FIFTH SECTIONCASE OF OPALENKO v. UKRAINE(Application no. 46673/18)  JUDGMENT Art 6 § 1 (criminal) and Art 6 § 3 (c) • Fair hearing • Defence through legal assistance • Overall fairness of proceedings not irreversibly undermined in case-circumstances despite applicant’s initial confession to the police in the absence of a lawyer without compelling reasons • Restriction closely followed by the applicant’s being advised of his right to a lawyer and to remain silent • Confession maintained after questioning in the presence of a lawyer • Considerable other evidence against the applicant • Domestic courts’ retrial decisions not relying on the applicant’s initial confession and subjecting to considerable scrutiny his allegations as to the circumstances of his confession • Defect sufficiently remedied by domestic courtsArt 6 § 1 (criminal) • Reasonable time • Excessive length of proceedingsPrepared by the Registry. Does not bind the Court. STRASBOURG17 July 2025FINAL 08/12/2025 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 Opalenko v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Kateřina Šimáčková, President, Stéphanie Mourou-Vikström, Georgios A. Serghides, Gilberto Felici, Andreas Zünd, Mykola Gnatovskyy, Vahe Grigoryan, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the application (no. 46673/18) 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 Sergіy Vasylyovych Opalenko (“the applicant”), on 9 January 2019;the decision to give notice to the Ukrainian Government (“the Government”) of the complaints set out in paragraph 1 below and to declare inadmissible the remainder of the application;the parties’ observations;Having deliberated in private on 24 June 2025,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. The case concerns criminal proceedings against the applicant on charges of murder and his following complaints: (i) under Article 6 §§ 1 and 3 (c) of the Convention that his right to a lawyer was breached at the beginning of the proceedings; (ii) under Article 6 §§ 1 and 3 (d) that a previously examined witness was not examined again in court in the course of the final retrial; and (iii) under Article 6 § 1 that the proceedings were excessively lengthy.THE FACTS2. The applicant was born in 1978 and is detained in Kaminne Prison. The applicant was represented by Ms G.O. Tarasenko, a lawyer practising in Kharkiv.3. The Government were represented by their Agent, Ms M. Sokorenko.4. The facts of the case may be summarised as follows.5. On the morning of 14 November 2010 the applicant and his friend Mr R. found the dead bodies of the applicant’s mother V. and 14-year-old niece A. in V.’s flat. They had been stabbed to death.6. According to the applicant, he was de facto arrested at 8 a.m. on the same day.7. At an unspecified time the applicant wrote a “statement of surrender” (see paragraph 21 below) addressed to the head of the local police department, confessing to the murder and adding that he was writing the statement of his own free will[1]. The statement was countersigned by police detective B., who later testified that (i) the statement had been written by the applicant after he had been “brought” (in Russian – доставлен) to the police station and (ii) in his statement the applicant had said that he had used a kitchen knife as a weapon and, as a result, the knife had been found in the victim’s flat. The applicant alleged that he had written that statement under duress from the police.8. At 5 p.m. on the same day, a report on the applicant’s arrest was drawn up. The report stated that the applicant’s right to choose and consult a lawyer before being questioned for the first time had been explained to him. The applicant also stated that he had agreed to be represented by K.9. From 6.45 p.m. to 7.45 p.m. the applicant was questioned as a suspect in the presence of K. The interview was video-recorded. The applicant confessed to the murder and stated that, on the night of the murder, he had gone to V.’s flat late at night. V. had reproached him for his dissolute lifestyle and drinking, whereupon he had taken a knife from the kitchen and stabbed her. In order to eliminate A. as a witness, he had stabbed her too. He had then gone to R.’s flat and told him that somebody had murdered V. and A.10. During the examination of the victim’s flat carried out between 7 p.m. and 8.25 p.m., the investigator found a kitchen knife with a damaged handle, which was later established by the courts as being the murder weapon.11. The applicant repeated his confession during an on-site reconstruction of the events on 15 November 2010 and during an interview on 17 November 2010, both in the presence of K. On the latter occasion he added that the knife’s handle had broken as he was stabbing A.12. On 24 December 2010, in the presence of a different lawyer, the applicant retracted his confessions, arguing that they had been obtained under duress. He stated