I correctly predicted that there was a violation of human rights in DUDKA v. UKRAINE.

Judgment

FOURTH SECTION

CASE OF DUDKA v. UKRAINE

(Application no. 55912/09)

JUDGMENT

STRASBOURG

4 December 2018

This judgment is final but it may be subject to editorial revision. In the case of Dudka v. Ukraine,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Faris Vehabović, President,Carlo Ranzoni,Péter Paczolay, judges,and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 13 November 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 55912/09) 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, Ms Valentyna Oleksandrivna Dudka (“the applicant”), on 8 October 2009. 2. The applicant was represented by Mr V.O. Verpeta, a lawyer practising in Orzhytsya. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna, of the Ministry of Justice. 3. On 7 December 2016 the complaints concerning the alleged ill‐treatment of the applicant in police custody and the lack of an effective investigation in this respect, as well as the alleged violations of her rights to be legally represented and not to incriminate herself, were communicated to the Government, and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court. 4. The Government objected to the examination of the applications by a Committee. After having considered the Government’s objection, the Court rejects it. THE FACTS
THE CIRCUMSTANCES OF THE CASE
A. Criminal proceedings against the applicant
5. The applicant was born in 1966 and lives in Chevelcha. 6. Between October 2003 and November 2004 a number of thefts of cattle from different farms were committed and criminal proceedings were instituted on that account. 7. In the early morning of 2 November 2004 a cow and a bull were stolen from a farm in a village next to the one in which the applicant lived. 8. On 12 November 2004 criminal proceedings were instituted in respect of the theft of 2 November 2004. 9. On 14 November 2004 – at 8.30 a.m. according to the applicant – the applicant was taken by the police from her home to the Orzhytsya police station (“the police station”) to verify her possible involvement in the above-mentioned criminal offences. 10. According to the applicant, at the police station she was subjected to beatings and psychological pressure with a view to extracting her confession to the cattle thefts. The police officers hit her in her face, laid her on the floor with her face dawn, stamped on her legs and twisted her arms back. She was also made to spread her legs as widely as possible while standing and threatened with a beating if she fell down. Her requests for legal assistance were allegedly rejected. 11. The Government maintained that the applicant had not been subjected to any ill-treatment. 12. On the same day, in police custody, the applicant drafted “statements of surrender and confession” (явка з повинною) in which she confessed to several counts of cattle theft and gave “explanations” in which, according to the Government, she submitted that she had committed the criminal offences as a member of a group of persons. No copies of those statements and “explanations” have been made available to the Court. As can be seen from the available complaints lodged by the applicant’s lawyer with the domestic authorities, the applicant drafted a separate document for each of her confessions. 13. At 6.10 p.m. on the same date the investigator of the Orzhytsya police unit dealing with the criminal proceedings concerning the cattle thefts (“the investigator”) drew up a report on the applicant’s detention as a suspect. The applicant signed a record of the explanation of procedural rights to her; in that record she stated that she did not wish to be legally represented at that stage. The investigator therefore issued a decision to conduct the pre-trial investigation into the proceedings concerning the thefts committed in 2003-2004 without the involvement of a defence lawyer. 14. Thereafter, the applicant was questioned as a suspect in the absence of a lawyer. The verbatim record of the questioning suggests that her right to a lawyer and to a meeting with him before the first round of questioning (as well as her right not to incriminate herself) had been explained to the applicant before the start of the questioning. According to the record, the applicant confessed to a number of cattle thefts in 2003 and 2004, committed as a part of a group, and provided some details in this respect. No questions were put or remarks made by the investigator. 15. On 16 November 2004 the applicant’s mother signed a contract for her legal representation with a lawyer, V. On three occasions on the same day and twice on 17 November 2004 (in the morning and afternoon) he attempted to hold a meeting with the applicant but for different reasons was denied access to the police station by duty officers. After each attempt on 17 November 2004, he lodged a complaint with the prosecutor’s office that the police had unlawfully obstructed him from meeting with the applicant, and submitted that all investigative steps taken with the applicant’s participation but in his absence should be considered as having been conducted in breach of her defence rights. 16. On 17 November 2004, apparently during the lunch break, V. managed to see the investigator and requested to be admitted to the proceedings as the applicant’s lawyer on the basis of the agreement concluded with the applicant’s mother. The case-file suggests that on the same date the investigator admitted V. to the proceedings concerning the theft committed on 2 November 2004 and granted him permission to meet with the applicant. 17. On the same date – between 8.15 and 11.30 a.m. according to the official records, and in the afternoon according to the applicant – a reconstruction of the crime was carried out in the presence of the investigator, two attesting witnesses and an expert in criminal law. The relevant record, which was signed by the applicant without any observations, suggests that before the reconstruction commenced, the applicant had been apprised of her constitutional right not to make self-incriminating statements and her right to refuse to participate in the reconstruction or to insist that it be carried out in the presence of a lawyer. The applicant declined (“in the lawyer’s presence”, according to the record) to exercise those rights and expressed her wish for the reconstruction to be carried out without the assistance of a lawyer. 18. During the reconstruction, the applicant provided details as to the theft committed during the early morning of 2 November 2004 and pointed out the place where the stolen animals had been slaughtered by her. The immediate inspection of the place revealed two detached cattle heads and two respective identification tags. 19. From 5 p.m. until 6.15 p.m. on the same date, a court hearing on the application of the preventive measure in respect of the applicant was held, following which the applicant’s detention was extended to ten days. As suggested by the records of the hearing, at the beginning of the hearing the applicant submitted that she wished to be represented by V. and her request was granted by the court. Upon his arrival, the applicant requested a meeting in private with V. Having heard V., who submitted that he was entitled to represent the applicant as of 9 a.m. of 16 November 2004 but since then had been unlawfully obstructed from meeting her, the court announced a break until 6.10 p.m. in order to allow the applicant to meet the lawyer in private. 