it to G.M. by signing it himself.
During questioning before the investigating
judge the applicant complained that he had never hired M.R. and that he had
expressly asked the police officers to call lawyer G.M. However, he had never
been informed that G.M. had come to the police station. He also complained that
he had been deprived of food until after he had given his statement and that
during arrest he had been under the influence of drugs and alcohol.
On 16 March 2007 the Rijeka County State
Attorney’s Office asked the investigating judge of the Rijeka County Court to
open an investigation against the applicant, L.O. and R.L.J., on the suspicion
that on 13 March 2007 they had committed three aggravated murders and arson in
Vežica.
The investigating judge again heard the
applicant on 16 March 2007 in the presence of G.M. The applicant remained
silent and refused to answer any questions put to him by the investigating
judge or the prosecution.
On the same date, G.M. lodged a request for
disqualification of the Rijeka County State Attorney and all his Deputies with
the investigating judge. The investigating judge forwarded the request to the
Rijeka County State Attorney’s Office. The relevant part of the request reads:
“About thirty minutes ago the defence lawyer learned that the
Rijeka County State Attorney, D.H., had been present during the questioning of
Ivan Dvorski as a suspect by police officers of Rijeka Police Station on 14
March 2007 at around 7 p.m., and in presence of ‘defence lawyer’ M.R.
On the same date at around 10.40 a.m. the mother of Ivan
Dvorski, L.J.D., who lives and works in Italy, called [G.M.] and asked him to
defend her son Ivan, who was suspected of the offence of aggravated murder.
Around 10.45 a.m. the defence lawyer came to Rijeka Police Station but the
police officers refused to let him see Ivan Dvorski and they also did not tell
[Ivan Dvorski] that his mother had hired a lawyer. The defence lawyer stayed in
Rijeka Police Station until 12.00 p.m. He wanted to file a criminal complaint
against an unknown person for abuse of power and extracting a confession, but
the police officers refused to take his complaint on the grounds that he had no
power of attorney and pushed him out of the police station. The defence lawyer
immediately informed the Rijeka Deputy County State Attorneys, D.K. and I.B.,
about the incident and they made an official note in their case file.
Therefore, at around 12.30 p.m. the Rijeka State Attorney
already knew that [G.M.] had been hired by [Ivan Dvorski’s] mother and that he
could not contact his client.
The [Rijeka] County Court was also immediately informed.
At around 1.30 p.m. Ivan Dvorski’s father signed a power of attorney
for the defence of his son. A legal trainee, B.P., [then] tried to submit this
power of attorney to the police but was told to ‘fuck off with that power of attorney’
and therefore it was not submitted.
At around 3.00-3.30 p.m. defence lawyer [G.] M. again tried to
contact his client in Rijeka Police Station but was denied access to him ...
However, the defendant was never informed that a defence lawyer had been hired
and that he had come to Rijeka Police Station.
Around 3.30 p.m. the defence lawyer informed the Chief of the
Primorsko-Goranska Police Department ... Mr. V., who apparently made an
official note concerning their conversation. However, the defendant was never
informed that a defence lawyer had been hired and also never asked whether he
wanted to be represented by the lawyer hired by his family.
Besides that, ever since he was brought to Rijeka Police
Station [Ivan Dvorski] asked on a number of occasions that [G.M.] be called but
was told by the police officers that they had tried but there had been no
answer. When he was brought to the police station, blood samples were taken
from the defendant. They show that he had a high level of alcohol and drugs in
his blood.
Between 1.00 p.m. on 13 March 2007 and around 7.00 p.m. on 14
March 2007 (these time periods are only known to the defence lawyer from
informal sources because he had no access to the Rijeka County State Attorney’s
case file) the defendant was never given any food.
It is clear that although all these facts were known to the
Rijeka State Attorney, D.H., he disregarded them and, although personally
present, allowed the defendant to be questioned in presence of a lawyer who had
[neither been requested by him] nor [...] hired by his family. This amounts to
extracting a confession contrary to Article 225 § 8 of the Code of Criminal
Procedure. Namely, the Rijeka State Attorney, since about 12.30 p.m. [on 14
March 2007], knew who the defence lawyer was.
On the same date the defence lawyer sent the power of attorney
to the Primorsko-Goranska Police Department and written complaints were also
sent to the Supreme Court of the Republic of Croatia, the State Attorney
General of the Republic of Croatia, the Rijeka County State Attorney’s Office,
the Croatian Bar Association, the Ministry of Justice, the Ministry of the Interior,
the Chief of the Primorsko-Goranska Police Department and the Rijeka County
Court. ...”
On 16 March 2007 an investigation was opened in
respect of the applicant, L.O. and R.L.J. on the suspicion that on 13 March
2007 they had committed the three aggravated murders and arson in Vežica.
On 23 March 2007 the State Attorney General of
the Republic of Croatia (Glavni državni odvjetnik Republike Hrvatske)
dismissed G.M.’s request for disqualification of the Rijeka County State
Attorney on the grounds that there were no reasons for his disqualification. On
26 March 2007 the Rijeka County State Attorney dismissed the request for
disqualification of his Deputies on the same basis.
On 28 March 2007 G.M. informed the Rijeka County Court that he would no longer represent the applicant and on 30 March 2007 the
President of the Rijeka County Court appointed a legal aid lawyer, S.M.Č.,
to represent the applicant.
During the investigation a number of witnesses
were heard, and a report on the inspection of the crime scene and search and
seizure, as well as medical, fire and ballistic expert reports, were obtained
by the investigating judge.
On 12 July 2007 the Rijeka County State Attorney’s
Office indicted the applicant, L.O. and R.L.J. in the Rijeka County Court on three
counts of aggravated murder and one count of arson committed on 13 March 2007
in Vežica.
The applicant, represented by lawyer S.M.Č.,
lodged an objection against the indictment with the Rijeka County Court on 24
July 2007 on the grounds that it had contained numerous substantive and procedural
flaws. He also argued that he had given his statement to the police under the
influence of alcohol and drugs.
The applicant’s objection against the indictment
was dismissed as ill-founded by a three-judge panel of the Rijeka County Court
on 28 August 2007.
On 9 October 2007, the first day of the trial,
the applicant and the other accused pleaded not guilty to all charges and the
trial court heard evidence from seven witnesses.
Another hearing was held on 11 October 2007, at
which the trial court examined video recordings of the crime scene
investigation and the autopsy of the victims.
Further hearings were held on 12 November 2007
and 11 January 2008, at which the trial court heard evidence from nine
witnesses.
At a hearing on 14 January 2008 two
toxicological experts, a fingerprint expert, a ballistics expert and a DNA
expert gave evidence. The defence made no objection in respect of their evidence.
At the same hearing four other witnesses gave evidence.
