TrustHLT/LaCour huggingface dataset:
Gabriele Kucsko-Stadlmayer (Judge): Why don't you consider to lodge a new complaint on this point?
András Sajó (JudgeP): Yes, we have a question from Judge Vučinić, please.
Nebojša Vučinić (Judge): Very short, very short question.
Nebojša Vučinić (Judge): I would ask both parties to comment a submission from the end of the paragraph 29 of the observations of the applicant.
Nebojša Vučinić (Judge): When applicant asked for a lawyer first time, that Mr. Mihailov's name and the phone number
Nebojša Vučinić (Judge): was given to him, but was simply told in the response that he had seen too many movies and this was not America.
Nebojša Vučinić (Judge): I would like short comments about concerning this part of the statement.
András Sajó (JudgeP): I also would like to ask a question to both parties.
András Sajó (JudgeP): The applicant raised an observation to the court of cassation regarding the absence of the lawyer, and I just wonder what was the reaction of the court of cassation to that observation concerning absence of the lawyer.
András Sajó (JudgeP): Now, I see no further questions.
András Sajó (JudgeP): The court will now withdraw for 15 minutes, following which the parties will be able to submit brief observations in reply to each other's submissions and reply to questions from the judges.
András Sajó (JudgeP): The hearing is resumed and I call Mr. Mcbride, please.
AP1 (Applicant): Thank you, Mr. President, and thank you for the questions from the court, which I'll try to answer now.
AP1 (Applicant): On the question of whether there might have been an acquittal or not, the position of the applicant is clear that that is not something which could be determined. But what is submitted
AP1 (Applicant): is that it may well have affected the conduct of the proceedings. One of the
AP1 (Applicant): issues which is important in this case is the question of the respective responsibility, the degree of culpability of the two accused.
AP1 (Applicant): There is a finding in respect of the applicant which places the greater responsibility on him, but that may well not be the case if there had been a possibility to take part in or have the assistance of a lawyer at a much earlier stage.
AP1 (Applicant): That is one issue. There are other issues
AP1 (Applicant): which are also relevant to the question of the role of the investigator which has been raised.
AP1 (Applicant): It may have also affected the attitude that the applicant took in the conduct of the proceedings. All of these will be relevant
AP1 (Applicant): to the conduct of the proceedings.
AP1 (Applicant): It doesn't necessarily mean that he would be acquitted, but it could be relevant to the way in which the case was dealt with.
AP1 (Applicant): In terms of the question of whether or not the lack of a lawyer, having meetings with a lawyer on a confidential basis, was part of the application.
AP1 (Applicant): It does not seem that it was.
AP1 (Applicant): In retrospect, it clearly should have been, but that's not where we are.
AP1 (Applicant): It is important, nonetheless, in the present situation, because it was relied upon by the Chamber as the fact of having these meetings without going into the question of confidentiality was one of the considerations for suggesting that there was no violation of Article 6.3c
AP1 (Applicant): taken with Article 6.1.
AP1 (Applicant): As far as the remedy is concerned, it is difficult in a case such as this where we don't know what would happen. In some cases, of course, there would be the
AP1 (Applicant): possibility of a retrial.
AP1 (Applicant): In this case, perhaps the more appropriate remedy would, at the domestic level, would be the approach to the decisions on clemency, which might be a factor. So far,
AP1 (Applicant): there has been a refusal of clemency, but perhaps some reconsideration in the light of the failings which have occurred might lead to a change in that decision.
AP1 (Applicant): The issue the applicant emphasizes is that the issue of not having access was raised with the authorities.
AP1 (Applicant): In the Supreme Court, it was raised, and the response to that was simple rejection. It should be said
AP1 (Applicant): that a whole range of complaints were raised before the Supreme Cassation Court.
AP1 (Applicant): Most of them were not dealt with in substance. They were simply ignored.
AP1 (Applicant): Finally, there's a question raised about why no fresh application on the question of the irreducible sentence.