20. According to the applicant, no such meeting was ever ensured and V. was, in fact, excluded from the hearing. The verbatim record of the hearing refers to no intervention on V.’s part after the break had finished. 21. On 17 November 2004 the applicant was transferred to the Lubny temporary detention facility (ізолятор тимчасового тримання – “the ITT”). The admissions register of the facility suggests that upon her admission the applicant was found to be suffering from abrasions on her chin, left elbow and hip, a bruise on her right hip and a scratch mark on her left knee. It is furthermore stated in the register that the applicant’s injuries had been sustained three days before her admission to the facility and that she raised no complaints before the ITT staff. 22. On 18 November 2004 V. unsuccessfully tried to meet the applicant in the Orzhytsya ITT as he had not been informed of her transfer to the Lubny ITT. On the same date he lodged a complaint with the prosecutor’s office, stating that he had been unable to meet the applicant and had not been informed of her transfer to the Lubny ITT. 23. On 19 November 2004 the deputy head of the Lubny ITT declined to allow V. to meet with the applicant as the investigator’s room was allegedly occupied and there was no other way to allow his request. On the same date V. complained to the prosecutor about this fact. He noted, in particular, that he had waited at the Lubny ITT until the end of the working day and had seen nobody coming out of the premises but the police officers from the Orzhytsya police unit; this, in his opinion, constituted evidence that they had been “working with the applicant” in the lawyer’s absence. 24. On 23 November 2004 V. again complained to the Orzhytsya prosecutor’s office that he was still not able to see the applicant and that no response had been given by the prosecutor to his four earlier complaints about violations of the applicant’s defence rights and his rights as her lawyer. 25. On the same date, from 12.29 until 4.14 p.m., another reconstruction of the crime was carried out in the presence of the investigator, two attesting witnesses and an expert in criminal law. The relevant verbatim record, which was signed by the applicant without observations, suggests that, on being informed of her procedural rights, the applicant declined to be assisted by a lawyer during this investigative step. 26. During the reconstruction, the applicant provided details as to nine episodes of cattle thefts that she had allegedly committed as part of a group in 2003 and 2004 and showed the directions from which her accomplices had brought the stolen animals to her and the places where the cattle had been slaughtered by her. The record of the reconstruction furthermore suggests that once the reconstruction was terminated, the applicant attested that she had given that evidence of her own free will, without any physical and psychological influence being exerted by the police. 27. On 24 November 2004, on being notified of her procedural rights as a suspect, the applicant expressed her wish to be represented by V. On the same date the latter was admitted to the proceedings concerning the thefts committed in 2003-2004. 28. On the same day, in V.’s presence, the applicant was charged with having committed, as a member of a group, the theft on 2 November 2004. She was then questioned as an accused in this respect. The applicant denied her guilt for the theft and submitted that she had given her earlier statements after being told that other persons had incriminated her in the theft and that there was thus no point in her denying her guilt. When asked how it had then happened that she had known and shown the place where the slaughtered animals’ heads had been hidden, she stated that she had been told about the place by the attesting witnesses. 29. On 3 December 2004 a new investigator was appointed to the criminal proceedings concerning the applicant. 30. On 9 December 2004 the Orzhytsya prosecutor ordered the head of the Orzhytsya police unit to cease the violations of the applicant’s defence rights and to ensure that she could meet with her lawyer, V., without any limitations as to the number and duration of such meetings. 31. On 17 December 2004 V. was denied a meeting with the applicant as he had not received any authorisation to do so from the newly appointed investigator to the case. On the same day V. complained about this fact to the prosecutor, referring to the police’s failure to comply with the prosecutor’s order of 9 December 2004 (see paragraph 30 above). 32. On 22 December 2004, on being notified of her procedural rights in the case concerning the theft committed during the early morning of 2 November 2004, the applicant expressed a wish to be represented by V. On the same date, the investigator admitted V. to these proceedings. 33. On 23 December 2004 V. was again denied a meeting with the applicant as “there had been no information proving his admission to the proceedings”. On the following day the applicant lodged a complaint with the prosecutor’s office regarding this refusal to allow her to meet her lawyer. The latter furthermore submitted that on 22 December 2004 his meeting with the applicant had been interrupted and she had been taken out of the meeting room. 34. On the same date, on 23 December 2004, during a court hearing regarding the application of the preventive measure, which was held in the presence of V., from 10 until 12 a.m., the applicant submitted, inter alia, that on the morning of 14 November 2004, at the police station, she had denied having participated in the thefts and had unsuccessfully requested the assistance of a lawyer. She furthermore complained that the police officers had ill-treated her and forced her to draft confessions to a number of thefts, as dictated by them. She provided details of her ill‐treatment on 14 November 2004, as summarised above (see paragraph 10 above), and submitted that she had been afraid of raising any complaint during her examination by a forensic expert on 22 November 2004. 35. On an unspecified date criminal proceedings concerning all instances of theft were joined into a single case. 36. On 19 February 2005, being apprised of her procedural rights as an accused, the applicant stated that she wished to be represented by V. In his presence, she was charged with having organised in 2003 a criminal group and having committed in 2003 and 2004 a number of cattle thefts. 37. On 2 March 2005, when signing a record stating that she had been acquainted with the contents of the case file, the applicant denied her guilt and stated, without giving any details, that all investigative actions had been carried out in breach of her defence rights. V. submitted that there had been no evidence of the applicant’s guilt and requested, accordingly, that the criminal proceedings against the applicant be terminated. On the same day the investigator refused the lawyer’s request as unsubstantiated and having been raised in only general terms. 