European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

CASE OF FROLOVS v. LATVIA

 

(Application no. 13289/06)

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

15 June 2017

 

 

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.




In the case of Frolovs v. Latvia,

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

          Angelika Nußberger, President,
          Erik Møse,
          André Potocki,
          Faris Vehabović,
          Yonko Grozev,
          Carlo Ranzoni,
          Mārtiņš Mits, judges,

and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 23 May 2017,

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

PROCEDURE

1.  The case originated in an application (no. 13289/06) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a permanently resident non-citizen of the Republic of Latvia, Mr Vladimirs Laptevs (“the applicant”), on 25 March 2006. On 27 April 2010 the applicant changed his surname to Frolovs.

2.  The applicant was represented by Mr V. Leščinskis, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agents, Mrs I. Reine and later Mrs K. Līce.

3.  The applicant complained under Article 6 of the Convention that the domestic courts had refused to examine an appeal lodged by his lawyer, as the applicant had not attended the appeal hearings. Relying on Article 3, he also complained of the unfairness of these proceedings, alleging that his conviction had been based on evidence obtained from his co-accused through the use of torture.

4.  On 17 October 2011 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1963 and is detained in Riga.

A.  First-instance proceedings

6.  The applicant was charged with several counts of organising, inciting and aiding various crimes against persons and property. Two of his eleven co-accused, A.D. and V.P., had given evidence against him when questioned by the police between January and May 2001; when giving that evidence they stated that the applicant had incited them to engage in certain criminal activities. They also gave evidence as regards the alleged involvement of their co-accused, P.B., in some of those criminal activities. According to the records of the police questioning, on all but one occasion A.D. and V.P. were questioned by L.Z., a police officer, and they did not ask for a lawyer. Subsequently, when questioned by a prosecutor on 17 October 2001, A.D. stated that police officers had coerced him into incriminating his co-accused, including the applicant; V.P. told the prosecutor that he would testify in court.

7.  The trial commenced before the Kurzeme Regional Court (Kurzemes apgabaltiesa) on 16 April 2003 and lasted until 16 July 2003. During that period at least ten court hearings were held in the presence of the applicant and his defence council.

At the trial, A.D. and V.P. testified that they had never before met the applicant, and that P.B., who had died in the meantime, had been the instigator of some of the crimes. The court read out the pre-trial statements of A.D. and V.P. When invited to explain the discrepancies between those initial pre-trial statements and their subsequent evidence, they claimed that they had been forced to sign the initial pre-trial statements. A.D. submitted that the statements had been illegible and that he had not been given the opportunity to engage a lawyer. V.P. stated that police officer L.Z. had been writing a record of his questioning while another police officer had questioned him. On 3 May 2003 V.P. lodged with the first-instance court a written request for the court to take into account his submission that the police had coerced him into incriminating the applicant.

8.  On 5 May 2003 L.Z. appeared before the first-instance court. She testified that she had taken statements from the accused. She stated that it was possible that another police officer, R.S., had participated in their questioning. On the same day, R.S. appeared before the first-instance court. He testified that while he had questioned A.D. and V.P., L.Z. had been keeping a record of their respective questioning. L.Z. and R.S. denied the allegations of physical or psychological coercion. The applicant’s lawyer, A.V., was given an opportunity to put questions to them.

9.  On 7 May 2003 A.D. submitted a written request to the first-instance court for it to disregard his pre-trial statements as he had been ill-treated and tortured during the pre-trial investigation in order to force him to incriminate his co-accused, including the applicant. Specifically, he had been constantly beaten and ridiculed: electric currents had been applied to his body through his handcuffs, and narcotic substances had been forcibly injected into his veins. Nobody had offered to assign him a lawyer. He had not complained about these incidents at the time because he had been afraid of retribution. However, after the completion of the pre-trial investigation he had complained to the prosecutor, who had ignored his complaint.

10.  In his closing statement, the prosecutor denied the allegations of A.D. and V. P., emphasising that they had not lodged any complaints prior to the first-instance proceedings. During their initial questioning A.D. and V.P. had given evidence in respect of facts which at that stage had not been known to the police. The credibility of their allegations of coercion was further diminished by the fact that following the death of P.B. they had stated that he had been the instigator of some of the criminal activities in question.