At a hearing held on 15 January 2008 the trial
court heard another toxicological expert and a pathologist, as well as thirteen
other witnesses. The defence made no objections in respect of the evidence of
the expert witnesses but asked the trial court to commission a psychiatric
report concerning the applicant.
At the same hearing the defence lawyer asked
that a handwriting expert’s report be commissioned in respect of the applicant’s
signature on the record of his statement given to the police on 14 March 2007.
She argued that the applicant had not signed any record during his questioning
by the police.
The trial court considered for the time being
not necessary to commission a psychiatric report and thus dismissed the applicant’s
request in that regard. However, it commissioned a handwriting expert’s report in
respect of the signature on the record of the applicant’s statement given to
the police.
On 23 January 2008 the handwriting expert submitted
her report. She found that the applicant had signed the record of his statement
given to the police on 14 March 2007.
Another hearing was held on 12 March 2008, at
which a medical expert, fire expert witnesses and one other witness gave
evidence. The handwriting expert also gave oral evidence confirming her
previous findings. The applicant’s lawyer challenged the veracity of these
findings and motioned to have another report commissioned, but the motion was
dismissed by the trial court. At the same hearing, the trial court commissioned
a psychiatric report in respect of the applicant and the other accused.
On 2 April 2008 the applicant asked the Rijeka
County Court to call lawyer G.M. as a witness in connection with the alleged unlawful
extraction of his confession by the police. He pointed out that G.M. had not been
allowed to see him while he had been in police custody and stated that he had
been forced by the police officers to confess.
On 24 April 2008 the two psychiatric experts
submitted their report to the Rijeka County Court. They found that the
applicant suffered from borderline personality disorder and addictions to heroin
and alcohol. However, they found no distinctive mental disorder or illness.
They concluded that, even assuming that he had been intoxicated at the time when
the murders had been committed, he had retained the mental capacity to
understand the nature of his acts, although it had been diminished to a degree.
As to his mental capacity concerning the charge of arson, they concluded that,
at the time when the offence had been committed, the applicant had been able to
understand the nature of his acts and to control his actions.
At a hearing on 26 June 2008 the psychiatric
experts confirmed their findings and the parties made no objections to their
evidence. The trial court also dismissed the applicant’s request that lawyer
G.M. be heard as a witness on the grounds that all relevant facts had already
been established.
At the same hearing one of the accused, R.L.J.,
confirmed the course of the events as described by the applicant in his
statement given to the police on 14 March 2007. R.L.J., however, claimed that
he had not personally participated in the killings because he had panicked and had
left the flat when he had heard fighting.
After R.L.J. gave his statement, the Deputy
County State Attorney amended the indictment. The applicant was charged with three
aggravated murders, armed robbery and arson, and L.O. and R.LJ. were charged
with armed robbery and aiding and abetting the perpetrator of an offence. The
applicant and the other accused pleaded not guilty to the charges listed in the
amended indictment.
On 27 June 2008 L.O. gave oral evidence
confirming the course of the events as described by R.L.J. He stated that after
the applicant had gotten into a fight with Đ.V., he had heard gunshots,
after which he had panicked and had left the flat.
At the same hearing the parties made their
closing arguments. The applicant’s defence lawyer argued that it had not been
proven that the applicant had committed the offences he was charged with. She
pointed out, however, that if the trial court considered differently, then the
applicant’s confession to the police and his sincere regret had to be taken
into consideration in sentencing him.
On 30 June 2008 the Rijeka County Court found
the applicant guilty of the three charges of aggravated murder and of the
charges of armed robbery and arson and sentenced him to forty years’
imprisonment. The trial court firstly examined the applicant’s confession
against the confession of the other co-accused and found that his confession
was essentially consistent with the evidence provided by his co-accused, L.O.
and R.L.J. When finding the applicant guilty the trial court took into account
his confession and examined it against the evidence from the case file.
The trial court in particular relied on the
search and seizure records and the photographs depicting the accused L.O.
holding the same type of handgun as was used for the murders. Based on the
witness statements, and the recording of a nearby video surveillance, the trial
court concluded that the applicant and the other co-accused had come to the
flat of Đ.V. on the critical date. Furthermore, the ballistic reports and
the crime scene reports indicated that the details of the statements of the
applicant and his co-accused were accurate, and the course of the events was
ascertained based on the fire, ballistic and toxicological reports and the DNA
report. The trial court also found that the statements of the accused as to the
manner in which the murders had been carried out were supported by the autopsy
report, the evidence of the pathologist provided at the trial, the crime scene
report and the witness statements about the gunshots that had been heard in the
flat of Đ.V. Furthermore, as to the arson charges, the trial court
examined the materials from the crime scene investigation and the evidence from
the fire expert report, as well as medical records and damage reports submitted
by the victims, and the statements of a number of residents in the building
where the fire occurred.
As regards the request made by the defence to
hear lawyer G.M. (see paragraphs 38 and 40 above), the Rijeka County Court
noted:
“The request made by the [Ivan Dvorski’s] defence to hear
lawyer G.M. as a witness ... was dismissed as irrelevant. Namely, the documents
from the case file do not reveal that there was any extraction of a confession
by the police, but only [a record of] the time that lawyer [M.]R. came [to the
police station], whereupon the questioning of [Ivan Dvorski] in presence of the
lawyer to whom he had signed a power of attorney started ... Nobody, including [Ivan
Dvorski’s] defence lawyer who was present during the police questioning -
lawyer [M.]R., has alleged any extraction of a confession and there is no
indication of that in the record of Ivan Dvorski’s statement, [who] at the time
[was] only a suspect.”
The applicant lodged an appeal against the
first-instance judgment with the Supreme Court (Vrhovni sud Republike
Hrvatske) on 6 November 2008. He complained, inter alia, that
the conviction had been based on his confession to the police, which had not
been given in presence of a lawyer of his own choosing, namely G.M., but in the
presence of a lawyer, M.R., who had been offered to him by the police. The
applicant also referred to the request for disqualification of the Rijeka
County State Attorney and all his Deputies lodged by G.M. on 16 March 2007, highlighting
the part of that request which stated that he had been denied food during his
police detention.
On 8 April 2009 the Supreme Court dismissed the
applicant’s appeal as ill-founded. As regards his complaints concerning his
statement given to the police, that court noted:
“... The lawfulness of [the statement given to the police] was
not put into doubt by the appellant’s complaints that lawyer M.R. had not been
his lawyer and that his lawyer had been G.M., who had been hired by his father
and mother on the same day, nor was its lawfulness put into doubt by the
complaints that the appellant had been denied food in the period between 1.00
p.m. on 13 March 2007 and 7.00 p.m. on 14 March 2007 until he had agreed
to hire lawyer M.R., since according to the record of his arrest (pages ...)
the appellant had been arrested at 9.50 a.m. on 14 March 2007 and lawyer M.R.
had arrived [at the police station] at 6.45 p.m. on the same day.”