AP1 (Applicant): As the applicant has made clear, there has been an attempt to seek clemency. There are still issues about
AP1 (Applicant): the disclosure of the basis of the refusal, and it may well be that this would be the subject of a further application.
AP1 (Applicant): The issue for raising it now is that the situation before the current arrangements are in place is different, and therefore that is the reason why the present issue relates to the period up to 2012 and not afterwards. So there are two different periods involved.
AP1 (Applicant): The applicant appreciates now that the Respondent Government have conceded there may well have been informal questioning taking place during the three days.
AP1 (Applicant): Indeed, this seems inconceivable in any system of criminal justice that someone would be sitting for three days without being questioned in some way or other.
AP1 (Applicant): Nonetheless, there is some suggestion by the Respondent Government that the applicant might have waived his right to the assistance of a lawyer, but the position under the Convention is very clear that waiver must be unequivocal, and given that there is a total lack of record and it is inconsistent with everything else which the applicant has raised, it is suggested there is no basis for suggesting that there was a waiver in this particular case.
AP1 (Applicant): The point about informal questioning is extremely important because anyone familiar with the operational criminal justice systems knows that this is exactly what the police like to emphasize. It is much more useful for the current investigation
AP1 (Applicant): than what is conducted in a more formal basis and subject to the safeguards as provided by the Convention.
AP1 (Applicant): So therefore it is important to recognize that this could have had some impact on the proceedings.
AP1 (Applicant): The applicant would also like to point out that he did draw attention to the fact of the ill-treatment, precisely the remarks made to the doctor on his examination related to the beatings which he received, and that is recorded in the record of the medical examination, so there was no question.
AP1 (Applicant): Indeed, then the obligation really should be for that to be investigated.
AP1 (Applicant): But that is not the issue of the complaint in this question, but it is relevant to the way in which the right to legal advice is concerned.
AP1 (Applicant): The applicant would make it clear that he is not saying necessarily that Article 6.1
AP1 (Applicant): and 6.3c should be separated. There are two submissions being made in this
AP1 (Applicant): application.
AP1 (Applicant): Either there is a violation of Article 6.3 in conjunction with 6.1,
AP1 (Applicant): or the alternative approach which has also been argued for is to treat Article 6.3c
AP1 (Applicant): as a freestanding right for which some arguments have been put forward.
AP1 (Applicant): And indeed, the suggestion that they are necessarily linked is consistent also with the fact that Article 6.2,
AP1 (Applicant): for example, is separate from the question of whether someone has or has not a fair trial.
AP1 (Applicant): They are, of course, connected, but it doesn't necessarily mean that they always have to be linked.
AP1 (Applicant): But what is important as far as the situation, if there is a linkage made, is the point that the applicant has made that it is inappropriate to emphasize the outcome of the proceedings, because that is something which no one is possible really to judge in terms of what might have happened with the ability of a lawyer to provide input in the way in which the proceedings were conducted.
AP1 (Applicant): This is something which the applicant did not have, and therefore at a very crucial stage he did not have the advice of a lawyer.
AP1 (Applicant): And in those interrogations he has maintained, he made statements which were then the subject of a questioning after he supposedly had the assistance of a lawyer, albeit one without the possibility of confidential meetings.
AP1 (Applicant): The applicant does not consider that there is any problem of subsidiarity in this case.
AP1 (Applicant): The possibility of dealing with this issue does lie within the Bulgarian state.
AP1 (Applicant): The problem is, the reason why we are here today, is because the legislation, the constitutional guarantees which Bulgaria has adopted have not been applied and are consistently not being applied.
AP1 (Applicant): Finally, as far as the issue of the exception which is being asked in terms of admissibility, that exception is being asked because there is nothing certainly in the Convention which precludes it.
AP1 (Applicant): This is a practice of the Grand Chamber which has been adopted, that there is no prohibition on this, and more importantly by dealing with the case in the way which the applicants have submitted, this would ensure that like persons are treated in the same manner.
AP1 (Applicant): It is merely an accident of timing as far as the decision on admissibility was taken.