that on the night of the events he had gone to V.’s home, spoken with her and had then left to buy some alcohol. He had met an unknown man and some girls and drunk beer with them. He had then returned to V.’s flat, found the door unlocked and discovered the dead bodies. He had been unable to call the police because the landline was broken. He had knocked on neighbours’ doors but there was no response. He had then gone to see R. to inform him of what had happened.13. The investigation was completed in February 2011. On 10 April 2012 a district court in Kharkiv convicted the applicant of murder. The conviction was quashed on appeal and the case was remitted for retrial. On 16 September 2013 the same district court convicted the applicant for a second time. In March 2014 the conviction was again quashed on appeal and the case was transferred to the Kharkiv Frunzenskyy District Court (“the retrial court”), which, in December 2014, returned it to the prosecutor for additional investigation.14. Following a new investigation and retrial, the retrial court convicted the applicant on 28 December 2016, sentencing him to fifteen years’ imprisonment.15. Following an appeal, the Kharkiv Regional Court of Appeal upheld the conviction on 21 September 2017, but changed the sentence to life imprisonment.16. In convicting the applicant, the retrial court and the Court of Appeal had regard mainly to the following evidence and arguments.(a)  The applicant’s statements made in the presence of his lawyer, on 14 November 2010 (including the video-recording) and 17 November 2010, and during the on-site reconstruction on 15 November 2010. The courts also referred to statements made by the expert who had participated in the reconstruction and who confirmed the contents of the report and the credibility and voluntary nature of the applicant’s confession. They also referred to the video-recording of the reconstruction and its analysis by a psychology expert which, they noted, confirmed the voluntary nature of the confession.(b)  The evidence given in court by R., who stated that, on the night of the murder, he and the applicant had been drinking together but had gone their separate ways between 2 a.m. and 2.30 a.m. At 7 a.m. the applicant had arrived at R.’s home and had said, calmly, that V. and A. had been murdered by someone. The applicant had been drunk, had been wearing clean clothes and had a fresh wound on his hand between his thumb and index finger, which R. had not noticed before. They had gone to V.’s flat, which R. had unlocked with the applicant’s key. R. had discovered the bodies and had called the police from the landline in the flat.(c)  The discovery of what was later identified as fragments of the handle of the knife on A.’s body.(d)  The medical evidence of recent cuts on the applicant’s right hand, between the thumb and index finger, dating from the twenty-four hours preceding the examination which was conducted on the day of his arrest. The cuts were consistent with the applicant cutting himself while stabbing the victims with a broken knife. The courts noted contradictions in the explanations for the injuries provided by the applicant at various points in the proceedings.(e)  The applicant’s fingerprint on the murder weapon.(f)  Clothes found at the applicant’s flat containing traces of blood that could have belonged to V. and A.(g)  Expert evidence that blood found under A.’s fingernails could have belonged to the applicant. The applicant refused to provide samples for DNA testing but expert evidence indicated that it could not be ruled out that the blood discovered under A.’s fingernails was his.(h)  The absence of evidence of a break-in or of the victims having voluntarily let strangers into the flat. The applicant’s alleged alibi was unsubstantiated.(i)  The presence of the applicant’s fingerprints on certain documents and banknotes found in the victims’ flat was consistent with the applicant throwing things around to imitate a robbery by strangers rather than with his affirmation that he did not touch anything in the flat.(j)  Statements of investigators, police officers, experts who corroborated the correctness and coherence of the other evidence.