The applicant lodged a further appeal against
the appellate judgment with the Supreme Court on 14 September 2009 reiterating
his previous arguments.
On 17 December 2009 the Supreme Court, acting as
the court of final appeal, dismissed the applicant’s appeal as ill-founded. That
court stressed that the record of the applicant’s statement suggested that the
applicant had chosen lawyer M.R. to represent him during the police questioning
and that lawyer M.R. had provided him adequate legal advice. The Supreme Court
also noted that nothing in the case file indicated that the applicant had been
ill-treated or forced to confess.
The applicant lodged a constitutional complaint
with the Constitutional Court (Ustavni sud Republike Hrvatske) on 11
March 2010. He complained, inter alia, that he had been ill-treated
during his police detention and that he had been forced to confess. He also
complained that he had been denied the chance to have a lawyer of his own
choosing conduct his defence.
On 16 September 2010 the Constitutional Court
dismissed the applicant’s constitutional complaint. The Constitutional Court,
endorsing the reasoning of the Supreme Court, noted that the proceedings as a
whole had been fair and that there was no evidence in the case file that the
applicant had been ill-treated during his police detention.
II. RELEVANT LAW
A. Domestic law
The relevant provisions of the Constitution of
the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette no.
56/1990, 135/1997, 113/2000, 28/2001, 76/2010) read as follows:
Article 23
“No one shall be subjected to any form of ill-treatment ...”
Article 29
“In the determination of his rights and obligations or of any
criminal charge against him, everyone is entitled to a fair hearing within a
reasonable time by an independent and impartial court established by law.
In the case of suspicion of a
criminal offence or criminal charges [being brought], the suspect, defendant or
accused shall have the right:
...
- to defend himself in person or with
the assistance of a defence lawyer of his own choosing, and if he does not
have sufficient means to pay for legal assistance, to be given it free as
provided by law,
...”
The relevant provisions of the Criminal Code (Kazneni
zakon, Official Gazette nos. 110/1997, 27/1998, 129/2000, 51/2001,
105/2004, 84/2005, 71/2006) provide:
AGGRAVATED MURDER
Article 91
“A sentence of imprisonment of not less than ten years or
long-term imprisonment shall be imposed on anyone who:
...
6. murders another in order to commit or to cover up another
criminal offence,
...”
ROBBERY
Article 218
“(1) Whoever, by use of force against a person or using threats
of a direct attack on a person’s life or limb, takes away movable property from
another with intent to unlawfully appropriate it shall be punished by
imprisonment for one to ten years.
(2) If the perpetrator commits the robbery as a member of a
group or a criminal organisation, or if, during the robbery, a weapon or
dangerous instrument is used, the perpetrator shall be punished by imprisonment
for three to fifteen years.”
ENDANGERING LIFE AND PROPERTY BY DANGEROUS ACT OR MEANS
Article 263
“(1) Whoever endangers the life or limb of others or property
of considerable value by [setting a] fire ... shall be punished by imprisonment
for six months to five years.”
...
(3) If the criminal offences referred to in paragraphs 1 and 2
of this Article are committed at a place where a number of people are gathered ...
the perpetrator shall be punished by imprisonment for one to eight years.
...”
AGGRAVATED CRIMINAL OFFENCES AGAINST PUBLIC SAFETY
Article 271
“(1) If by the criminal offence referred to in Article 263,
paragraph 1 ... of this Code the serious bodily injury of another or extensive
material damage was caused, the perpetrator shall be punished by imprisonment
for one to eight years.”
The relevant provisions of the Code of Criminal
Procedure (Zakon o kaznenom postupku, Official Gazette nos.
110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provide as
follows:
Article 62
“(1) A defendant may be represented by a lawyer at any stage of
the proceedings, as well as before their commencement when prescribed by this
Act. ...
...
(4) The defendant’s legal guardian, spouse or common-law
spouse, linear blood relative, adoptive parent or adopted child, sibling or
foster parent may hire a lawyer for the defendant, unless the defendant
expressly refuses it.
...
(6) A defence lawyer must present his power of attorney to the
authorities conducting the proceedings. The defendant may also grant a power of
attorney to a lawyer orally before the authority conducting the proceedings, in
which case it must be entered into the record.”
Article 177
“ ...
(5) In the course of the investigation the police authorities
shall inform the suspect pursuant to Article 237 paragraph 2 of this Code. Upon
the request of the suspect, the police authorities shall allow him to hire a
lawyer and for that purpose they shall stop interviewing the suspect until the
lawyer appears or at the latest three hours from the moment the suspect asked to
appoint the lawyer. ... If the circumstances show that the chosen lawyer will
not be able to appear within this period of time, the police authorities shall
allow the suspect to appoint a lawyer from the list of lawyers on duty provided
to the competent police authority by the county branches of the Croatian Bar
Association ... If the suspect does not hire a lawyer or if the requested
lawyer fails to appear within the time period provided, the police authorities
may resume interviewing the suspect ... The State Attorney has the right to be
present during the questioning. The record of [any] statement given by the
defendant to the police authorities in presence of a lawyer may be used as
evidence in the criminal proceedings.
...”
B. Relevant international law materials
Right of access to a lawyer of own choosing during police custody
(a) Council of Europe
Rules adopted by the Committee of
Ministers
Rule 93 of the Standard Minimum Rules for the
Treatment of Prisoners (Resolution (73)5 of the Committee of Ministers of the
Council of Europe) provides: “An untried prisoner shall be entitled, as soon as
he is imprisoned, to choose his legal representation ... and to receive visits
from his legal adviser with a view to his defence and to prepare and hand to
him and to receive, confidential instructions. At his request, he shall be
given all necessary facilities for this purpose. ... Interviews between the
prisoner and his legal adviser may be within sight but not within hearing,
either direct or indirect, of a police or institution official.”
Furthermore, the recommendation of the Committee
of Ministers to Member States of the Council of Europe on the European Prison Rules
(Rec (2006)2), adopted on 11 January 2006 at the 952nd meeting of the Ministers’
Deputies, in so far as relevant, reads as follows:
“Legal advice
23.1 All prisoners are entitled to legal advice, and
the prison authorities shall provide them with reasonable facilities for
gaining access to such advice.
23.2 Prisoners may consult on any legal matter with a
legal adviser of their own choice and at their own expense.
...
23.5 A judicial authority may in exceptional
circumstances authorise restrictions on such confidentiality to prevent serious
crime or major breaches of prison safety and security.”
(b) United Nations
International Covenant on Civil
and Political Rights
Article 14 § 3 (b) of the International Covenant
on Civil and Political Rights (ICCPR) provides that everyone charged with a
criminal offence is to be entitled “[t]o have adequate time and facilities for
the preparation of his defence and to communicate with counsel of his own
choosing”.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The applicant complained that he had been
ill-treated during his police detention. 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.”