11.  On 14 July 2003 the Kurzeme Regional Court delivered judgment. The court cited the initial pre-trial statements of A.D. and V.P. incriminating the applicant. It did not regard as credible their submissions that police officers had pressured them into giving those statements. The police officers had also questioned another co-accused, I.T., who, unlike A.D. and V.P., had not incriminated the applicant. Furthermore, had the police officers pressurised them into giving their statements, they would have contained more details as regards the applicant’s involvement. A.D. and V.P had signed the statements. The court did not find that their right to legal assistance had been restricted. No complaints as regards the alleged ill-treatment had been submitted or noted down in procedural documents by A.D. or V.P., or their lawyers. A.D. and V.P. had made the allegations of coercion in an attempt to explain why they had subsequently given evidence in favour of their other co-accused, including the applicant, and against their late co-accused, P.B.

12.  The Kurzeme Regional Court found the applicant guilty and sentenced him to six years’ imprisonment. It also ordered his detention. As the applicant was not present at the delivery of judgment, he could not be arrested in the courtroom. He was subsequently declared wanted by the police and arrested more than six years later - on 23 November 2009.

B.  Appeal proceedings

1.  The applicant’s absence

13.  On 23 July 2003 the applicant’s lawyer, A.V., lodged an appeal against the first-instance judgment. He argued that the police officers had pressurised A.D. and V.P. into incriminating the applicant.

14.  On 17 March 2004 the appeal hearing was held before the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta). The applicant did not attend the hearing. A.V. submitted that he did not know his whereabouts. The court adjourned the hearing. At the following hearing, held on 25 October 2004, the applicant was represented by a different lawyer, V.K., who had been retained by the applicant’s wife.

2.  Refusal to examine the appeal lodged by the applicant’s lawyer

15.  On 25 October 2004 the Criminal Cases Chamber of the Supreme Court, referring to Article 442(7) of the Code of Criminal Procedure (Kriminālprocesa kodekss), declined to examine the appeal lodged by A.V. It noted that the applicant, even though he had been summoned, had failed to appear at the two appeal hearings without a valid reason. Similarly, he had failed to attend the closing hearing before the first-instance court. He had been declared wanted and was at large. Given that the applicant had retained V.K. to represent him, he had been aware of the proceedings and had intentionally failed to attend, thereby showing disrespect towards the court. In the applicant’s absence the court was unable to ascertain whether he wished to maintain the appeal lodged by his lawyer. Lastly, proceedings in the case - which required the examination of voluminous material - could not be delayed simply because of the applicant’s unjustified absence.

16.  On 5 November 2004 V.K. appealed against the aforementioned decision to the Criminal Cases Division of the Senate of the Supreme Court (Augstākās tiesas Senāta Krimināllietu departaments). He argued that he had not been retained by the applicant but by his wife, on the applicant’s instructions (uzdevumā). The applicant had not received any summons and his family had no information about his whereabouts or the reasons for his absence. V.K. relied on Article 6 § 1 of the Convention and complained of an infringement of the applicant’s defence rights.

17.  On 30 September 2005 the Senate of the Supreme Court by a final decision refused to examine the appeal lodged by A.V. It noted that the applicant had repeatedly failed to attend the appeal hearings and that “in the criminal case at hand only the accused could maintain the appeals lodged by their lawyers”. This decision was sent to the applicant’s address and to V.K. on 7 October 2005.

3.  Appeal judgment concerning the applicant’s co-accused

18.  On 27 October 2004 the Criminal Cases Chamber of the Supreme Court delivered judgment with respect to the appeals lodged by the applicant’s co-accused. It found that the first-instance court had correctly assessed the allegations of A.D. and V.P. as regards coercion. It also found that they had made those allegations in an attempt to explain why they had subsequently given evidence in favour of their co-accused, including the applicant.

19.  On 30 September 2005 the aforementioned judgment was upheld by the Senate of the Supreme Court.

II.  RELEVANT DOMESTIC LAW

20.  At the relevant time criminal proceedings were governed by the Code of Criminal Procedure, which on 1 October 2005 was replaced by the Criminal Procedure Law (Kriminālprocesa likums).

21.  Under Article 247 of the Code of Criminal Procedure a first-instance court examined a case in the presence of the accused. It could examine the case in the accused’s absence if the accused was not in Latvia and was evading the proceedings.