38. On 22 March 2005 the case against the applicant and her alleged accomplices was sent for trial to the Chornukhinskiy District Court, Poltava Region (“the District Court”). 39. On 19 April 2005 the District Court held a preparatory hearing in the presence of all the defendants and of V. No complaints were raised by them during that hearing. 40. During the trial the applicant pleaded not guilty and claimed, inter alia, that her self-incriminating statements had been obtained by the police by means of ill-treatment and in the absence of a lawyer. Similar statements were made by the applicant’s co-defendants. 41. On 15 September 2005 the District Court found the applicant guilty on a number of counts of theft and sentenced her to five years’ imprisonment. In doing so, it referred mainly to the self-incriminatory statements made by the applicant on 14, 17 and 23 November 2004 (see paragraphs 12, 14, 18 and 26 above) and the confessions given by her accomplices during the pre-trial investigation. When dismissing the applicants’ allegations of ill-treatment by the police, the District Court referred to the statements of attesting witnesses present at the crime reconstructions of 17 and 23 November 2004 (see paragraphs 17 and 25 above); according to those witnesses, the applicant and other defendants had given evidence at those crime reconstructions of their own free will. It furthermore referred to evidence given by the police officers concerned (all of whom had denied all allegations of ill-treatment) and to the fact that no injuries had been found on the applicant’s body during her medical examinations on 22 and 25 November 2004 (see paragraphs 52 and 55 below). The court also stated that during the whole pre-trial investigation the defendants had acknowledged their guilt and had never complained about any ill-treatment, but had retracted their statements only during the trial (which the court considered they had done simply as part of their defence strategy). 42. On appeal of the applicant, on 15 March 2006 the Poltava Regional Court of Appeal (“the Court of Appeal”) quashed the above-mentioned judgment and remitted the case for fresh examination. It noted, inter alia, the selective approach taken by the trial court to the assessment of evidence in the case, including the evidence concerning the alleged ill-treatment, and a breach of the applicant’s defence rights. 43. On 20 March 2007 the prosecutor withdrew charges against the applicant on four counts of theft for lack of evidence. 44. On 18 April 2007 the District Court found the applicant and her co‐defendants guilty as charged and sentenced them to different terms of imprisonment. The applicant was given a four-year suspended sentence. The court based the applicant’s conviction on: her voluntary surrender to the police and the self-incriminatory statements that she had made on 14, 17 and on 23 November 2004 (see paragraphs 12, 14, 18 and 26 above); confessions given by her accomplices during the pre-trial investigation; the records of the crime scene examinations; and statements by the victims (that is to say farm owners) and witnesses confirming the fact that animals had been stolen from the farms. 45. The District Court dismissed the defendants’ allegations of ill‐treatment by the police as ill-founded. It noted in this respect that the police officers concerned had denied all allegations of ill-treatment; a surgeon, N., who examined the applicant on 25 November 2004 (see paragraph 55 below) had submitted that he had found no bodily injuries when he had examined her; the forensic expert who had examined the applicant on 22 November 2004 had also attested that no injuries had been found by him on the applicant’s body (see paragraph 52 below); and attesting witnesses who had been present at the crime reconstructions (in which the defendants had participated) had submitted that the applicant and other defendants had given evidence of their own free will. 46. The applicant appealed, submitting that the District Court had failed to comply with the instructions of the Court of Appeal and to duly examine the allegations made by her and her co-defendants of ill-treatment by the police. She stated, inter alia, that the District Court had deliberately ignored evidence proving her bodily injuries. She relied, inter alia, on the relevant data from the admissions register of the Lubny ITT (see paragraph 21 above) and the testimony of a prosecutor who had seen the applicant’s injuries. The applicant furthermore contested the credibility of the statements given by the police officers in the light of the fact that they were direct perpetrators. She also stated that two of the attesting witnesses could not be objective as at the time of the events in question one of them had been undergoing prosecution by the police and the other one was himself a former police officer who had close ties with the police. She furthermore submitted that the District Court had falsified the statement made by N., the surgeon, during the trial regarding the results of the applicant’s examination on 25 November 2004 (see paragraph 55 below). She noted in this respect that N. had in fact confirmed that there had indeed been bodily injuries, which he had recorded in the applicant’s medical file. Lastly, the applicant stated that she had been unlawfully deprived of legal assistance between 14 and 24 November 2004 and that all the evidence on which her conviction had been based, in particular her confessions, had been obtained during that period. She also referred in this regard to the unsuccessful attempts made by her lawyer to hold a meeting with her within the above-mentioned period and to the complaints that he had unsuccessfully lodged with the prosecutor’s office in this respect. 47. On 2 July 2008 the Court of Appeal upheld the judgment of the District Court. In doing so the court referred to (i) the applicant’s voluntary surrender to the police and to the further self-incriminatory statements that she had made during her questioning, which had been corroborated by those made by her alleged accomplices, and (ii) the fact that remains of animals had been found at the place pointed out by the applicant during the reconstruction of the crime. It furthermore stated that the applicant’s allegations of ill-treatment had been correctly dismissed by the first-instance court as unsubstantiated, given that the police officers had denied any ill‐treatment and no injuries had been uncovered in the course of the applicant’s medical examinations of 22 and 25 November 2004 or during her further medical examinations in detention in view of the worsening of her chronic health conditions. 48. The applicant lodged a cassation appeal, maintaining, inter alia, her complaints concerning her alleged psychological and physical ill-treatment in police custody and the lack of access to a lawyer between 14 and 24 November 2004. She submitted in this respect that the courts had deliberately ignored evidence proving the fact that she had had bodily injuries shortly after her arrest. 49. On 26 March 2009 the Supreme Court upheld the applicant’s conviction. It noted that her guilt had been proved by her own statements as a suspect in which she had confessed to the thefts and which she had later confirmed during the reconstructions of crimes. The Supreme Court furthermore found that the applicant’s statements had been corroborated by the confessions of her co-defendants. It noted that her complaint of ill‐treatment had been thoroughly examined by the lower courts and had been lawfully rejected as unsubstantiated. It also noted that the applicant’s allegations had been disproved by the testimony of the surgeon, N., and the forensic expert, as well as by that given by the police officers. As regards the alleged violation of the applicant’s defence rights, the Supreme Court noted that during the pre-trial investigation, the applicant had been informed of her right to a lawyer and that the lawyer of her choice had been admitted to the proceedings. The judgment of the Supreme Court was sent to the applicant on 8 April 2009. B. Investigation of the allegations of ill-treatment