(k)  Pre-trial statement of witness Ms M. who stated that on the night of the murder she had been woken up by A.’s loud screaming “please, don’t” (пожалуйста, не надо, a Russian impersonal construction which could be addressed to one or more people). She had also heard V.’s voice and a male voice she did not recognise. They were calm. This had lasted for five minutes. She then went back to sleep and had learned about the murder from the police the next morning. The court stated that all possible steps to examine this witness in court had been taken and on 30 December 2015 the trial court ordered the police to bring the witness to court and, if not possible due to the state of her health, to examine her at her home. In enforcing this ruling the police examined the witness at home. The witness stated that she was born in 1935 and was undergoing outpatient cardiology treatment. She repeated her statement to the effect that she had been woken up by a child’s scream in A.’s voice who was screaming “please don’t”.17. The courts examined in a very detailed manner the applicant’s allegation that his confession had been obtained under duress and while in unrecorded detention.They in particular examined the evidence of investigator Zh., who stated that the applicant had been given an opportunity to talk to a lawyer prior to his being questioned for the first time and that he had been informed of his rights. He had spoken freely and, in response to questions from his lawyer and the investigator, had said that he had not been under any pressure to speak.Expert evidence showed that at the time of his confessions the applicant had had no injuries which could have been caused after his arrest. His allegations of ill-treatment had been investigated by the prosecutor’s office and the relevant police officers had been interviewed at the trial. The applicant’s allegations in that regard were unsubstantiated. The court’s examination of the video-recording of the confession and its examination by an expert psychologist confirmed that it presented signs of being voluntary. The police officers involved had also been questioned by the trial court and denied that there had been any ill-treatment or signs of ill-treatment in respect of the applicant, or that he had made any complaints to that effect at the time. Other witnesses who saw the applicant had seen no sign of any ill-treatment either.The retrial court also found that the applicant’s complaint that he had confessed after having been held in unrecorded detention since 8 a.m. on 14 November 2010 was unsubstantiated. The court observed that V.’s flat had been examined at 8.50 a.m. and that the applicant’s flat had been examined between 11.05 a.m. and 1.31 p.m. in his presence. It noted that, according to the arrest report drawn up at 5 p.m., the applicant’s rights had been explained to him.18. The applicant subsequently lodged a cassation appeal, arguing that: (i)  he was innocent and the evidence had been manipulated and misinterpreted in order to convict him; (ii)  on 14 November 2010 he had falsely confessed under duress from the police; and (iii) in the course of the pre-trial investigation and trial, a witness, M., had stated that on the night of the murder she had heard A. scream “Don’t do this!” (“не делайте этого”, a Russian construction used to address a single person respectfully or multiple people) and had then heard the calm voices of the applicant’s mother and an unknown male. The applicant argued that this contradicted the findings of the lower courts that V. had been murdered first, and could also indicate that there had been two perpetrators – a man and a woman. M. had testified in court on several occasions and her statements varied but the Court of Appeal had nevertheless taken into account other statements that she had made out of court (see paragraph 16 (k) above).19. On 10 July 2018 the Supreme Court upheld the conviction and the sentence, finding that the lower courts had not erred in their decisions.RELEVANT LEGAL FRAMEWORK20. Article 47 § 3 of the Code of Criminal Procedure of 1960 (repealed with effect from 19 November 2012) authorised the investigator to appoint a defence counsel, according to the procedure provided by law, through a bar association, the investigator’s demand being obligatory for the head of the bar association.21. Article 96 of the 1960 Code defined a statement of surrender to the authorities (in Ukrainian – явка з повинною) as a personal voluntary written or verbal statement made by a person, before the institution of criminal proceedings against him or her, to an inquiry authority, a police officer, an investigator, a prosecutor, a judge or a court, concerning a crime committed or planned by him or her. Where a criminal investigation had already been initiated, such a statement had to be made before formal charges were brought against the person.THE LAWALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION22. The applicant complained of various violations of Article 6 of the Convention, the relevant parts of which provide:“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law......