Admissibility
1. The parties’ arguments
The applicant submitted that between 1 p.m. on
13 March 2007 and 7 p.m. on 14 March 2007 he had been kept in police detention
in a windowless cell with no light and without food and water and that the
domestic authorities had failed to respond appropriately to his complaints in
this respect.
The Government argued that the applicant had
failed to exhaust domestic remedies in respect of his Article 3 complaints, as he
had not brought a criminal complaint against the police officers or a civil
action for damages against the State. They further argued that he had submitted
his application to the Court outside the six-month time-limit, as his
complaints concerned his police detention on 14 March 2007 and his application had
been lodged with the Court on 16 April 2011.
In any event, the Government considered that the
applicant had failed to substantiate his complaints of ill-treatment during his
police detention. In this respect, the Government provided photographs of the
detention facilities in Rijeka Police Station and service orders for food and
drinks during the police operation in which the applicant had been arrested.
They pointed out that the photographs showed that the applicant had been kept
in appropriate conditions with all necessary facilities and that the food
service orders showed that food and drink had been given to the applicant
during his police detention. The Government further submitted that only about
twenty police officers had taken part in the police operation, while significant
amounts of food had been ordered in the period of the applicant’s arrest and
detention.
2. The Court’s assessment
The Court finds that it is not necessary to
address all of the Government’s objections, as the complaint under Article 3 of
the Convention is in any event inadmissible for the following reasons.
The Court reiterates that Article 3 of the
Convention enshrines one of the most fundamental values of a democratic
society. It prohibits in absolute terms torture or inhuman or degrading
treatment or punishment, irrespective of the circumstances and the victim’s
behaviour (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR
2000-IV).
According to the Court’s settled case-law,
ill-treatment must attain a minimum level of severity if it is to fall within
the scope of Article 3. The assessment of this minimum level of severity is
relative; it depends on all the circumstances of the case, such as the duration
of the treatment, its physical and mental effects and, in some cases, the sex,
age and state of health of the victim (see Kudła v. Poland [GC],
no. 30210/96, § 91, ECHR 2000-XI, and Peers v. Greece,
no. 28524/95, § 67, ECHR 2001-III).
In order for a punishment or treatment
associated with it to be “inhuman” or “degrading”, the suffering or humiliation
involved must in any event go beyond that inevitable element of suffering or
humiliation connected with a given form of legitimate treatment or punishment
(see Labita, cited above, § 120).
Measures depriving a
person of his liberty may often involve such an element. Nevertheless, the
State must ensure that a person is detained in conditions which are compatible
with respect for his human dignity, that the manner and method of the execution
of the measure do not subject him to distress or hardship of an intensity
exceeding the unavoidable level of suffering inherent in detention and that,
given the practical demands of imprisonment, his health and well-being are
adequately secured by, among other things, providing him with the requisite
medical assistance (see Kudła,
cited above, §§ 93-94, and Riviere v. France, no. 33834/03, § 62,
11 July 2006).
Allegations of ill-treatment must be supported
by appropriate evidence (see Labita, cited above, § 121). The Court has
held on many occasions that in assessing evidence it has generally applied 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 Ireland v. the
United Kingdom, 18 January 1978, § 161, Series A no. 25).
The Court notes that there is no dispute between
the parties that the applicant was placed in the detention facilities of Rijeka
Police Station which are depicted on the photographs provided by the
Government. These photographs show that the detention room is equipped with
appropriate sanitary facilities and a bed, as well as an artificial light and a
window allowing daylight to come into the room. There is no reason for the
Court to consider that these facilities differed in any respect during the
applicant’s detention, and the Court does not consider that placing the
applicant there when he was not being interrogated discloses any appearance of
treatment contrary to Article 3 of the Convention.
As regards the applicant’s complaints that he
was not given food or water during police detention, the Court observes that
the receipts for food and drink service orders provided by the Government show
that on 13 March 2007 the police ordered seventy hot meals with the
purpose of facilitating the investigation in the present case. On 14 March
2007, the day of the applicant’s police detention, as well as that of two other
co-suspects, an additional thirty-five hot meals and thirty-six soft drinks were
ordered.
Whereas this does not necessary show that the
applicant received any of the food or drink ordered, it does indicate that the number
of hot meals ordered significantly exceeded the number required by the police
officers themselves. In this respect it is also to be noted that none of the applicant’s
co-accused ever complained that they had been denied food or water during
police detention. In these circumstances, the Court cannot consider the
applicant’s mere assertion that he was not given any food or water during
police detention sufficiently substantiated.
Thus, as the applicant’s submissions have not
otherwise in any way substantiated his allegations of ill-treatment during the
police questioning on 13 and 14 March 2007, the Court finds that this complaint
is manifestly ill-founded and must be rejected in accordance with Article 35 §§
3 (a) and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant complained that he had not had a
fair trial. In support of his complaint the applicant argued that following his
arrest he had not been allowed to be represented by a lawyer of his choice;
that the services of the lawyer who had represented him had fallen short of the
requirements of a good defence; that he had been questioned in a coercive
environment; that he had been forced to incriminate himself without the benefit
of legal advice from a lawyer of his own choosing and that his conviction was
based on the statements made while unrepresented by the lawyer of his choice.
He relied on Article 6 §§ 1 and 3 (c) of the Convention, which,
in so far as relevant, read as follows:
“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;
... “
A. Admissibility
1. The parties’ submissions
The Government submitted that the power of
attorney of 16 April 2011, which the applicant’s representative had
provided to the Court, had not been signed by the applicant. In their view, the
applicant’s signature on the power of attorney did not correspond to his actual
signature. They also pointed out that during 2011 the applicant had neither met
nor communicated with the lawyer representing him in the proceedings before the
Court. The lawyer had, however, visited him in September 2010, but at that time
the Constitutional Court had still not served its decision on the applicant so
there had been no reason for him to sign a power of attorney to be represented
in proceedings before the Court. Therefore, the Government requested that the
application be struck out from the list of cases.
The applicant argued that he had given the power
of attorney to his representative in September 2010. He had given her a power
of attorney before the decision of the Constitutional Court had been served on
him because, having in mind the public pressure that had been put on the
authorities to secure a conviction in his case, he had expected that the Constitutional Court would dismiss his constitutional complaint. Since the prison in which
he had been serving his prison sentence was some distance from Rijeka, where his lawyer had her office, they had arranged to take all necessary steps,
including the power of attorney, for lodging an application with the Court in
September 2010. The exact date on the power of attorney granted by him had been
filled in later with the applicant’s knowledge and consent. Besides that, he
had been in constant contact with his representative - either through his
mother, who had been visiting him regularly, or by telephone.