22.  Under Article 433(2) an appeal against the first-instance judgment could be submitted by, inter alia, the accused and the accused’s lawyer. Article 440 provided that legal provisions concerning proceedings before a first-instance court also applied to proceedings before the appeal court, unless the law provided otherwise.

23.  Article 442, which concerned persons participating in appeal proceedings, provided as follows:

“...

[4]  An accused ... who has not submitted an appeal shall be informed of the time of the hearing but [his or her] non-appearance shall not prevent the examination of the case. ...

[5]  ... an accused ... who has not submitted an appeal shall be summoned to a hearing when deemed necessary by the appeal court. In such case [his or her] lawyer ... shall also be summoned.

...

[7]  If an accused who has submitted an appeal fails to appear at a hearing without a valid reason, the court shall refuse to [examine] his or her appeal. A decision refusing to examine an appeal for examination may be appealed against within seven days at a higher level of jurisdiction.”

24.  Under Article 446(1) an appeal court could exceed the scope of an appeal if it had doubts about the first-instance court’s findings as regards the accused’s guilt or aggravating circumstances.

THE LAW

I.  SCOPE OF THE CASE

25.  In his reply to the Government’s observations the applicant lodged two new complaints under Article 6 of the Convention - firstly asserting his right to participate in the hearing and secondly that his conviction had been based on the evidence of his co-accused.

The Court notes that these new, belated complaints are not an elaboration of the applicant’s original complaints, on which the parties have commented. The Court considers, therefore, that it is not appropriate now to take up these matters in the context of the present case (see, for example, Kapustyak v. Ukraine, no. 26230/11, § 52, 3 March 2016).

II.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF THE DOMESTIC COURTS’ REFUSAL TO EXAMINE THE APPEAL LODGED BY THE APPLICANT’S LAWYER

26.  The applicant complained under Article 6 of the Convention that the domestic courts had refused to examine the appeal lodged by his lawyer because he had been absent from the appeal hearings.

27.  The relevant part of Article 6 of the Convention reads:

“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 ...”

A.  Admissibility

1.  The parties’ submissions

28.  The Government submitted that the applicant had failed to comply with the six-month rule. The application to the Court was dated 5 June 2006, which was more than six months after 15 October 2005, the date on which the applicant must have received the final domestic decision of 30 September 2005 (see paragraph 17 above).

29.  The Government also argued that the applicant could not claim the protection of Article 6 of the Convention as he had evaded the trial. Relying on Article 35 § 3 (a) of the Convention, the Government invited the Court to reject the application as abusive.

30.  As regards the six-month rule, the applicant argued that he had lodged the application prior to 7 April 2006, at the very latest, as on that date the Court had sent him a letter confirming receipt of his complaint.

2.  The Court’s assessment

31.  The Court reiterates that Article 35 § 1 of the Convention permits it to deal with a matter only if the application in question has been lodged within six months of the date of the final decision in the process of exhaustion of domestic remedies. The Court further observes that under Rule 47 § 5 of the Rules of Court, in its wording as at the material time, the date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall as a general rule be considered to be the date of the first communication from the applicant setting out, even summarily, the subject matter of the application (see Anđelković v. Serbia, no. 1401/08, § 18, 9 April 2013, and Sergey Kuznetsov v. Russia, no. 10877/04, § 27, 23 October 2008).

32.  Turning to the present case, the Court notes that in his first letter to the Court of 25 March 2006 the applicant complained that the domestic courts had refused to examine the appeal lodged by his lawyer. By a letter of 7 April 2006 the Registry instructed the applicant to submit a duly completed and signed application form and supporting documents within six weeks of the date of his receipt of that letter. The six-week time-limit was indicative, rather than mandatory (see Belov v. Russia [Committee], no. 27623/06, § 23, 16 October 2014). Given that the applicant submitted the completed application form without excessive delay, on 6 June 2006, the Court confirms that the date of his first letter to the Court is the date of the introduction of the application (see Kozlitin v. Russia, no. 17092/04, § 43, 14 November 2013).

33.  It follows that this complaint was submitted within six months of the delivery of the final decision in the case. Accordingly, the Court dismisses the Government’s objection on this point.

34.  Concerning the Government’s argument that the application was abusive, the Court notes that the question of whether or not the applicant, having failed to appear before the appeal court, has been entitled to rely on Article 6 of the Convention is closely linked to the merits of the complaint. This objection should therefore be joined to the merits.