AP1 (Applicant): Had the Court not been able to dispatch some cases more speedily, it is equally possible that Mr Smiljov's case would have been heard after the Vinter case, and in those circumstances, since the case was within the Court already, he should be treated in exactly the same way.
András Sajó (JudgeP): I call Mrs. Kotseva and Mrs. Dimitrova in the order they prefer to speak.
GR1 (Government): Regarding the first question of Judge Serkides about how actually the circumstances in the case unfolded in 1999, we tried to present a brief overview of them in our observations.
GR1 (Government): So what happened was that on July 2, an armed robbery and two murders happened in Burgas, and the applicant and another person were the main suspects in the case.
GR1 (Government): The authorities started collecting evidence right away about the crime committed.
GR1 (Government): And however, the applicant went in hiding.
GR1 (Government): So he was declared wanted.
GR1 (Government): He was declared wanted, and even an order for his arrest was issued on July 9, although he was still in hiding.
GR1 (Government): So because his permanent address was in Sofia, that's why the investigator in Burgas actually was looking for the cooperation of the authorities in Sofia, of the police in Sofia, to find him.
GR1 (Government): And on October 3, the applicant was arrested on the strength of the order of July 9.
GR1 (Government): A police order.
GR1 (Government): This order was for 24 hours.
GR1 (Government): And in order for his detention to be legal, it had to be prolonged by the investigator, and after that by the prosecutor.
GR1 (Government): In the period between July 2, when the crime was committed, and the applicant's arrest, a number of evidentiary material was collected.
GR1 (Government): Witnesses were questioned.
GR1 (Government): In order for the authorities to review the crime and to identify their main suspects.
GR1 (Government): As regards the second question of Judge Lemans, about whether or not there is a complaint about the right to meet counsel in private, the government submit that this complaint was declared inadmissible by the chamber.
GR1 (Government): And we refer to paragraph 102 of the chamber judgment, where this complaint was found to be submitted outside the six-month time limit.
GR1 (Government): The next question of Judge Lopez-Guerra about why exactly the applicant was arrested on October 3, I refer to my answer to the first question, and we submit that he was arrested because he was the main suspect in the crime.
GR1 (Government): As regards the question of Judge Stadmayer about the Bulgarian legislation, and the reports of the Committee for Prevention of Torture, the government submit that indeed the Bulgarian legislation contained guarantees and safeguards about the access to legal advice.
GR1 (Government): Indeed, the reports of the Committee for Prevention of Torture indicate shortcomings in the implementation of these provisions.
GR1 (Government): The government takes measures continuously to improve access to lawyer, especially in the initial hours after arrest.
GR1 (Government): We would also, however, like to underline that it's been the court's case law that the convention does not provide for the institution of an actio popularis, and each case must be seen on its own, on its main facts, in concrete.
GR1 (Government): And in the present case, we would like to submit once more that despite the lack of access to legal advice during that period, the applicant's right to a fair trial was not violated.
GR1 (Government): As regards the question whether any confessions made during that period, it would be possible to challenge them at trial, we submit that such confessions made in the absence of lawyer would be inadmissible in trial.
GR1 (Government): And the reason for that is that pursuant to the relevant domestic framework with his detention, the applicant became a suspect in the crime.
GR1 (Government): A suspect, this is, at the time, it was a temporary procedural figure.
GR1 (Government): And actually, all the rights of the accused applied to the suspects.
GR1 (Government): And because the crime committed was a serious crime, which envisioned more than 10 years imprisonment, it was obligatory for the authorities to ensure a lawyer.
GR1 (Government): Otherwise, all the statements made would be inadmissible at trial.
GR1 (Government): I hope this answers your question.
GR1 (Government): And then regarding the comments about the possible conversation between the police and the applicant, we don't have any proof that such a conversation, the one claimed by the applicant, actually took place.
GR1 (Government): So it is difficult to comment what exactly was said and how it was said.
GR1 (Government): What's important is that no statements were later used in trial.
GR1 (Government): And I come to the last question of Judge Shayo about the fact that the applicant complained of his absence to lawyer before the court of cassation.