2. The Court’s assessment
The Court reiterates at the outset that the
representative of the applicant must produce a “power of attorney or a written
authority to act” (see Hirsi Jamaa and Others v. Italy [GC], no.
27765/09, § 52, ECHR 2012). Therefore, a simple written
authority would be valid for the purposes of the proceedings before the Court,
in so far as it has not been shown that it was made without the applicant’s
understanding and consent (see Velikova v. Bulgaria, no. 41488/98,
§ 50, ECHR 2000-VI).
Furthermore, neither the Convention nor the
Rules of Court impose any specific requirements on the manner in which the form
of authority must be drafted or require any form of certification of that
document by any national authority. What is important for the Court is that the
form of authority should clearly indicate that the applicant has entrusted his
or her representation before the Court to a representative and that the
representative has accepted that commission (see Ryabov v. Russia,
no. 3896/04, §§ 40 and 43, 31 January 2008).
The Court notes in the present case that the
power of attorney, dated 16 April 2011, included in the case file bears the
applicant’s name and is signed in handwriting. The Court is unable by mere observation,
and in the absence of direct and convincing evidence to the contrary, to doubt
that the signature on the power of attorney is the applicant’s.
The Court also notes that the applicant provided
detailed information concerning his contacts with his representative which do
not appear unreasonable and unconvincing. Moreover, there is nothing in the
case file that could call into question the lawyer’s account or her exchange of
information concerning the applicant with the Court (see Hirsi Jamaa and
Others, cited above, § 55).
In these circumstances, the Court has no reason
to doubt the validity of the power of attorney. Consequently, it rejects the
Government’s objection. The Court further considers that this part of the
application is not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention and notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’
submissions
The applicant submitted that throughout his detention
in Rijeka Police Station the lawyer hired by his parents, G.M., had been unable
to contact him. G.M. had therefore filed numerous complaints with various
domestic authorities, including a request for disqualification of the Rijeka
State Attorney and all his Deputies, by which he had sought to cease that
illegal situation. Instead, the police had only allowed lawyer M.R., notably the
former chief of the Primorsko-Goranska Police Department, to contact the
applicant in order for the applicant to make a self-incriminating statement.
Lawyer M.R. had been called by the police officers and not by the applicant as he
had been a person whom the police officers could trust to make the applicant
confess to the crimes he had been suspected of. The fact that lawyer M.R. had
never asked the applicant to pay for legal representation proved that he had
been cooperating with the police.
The representation of the applicant by M.R. had
fallen short of the requirements of a good defence. They had only had
twenty-five minutes to discuss the case, which had been disproportionate to the
severity of the crimes the applicant had been accused of and the fact that he
had been questioned for almost three hours. This, together with the fact that
the applicant had been starved and kept in inhumane conditions and that he had
been under the influence of drugs and alcohol, had made the applicant confess to
the crimes. Furthermore, the applicant complained that the trial court had
relied on his statement given to the police and dismissed his request to hear
certain witnesses, including lawyer G.M., which would have allowed it to
elucidate the circumstances of the applicant’s questioning at the police
station and the accusations held against him. Therefore, he had not had a fair trial.
The Government argued that the applicant had had
the benefit of all the guarantees of a fair trial during the criminal
proceedings against him and that the proceedings, taken as a whole, had been
fair. Throughout the proceedings the applicant had been represented by a
qualified lawyer and he had effectively participated at the trial having had
every opportunity to question witnesses and to make all his comments.
Furthermore, the applicant’s case had been examined at three instances
including the Constitutional Court. The first-instance judgment had been based
on his confession but also on a number of other evidence from the case file. As
to the applicant’s right not to incriminate himself, the Government submitted
that it had not been infringed in any respect, since he had confessed to the
crimes of his own free will and conscience, after consulting a lawyer. In this
respect they pointed out that the applicant had signed his statement by which
he had expressly confirmed that he had not been coerced or pressured to make
the statement. The circumstances of the case revealed that there had been no
reason for the police officers to question his mental ability to understand the
circumstances in which he had found himself and to make a fully conscience
statement.
The applicant had been given sufficient time,
according to the record of his questioning approximately two hours, in which to
consult with his lawyer and had given his statement thereafter. Lawyer M.R. had
been chosen by the applicant from a list of lawyers provided in every police
station and the applicant had granted him a power of attorney. In the presence
of that lawyer, he had given a statement to the police which had been made without
any pressure or coercion. The fact that the applicant had been represented by
another lawyer in later stages of the proceedings was irrelevant to the fact
that M.R. had been his chosen lawyer who had represented him in accordance with
their agreement and defence strategy at that stage.
2. The Court’s assessment
(a) General principles
The applicant alleged that he did not have a
fair trial and complained of a violation of Article 6 §§ 1 and 3 (c). The Court
first notes that the guarantees in paragraph 3 of Article 6 are specific
aspects of the right to a fair trial in criminal proceedings as set forth in
paragraph 1 of the same Article. Accordingly, the applicant’s complaint will be
examined under these provisions taken together (see, among other authorities, Poitrimol
v. France, 23 November 1993, § 29, Series A no. 277-A; Benham
v. the United Kingdom, 10 June 1996, § 52, Reports of Judgments and
Decisions 1996-III; Krombach v. France, no. 29731/96, § 82,
ECHR 2001-II; Kulikowski v. Poland, no. 18353/03, § 55, 19 May
2009; Sakhnovskiy v. Russia [GC], no. 21272/03, § 94,
2 November 2010; Zagorodniy v. Ukraine, no.
27004/06, § 52, 24 November 2011;
and Neziraj v. Germany, no. 30804/07, § 45, 8 November 2012).
In this context, the Court reiterates that Article
6 of the Convention, read as a whole, guarantees the right of an accused to
participate effectively in a criminal trial (see Rowe and Davis v. the United
Kingdom [GC], no. 28901/95, § 60, ECHR 2000-II). In particular, the
accused must have the opportunity to organise his defence in an appropriate way
and without restriction as to the opportunity to put all relevant defence
arguments before the trial court and thus to influence the outcome of the
proceedings (see Luchaninova v. Ukraine, no. 16347/02, § 62, 9 June 2011).
. In order to exercise his
right of defence, the accused should normally be allowed to effectively benefit
from the assistance of a lawyer from the initial stages of the proceedings (see
Salduz v. Turkey [GC], no. 36391/02, § 52, 27 November 2008). The
right of everyone charged with a criminal offence to be effectively defended by
a lawyer is one of the fundamental features of a fair trial (see Krombach v.
France, cited above, § 89).