35.  The Court considers that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

(a)  The applicant

36.  The applicant submitted that Article 442(4) of the Code of Criminal Procedure had required the appeal court to examine the appeal lodged by his lawyer, even if the applicant was absent from the appeal hearings. The court’s decision not to examine the appeal had been unlawful. Furthermore, the court had taken that decision without knowing the reasons for the applicant’s absence. It had wrongly concluded that he had been evading the proceedings or that he himself had retained V.K., the lawyer.

37.  Even if, as argued by the Government, the domestic law had required the applicant’s presence in order for his lawyer to maintain the appeal, the appeal court could have adjourned the proceedings or disjoined the proceedings against him from the case.

(b)  The Government

38.  The Government emphasised that the appeal proceedings had been introduced into the Latvian legal system only in 1995 within the framework of the legislative transition that had followed the restoration of Latvia’s independence. As a newly developed judicial institute it had not been devoid of deficiencies.

39.  Article 442(7) of the Code of Criminal Procedure did not explicitly govern a situation where an accused’s lawyer had lodged an appeal but the accused had failed to appear without a valid reason. At the same time, the appeal courts had developed case-law according to which in such circumstances they could refuse to consider such an appeal.

40.  The appeal court had declined to consider the appeal lodged by A.V. not because the applicant had failed to surrender to custody or to punish him for having done so. It had made that decision because there had been no valid reason for the applicant’s absence and it had been unable to establish his stance on the appeal, as subsequently the applicant had been represented by V.K., who had not been the author of the appeal and had not been instructed by the applicant but by his wife. According to V.K., the applicant’s wife had not been aware of his whereabouts. The present case therefore had to be distinguished from the cases of Omar v. France (29 July 1998, Reports of Judgments and Decisions 1998-V), Khalfaoui v. France (no. 34791/97, ECHR 1999-IX), and Papon v. France (no. 54210/00, ECHR 2002-VII). Furthermore, the applicant, without having provided any valid reason, had chosen not to attend the appeal hearings. Therefore, he had waived this right, as well as the right to make submissions.

41.  In any event, if the appeal court had had any concerns regarding the first-instance court’s findings regarding the applicant’s guilt it could have addressed them under Article 446 of the Code of Criminal Procedure. In fact, it had examined in sufficient detail the lower court’s conclusions concerning the applicant’s guilt and A.D.’s and V.P.’s allegations of coercion. Therefore, by refusing to examine the appeal lodged by A.V. the appeal court had not adversely affected the applicant and had not impaired the very essence of his right to a fair trial.

2.  The Court’s assessment

42.  The Court notes that the applicant in the present case complained that the domestic courts had declined to examine the appeal lodged by his lawyer because the applicant had been absent from the appeal hearings. It considers that the complaint essentially raises an issue in respect of the applicant’s right to defend himself through a lawyer. As a consequence of the domestic courts’ refusal to allow the applicant’s lawyer to defend the applicant in his absence, the case further raises an issue in respect of the applicant’s right of access to court. The Court shall therefore examine the complaint under Article 6 §§ 1 and 3 (c) taken together (see Neziraj v. Germany, no. 30804/07, § 52, 8 November 2012).

43.  As regards the applicant’s right to defend himself through a lawyer, the Court notes the Government’s submission that V.K., who had appeared before the appeal court, had not been the author of the appeal and had not been instructed by the applicant but by his wife (see paragraph 40 above). The Court observes in this respect that the domestic courts never expressed any doubts that V.K. was empowered to act as the applicant’s lawyer. In fact, the Criminal Cases Chamber of the Supreme Court held against the applicant the fact that he had retained V.K. Furthermore, the Criminal Cases Division of the Senate of the Supreme Court examined V.K.’s complaint regarding the lower court’s refusal to examine the appeal lodged by A.V. and sent him its decision on that complaint (see paragraphs 15-17 above). It follows that V.K. was present and ready to defend the applicant in appeal court.