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;(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;...”Alleged violation of Article 6 §§ 1 and 3 (c)The parties’ submissions23. The applicant complained of a violation of his rights under Article 6 §§ 1 and 3 (c) of the Convention. He submitted that, following his de facto arrest at 8 a.m. on 14 November 2010, he had not been allowed to choose or to consult a lawyer prior to being questioned for the first time. He alleged that K. had not been appointed as his lawyer through a bar association, in breach of the procedure for appointment established by domestic law, and that K. had not had a confidential interview with him prior to his being questioned by the police.24. The Government submitted that, by his complaint, the applicant was essentially seeking to contest the domestic courts’ assessment of the evidence. The applicant had been informed of his rights and had signed the relevant report confirming that fact. A lawyer had been appointed for him and he had given his statements in the presence of that lawyer. In any event, the absence of a lawyer at the very beginning of the investigation had had no impact on the overall fairness of the proceedings since the courts had examined a wide range of incriminating evidence.The Court’s assessment(a)   Admissibility25. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.(b)   Merits(i)      Relevant principles26. The right of everyone “charged with a criminal offence” to be effectively defended by a lawyer, guaranteed by Article 6 § 3 (c), is one of the fundamental features of a fair trial (see Salduz v. Turkey [GC], no. 36391/02, § 51, ECHR 2008; Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 255, 13 September 2016; and Beuze v. Belgium [GC], no. 71409/10, § 123, 9 November 2018).27. Where a person has been taken into custody, the starting-point for the right of access to a lawyer is not in doubt. The right becomes applicable as soon as there is a “criminal charge” within the meaning given to that concept by the Court’s case-law and, in particular, from the time of the suspect’s arrest, whether or not that person is interviewed or participates in any other investigative measure during the relevant period (see Simeonovi v. Bulgaria [GC], no. 21980/04, §§ 110-11, 12 May 2017, and Beuze, cited above, § 124).28. Access to a lawyer at the pre-trial stage of the proceedings also contributes to the prevention of miscarriages of justice and, above all, to the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused (see Salduz, cited above, §§ 53-54; Blokhin v. Russia [GC], no. 47152/06, § 198, 23 March 2016; Ibrahim and Others, cited above, § 255; and Simeonovi, cited above, § 112).29. The Court has acknowledged on numerous occasions since the Salduz judgment that prompt access to a lawyer constitutes an important counterweight to the vulnerability of suspects in police custody. Such access is also preventive, as it provides a fundamental safeguard against coercion and ill-treatment of suspects by the police (see Salduz, § 54; Ibrahim and Others, § 255; and Simeonovi, § 112, all cited above).30. The Court has also recognised that the vulnerability of suspects may be amplified by increasingly complex legislation on criminal procedure, particularly with regard to the rules governing the gathering and use of evidence (see Salduz, § 54, and Ibrahim and Others, § 253, both cited above).31. The Court reiterates that access to a lawyer during the investigation phase may be temporarily restricted where there are “compelling reasons” for doing so. However, restrictions on access to legal advice can be permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case. Where a respondent Government have convincingly demonstrated the existence of an urgent need to avert serious adverse consequences for life, liberty or physical integrity in a given case, this can amount to compelling reasons to restrict access to legal advice for the purposes of Article 6 of the Convention. In such circumstances, there is a pressing duty on the authorities to protect the rights of potential or actual victims under Articles 2 and 3 and Article 5 § 1 of the Convention in particular. When assessing whether compelling reasons have been demonstrated, it is important to ascertain whether the decision to restrict legal advice had a basis in domestic law and whether the scope and content of any restrictions on legal advice were sufficiently circumscribed by law so as to guide operational decision-making by those responsible for applying them (see Ibrahim and Others, §§ 258-59, and Simeonovi, §§ 116-17, both cited above).32. Moreover, a finding of compelling reasons cannot stem from the mere existence of legislation precluding the presence of a lawyer. The fact that there is a general and mandatory restriction on the right of access to a lawyer, having a statutory basis, does not remove the need for the national authorities to ascertain, through an individual and case-specific assessment, whether there are any compelling reasons (see Beuze, cited above, § 142).33. According to the Court’s case-law, the absence of “compelling reasons” for restricting access to a lawyer does not lead in itself to a finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention. In the absence of “compelling reasons”, the Court must apply a very strict scrutiny to its fairness assessment: the Government’s failure to