50. On a number of occasions between 16 and 21 November 2004 lawyer V. complained to the Orzhytsya prosecutor’s office of the applicant’s ill-treatment in police custody and requested that she be given a medical examination, in his presence, in order to secure evidence of that ill‐treatment. 51. On 18 and 19 November 2004 similar complaints were made by the applicant’s mother. 52. On 22 November 2004 the applicant was examined by a forensic medical expert. The relevant record suggests that the applicant had had no bodily injuries and had raised no complaints. According to the applicant, she had done so because she had been afraid of further beatings by the police. 53. On 23 November 2004 the Orzhytsya prosecutor’s office declined to institute criminal proceedings in respect of the complaints of the applicant’s lawyer that the applicant had been ill-treated and her defence rights violated. No copy of that decision has been made available to the Court. According to the Government, the decision was based on the results of the applicant’s medical examination of 22 November 2004 (see paragraph 52 above), the police officers denial of ill‐treatment and on the fact that the applicant had not raised any complaint about her ill-treatment during a court hearing on the application of a preventive measure. As regards the defence rights, it was also noted that under the decision of the Orzhytsya District Court of 17 November 2004 lawyer V. had been granted permission to have a meeting with the applicant (see paragraph 19 above). 54. On 25 November 2004 the applicant, through her lawyer, requested a meeting with the prosecutor with a view to making statements regarding “what [had been] done to her at the police station” and “how her voluntarily surrenders [had] appeared”. She also denied her guilt of any criminal offence and asked for a medical examination of her to be conducted in order to identify and treat the injuries that she had been suffering from as a result of her ill-treatment by the police and to protect her from fresh beatings. 55. According to the extracts from the applicant’s medical file, which was provided by the latter to the Court, on the same date, on 25 November 2004, the applicant complained about her poor state of health, including pain in her left elbow. She was examined by N., a surgeon from the local civil hospital who discovered “active yellow marks” (квітучі пятна жовтуватого кольору) from 0.5 to 1 cm in diameter on the applicant’s forearms, hips and right breast. Following the examination, N. found that the applicant’s state of health did not require any medical intervention. 56. On 26 November 2004, after having a meeting with the applicant and being given the results of the aforesaid medical examination, lawyer V. again complained to the prosecutor’s office of the applicant’s ill-treatment by the police and requested, inter alia, that she be given another forensic medical examination in his presence. 57. On 29 November 2004 the applicant was transferred to the Poltava Temporary Detention centre (“the Poltava SIZO”). As can be seen from a certificate issued by the SIZO governor, upon her arrival the applicant underwent a medical examination which uncovered a bruise on her left hip measuring 5 cm by 3 cm and an inflammation on her left forearm. 58. On 17 December 2004 lawyer V. complained to the prosecutor’s office that no response had been made to the applicant’s complaints of ill‐treatment. 59. On the same date the applicant refused to undergo a medical examination unless her lawyer was present. 60. On 21 December 2004 lawyer V. complained to the Poltava prosecutor’s office about the lack of any response to the complaints lodged regarding the applicant’s ill-treatment; the failure to conduct a medical examination of her in the absence of police officers and in the presence of her lawyer; and violations of her defence rights. He furthermore drew the prosecutor’s attention to the allegations of ill-treatment made by the applicant’s alleged accomplices, one of whom had been allegedly hospitalised after being beaten by the police. 61. On 10 January 2005 the Poltava prosecutor’s office quashed the prosecutor’s decision of 23 November 2004 (see paragraph 53 above) as unsubstantiated and ordered an additional investigation in respect of V.’s allegations. It noted, inter alia, that the case file contained no explanations by the officers from the Orzhytsya and the Lubny ITTs and no information regarding whether the applicant had been provided with medical assistance when in the Poltava SIZO and whether she had undergone a medical examination with a view to establishing whether she had bodily injuries. It was furthermore noted that M.M., the applicant’s alleged accomplice, had also lodged a complaint about his physical and psychological ill-treatment by police officers of the Orzhytsya police unit. 62. According to the Government, on 20 January 2005 the Orzhytsya prosecutor’s office had declined to institute criminal proceedings and the applicant had not appealed against that decision. No copy of that decision has been made available to the Court. 63. The applicant furthermore unsuccessfully raised a complaint in respect of her ill-treatment by the police before the domestic courts (see paragraphs 40-49 above). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
64. The applicant complained that the police officers had ill-treated her on 14 November 2004 to extract her confession and that the authorities had failed to conduct an effective investigation into the alleged ill-treatment. She relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Submissions by the parties
1. The applicant
65. The applicant submitted that all self-incriminating statements made by her in police custody had resulted from her ill-treatment in the absence of a lawyer. She furthermore stated that, after the ill-treatment, a number of bodily injuries on her had been recorded, the origin of which had never been explained by the authorities. Moreover, her persistent reference to the relevant evidence had been deliberately ignored by both the prosecutor and the courts. She alleged in this respect that the investigation into the allegations of her ill-treatment had been inadequate. 2. The Government