GR1 (Government): We would like to reiterate once more that the first three days of the applicant's detention were used for his transfer from Sofia to Burgas.
GR1 (Government): The investigation was held in Burgas.
GR1 (Government): During the first three days, no evidence involving the applicant was gathered.
GR1 (Government): And therefore, any submissions regarding that period are irrelevant to the trial.
GR1 (Government): So therefore, there was no need for the court to actually take any stance on that.
GR1 (Government): So these are our answers to your questions.
András Sajó (JudgeP): We have now come to the end of the hearing.
András Sajó (JudgeP): The judgment will be delivered at a later stage.
András Sajó (JudgeP): Parties will be informed of the date of delivery.
Guido Raimondi (JudgeP): I declare open the public hearing on the admissibility and merits in the case of Denisov v. Ukraine.
Guido Raimondi (JudgeP): The application was lodged with the Court on 8 December 2011 under Article 34 of the Constitution by a Ukrainian national, Mr. Anatoliy Oleksiyovich Denisov.
Guido Raimondi (JudgeP): The application was allocated to the Fifth Section of the Court pursuant to Rule 52, paragraph 1 of the Rules of the Court.
Guido Raimondi (JudgeP): The application was communicated to the Government on 15 January 2014.
Guido Raimondi (JudgeP): On 25 April 2017, the Chamber decided to relinquish jurisdiction in favour of the Grand Chamber.
Guido Raimondi (JudgeP): On 27 July 2017, the President of the Grand Chamber granted leave to the International Commission of Jurists to submit written comments as a third party by virtue of Rule 44, paragraph 3 of the Rules of the Court.
Guido Raimondi (JudgeP): The Government are represented by Mr. Lishchyna, our agent of the Government of Ukraine before the European Court of Human Rights, assisted by Mrs. Davydchuk and Mrs. Rybachok, advisors.
Guido Raimondi (JudgeP): The applicant is represented by Mrs. Gavron, counsel, and Mr. Halban, barrister.
Guido Raimondi (JudgeP): I also welcome the judges and prosecutors from the European Judicial Training Network, as well as Ukrainian, Norwegian, Portuguese, and Montenegrin judges and prosecutors who are present in the hearing room.
Guido Raimondi (JudgeP): Having consulted the agent of the Government and the representatives of the applicant, I have determined the order of addresses as follows.
Guido Raimondi (JudgeP): Mr. Lishchyna for the Government will speak first, and then Mrs. Gavron and Mr. Halban for the applicant.
Guido Raimondi (JudgeP): I would explain that, in addition to interpreting in the two official languages of the Court, English and French, interpreting into Russian has been authorized for the benefit of a group of lawyers from Russia attending this hearing.
Guido Raimondi (JudgeP): That interpreting is not arranged by the Court, and no transcription of the oral translation will be included in the official record of the proceeding. I call M. Lishchyna, please you have the floor.
GR1 (Government): ladies and gentlemen, it is a privilege and a pleasure to have the opportunity to appear before the court to present oral submissions on behalf of the government of Ukraine.
GR1 (Government): I avail myself of the opportunity to express to the court the highest respect of my government.
GR1 (Government): I will speak first of alleged violation of Article 6, then I will move to Article 8, and finally to Article 1 of Protocol 1.
GR1 (Government): But first and foremost, I would like to stress certain factual issues which are of utmost relevance for the present case.
GR1 (Government): First of all, I would like to refer the court to the fact that the Council of Judges of Administrative Courts of Ukraine is a specific body of judicial self-governance.
GR1 (Government): On 18 February 2011, the Council, by its decision, approved the composition of the working group, which consisted of judges, that had to carry out the inspection of the organization of the methodological assistance in the Kyiv Administrative Court of Appeal, at the time presided by the applicant.
GR1 (Government): The inspection was carried out, again, by the judges who participated in this group in February and March 2011.
GR1 (Government): On 20 May 2011, the Council of Judges of Administrative Courts of Ukraine considered the certificate issued under the results of this inspection.
