European Court of Human Rights

Information Note on the Court’s case-law No. 167

October 2013

Bandaletov v. Ukraine - 23180/06

Judgment 31.10.2013 [Section V] See: [2013] ECHR 1065

Article 6

Article 6-3-c

Defence through legal assistance

Lack of legal representation at initial stage of investigation when applicant made a confession during interview as a witness: no violation

 

Facts - The applicant was summoned to a police station with several others for questioning as a witness in connection with an investigation into a double murder committed in his home. He confessed to the offence. The following day he was arrested as a suspect and a lawyer was appointed to assist him. The applicant at all times thereafter confirmed his confession. He was sentenced to life imprisonment. Before the European Court he complained that at the initial stage of the investigation he had not been assisted by a lawyer, and that the domestic courts had failed to mitigate his sentence even though he had voluntarily surrendered to the police and confessed to the crime.

Law - Article 6 §§ 1 and 3 c): There was no indication that the authorities had had any reason to suspect the applicant of involvement in the murder before his first communication with the police. There had been nothing in the statements taken by the police from various interviewees that day which could have cast suspicion on him. The applicant had volunteered the confession of his own free will while being questioned as a witness and it was only after his confession that the police had considered him a suspect. Furthermore, the applicant had been summoned to the police station with all the other witnesses and so had not been taken by surprise, but had had the opportunity to collect his thoughts and choose what stance to take during the questioning. It was true that the police could have immediately interrupted the applicant’s interview after his confession and refrained from including those statements in the case file as the basis for starting the investigation against him. But that would have been exactly the opposite of what the applicant had wanted and of what the police could have held to be in his best interest, as a voluntary surrender to the police made before the beginning of the procedure could be considered a mitigating factor. The Court did not lose sight of the applicant’s argument that his legal representation during the first questioning would have ensured the proper documenting of his surrender to the police and its further mitigating effect on his sentence. However, the applicant’s voluntary surrender had consistently been referred to by him and his counsel at the trial, and the domestic courts had never expressed any doubts or criticism as to how that surrender had been documented. The fact that they had not considered it necessary to mitigate the applicant’s sentence on that ground had no bearing on his complaint to the Court. The applicant had failed to explain, both in the domestic proceedings and in those before the Court, what prejudice to the overall fairness of his trial had been caused by the alleged early restriction on his defence rights, other than the severity of his sentence. In the Court’s opinion, any connection between the absence of legal representation at such an early stage of the investigation, when the applicant had not even been treated as a suspect, and the severity of his sentence was purely speculative. The domestic authorities had changed the applicant’s status from witness to suspect and provided him with a lawyer as soon as they had plausible reasons to suspect him. At his first interview as a suspect the applicant was legally represented and no investigative measures were taken after his initial confession before he had been assigned a lawyer. The applicant had maintained his confession throughout the pre-trial investigation and judicial proceedings, during which he was represented by several different lawyers. His initial confession could hardly be regarded as having been used to convict him, as the trial court had relied exclusively on the investigative measures conducted afterwards, when the applicant already had legal assistance. Lastly, the applicant’s request for mitigation of sentence on the ground of his voluntary surrender had been examined by the domestic courts. Accordingly, the criminal proceedings against the applicant had been fair overall.

Conclusion: no violation (unanimously).

(See also Salduz v. Turkey [GC], 36391/02, 27 November 2008, Information Note 113)

 

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