66. The Government maintained that the applicant’s allegation that the police officers had ill-treated her with a view to obtaining her confession was unsubstantiated. Firstly, according to the expert report of 22 November 2004 (see paragraph 52 above), no injuries on the applicant’s body had been found and no complaints had been made by her to the expert or with respect to the expert’s conclusion. Secondly, the attesting witnesses who had been present during the reconstructions of the crimes on 17 and 23 November 2004 had not mentioned any injuries on the applicant. Thirdly, no injuries had been found on the applicant’s body during her examination by N., the surgeon, on 25 November 2004 (see paragraph 55 above). Furthermore, when withdrawing her confessions on 24 November 2004, the applicant had not complained of any ill-treatment by the police (see paragraph 28 above). 67. The Government furthermore submitted that the domestic authorities had investigated the applicant’s allegations during an inquiry and in the criminal proceedings against her and had dismissed them as unfounded. They submitted in this respect that in the course of the prosecutor’s inquiry a forensic medical examination of the applicant had been conducted and the police officers questioned. The courts had also interviewed the police officers, as well as the forensic expert and N., who had examined the applicant on 22 November 2004 and 25 November 2004, respectively. They noted that neither the applicant nor her lawyer had ever appealed against the prosecutor’s refusal to initiate a criminal investigation into their allegations. 68. The Government therefore invited the Court to reject as unfounded the applicant’s complaint about her ill-treatment in police custody. They furthermore claimed that there had been no violation of the procedural limb of Article 3 of the Convention. B. The Court’s assessment
1. Admissibility
69. The Court first observes that although the decision not to institute criminal proceedings has apparently been taken by the Orzhytsya prosecutor’s office on 20 January 2005 (see paragraph 62 above), the applicant has taken other, sufficient steps at the domestic level to bring her complaints of ill-treatment at the hands of the police to the attention of the national authorities. The Court also notes that the fact that the complaints were rejected by the prosecutor on 20 January 2005 did not prevent the domestic courts from examining them on the merits in the course of the applicant’s trial (see paragraphs 40-49 and 63 above). In these circumstances, the applicant cannot be reproached for having waited for the completion of the trial to raise the complaints before the Court and accordingly complied with the six-month rule provided for in Article 35 § 1 of the Convention (see, mutatis mutandis, Kaverzin v. Ukraine, no. 23893/03, § 99, 15 May 2012). 70. The Court finds that the complaints under the substantive and procedural limb of Article 3 of the Convention are not manifestly ill‐founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. 2. Merits
(a) Alleged ill-treatment of the applicant
71. As the Court has stated on many occasions, Article 3 of the Convention enshrines one of the core values of democratic societies. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances or the victim’s behaviour (see, among many other references, Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999‐V). 72. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Nevertheless, where allegations are made under Article 3 of the Convention, the Court must conduct a particularly thorough scrutiny and will do so on the basis of all the evidential material submitted by the parties (see inter alia, Kulyk v. Ukraine, no. 30760/06, § 75, 30 January 2017, with further references, and Matyar v. Turkey, no. 23423/94, § 109, 21 February 2002). 73. In assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt”. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Furthermore, it is to be recalled that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio. Where the events in issue lie within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries occurring during that detention. In such a case, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 151 and 152, ECHR 2012, with further case-law references), and any recourse to physical force which has not been made strictly necessary by the person’s own conduct is, in principle, an infringement of the right set forth in Article 3 (see Bouyid v. Belgium [GC], no. 23380/09, § 88, 28 September 2015). 74. Turning to the present case, the Court notes that it was not contested by the Government that some injuries were observed on the applicant on 17 November 2004 during her admission to the Lubny ITT and that, according to the register, these injuries had been sustained three days earlier (see paragraph 21 above) – that is to say on the day of the applicant’s arrest (on 14 November 2004 at 8.30 a.m. she had been taken by the police to the police station, see paragraph 9 above). However, the origin of those injuries has never been established by the authorities, despite the applicant’s and her lawyer’s repeated complaints of ill-treatment after her arrest and in police custody. 75. Likewise, in the proceedings before this Court, the Government also remained silent on the matter and did not advance any alternative explanation regarding the origin of the injuries referred to by the applicant. Rather, they limited themselves to stating that no injuries had been recorded on the applicant during her medical examinations on 22 and 25 November 2004 (see paragraph 66 above). 76. The Court furthermore observes that there is nothing in the case file to indicate that the applicant had any injuries prior to her contact with the police. The Court also notes that no medical examination of the applicant was performed in the first three days after her arrest. 77. In such circumstances, and given the onus on the State to provide a plausible explanation for injuries sustained by a person under the control of the police, the Court concludes that the Government have not satisfactorily established that the applicant’s injuries were caused otherwise than by ill‐treatment while in police custody on 14 November 2004, as alleged by her (see, mutatis mutandis, Adnaralov v. Ukraine, no. 10493/12, § 45, 27 November 2014). 78. Accordingly, there has been a violation of Article 3 under its substantive limb. (b) Effectiveness of the investigation
