The waiver of the right to appoint a lawyer signed by the arrested man, who suffered from withdrawal syndrome, violated the right to due process
JUDGMENT
Bogdan v. Ukraine 08.02.2024 (app. no. 3016/16)
SUMMARY
The validity of the waiver of the right to counsel signed by the applicant while he was in unofficially recorded detention and suffering from drug withdrawal symptoms. The trial court found that the applicant had waived his right to counsel and dismissed as unfounded his claims of police mistreatment.
The Strasbourg Court held that the national courts had failed to adequately verify the validity of the waiver and the mental state of the applicant, who was particularly vulnerable due to his state of health, during the on-the-spot re-enactment of the crime. His statements made in the absence of counsel became directly incriminating and formed a very significant part of the evidence against the applicant. Finally, the Government failed to convincingly demonstrate its contention that, exceptionally and in the particular circumstances of the case, the overall fairness of the trial had not been irreparably affected by the restriction on the applicant’s access to legal advice.
The ECtHR found a violation of Article 6 §§ 1 and 3 of the Convention and awarded the applicant EUR 3,600 for non-material damage.
PROVISIONS
Article 6 par. 1
Article 6 par. 3
PRINCIPAL FACTS
On 14 April 2014, after being approached by the police late at night, the applicant was invited to the police station in connection, inter alia, with a theft that had occurred that same day and was questioned the early morning hours of the next day. On 16 April 2014 a police report was drawn up stating the applicant had been informed that he was a suspect and that he was entitled to the assistance of a lawyer. The report, signed by the applicant, included a handwritten note by him in which he refused the services of a lawyer. On the same day an on-site reconstruction of the event was conducted in which the applicant participated and demonstrated how he had committed the theft. On 17 April 2014 he was formally arrested. Several weeks later, a local addiction treatment centre informed the investigating authority that as of 18 April 2014 the applicant had been registered with it as an out-patient suffering from psychological and behavioural disorders caused by opioid and amphetamine use. When the case came to trial, the applicant was assigned a legal aid lawyer at his own request. He was subsequently convicted of theft aggravated by burglary and sentenced to six years’ imprisonment. The trial court held that the applicant had waived the right to a lawyer and dismissed as unsubstantiated his allegations of ill-treatment on 14 April 2014 by the police. His appeals were unsuccessful as was his petition for extraordinary review with the Supreme Court.
THE DECISION OF THE COURT…
Article 6 §§ 1 and 3 (c):
(a) Preliminary remarks concerning the applicant’s situation at the early stage of investigation – The Court found that strong indications existed that the applicant had been de facto arrested on 14 April 2014 and deprived of his liberty until 16 April 2014, when he had been officially arrested. His account that he had been held in unrecorded detention that period had remained unchanged throughout the proceedings and was coherent and credible. However, the events as described by the police officers after the completion of the criminal proceedings, namely that he had left the police station on 15 April 2014 and had been rearrested the next day had not been documented at the time.
From the moment of his arrest, the domestic authorities had had plausible reasons for suspecting that the applicant had been involved in the theft. He therefore had to be considered a “suspect” within the autonomous meaning of the Convention, requiring the application of the Article 6 safeguards, notably the right of access to legal assistance. That right had also applied to the reconstruction of the events. The applicant had been questioned at the police station and the use of the information obtained in those informal interviews had allowed the police to recover the stolen goods. All those events had occurred before the applicant had been informed, on the following day, of his right to legal assistance. In that context any conversation between a detained criminal suspect and the police had to be treated as formal contact, not as an informal interview or questioning. After signing the waiver, the applicant had also made incriminating statements during the reconstruction.
(b) Validity of the waiver – The fact that the applicant’s allegations of ill-treatment before the domestic courts had not been supported by evidence was not sufficient to conclude that the waiver had been valid. He had challenged its validity at the domestic level on two other grounds: when it had been signed, firstly, no lawyer had been present; and secondly, he had been suffering from the mental and physical effects of drug addiction and withdrawal syndrome. The absence of a lawyer upon signature did not of itself render the waiver invalid for the purposes of Article 6. Further, the Supreme Court had interpreted the domestic law to mean that the presence of a lawyer was not required for a valid waiver where no lawyer had yet been appointed for the defendant.
