CASE OF MAKSIMENKO v. UKRAINE
Violation of Art. 6-3-c;Non-pecuniary damage - award
André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
6. The applicant was born in 1972 and is serving a sentence of life imprisonment in Temnivka Prison no. 100. 7. On 3 December 2001 the dead body of a Mr L. was found, with a blood-stained axe lying next to it. A criminal investigation was initiated in respect of a suspected premeditated murder. 8. From 14 January to 13 March 2002 the applicant underwent medical treatment for an unspecified psychiatric condition in the medical centre V. 9. On 19 July 2002 he was arrested in the framework of an unrelated murder investigation. 10. In March 2006 the applicant, who was at the time serving a fixed-term prison sentence for several counts of premeditated murder, made a confession, first to the prison administration and later to the investigation authorities, that on 3 December 2001 he had twice hit Mr L. on the head with the back of an axe without having the intention of killing him. 11. Free legal counsel was appointed for, and represented, the applicant during the pre-trial investigation and the proceedings before the first-instance court. 12. During the pre-trial investigation the applicant unsuccessfully requested the investigator to arrange for the translation into Russian of some materials in the case file which were in Ukrainian. 13. On 7 November 2006 the Kyiv Regional Court of Appeal (“the Kyiv Court”), sitting as a court of first instance, found the applicant guilty of premeditated murder committed repeatedly and sentenced him to life imprisonment. It noted that although the applicant had alleged that he had had no intention to kill, the fact that he had hit the victim with an axe on a vital part of his body twice and with considerable force, indicated the opposite. While taking into account the applicant’s voluntary confession, the Kyiv Court noted that it was the fourth murder he had committed and considered life imprisonment to be the appropriate penalty. At the applicant’s request, the proceedings before the Kyiv Court were held in Russian. 14. The applicant, who was no longer represented, lodged a cassation appeal in which he mentioned, inter alia, that he had no means to pay for legal assistance. 15. On 22 February 2007 the Supreme Court, following a hearing in which the applicant participated, upheld his conviction. 16. Under Article 115 § 2 (13), premeditated murder committed repeatedly (with some exceptions not applicable to the circumstances of the instant case) is punishable by imprisonment for a term of ten to fifteen years, or life imprisonment. 17. Article 45 § 1 provides that legal representation during an inquiry, a pre-trial investigation and a trial before a court of first instance is obligatory if, inter alia, a life sentence is a possible penalty. Under Article 45 § 2, the legal representation envisaged by Article 45 § 1 is obligatory in the proceedings before the appellate court if the appeal could potentially worsen the situation of the convicted (or acquitted) person. 18. According to Article 383 § 1, verdicts of appellate courts delivered at first instance may be reviewed under the cassation appeal procedure. 19. Pursuant to Article 398 § 2, a verdict delivered by an appellate court as a court of first instance may be quashed or modified on the grounds of partiality or incompleteness of the inquiry, pre-trial investigation or trial, or because the court’s conclusions in its