79. The Court reiterates its settled case-law to the effect that where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. An obligation to investigate “is not an obligation of result but of means”: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant’s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (Mikheyev v. Russia, no. 77617/01, § 107, 26 January 2006). 80. The investigation of arguable allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill‐founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including a detailed statement concerning the allegations from the alleged victim, eyewitness testimony, forensic evidence and, where appropriate, additional medical certificates apt to provide a full and accurate record of the injuries and an objective analysis of the medical findings, in particular as regards the cause of the injuries. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard. The investigation into the alleged ill-treatment must be prompt. Lastly, there must be a sufficient element of public scrutiny of the investigation or its results; in particular, in all cases, the complainant must be afforded effective access to the investigatory procedure (see, among many other authorities, Mikheyev, cited above, §§ 108-109, and Petropoulou‐Tsakiris v. Greece, no. 44803/04, § 50, 6 December 2007). 81. In the present case the Court finds that the applicant’s complaint of ill-treatment was arguable for the purpose of Article 3. The authorities therefore had an obligation to investigate it, in accordance with the aforementioned effectiveness standards. 82. The applicant’s lawyer complained to the prosecutor’s office of the applicant’s ill-treatment on a number of occasions from 16 November 2004 onwards (see paragraphs 50, 58 and 60 above). 83. It appears from the case file that the prosecutor’s investigation was conducted within the framework of pre-investigation enquiries, which eventually ended in the decision of 20 January 2005 not to institute criminal proceedings (see paragraph 62 above). Neither this decision nor the material gathered within the framework of the enquiry (with the exception of a copy of the forensic expert’s report of 22 November 2004 – see paragraph 52 above) has been submitted to the Court. Thus it is not clear when the enquiry commenced and what investigative steps were taken by the prosecutor, apart from the forensic medical examinations ordered six and nine days after the first complaint of the lawyer had been lodged (see paragraphs 52 and 55 above). The reason for the Government’s failure to provide the relevant documents is unclear. In any event, this failure has deprived the Court of a full opportunity to review steps taken by the authorities to investigate the applicants’ allegations (see, mutatis mutandis, Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, § 281, 1 July 2010). 84. However, it appears from the decision of the Poltava prosecutor’s office of 10 January 2005 that there were a number of omissions in the prosecutor’s enquiry, which undermined the reliability of the prosecutor’s findings (see paragraph 61 above). The Government provided no evidence that the shortcomings identified in the above-mentioned decision of 10 January 2005 were remedied or that, in particular, any assessment was ever made by the prosecutor of the results of the applicant’s medical examination upon her admission to the Lubny ITT on 17 November 2004 (see paragraph 21 above). 85. The Court furthermore notes that the applicant’s allegation of ill‐treatment was also rejected by the courts when they examined the applicant’s criminal case on the merits. It observes in this respect that also the domestic courts were silent on the applicant’s persistent reference to the injuries recorded at the Lubny SIZO. Instead, they relied on testimony given by police officers, including the alleged offenders, and the outcome of the applicant’s medical examinations conducted some eight and ten days after the alleged ill‐treatment. Such a selective approach to the examination of evidence was criticised by the Court of Appeal in its decision quashing the applicant’s initial conviction and remitting the case to the first instance court for fresh examination (see paragraph 42 above). However, notwithstanding the instruction given by the Court of Appeal in this respect, the reasoning given by the trial court in its new judgment against the applicant remained nearly the same (see paragraphs 45 and 47 above). 86. It furthermore appears that no assessment was made by the trial court of other relevant arguments submitted by the applicant – including regarding the objectiveness of two attesting witnesses whose testimony had also been referred to by the courts when dismissing the applicant’s complaint (see paragraph 46 above). 87. In these circumstances, the Court cannot but conclude that the authorities’ investigation of the allegations of ill-treatment was not thorough and thus fell short of the requirements of Article 3 of the Convention. 88. There has therefore been a violation of the said provision under its procedural limb. II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION
89. The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that self-incriminating statements obtained from her under duress and without the presence of a lawyer had been used for her conviction. The provisions she relied on read as follows in the relevant parts:
“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. Submissions by the parties
90. The applicant maintained that the proceedings had been unfair. She submitted that her initial confessions of 14 November 2004 had been the result of her ill-treatment by the police at a time when she had had no access to a lawyer. She also submitted that she had maintained her confessions during the subsequent investigative measures, including the reconstructions of the crime on 17 and 23 November 2004, while still psychologically remaining under the effects of her ill-treatment and fearing that it would be repeated. She furthermore submitted that her lawyer had been deliberately denied access to her until all evidence for the prosecution had been obtained. 91. The applicant observed that the domestic courts had relied on those self-incriminating statements to secure her conviction without due verification of her allegations of ill-treatment and the violation of her defence rights. 92. The Government submitted that on 14, 17 and 23 November 2004 the applicant had confessed of her own free will to a number of thefts and that it had been her own choice to give evidence in the absence of a lawyer; the authorities could not be found liable for this. 93. They furthermore submitted that on 17 November 2004 the lawyer engaged by the applicant’s mother had been admitted to the proceedings and had been granted permission to have a meeting with the applicant. The Government claimed in this respect that the authorities could not be held responsible for the lawyer’s failure to meet the applicant. 94. The Government also drew the Court’s attention to the fact that when retracting her confessions on 24 November 2004, the applicant had not complained of any ill-treatment by the police. 95. Lastly, they submitted that the applicant’s allegations that she had given her evidence under duress at the hands of the police and in violation of her defence rights had been duly examined by the domestic courts and dismissed as unsubstantiated. 96. The Government concluded that the applicant’s complaint about the initial lack of legal assistance was to be rejected as manifestly ill-founded and that there had been no violation of the Convention in respect of her complaint about her self-incrimination under duress. B. The Court’s assessment
1. Admissibility
97. The Court finds that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. 2. Merits
(a) General principles