As to the applicant’s drug addiction, he had been suffering from it at the time of his de facto arrest on 14 April 2014 and had signed the waiver two days later. Since there was no indication that the applicant had had access to drugs or substitution therapy while he had been under the control of the police, his allegation that he had been already suffering from withdrawal symptoms at the time of signature could be considered credible. The Court had already held that confession statements made while in unrecorded detention, combined with evidence of unexplained injuries, might create an appearance that such statements had not been voluntary. While there was no evidence of injuries and the applicant’s allegations of physical ill-treatment had lacked substantiation, somewhat similar considerations nevertheless applied in that the circumstances of the applicant’s unrecorded detention, combined with credible allegations that he had been suffering from withdrawal symptoms at the time he had waived his right to a lawyer, rendered its voluntary nature open to doubt.
In such circumstances, it had been in the first place for the domestic courts to establish in a convincing manner whether or not the waiver of legal assistance had been voluntary and valid, in spite of those problems. They had however failed to do so adequately. The courts had not disputed that the applicant’s diagnosis of addiction-related psychological and behavioural disorders could in principle have been a barrier to a valid waiver of his right to a lawyer under domestic law. The domestic case-law explicitly recognised his diagnosis as potentially bringing him into the category of individuals who could not, by law, validly waive that right, on account of his mental disorder. However, the courts had found that the authorities had only become aware of his addiction after all the investigation activities with his participation had been completed. In making that assessment, they had not commented on the information that the day after he had signed the waiver and confessed, ambulances had been repeatedly called to the detention centre in connection with his withdrawal symptoms nor explained how he could have been registered, without the authorities’ knowledge, with the addiction treatment centre while in detention. The flawed nature of their assessment had been confirmed when it had come to light that the police had known about his addiction from the very outset of the investigation when the applicant had already been under their control. The information they had withheld might have indicated that the applicant had had an illness which would have led, under domestic case law, to the impossibility of accepting his waiver. Thus, although the domestic law in principle established a safeguard for such situations, on account of the police officers’ conduct that safeguard had proved ineffective. Lastly, before signing the waiver the applicant had not been informed of his right to remain silent, a complementary right the absence of the notification of which had further undermined the waiver’s validity.
In view of all the above elements, the Government had failed to demonstrate that the applicant had validly waived his right to a lawyer.
(c) Whether compelling reasons existed for restricting access to a lawyer – The Court perceived no compelling reason which justified the absence of a lawyer.
(d) Overall fairness of the proceedings – The applicant had been to a certain extent vulnerable on account of the state of his health. The impugned statements had been directly incriminating. Made at the beginning of the investigation, they had framed the way the authorities had approached the investigation and therefore had formed a very significant part of the evidence against him. While statements made by the applicant before being informed of his right to legal assistance had never been introduced into evidence against him as such, they had allowed the authorities to obtain further evidence against him by locating and recovering the stolen goods. Having made those statements, the applicant might have found it prejudicial to change them after he had been informed of the right to legal assistance and when the reconstruction had been conducted. The statements he subsequently made during the reconstruction had had a central role in the proceedings.
The domestic courts’ failure to question the waiver’s validity had had very serious consequences for the overall fairness of the trial. Their assessment of the issue of his mental state during the reconstruction had been superficial and they had not sufficiently addressed his complaints concerning the breach of his right to a lawyer. The exclusionary rule in domestic law had not been applied. For that reason, applying strict scrutiny, the Court was not convinced that the criminal proceedings, when considered as a whole, had remedied the procedural defects which had occurred on the first days of the investigation. In conclusion, the Government had failed to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial had not been irretrievably prejudiced by the restriction on the applicant’s access to legal advice.
Conclusion: violation (unanimously).
Article 41: EUR 3,600 in respect of non-pecuniary damage.
