Okay, I will provide you with a detailed description of the European Court of Human Rights decision in the case of Opalenko v. Ukraine.
1. **Essence of the Decision:**
The European Court of Human Rights (ECtHR) examined the case of Mr. Opalenko, who complained about violations of his rights during criminal proceedings for murder in Ukraine. He alleged that his right to a lawyer was breached at the beginning of the proceedings, a key witness was not re-examined during the final retrial, and the proceedings were excessively lengthy. The Court found no violation regarding the right to a lawyer, emphasizing that the domestic courts had sufficiently addressed the initial lack of legal assistance. However, the ECtHR did find a violation due to the excessive length of the proceedings, which lasted over seven years. The Court rejected his claims for pecuniary damage but awarded him EUR 900 for non-pecuniary damage.
2. **Structure and Main Provisions:**
The judgment begins with an introduction outlining the case’s subject matter, which includes complaints about the right to a lawyer, the examination of witnesses, and the length of proceedings. It then presents the facts, detailing the applicant’s arrest, initial confession, retraction of confession, and the various stages of the trial and retrials. The judgment refers to the relevant legal framework, including articles of the Ukrainian Code of Criminal Procedure. The Court then assesses the alleged violations of Article 6 of the Convention, specifically focusing on the right to a fair trial, the right to legal assistance, and the right to examine witnesses. The Court’s assessment includes admissibility and merits considerations, referencing relevant case law to establish principles for evaluating the fairness of proceedings when access to a lawyer is restricted. Finally, the judgment addresses the application of Article 41 regarding just satisfaction, awarding damages for non-pecuniary loss due to the excessive length of proceedings but rejecting claims for pecuniary damage and costs. A partly dissenting opinion by Judge Serghides is annexed, expressing disagreement with the Court’s findings on the violations of the right to a lawyer and the examination of witnesses.
3. **Main Provisions for Use:**
Several provisions of this decision are particularly important:
* **Right to a Lawyer:** The judgment reiterates the importance of access to a lawyer from the moment a person is taken into custody and the conditions under which this right may be temporarily restricted (“compelling reasons”).
* **Fairness Assessment:** The decision outlines the factors considered when assessing the overall fairness of criminal proceedings, especially when there has been a restriction on access to legal advice.
* **Length of Proceedings:** The judgment underscores that excessively lengthy proceedings can violate Article 6 § 1 of the Convention, particularly when the case is relatively simple and involves repeated re-examination.
* **Remedying Defects:** The decision clarifies that domestic courts must sufficiently remedy defects, such as the initial lack of legal assistance, to ensure the overall fairness of the trial.
* **Evidential Scrutiny:** The ECtHR emphasized that it is not its function to deal with errors of fact or of law allegedly committed by a domestic court unless and in so far as they may have infringed rights and freedoms protected by the Convention.
**** This decision is related to Ukraine, so it can be used in cases related to Ukraine.