98. The Court has consistently viewed early access to a lawyer as a procedural guarantee of the privilege against self-incrimination and a fundamental safeguard against ill-treatment, noting the particular vulnerability of an accused in the early stages of proceedings, when he is confronted with both the stress of the situation and the increasingly complex criminal legislation involved. Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies (see Salduz v. Turkey [GC], no. 36391/02, § 54, ECHR 2008). 99. As a rule, access to a lawyer should be provided from the very first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of a case that there are compelling reasons to restrict this right. The right to defence will in principle be irretrievably prejudiced when incriminating statements are made during police interrogation (see Salduz, cited above, § 55). 100. As clarified by the Court in the judgment of Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, § 257, ECHR 2016), in applying the Salduz test the Court must first assess whether there were compelling reasons for the restriction of access to a lawyer. In the second stage, it must evaluate the prejudice caused to the rights of the defence by the restriction in the case in question. Where compelling reasons are 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 (ibid., § 264). Where there are no compelling reasons for restricting access to legal advice, the Court must apply a very strict scrutiny to its fairness assessment, with the onus shifting to 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 (ibid., § 265). 101. When examining the proceedings as a whole in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings, the following non-exhaustive list of factors, drawn from the Court’s case‐law, should, where appropriate, be taken into account:
(a) Whether the applicant was particularly vulnerable, for example, by reason of his age or mental capacity. (b) The legal framework governing the pre-trial proceedings and the admissibility of evidence at trial, and whether it was complied with; where an exclusionary rule applied, it is particularly unlikely that the proceedings as a whole would be considered unfair. (c) Whether the applicant had the opportunity to challenge the authenticity of the evidence and oppose its use. (d) The quality of the evidence and whether the circumstances in which it was obtained cast doubt on its reliability or accuracy, taking into account the degree and nature of any compulsion. (e) Where evidence was obtained unlawfully, the unlawfulness in question and, where it stems from a violation of another Convention Article, the nature of the violation found. (f) In the case of a statement, the nature of the statement and whether it was promptly retracted or modified. (g) The use to which the evidence was put, and in particular whether the evidence formed an integral or significant part of the probative evidence upon which the conviction was based, and the strength of the other evidence in the case. (h) Whether the assessment of guilt was performed by professional judges or lay jurors, and in the case of the latter the content of any jury directions. (i) The weight of the public interest in the investigation and punishment of the particular offence in issue. (j) Other relevant procedural safeguards afforded by domestic law and practice (see Ibrahim and Others, cited above, § 274). 102. Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. That also applies to the right to legal assistance. However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. Such a waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. Moreover, the waiver must not run counter to any important public interest (see Simeonovi v. Bulgaria [GC], no. 21980/04, § 115, CEDH 2017 (extracts), with further reference). (b) Application of the above principles to the present case
103. The Court observes that, as can be seen from the available evidence, on 14 November 2004 the police had information about the applicant’s involvement in a theft. It was with a view to verifying that information that they apprehended the applicant on that date and took her to the police station (see paragraphs 6–9 above). Thus, by virtue of the Court’s case-law principles, the applicant was entitled to be assisted by a lawyer from the time that she was first questioned by the police. However, there is no indication that until her questioning by the investigator on the evening of that date she was in any form or manner informed of her right to legal assistance. In the meantime, she drafted “statements of surrender and confession” to the police (in which she confessed to several counts of theft), and certain “explanations” were taken from her with respect to those statements (see paragraph 12 above). 104. The Court takes note of the Government’s argument that the applicant, having waived her right to a lawyer, maintained her confessions during her first official questioning as a criminal suspect on 14 November 2004 (see paragraph 14 above) and during the reconstructions of the crime on 17 and 23 November 2004 (see paragraphs 18 and 26 above). It is noteworthy, however, that her original confessions formed part of the case file. It thus affected the investigation strategy and set the framework within which the applicant’s further defence had to be mounted. 105. Furthermore, on the basis of the case file, the Court is not ready to find beyond reasonable doubt that the applicant’s waivers of her right to legal assistance were free and genuine. 106. Thus, given that the applicant was formally questioned by the investigator for the first time shortly after her alleged ill-treatment by the police, the Court does not consider it unlikely that, as suggested by the applicant, she was still suffering the effects of that ill-treatment. This could explain the fact that she waived her right to a lawyer and maintained her confessions on that day. 107. As regards the applicant waiving her right to a lawyer before the reconstruction of 17 November 2004, the Court observes that while the verbatim record of the reconstruction states that the applicant waived her right to legal assistance in the presence of a lawyer (see paragraph 17 above), there is no evidence to indicate that this was indeed the case and that any lawyer was actually present when the applicant waived that right. 108. Another relevant and important factor in these circumstances is the delay as regards the applicant’s access to V., the lawyer hired by the applicant’s mother to represent her. While the Government may be understood as blaming V. for not meeting the applicant (see paragraph 93 above), the evidence in the case file clearly suggests that since 16 November 2004 he had been trying to obtain access to the applicant on a daily basis. He was, however, prevented by the authorities from having a meeting with her until the main investigative steps (with her participation) had been taken and her self-incriminating statements had been made (see paragraphs 15, 20 and 22‐24 above). From the day of his appointment, V. raised a number of complaints with the prosecutor’s office regarding the breach of the applicant’s defence rights in this respect. The response of the prosecutor’s office to his complaints, although positive, was given no earlier than on 9 December 2004 (see paragraph 30 above), more than twenty days after the applicant’s first interrogation as a suspect. Moreover, even after this decision, on 17 and 23 December 2004, V. was denied meetings with the applicant (see paragraphs 31 and 33 above). 