FIFTH SECTION      CASE OF RADCHENKO v. UKRAINE (Application no. 39555/07)             JUDGMENT  STRASBOURG 1 February 2018    This judgment is final but it may be subject to editorial revision.In the case of Radchenko v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Erik Møse, President, Síofra O’Leary, Lәtif Hüseynov, judges,and Anne-Marie Dougin, Acting Deputy Section Registrar,Having deliberated in private on 9 January 2018,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 39555/07) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Stepan Stepanovich Radchenko (“the applicant”), on 16 August 2007.2. The applicant, who had been granted legal aid, was represented by Mr M. Tarakhkalo, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna, of the Ministry of Justice.3. On 24 May 2011 the application was communicated to the Government.THE FACTSI. THE CIRCUMSTANCES OF THE CASE4. The applicant was born in 1976 and is serving a sentence of life imprisonment.5. In December 2005 violent robberies were committed at two scrap metal collection points in Odesa. One employee was shot dead. In the course of the investigation, the police organised an ambush, which led to the applicant and his acquaintance, Mr D., being arrested. As established by the domestic courts, before his arrest the applicant had pointed a gun at a police officer, who had knocked it out of his hands using a martial arts technique. The gun had been loaded and had had its safety catch released.6. On an unspecified date the applicant had free legal counsel appointed for him for the pre-trial investigation and the proceedings before the first‑instance court.7. On 4 September 2006 the Odesa Regional Court of Appeal, sitting as a court of first instance, found the applicant guilty of the illegal handling of arms, robbery with violence, intentional murder for profit and an attempt on the life of a law-enforcement officer. It relied, inter alia, on the statements of several eyewitnesses who had recognised the applicant. Having regard to the fact that the applicant had previously been convicted of the intentional infliction of fatal injuries and that he had committed the crimes at issue while on probation following release in October 2005, the court sentenced him to life imprisonment.8. The applicant, who was no longer legally represented, appealed in cassation. He complained, in particular, about the absence of free legal assistance at that stage of the proceedings. The applicant contended that the first-instance court had erred in its assessment of the facts of the case and their legal classification.9. On 30 January 2007, following a hearing with the participation of Mr D. (the other defendant) and his lawyer, as well as the prosecutor, but without the applicant or any representative from his side, the Supreme Court upheld the judgment of 4 September 2006.10. On 11 June 2007 the applicant, who was not aware of the above ruling, requested that the Supreme Court ensure his presence at its hearing.11. On 17 August 2007 a copy of the Supreme Court’s ruling of 30 January 2007 was sent to the applicant.II. RELEVANT DOMESTIC LAW12. Article 45 § 1 of the Code of Criminal Procedure of 1960 (“the CCP”, in force at the material time) provided that legal representation during an inquiry, pre-trial investigation or trial before a court of first instance was obligatory if, inter alia, a life sentence was a possible penalty. Under Article 45 § 2, the legal representation envisaged by Article 45 § 1 was obligatory in proceedings before an appellate court if the appeal could potentially worsen the situation of the convicted (or acquitted) person.13. According to Article 383 § 1 of the CCP, the verdicts of appellate courts delivered at first instance could be reviewed under the cassation appeal procedure.14. Under Article 398 § 2 of the CCP, a verdict delivered by an appellate court as a court of first instance could be quashed or modified on the grounds of bias or incompleteness of the inquiry, pre-trial investigation or trial, or because the court’s conclusions in its verdict were not consistent with the circumstances of the case.THE LAWI. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION15. The applicant complained that his rights under Article 6 §§ 1 and 3 (c) of the Convention had been violated in the proceedings before the Supreme Court. The provisions relied on read as follows in the relevant part:“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 or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require...”A. Admissibility16. The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits1. Lack of free legal assistance in the proceedings before the Supreme Court (Article 6 §§ 1 and 3 (c) of the Convention)17. The applicant maintained that the complexity of his case, the risk of his being sentenced to life imprisonment, the most serious criminal punishment, as well as his lack of any income, had required that he be afforded free legal representation by the State in the proceedings before the Supreme Court. Given that domestic legislation recognised such a need during a pre-trial investigation and in a trial before a first-instance court, the applicant found it incomprehensible and unjustified that free legal assistance had not been provided for him in the subsequent proceedings.18. The Government submitted that the domestic courts had acted in compliance with criminal procedural legislation, which did not provide for obligatory legal representation in cassation proceedings where, as in the applicant’s case, no worsening of the convicted person’s situation was possible. The Government noted in that connection that the applicant had been sentenced by the first-instance court to life imprisonment, the heaviest penalty and one which could not be made more severe. They did not agree that the lack of free legal assistance for him at that stage had run counter to the interests of justice.19.

Outcome for Article 6: violation