A person charged with a criminal offence who
does not wish to defend himself in person must be able to have recourse to legal assistance
of his own choosing (see Campbell
and Fell v. the United Kingdom, 28 June 1984, § 99, Series A
no. 80; Pakelli v. Germany, 25 April 1983, § 31, Series A
no. 64; and Whitfield and Others v. the United Kingdom, nos. 46387/99,
48906/99, 57410/00 and 57419/00, § 48, 12 April 2005). Notwithstanding the
importance of a relationship of confidence between lawyer and client, this
right cannot be considered to be absolute (see Prehn v. Germany (dec.),
no. 40451/06, 24 August 2010). The national authorities may override the
defendant’s wish relating to legal representation when there are relevant and
sufficient grounds for holding that this is necessary in the interests of
justice (see Croissant v. Germany, 25 September 1992, §§ 29 and 30,
Series A no. 237-B, and Pavlenko v. Russia, no. 42371/02, § 98, 1 April 2010).
The Court further reiterates its established
case-law according to which the State cannot normally be held responsible for
the actions or decisions of an accused person’s lawyer (see Stanford v. the United
Kingdom, 23 February 1994, § 28, Series A no. 282-A) because the
conduct of the defence is essentially a matter between the defendant and his
counsel, whether appointed under a legal aid scheme or privately financed (see
Czekalla v. Portugal, no. 38830/97, § 60, ECHR 2002-VIII;
see also Bogumil v. Portugal, no. 35228/03, § 46,
7 October 2008). Nevertheless, in the case of a manifest failure by
counsel appointed under the legal aid scheme, or in certain circumstances a
privately paid lawyer, to provide effective representation, Article
6 § 3 (c) of the Convention requires the national authorities to
intervene (see Güveç v. Turkey, no. 70337/01, §§ 130-131, ECHR 2009).
As regards the privilege against
self-incrimination and the right to remain silent, the Court reiterates that
these are generally recognised international standards which lie at the heart
of a fair procedure. Their aim is to provide an accused person with protection
against improper compulsion by the authorities and thus to avoid miscarriages
of justice and secure the aims of Article 6 of the Convention. The right not to
incriminate oneself is primarily concerned with respecting the will of an
accused person to remain silent and presupposes that the prosecution in a
criminal case will seek to prove the case against the accused without resorting
to evidence obtained through methods of coercion or oppression in defiance of
the will of the accused. In examining whether a procedure has impaired the very
essence of the privilege against self-incrimination, the Court must examine the
nature and degree of any compulsion, the existence of any relevant safeguards
in the procedure and the use to which any material so obtained is put (see Bykov
v. Russia [GC], no. 4378/02, § 92, 10 March 2009).
The Court underlines the importance of the
investigation stage for the preparation of the criminal proceedings, as the
evidence obtained during this stage determines the framework in which the
offence charged will be considered at the trial (see Salduz, cited
above, § 54). At the same time, an accused often finds himself in a
particularly vulnerable position at that stage of the proceedings, the effect
of which is amplified by the fact that legislation on criminal procedure has
tended to become increasingly complex, notably with respect to the rules
governing the gathering and use of evidence. In most cases, this particular
vulnerability can only be properly compensated for by the assistance of a
lawyer whose task is, among other things, to help to ensure that the right of
an accused not to incriminate himself is respected (see Pavlenko, cited
above, § 101).
(b) Application of these principles to the present
case
The Court considers, in view of the applicant’s
complaints, that the central issue raised in this case is the applicant’s right
to retain counsel of his own choice; and whether as a result of not having that
opportunity, he was prevailed upon in a coercive environment to incriminate
himself without the benefit of effective legal advice.
The Court notes at the outset that the present
case does not concern a situation in which the applicant was provided with a
legal aid lawyer by the police, but rather a situation in which he was offered
a choice of lawyer provided by the police, whose services the applicant had to
pay for from his own funds. Therefore, the following wording of Article 6 § 3 (c)
is applicable in the present case: “Everyone charged with a criminal offence
has the following minimum rights: ... to defend himself ... through legal
assistance of his own choosing ...”. Thus, the Court considers that, in
principle, an accused in criminal proceedings who is bearing the costs of his
or her legal representation has the right to choose his or her defence lawyer,
save for in exceptional circumstances where it is necessary to override this
right in the interests of justice or where this is associated with justifiable
and significant obstacles (see Pavlenko, cited above, § 98, and Klimentyev
v. Russia, no. 46503/99, §§ 116-119, 16 November 2006).
The Court notes that when the applicant was
arrested by the police, his family contacted lawyer G.M. to represent him.
G.M., according to his account of the events (see paragraph 21 above), which
the Government did not dispute, arrived at Rijeka Police Station on 14 March
2007 at around 10.45 a.m., before the questioning of the applicant by the
police commenced. At that time G.M. did not have the power of attorney. The police
did not allow him to see the applicant, neither did they tell the applicant
that G.M. had been hired as his defence lawyer by his parents.
Later on the same date, at around 1.30 p.m., a
legal trainee in G.M.’s office tried to contact the applicant at Rijeka Police
Station, submitting a power of attorney signed by the applicant’s father
authorising G.M. to represent the applicant, but was again denied access
without the applicant being told that G.M. was trying to contact him. At the
same time, G.M. informed other relevant domestic authorities about the conduct
of the police officers refusing him access to the applicant.
The Court notes that the documents in the
criminal case file against the applicant do not reveal any good reasons for not
allowing the lawyer G.M. to provide legal assistance to the applicant during
police questioning, and neither the national courts nor the Government have
provided any arguments in respect of the matter. The applicant, when brought
before the investigating judge on 15 March 2007, the day after his arrest,
expressly stated that he wished to be represented by lawyer G.M. (see
paragraph 17 above), to whom the police officers had denied access without
providing any relevant reasons. Instead, without having told the applicant that
G.M. had been hired as his defence lawyer by his parents, the police officers,
according to the Government (see paragraph 85 above), offered the applicant a
list of lawyers in accordance with Article 177 § 5 of the Code of Criminal
Procedure (see paragraph 56 above) in order for him to choose one to represent
him during police questioning, and from this list of lawyers, M.R. was hired to
represent the applicant.
The Court observes that the Government never
provided the list of lawyers which was allegedly presented to the applicant.
The Court also notes that the Government did not dispute that M.R. had been the
former chief of the Rijeka Police and that this lawyer had never charged the
applicant for his services, which would normally be expected of a privately
hired lawyer. In these circumstances, the Court has serious doubts as to
whether the police acted in good faith and whether M.R. was a lawyer who would
actually have been chosen by the applicant if he knew that his parents had
engaged services of lawyer G.M. The fact that the applicant signed a power of
attorney in favour of this lawyer authorising him to be present during his
police questioning, in the circumstances of the present case, has no bearing on
this finding, since it is the Court’s well-established principle that the
Convention is intended to guarantee rights that are practical and effective and
not theoretical and illusory (see Airey v. Ireland, 9 October 1979,
§ 24, Series A no. 32; Imbrioscia v. Switzerland, 24 November 1993,
§ 38, Series A no. 275; and Salduz, cited above, § 55).