point to any compelling reasons weighs heavily in the balance when assessing the overall fairness of the trial and may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (c). The onus will then be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice. Where, on the contrary, compelling reasons for restricting access to a lawyer have been established, a holistic assessment of the entirety of the proceedings must be conducted to determine whether they were “fair” for the purposes of Article 6 § 1 (see Ibrahim and Others, §§ 262-65, and Simeonovi, § 118, both cited above).34. The Court further emphasises that where access to a lawyer was delayed, and where the suspect was not notified of the right to legal assistance, the privilege against self-incrimination or the right to remain silent, it will be even more difficult for the Government to show that the proceedings as a whole were fair (see Beuze, cited above, § 146). Indeed, it is inherent in the privilege against self-incrimination, the right to silence and the right to legal assistance that a person “charged with a criminal offence” for the purposes of Article 6 had the right to be notified of these rights. Consequently, Article 6 § 3 (c) of the Convention must be interpreted as also safeguarding the right of persons charged with an offence to be informed immediately of their right to legal assistance, irrespective of their age or specific situation and regardless of whether they are represented by an officially assigned lawyer or a lawyer of their own choosing. Moreover, respect for that right may well influence the validity of any waiver of the right to legal assistance (see Ibrahim and Others, §§ 272-73, and Simeonovi, § 119, both cited above).(ii)    Application of the above principles to the present case35. It is unclear under what circumstances the applicant’s “statement of surrender” was made and whether it was the result of questioning by the police. The police officer who had taken that statement indicated that it had been made after the applicant had been “brought” to the police station, implying a certain degree of compulsion (see paragraph 7 above).36. In this context the Court reiterates that any conversation between a detained criminal suspect and the police must be treated as formal contact and cannot be characterised as an informal interview or questioning (see Ayetullah Ay v. Turkey, nos. 29084/07 and 1191/08, § 137, 27 October 2020, with further references).37. At the material time, the police already had reason to suspect the applicant. Notably, the applicant’s flat had been examined and clothes with bloodstains had been seized, which were later used as evidence against him (see paragraphs 16 (f) and 17 above). Accordingly, a “criminal charge” within the autonomous Convention meaning existed, calling for the application of Article 6 safeguards concerning access to legal assistance.38. Furthermore, once the applicant had informed the police that he was going to make a “statement of surrender and confession”, the authorities must have been aware of the possible context of such a statement and of the consequences that would arise. However, there is no indication that the police had informed him of his right to have a lawyer (compare, for example, Alakhverdyan v. Ukraine [Committee], no. 12224/09, § 55, 16 April 2019).39. The Court perceives no compelling reason justifying the restriction on access to a lawyer in the present case. Accordingly, the Court must apply a very strict scrutiny in assessing whether the absence of a lawyer undermined the fairness of the proceedings, with the burden being on the Government to demonstrate convincingly that this was not the case (see Beuze, cited above, § 145).40. Turning to that question and examining it in the light of the factors set out in Ibrahim and Others (cited above, § 274) and Beuze (cited above, § 150), the Court observes that there are a number of factors which tend to argue in favour of considering the proceedings fair: (i) there is no indication that the applicant was particularly vulnerable; (ii) there is no indication in the material before the Court that the applicant’s right to challenge the authenticity of the evidence and oppose its use was in any way restricted; (iii) the evidence in the case was assessed by professional judges; (iv) the public interest in the prosecution of the offence imputed to the applicant – a double murder – was very strong; and (v) there is no indication that another Convention right has been violated.41. As to the nature of the statement, it was clearly incriminating. The applicant repeated the confession made in his initial “statement of surrender” on three separate occasions in the space of three days but retracted it one month later (see paragraph 9 above and compare, for example, Bandaletov v. Ukraine, no. 23180/06, § 67, 31 October 2013, and Zherdev v. Ukraine, no.

Outcome for Article 6: no_violation