GR1 (Government): During the inspection, the members of the group found the following violations in the organization of the work of the Kyiv Administrative Court of Appeal.
GR1 (Government): By the end of 2009, there were more than 85,000 pending cases.
GR1 (Government): There was disproportionate automatic case distribution, with some of judges receiving 450 cases within one month, and others receiving less than 90 cases for the same period.
GR1 (Government): There were cases exemption and redistribution of cases to other judges.
GR1 (Government): There were discrepancies in the application of the law by the Kyiv Administrative Court of Appeal, which the application was different from other courts of appeal.
GR1 (Government): Issuance of informational letters without consideration of the case law of the higher courts.
GR1 (Government): There were instances of excess of power by the President of the Court of Appeal in the course of disciplinary punishment of the court's staff.
GR1 (Government): There were around 30,000 unregistered copies of the appeals as of 21 February 2011.
GR1 (Government): In his application to the court, the applicant argued that he and his deputies did not have sufficient time to study the above certificate and thus did not take part in its discussion.
GR1 (Government): For confirmation of this argument, the applicant's representatives provided the court with witness statements of Mr. M and Mrs. S.
GR1 (Government): The above statements, together with the new applicant's statements, were attached to the submission of the applicant's submission of 23 June 2017.
GR1 (Government): In this regard, the government drew the court's conclusion, attention to the fact that, according to the case file, Mr. M and those witnesses were never
GR1 (Government): heard before the national courts.
GR1 (Government): And they did not provide any explanations or additional statements to the national court.
GR1 (Government): The government here is rely on the court's case law, where the court noted that it is for the national courts to assess the evidence before them, as well as the relevance of the evidence which defendants seek to adduce.
GR1 (Government): Besides, again, I would like to stress that those two witnesses were not tested by the domestic courts.
GR1 (Government): And basically, the European Court of Human Rights is invited by the applicant to provide its own assessments and to test the veracity of those statements.
GR1 (Government): Besides, the applicant's statements that were contained in this application were countered by the government in their submission on 23 June 2017.
GR1 (Government): In particular, as it follows from the stamp on the letter, and as it was established by the higher administrative court of Ukraine during the consideration of the applicant's appeal, the letter, together with the above certificate, was received by the Kiev administrative court on 6 May 2011.
GR1 (Government): It is not apparently disputed that the applicant himself states that he received this letter on 11 May 2011.
GR1 (Government): And on the same day, there was held a meeting with the presence of him, his deputies, chief of staff, and the chiefs of structural subdivisions of the court.
GR1 (Government): So basically, the applicant discussed at length with his subordinates the certificate at issue.
GR1 (Government): Moreover, the above resolution, moreover, during the meeting of the council of judges of the administrative court, which was held on 20 May 2011, confirms that the applicant was present during the consideration of the results of the review of his court.
GR1 (Government): And he took floor on four occasions, which basically, again, means that he had sufficient time to review the certificate in issue.
GR1 (Government): Following the hearing on 20 May 2011, the council of judges of the administrative courts of Ukraine adopted a decision finding that the conditions of the organizations of the Kiev administrative court of appeal are unsatisfactory and decided to file with the High Council of Justice an application for the dismissal of the applicant from the post of the president of this court.
GR1 (Government): Again, I would like to underline that the council of judges of the administrative courts of Ukraine was a self-government body and was empowered to carry out the control over the relevant court's organization and activity under the then legislation in force.
GR1 (Government): Being present during the meeting and having heard of the recommendation to dismiss him from the post on 23 May 2011, the applicant acting as the president of the court issued an order granting himself a leave from 25 May 2011 to 8 July 2011.
GR1 (Government): In case you are wondering, this is not normal course of events.
GR1 (Government): Normally, judges in Ukraine take vacations either in early May, because there are several holidays, and you can breach and save your holidays, or normally they take a vacation in late July, August.
GR1 (Government): Here, the applicant, having been present during a very serious consideration of his upness to his position, decided to give himself a vacation, quite lengthy one.