109. In view of the foregoing, the Court concludes that the applicant’s right to mount a defence was restricted in the present case. The Court does not discern from the material in the case file that there were any compelling reasons for such a restriction. 110. It remains for the Court to examine whether the fairness of the proceedings as a whole was prejudiced by the defence lawyer’s absence at the initial stage of the investigation. 111. In making this assessment the Court is guided by the Ibrahim criteria (see paragraph 101 above), to the extent that it is appropriate given the circumstances of the present case. Due to the lack of compelling reasons for restricting the applicant’s right to a lawyer, the Court will apply a very strict scrutiny, keeping in mind that is incumbent 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 (see paragraph 100 above). 112. Turning to those criteria, the Court will firstly list those factors which tend to argue in favour of considering the proceedings fair: (i) the applicant was not particularly vulnerable; (ii) the applicant had the opportunity to challenge the authenticity of the evidence and oppose its use; and (iii) the evidence in the case was assessed by professional judges (see paragraph 101 letters (a), (c) and (h) above). 113. However, other factors tend to militate in favour of the finding that the fairness of the proceedings was irretrievably prejudiced. 114. In this respect, the Court observes that when finding the applicant guilty and convicting her, the trial courts primarily relied on her “statements of surrender to the police”, on the self-incriminating statements she had made during her questioning as a suspect on 14 November 2004 and during the reconstructions of the crime, and on the material evidence adduced following the reconstruction of 17 November 2004 (see paragraphs 44 and 47 above). It is true that the courts viewed her statements in the light of other evidence before them. However, none of that evidence, including the confessions made by the applicant’s co-accused during the investigation stage, constituted direct evidence. 115. The Court recalls its finding of a violation of Article 3 of the Convention in respect of the applicant’s complaint of ill-treatment (see paragraphs 77 and 78 above). It therefore considers that the initial confessions that the applicant made to the police on 14 November 2004 in the absence of a lawyer cannot be regarded as having been given in a cognisant and voluntary manner. 116. Furthermore, during the reconstruction of 17 November 2004, in the lawyers’ absence, the applicant not only confirmed that she had participated in the cattle theft but also showed the crime scene to the police – specifically, the place where the stolen animals had been slaughtered by her. The immediate inspection of the place revealed two detached cattle heads and two respective identification tags which were used as evidence in the case (see paragraphs 17 and 18 above). The Court accepts that after the applicant became legally represented by a lawyer, it was open for her in principle to say – and she did so – that she had not committed the crime; however, it is difficult to see how it would be possible to effectively retract the statement concerning the place of the crime after remains of animals had actually been found and inspected by the police. The Court is thus of the opinion that the statements which the applicant made without a lawyer during the reconstruction on 17 November 2004 predetermined all the statements which she could make later in respect of that episode of theft. 117. In the light of the above, the Court is of the opinion that the evidence collected while the applicant was unassisted by a lawyer was not only obtained during the period in which the suspect had suffered a breach of the absolute right guaranteed by Article 3 of the Convention, but also formed an essential part of the probative evidence on which the conviction was based. Moreover, taking into account the degree and nature of the compulsion suffered by the applicant at the hands of the police, the circumstances in which the evidence was obtained cast doubt on its reliability and accuracy (see paragraph 101 letters (d), (e) and (g) above). 118. The Court further observes that shortly after the applicant was granted access to lawyer V., she retracted her self-incriminatory statements and opposed their use as evidence during the trial, claiming that they had been obtained under duress and in breach of her defence rights (see paragraphs 34 and 101 letter (f) above). The domestic courts, however, rejected the applicant’s arguments without establishing in a convincing manner that the applicant’s allegations had been ill-founded. 119. Likewise, the Supreme Court dealt with the applicant’s complaints in only a formalistic manner (see paragraph 49 above). 120. In the Court’s opinion, the above elements overweight those, mentioned in paragraph 112 above, which could militate in favour of considering the proceedings fair. 121. The Court thus concludes that the Government have failed to demonstrate convincingly why – exceptionally and in the specific circumstances of the case – the overall fairness of the applicant’s trial was not irretrievably prejudiced by the restriction, without compelling reasons, on the applicant’s access to legal advice during the initial stage of the criminal proceedings against her. 122. It follows that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
123. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
124. The applicant claimed 500,000 euros (EUR) in respect of non‐pecuniary damage. 125. The Government contested this claim as unsubstantiated and exorbitant. 126. The Court observes that it has found violations of Articles 3, and 6 §§ 1 and 3 (c) of the Convention in the present case. As regards the violation of this last provision, the Court cannot speculate as to the outcome of the proceedings against the applicant. The finding of a violation of Article 6 §§ 1 and 3 (c) in the present case does not imply that the applicant was wrongly convicted. The Court notes that Article 445 of the CCP and Section 10 of the Law on the Execution of Judgments of the European Court of Human Rights allow for the possibility of a reopening of proceedings and considers that the finding of a violation constitutes in itself sufficient just satisfaction (see Zakhshevskiy v. Ukraine, no. 7193/04, §§ 50-51 and 133, 17 March 2016). As regards the violation of Articles 3 of the Convention, ruling on an equitable basis, the Court awards the applicant EUR 4,500 in compensation for non-pecuniary damage. B. Costs and expenses
127. The applicant made no claim for costs and expenses. Accordingly, the Court makes no award. C. Default interest
128. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;

2. Holds that there has been a violation of Article 3 of the Convention under its substantive and procedural limbs;

3. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;

4. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Holds that the finding of a violation of Article 6 § 3 (c) of the Convention constitutes in itself sufficient just satisfaction for any non‐pecuniary damage sustained by the applicant in this regard;

6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 4 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea TamiettiFaris VehabovićDeputy RegistrarPresident