44.  In so far as the domestic courts refused to examine the appeal lodged by A.V. against the first-instance judgment convicting the applicant because he had failed to attend the appeal hearings without a valid reason, the Court notes that, in the interests of a fair criminal process, it is of capital importance that an accused should appear, both because of his right to a hearing and because of the need to verify the accuracy of his statements and compare them with those of the victim, whose interests need to be protected, and of the witnesses (see Poitrimol v. France, 23 November 1993, § 35, Series A no. 277-A; Lala v. the Netherlands, 22 September 1994, § 33, Series A no. 297-A; and Van Geyseghem v. Belgium [GC], no. 26103/95, § 33, ECHR 1999-I). However, it is also of crucial importance for the fairness of the criminal justice system that the accused be adequately defended, both at first instance and on appeal. In the Court’s view the latter interest prevails. Consequently, the fact that the accused, in spite of having been properly summoned, does not appear, cannot - even in the absence of an excuse - justify depriving him of his right under Article 6 § 3 of the Convention to be defended by a lawyer (see Lala, cited above, § 33, and Pelladoah v. the Netherlands, 22 September 1994, § 40, Series A no. 297-B).

45.  In reply to the Government’s argument that the applicant had evaded the trial and therefore he had lost his entitlement to rely on Article 6 of the Convention (see paragraph 29 above), the Court reiterates that while, indeed, the legislature must be able to discourage unjustified absences, it cannot penalise an accused by creating exceptions to the right to legal assistance, and the legitimate requirement that accused must attend court hearings can be satisfied by means other than deprivation of the right to be defended (see Van Geyseghem, cited above, § 34, and Neziraj, cited above, § 51, with further case-law references). The Court observes that an arrest warrant had been issued against the applicant (see paragraph 12 above) and that Article 442(7) of the Code of Criminal Procedure contained an explicit duty for the accused to be present at the appellate hearing. Nevertheless, the above provision did not provide for an explicit restriction on the defence lawyer to represent a client who had failed to appear before the appellate court (ibid.). In any event, an accused cannot be obliged to surrender to custody in order to secure the right to be tried in conditions that comply with Article 6 of the Convention (see Krombach v. France, no. 29731/96, § 87, ECHR 2001-II). It follows that the Government’s objection of abuse must be dismissed.

46.  With regard to the Government’s argument that the appeal court could have examined of its own motion the first-instance court’s findings regarding the applicant’s guilt, which it actually did (see paragraph 41 above), the Court refers to its findings in the case of Van Geyseghem, where the appeal court in that case had to examine of its own motion, for example, the issue of statutory limitation (ibid., §§ 31 and 35). The Court stressed in this respect that, nevertheless, the fact remained that a lawyer’s assistance was indispensable for resolving conflicts and his role was necessary in order for the rights of the defence to be exercised (ibid., § 35). Accordingly, the guarantees of Article 6 required that the applicant’s lawyer should have an opportunity to put forward the arguments in the applicant’s defence and to have them addressed by the domestic courts, irrespective of the question whether the domestic courts could examine certain issues of their own motion (see Van Geyseghem, cited above, § 35, and Neziraj, cited above, § 61).

47.  Assuming that the applicant waived his right to take part in the appeal hearings - an issue which the Court does not need to determine in the present case - there is nothing to indicate that he waived his right to be defended through legal assistance, a distinct right protected under Article 6 § 3 (c) of the Convention (see Tolmachev v. Estonia, no. 73748/13, § 53, 9 July 2015).

48.  In the light of the above, the Court considers that the domestic court’s refusal to examine the appeal lodged by the applicant’s lawyer against the first-instance judgment was not compatible with the applicant’s right to a fair hearing under Article 6 of the Convention.

49.  There has accordingly been a violation of Article 6 §§ 1 and 3 (c) of the Convention.

III.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF THE USE OF EVIDENCE ALLEGEDLY OBTAINED BY TORTURE

50.  Relying on Article 3 of the Convention, the applicant complained that the first-instance court had convicted him on the basis of evidence obtained from his co-accused through the use of torture.

51.  The complaint falls to be examined under Article 6 § 1 of the Convention (see, for example, Cēsnieks v. Latvia, no. 9278/06, § 51, 11 February 2014).

A.  The parties’ submissions

52.  The Government did not contest that the applicant had been convicted on the basis of the pre-trial statements of A.D. and V.P. They argued that the applicant and his lawyer had had ample opportunity to challenge that evidence. During the pre-trial stage they could have asked the prosecutor to carry out investigative actions in respect of A.D.’s and V.P.’s allegations of coercion, which they did not. During the first-instance proceedings they had had an opportunity to question A.D. and V.P., as well as the two police officers who had taken the statements in question. Furthermore, the first-instance court had adequately examined the allegations of ill-treatment.