Therefore, the Court excludes any possibility
that by merely signing the power of attorney and providing a statement to the
police, the applicant explicitly and unequivocally waived his right to retain
G.M. as the lawyer of his own choosing and instead consented to be represented
by M.R. This is because the right to counsel, being a fundamental right among
those which constitute the notion of a fair trial and ensuring the effectiveness
of the rest of the guarantees laid down in Article 6 of the Convention, is a
prime example of those rights which require the special protection of the “knowing
and intelligent waiver” standard established in the Court’s case-law (see Pishchalnikov
v. Russia, no. 7025/04, §§ 77-79, 24
September 2009).
The foregoing considerations raise serious
concerns as to the manner in which the domestic authorities acted and as to the
applicant’s representation by a lawyer of his own choosing during the pre-trial
interrogation by the police, guaranteed under Article 6 § 3 (c) of the
Convention. It consequently calls for the Court’s careful scrutiny in assessing
whether the proceedings as a whole fall short of the requirements of a fair
trial as required under Article 6 of the Convention.
In this respect the Court notes that during the
criminal proceedings the applicant never complained that the lawyer M.R. had
failed to provide him with adequate legal advice. The record of the applicant’s
statement to the police does not reveal any deficiencies in the advice given to
the applicant concerning his rights. His statement was given over the course of
several hours, during which time the applicant never refused to provide further
information, and at the end of the questioning he acknowledged the accuracy of the
information provided by signing the record of the statement.
Furthermore, the Court observes that it has
found that the applicant failed to substantiate his allegations that he was
subjected to ill-treatment or that the conditions of his police detention were
inadequate (see paragraph 73 above). Accordingly, there are no grounds to
believe that any pressure was exerted on him or that there was any defiance of
his will.
Equally, the Court notes that the psychiatric
report commissioned during the trial found that the applicant was able to
understand the nature of his acts and to control his actions at the time when
the offences were committed, which was only one day before he made the
incriminating statements (see paragraph 39 above). Moreover, although the
applicant claimed that he was under the influence of drugs and alcohol during
police questioning, there is no concrete evidence in the case file to support
such an assertion or to suggest that the degree of his addiction was such as to
prevent him from understanding the nature and purpose of his questioning.
During the trial before the Rijeka County Court
the applicant was given an opportunity to put forward all his arguments
concerning the circumstances in which he had given his statement, and after he had raised the argument that he had
never signed the record of the statement, he was afforded an effective
opportunity to challenge the authenticity of his signature. However, the
evidence adduced, namely the handwriting expert’s report, conclusively
confirmed that the applicant had signed the statement by which he had given his
confession to the police (see paragraph 36 above). Therefore, it cannot be
said that the applicant’s objections regarding the admissibility of his
statement as evidence were ignored by the trial court (see, by contrast, Desde
v. Turkey, no. 23909/03, §
130, 1 February 2011).
Throughout the court proceedings the applicant
had the benefit of effective legal advice, and the trial court afforded him an adequate
opportunity to participate in the proceedings and to put forward his arguments
in respect of the charges and all the relevant evidence adduced; his arguments
were duly taken into account. The Court also notes that in his closing arguments at the trial the
applicant, through his representative, presented the confession he had given to
the police while represented by the lawyer M.R. as a proof of his sincere
regret for the crimes committed in order for it to be taken into account as a
mitigating factor in the sentencing procedure (see paragraph 44 above).
Furthermore, the Court notes that 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 that the trial court relied on his statement interpreting
it in the light of a complex body of evidence assessed by the court (compare Bykov,
cited above, § 103). Specifically, when
convicting the applicant, the trial court relied on the statements of a number
of witnesses cross-examined during the trial, numerous expert reports and the
records of the crime-scene investigation and searches and seizures, as well as
relevant photographs and other physical evidence (see paragraphs 29-43 and 45-46
above). In addition, the trial court had at its disposal the confessions made
by the applicant’s co-accused at the trial and neither the applicant nor his
co-accused ever argued that any of their rights had been infringed when they had
made those statements.
. Therefore, although the
applicant was not represented by a lawyer selected on the basis of a fully
informed choice during the police questioning, the Court does not consider that
this rendered the proceedings as a whole 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 the above 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, cited above, § 51)
and the requirement for the Court 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), the Court considers
that it has not been shown that the applicant’s defence rights have been
irretrievably prejudiced or that his right to a fair trial under Article 6 has
been 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; and, by contrast, Martin,
cited above, § 97).
Accordingly, in the light of these
considerations, given the particular circumstances of the present case, the
Court concludes that there has been no violation of Article 6 § 1 read in
conjunction with § 3 (c) of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained that his
requests to hear certain witnesses had been denied without good reason.
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 considers that this complaint does not disclose any appearance of a
violation of the Convention. It follows that it is inadmissible under
Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to
Article 35 § 4 of the Convention.
FOR THESE REASONS, THE COURT
1. Declares unanimously the complaint
concerning the applicant’s right to a fair trial admissible and the remainder
of the application inadmissible;
2. Holds by five votes to two that there has
been no violation of Article 6 §§ 1 and 3 (c) of the Convention.
Done in English, and notified in writing on 28 November
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sřren Nielsen Isabelle Berro-Lefčvre
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judges I. Berro-Lefčvre and J. Laffranque is annexed to
this judgment.
I.B.L.
S.N.
DISSENTING OPINION OF JUDGES BERRO-LEFČVRE AND LAFFRANQUE
Unfortunately we are unable to follow
the majority in finding no violation of Article 6 § 1 read in conjunction with
Article 6 § 3 (c) of the Convention. We consider that there was a violation of
Article 6 §§ 1 and 3 (c), for the following reasons.
Central issue of this case and previous case-law of the
Court
The central issue of this present case is the applicant’s
right under Article 6 § 3 (c) of the Convention to defend himself through
legal assistance of his own choosing. As a result of his not having had this
opportunity, it cannot be excluded that the applicant was prevailed upon in a
coercive environment to incriminate himself. The foregoing affected the entire
trial, made it unfair and led to a violation of Article 6 § 1.
Recently the Court dealt with a similar issue in the case of Martin
v. Estonia, no. 35985/09, 30 May 2013, where it found a violation because
the counsel of the applicant’s own choosing was denied access to him. The Court
pointed out in this connection that the guarantees in Article 6 § 3 (c) are
specific aspects of the right to a fair hearing set forth in paragraph 1 of
that provision, which must be taken into account in any assessment of the
fairness of proceedings. In addition, the Court’s primary concern under Article
6 § 1 is to evaluate the overall fairness of the criminal proceedings. The
Court also had regard to the subsequent use of statements made by the applicant
during the preliminary investigation in breach of his defence rights. It is
unfortunate that in the present case the majority did not follow the approach
adopted unanimously in Martin v. Estonia.
