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03

Dec
2012

In
Current affairs Commentary
Case Law

By - K. Canatan

Afanasyev against Ukraine

On 03, Dec 2012 | In News, Commentary, Jurisprudence | By - K. Canatan

After a series of more or less similar judgments of the ECtHR on the right to legal counsel, there is finally another important judgment in the post-Salduz era, ECtHR 15 November 2012, Afanasyev v. Ukraine.

Important for Dutch legal practice, because the ECtHR also recognises the right to legal counsel prior to the arrest of a suspect. In addition, the ECtHR held that violation of Article 6 ECHR on account of the lack of legal assistance may also be complained about for the first time in cassation. The different case law of the Supreme Court on both points no longer seems to have a long life ahead of it.

The facts

On the evening of April, 19th, 2005 a homeless woman is murdered in Yevpatoria in Ukraine. The next morning her corpse is found under a balcony of a flat, the cause of death is suffocation. The police interrogate residents of the flat and some of them declare to have seen the victim with Afanasyev during the day and evening of April 19, 2005. Some had also seen Afanasyev arguing with the victim and drinking alcohol.

In the afternoon of April 20, 2005 the police find Afanasyev in the company of an acquaintance and take them to a police station for interrogation. Afanasyev declares that the victim had insulted him and punched him in the face on which he pinched her throat. The next morning he is said to have called an ambulance.

Afanasyev is then taken to the prosecutor's office and further questioned by a detective (investigator).

He was formally detained at 19:30 on 20 April 2005. In the interrogation at his arrest Afanasyev declares that the death of the victim could be the result of his actions. At 19:40 he repeats his statement in the presence of a lawyer. According to Afanasyev the lawyer only arrived at the end of the interrogation.

The opinion of the ECtHR

Afanasyev complains about violation of art. 6 ECHR. The ECtHR reiterates relevant considerations from Salduz against Turkey:

The Court reiterates that Article 6 § 1 of the Convention requires that, as a rule, access to a lawyer should be provided from the first time a suspect is questioned by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such a restriction - whatever its justification - must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during questioning by police without access to a lawyer are used for a conviction (see Salduz v. Turkey [GC], no. 36391/02, § 55, 27 November 2008).

The ECtHR assumes a violation of art. 6 ECHR because Afanasyev had not received legal assistance from a lawyer during his first interrogation on 20 April 2005, when he was designated as a suspect and also treated as such by the police:

58. It has not been disputed by the parties that on 20 April 2005 the police brought the applicant to the police station because they had suspected him of having committed the murder. Indeed, the statements collected by the police from various interviewees earlier that day had thrown a strong suspicion on the applicant. This suspicion was reinforced after V. had made his own statements (see paragraphs 8 and 9 above). Accordingly, the Court finds it established that at the relevant time the police treated the applicant as a suspect (contrast Smolik v. Ukraine, no. 11778/05, § 54, 19 January 2012).
59. Also, it is not disputed that on 20 April 2005 the police questioned the applicant before the arrival of a lawyer. Meanwhile, this questioning resulted in the applicant confessing to the crime. Similarly, the applicant made self-incriminating statements without the presence of a lawyer when his arrest was formalised by an investigator from the prosecutor's office later on the same date (see paragraphs 10 and 12 above).
60. The Court considers that, by virtue of the above-mentioned Court's principles, the applicant was entitled to have access to a lawyer as from the first questioning that took place on 20 April 2005. There is no indication that the applicant waived that right.
61. The question, therefore, is whether the absence of a lawyer had been justified by a compelling reason. On the facts, the Court does not find any compelling reason for restricting the applicant's right to a lawyer during that time. The Court further notes that the initial confession, obtained without a lawyer, was used by the courts for the applicant's conviction (see paragraphs 23 and 25 above). In these circumstances the applicant's defence rights were prejudiced irretrievably.
62. There has therefore been a violation of Article 6 §§ 1 and 3 (c) of the Convention in this respect.

Afanasyev was only arrested after the first interrogation, but should have had counsel prior to this. Despite the fact that the ECtHR always links the right to legal assistance to the first interrogation of a suspect, the Supreme Court remains of the opinion that only a legal counsel is allowed. apprehended suspect is entitled to claim it. However, in view of this judgment, that position can no longer be accepted as correct.

Cassation

Afanasyev complains about the lack of legal aid for the first time in cassation. Although the ECtHR regrets this, it is not too late:

The fact that the applicant did not raise this issue before the Court of Appeal or at any other stage preceding the cassation review may be regrettable but cannot be the basis for concluding that the complaint is inadmissible on non-exhaustion grounds. The Court considers that the applicant sufficiently informed the domestic authorities of his complaint and that they were given appropriate opportunity to remedy the issue before it was raised at international level.

The Supreme Court is of a different opinion, but will also have to return to this issue in order to pass the Strasbourg test. In the meantime, it has become common practice for lawyers to complain in fact about the lack of consultation assistance, so that the consequences in practice will be better than expected. But if the ECtHR were to recognise (even more explicitly) the right to the physical presence of a counsellor during the interrogation, I foresee a new boom in cassation cases. The Supreme Court will then no longer be able to dismiss these cassations, because no complaints have been lodged about violations of Article 6 of the ECHR. It would be refreshing if the Supreme Court took the lead in this and did not wait for the ECHR. 'Judiciary is foresight' is the saying, isn't it?

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