53.  The applicant submitted that during the pre-trial proceedings the police had tortured A.D. and V.P. to make them incriminate him. With regard to the Government’s argument that the applicant and his lawyer had had an opportunity to challenge their evidence, the applicant submitted that, in line with the principle of presumption of innocence, it had fallen to the prosecution to prove his guilt and that he had not had to prove his innocence.

B.  The Court’s assessment

54.  It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence - for example, evidence obtained unlawfully in terms of domestic law - may be admissible. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair (see Gäfgen v. Germany [GC], no. 22978/05, § 163, ECHR 2010). However, particular considerations apply in respect of the use in criminal proceedings of evidence obtained in a manner that is in breach of Article 3.

55.  In particular, the use of evidence secured as a result of a violation of one of the core and absolute rights guaranteed by the Convention always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction. Accordingly, 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 (see Gäfgen, cited above, §§ 165 and 166; Cēsnieks, cited above, §§ 64-66, with further case-law references; and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, § 254 in fine, ECHR 2016).

56.  Turning to the present case, the Court observes that, according to the findings of the first-instance court, the allegations of A.D. and V.P. that they had incriminated the applicant under pressure from the police officers had lacked credibility. The first-instance court reached that conclusion after having heard as witnesses two police officers who had questioned them (see paragraph 8 above). It further considered that another co-accused, I.T., who had also been questioned by the police, had made no such allegations. It also referred to the low level of detail of the initial pre-trial statements of A.D. and V.P. and the absence in procedural documents of any complaints by them or their lawyers as regards the alleged ill-treatment (see paragraph 11 above).

57.  The Court therefore considers that the domestic courts advanced convincing reasons for their finding that the police officers had not ill-treated A.D. or V.P. to obtain the pre-trial statements incriminating the applicant (see Baybasin v. Germany (dec.), no. 36892/05, 3 February 2009). In reaching this conclusion the Court has also taken account of the circumstances in which A.D. and V.P. changed their pre-trial statements. In particular, it was after P.B. had passed away that they claimed that he had been the instigator of some of the criminal activities, even though initially they had stated that it had been the applicant. In addition, the case file contains no indication that A.D. or V.P. lodged any complaints with the investigating authorities regarding the alleged coercion. While they claimed before the first-instance court that they had been forced to sign their pre-trial statements, they gave no further details in that regard (see paragraph 7 above). Only subsequently did they submit some details (see paragraph 9 above).

58.  Furthermore, the applicant and his lawyer had an opportunity to put questions to A.D. and V.P. in order to establish the circumstances in which they had given the incriminating pre-trial statements. They also had an opportunity to examine the two police officers who had questioned A.D. and V.P. (see Baybasin, cited above, and contrast with Erkapić v. Croatia, no. 51198/08, § 78, 25 April 2013). However, no further details of the alleged coercion or evidence corroborating those allegations emerged in the course of the questioning.

59.  It follows that this complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

60.  The Court therefore does not need to examine the Government’s further objections concerning the admissibility of this complaint.

IV.  OTHER ALLEGED VIOLATION OF THE CONVENTION

61.  Relying on Article 3 of the Convention the applicant complained that the domestic courts had disregarded the fact that also he had been threatened and psychologically ill-treated.

62.  In the light of all the material before it, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

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

V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

64.  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.”

65.  The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. He made no claim in respect of pecuniary damage or costs and expenses.

66.  The Government submitted that this claim was exorbitant and unsubstantiated. Alternatively, they considered that the finding of a violation would constitute adequate compensation.

67.  The Court agrees with the Government that given the particular circumstances of the case the finding of a violation constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage sustained by the applicant and accordingly makes no award under this head (see Tolmachev, cited above, § 61).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Decides to join to the merits the Government’s objection as to abuse of the right to individual application concerning the complaint about the domestic courts’ refusal to examine the appeal lodged by the applicant’s lawyer under Article 6 of the Convention, and dismisses it;

 

2.  Declares the complaint under Article 6 of the Convention about the domestic courts’ refusal to examine the appeal lodged by the applicant’s lawyer admissible and the remainder of the application inadmissible;

 

3.  Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;

 

4.  Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;

Done in English, and notified in writing on 15 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Milan Blaško                                                                  Angelika Nußberger
Deputy Registrar                                                                       President