The ECHR has found a violation of the requirements of Article 3, paragraph 1 of Article 6 and subparagraph “c” of paragraph 3 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR has found a violation of the requirements of Article 3, paragraph 1 of Article 6 and subparagraph “ Сведения: 2019-10-01 12:56:26

ECHR judgment of 24 January 2019 in the Knox v. Italy case (аpplication No. 76577/13).

In 2013, the applicant was assisted in preparing the complaint. Subsequently, the complaint was communicated by Italy.

In the case, the complaint was successfully considered that there was no investigation into the complaint of ill-treatment by the police during the interrogation of a person in a state of shock. There was a violation of the requirements of Article 3, paragraph 1 of Article 6 and subparagraph “c” of paragraph 3 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.


Circumstances of the case


In the period relevant to the circumstances of the present case, the applicant, a student from the USA who was then 20 years old, had been in Italy for about two months. She found a temporary job in a pub run by D.L. After the discovery of the body of the applicant’s neighbor in the apartment, when the applicant and her friend were there, the latter were interrogated and their conversations were tapped.

On November 6, 2007, at 1.45, the applicant was questioned in the presence of three police officers and A.D., who served as an interpreter. The applicant said, inter alia, that the offender was D.L. The prosecutor then questioned the applicant at 5.45 in the presence of A.D. and some police officers. The applicant was not provided with counsel. At 8.30 the applicant, her friend and D.L. were detained on suspicion of sexual assault and murder. D.L., who proved his alibi, was released.

By 13.00 and subsequently in the course of the proceedings, the applicant alleged that she was in a state of shock during the last interrogation, during which she gave indictments under pressure from the police and again charged her with D.L. However, on May 14, 2008, she was recognized as a suspect in the libel case against D.L.

After the hearing on March 13, 2009, during which the applicant again described how she was treated during interrogations on November 6, 2007, and complained about the actions of the translator A.D., the applicant's lawyer requested that the case be transferred to the prosecutor's office, but to no avail. A defamation case was also opened against the applicant against police officers and the prosecutor who questioned her on 6 November 2007.

In September 2015, the Court of Cassation acquitted the applicant of the charges of murder and sexual violence and noted that the applicant was sentenced to three years in prison for defamation of D.L. already received prejudicial force. In the defamation proceedings against the police and the prosecutor, the applicant was also acquitted.


QUESTIONS OF LAW


Regarding compliance with Article 3 of the Convention (procedural aspect). Following charges against D.L. On 6 November 2007 and throughout the subsequent proceedings in the case, the applicant claimed that at that time she was in a state of shock and extreme excitement and that the police had put pressure on her. On 3 October 2011 the appellate court found that the applicant had indeed suffered distress resulting in an unbearable psychological situation, and in order to get out of it, the applicant had charged against D.L.

In addition, the translator A.D. also acted as a mediator, which was absolutely not required given its functions. In addition, one of the police officers hugged the applicant, stroked her, took her hands and, therefore, behaved inappropriately at the time when the applicant voiced the charges, which were subsequently regarded as defamatory and led to her conviction.

Such behavior, from which one can draw a conclusion about the general context in which the applicant was questioned, had to be brought to the attention of the authorities in connection with a possible violation of respect for the dignity of the applicant and her legal capacity.

Despite the applicant's repeated complaints about the degrading treatment she complained about, there was no investigation capable of clarifying the facts and circumstances of her case. In particular, the requirement to transfer the case materials to the prosecutor’s office, filed by the defense on March 13, 2009, remained unanswered. Furthermore, the criminal proceedings initiated by the applicant for defamation of the authorities, as a result of which the applicant was acquitted, since there was no evidence that her allegations could be inconsistent with real facts, could not be considered an effective investigation into the applicant's complaint.


RESOLUTION


In the case there was a violation of the requirements of Article 3 of the Convention (adopted unanimously).

Regarding compliance with paragraph 1 of Article 6 and subparagraph “c” of paragraph 3 of Article 6 of the Convention. (a) Applicability of Article 6 of the Convention. The Court reiterates that a “criminal charge” takes place when a person is formally prosecuted as a suspect by the competent authorities or when the latter’s actions caused by suspicions of that person have important consequences for him. The applicant could be considered a suspect no later than the moment of testifying on 6 November 2007, at 5.45, to the prosecutor of the republic. Consequently, no later than 5.45 a “criminal charge” was brought against the applicant within the meaning of the Convention.

(b) There is an urgent need that can justify a restriction on the right to access a lawyer. The Italian Government pointed to the fact that, according to the country's judicial practice, the disputed evidence of 6 November 2007 could have been used in the absence of a lawyer to the extent that they themselves contained the offense. However, the Court observes that the judicial practice relied on by the Italian authorities is of a general nature and that the latter did not prove the existence of exceptional circumstances that would justify the restriction on the applicant's right. Thus, there was no pressing need justifying the applicant’s right to a lawyer.

(c) Fairness of the trial as a whole. A few hours after the interrogations on November 6, 2007, the applicant, who was vulnerable due to her status as a foreign citizen of 20 years of age who had been in Italy for a short time and did not speak fluent Italian, refused her testimony. However, six months later, on May 14, 2008, she was prosecuted as a suspect in the libel case.

Controversial evidence was obtained as a result of strong psychological pressure, the circumstances of which were not clarified during the investigation. The testimony itself constituted the offense of which the applicant was charged and, therefore, material evidence to convict her of the libel case. Lastly, the record of the applicant’s interrogation at 5.45 did not contain a note that she had been notified of her procedural rights.

Thus, the restriction on the applicant’s right to legal assistance during the interrogation on November 6, 2007, at 5.45, irreversibly violated the fairness of the trial as a whole.


RESOLUTION


In the case there was a violation of the requirements of paragraph 1 of Article 6 and subparagraph "c" of paragraph 3 of Article 6 of the Convention (adopted unanimously).

Regarding compliance with paragraph 1 of Article 6 and subparagraph "e" of paragraph 3 of Article 6 of the Convention. The role of the mediator played by the translator A.D. while the applicant, accused of the crime, set out her version of events, went beyond the functions of the translator, who A.D. should have performed. However, the authorities did not evaluate A.D. and did not establish whether she performed the functions of a translator in accordance with the guarantees provided for in paragraph 1 of Article 6 and subparagraph "e" of paragraph 3 of Article 6 of the Convention, and did not consider whether A.D. the consequences for the outcome of the applicant’s case. Furthermore, the interrogation report of 6 November 2007 does not contain information on the applicant’s interaction with A.D. during this procedural action.

This initial flaw, therefore, had consequences for other rights, which, although they were different from the violation of which the applicant complained, were closely related to him and violated the fairness of the trial as a whole.


RESOLUTION


In the case there was a violation of the requirements of paragraph 1 of Article 6 and subparagraph "e" of paragraph 3 of Article 6 of the Convention (adopted unanimously).

The Court also concluded that there had been no violation of the requirements of Article 3 of the Convention in its substantive aspect in view of the lack of information that would allow concluding that the applicant had been subjected to inhuman or degrading treatment.


COMPENSATION


In application of Article 41 of the Convention. The Court awards the applicant EUR 10,400 in respect of non-pecuniary damage.

 

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