Violation of the right to be represented by counsel of one’s
own choosing
In the present case, when the applicant was arrested by the
police his family engaged the services of lawyer G.M. to represent him.
However, the police denied G.M. access to the applicant without giving any
valid reason. Furthermore, the applicant had never been informed that G.M. had
come to the police station, even though he had expressly stated that he wished
to be represented by G.M. Instead, according to the Government, the police
offered the applicant a list of lawyers from which to choose one to represent
him during police questioning, the Government failed to produce that list before
the Court.
We are concerned that in § 94 of the judgment, without any
explanation, the majority use the expression “legal aid lawyer provided by the
police” and “choice of lawyer provided by the police” as if they somehow
considered it normal, or even legitimate, that the police should provide a
lawyer for a suspect. This does not exactly correspond to the relevant national
law cited in § 56 of the judgment: Article 177 § 5 of the Code of Criminal
Procedure of Croatia provides for the police authorities to allow the suspect
to appoint a lawyer from the list of lawyers on duty provided to the competent
police authority by the county branches of the Croatian Bar Association.
We fail to see the meaning of the distinction made by the
majority in § 94 of the judgment between a situation where the applicant
is “provided with a legal aid lawyer by the police” and a situation where he
“was offered a choice of lawyer provided by the police, whose services the
applicant had to pay for from his own funds”. To us the question of payment in
this connection is irrelevant, since in many legal systems even the legal aid
lawyers’ fees need to be paid subsequently by the accused. How the lawyer is
paid should not, as such, be a criterion in establishing whether there is
“legal assistance of one’s own choosing” or not. In the present case it is
rather the fact that the lawyer M.R. did not charge the applicant for his
services that raises questions about the good faith of the police.
The Government do not dispute that the appointed lawyer, M.R.,
was a former chief of Rijeka Police and that when acting as his lawyer he never
charged the applicant for his services.
The Court has constantly held that a person charged with a
criminal offence who does not wish to defend himself in person must be able to
have recourse to legal assistance of his own choosing (see Campbell and Fell
v. the United Kingdom, 28 June 1984, § 99, Series A no. 80). It is true
that notwithstanding the importance of a relationship of confidence between
lawyer and client, this right cannot be considered to be absolute, but the
national authorities may override the defendant’s wish relating to legal representation
only when there are relevant and sufficient grounds for holding that this is
necessary in the interests of justice (Pavlenko v. Russia, no. 42371/02,
§ 98, 1 April 2010).
We are unable to accept the actions of the police in
preventing lawyer G.M. from contacting the applicant, and failing to inform the
applicant of G.M.’s presence in the police station despite applicant’s wish to
be represented by him, or the way the lawyer M.R. was involved in the case.
Contrary to the principles cited above, the documents in the criminal case file
against the applicant do not reveal any good - let alone relevant and
sufficient - reasons for not allowing lawyer G.M to assist the applicant during
the police questioning, and neither the national courts nor the Government have
produced any arguments in that respect.
In the circumstances M.R.’s background and the fact that he
did not charge the applicant are also relevant and worrying. To our mind there
was no waiver on the part of the applicant of his right to retain G.M., since
the applicant had not been informed of G.M.’s arrival at the police station
when he signed the power of attorney with M.R.
It is noteworthy that the majority also had serious doubts as
to whether the police acted in good faith and whether M.R. was a lawyer the
applicant would actually have chosen had he known about the other lawyer, G.M.,
hired by his parents (§ 98 of the judgment). The majority also acknowledge that
the mere signature by the applicant of the power of attorney with M.R. did not
constitute a “knowing and intelligent waiver” of his right to retain G.M. as
lawyer. Therefore it is even more striking that, despite having serious
concerns as to the manner in which the domestic authorities acted (see
§ 100 of the judgment) and the failure to allow the applicant to be
represented by a lawyer of his own choosing during the pre-trial interrogation
- a crucial moment in the criminal proceedings -, the majority found no
violation of Article 6 § 3 (c). For us these serious concerns, including the
manner in which M.R.’s services were proposed to the applicant by the police
are valid grounds for a finding of a violation.
Possible pressure by the police to confess
Furthermore, the applicant consistently maintained that his
statement was obtained in a coercive environment. Since it is established that
the police and the Rijeka County State Attorney questioned the applicant while
at the same time preventing him from meeting lawyer G.M., and suggested that he
choose another lawyer proposed by them, the applicant’s allegations of pressure
exerted by the authorities do not appear completely misplaced.
Therefore the finding of the majority in § 106 of the judgment
that the applicant never argued that any of his rights had been infringed when
he made his statement seems to be in contradiction with the statement of facts
in § 38 of the judgment, which reads: “On 2 April 2008 the applicant asked the
Rijeka County Court to call lawyer G.M. as a witness in connection with the
alleged unlawful extraction of his confession by the police. He pointed out
that G.M. had not been allowed to see him while he had been in police custody
and stated that he had been forced by the police officers to confess.”
In addition, we fail to adhere to the conclusion made by the
majority in § 105 of the judgment: “The Court also notes that in his
closing arguments at the trial the applicant, through his representative,
presented the confession he had given to the police while represented by the
lawyer M.R. as a proof of his sincere regret for the crimes committed in order
for it to be taken into account as a mitigating factor in the sentencing
procedure.” In § 42 of the judgment it is stated that the applicant
pleaded not guilty to the charges and in § 44 it is said that during the
closing arguments: “The applicant’s defence lawyer argued that it had not been
proven that the applicant had committed the offences he was charged with. She
pointed out, however, that if the trial court considered differently, then the
applicant’s confession to the police and his sincere regret had to be taken
into consideration in sentencing him.” Thus the lawyer used a common tactic of
alternative pleadings and used the confession, in the event of sentencing, as a
mitigating circumstance, which is by no means the same as maintaining the
confession the applicant had given to the police while represented by the
lawyer M.R.
Confession as evidence and overall fairness of the criminal
proceedings
Although the applicant had the benefit of adversarial proceedings
in which he was represented by a lawyer, the detriment he suffered because of
the breach of due process at the pre-trial stage of the proceedings was not
remedied by the subsequent proceedings. We think that the serious shortcomings
in respect of legal assistance at such an important stage of pre-trial events
seriously undermined the position of the applicant’s defence at the trial as
well. In these subsequent proceedings his confession was held to be admissible
as evidence, and even though other evidence was adduced and the confession was
not the sole evidence, it nevertheless played a decisive role, without any
importance being attached to the circumstances in which the confession had been
made (see Panovits v. Cyprus, no. 4268/04, § 75, 11 December 2008).
For all these reasons we conclude that there has been a
violation of Article 6 §§ 1 and 3(c) of the Convention on account of the
infringement of the applicant’s right to defend himself through legal
assistance of his own choosing.
