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History of the Casa
The Renaissance Period was actually a cultural movement which started in Tuscany and was centred on Florence, to the north of Rome. It began in the 14th century and lasted through to the 17th century. During the early part of this period, in the 1500’s, it is local folklore that the Casa – only recently named Casa Bella Vista – may have been the site of a military look-out tower.
If so, it would have comprised a single storey of probably 2 rooms and housing 2 local men (possibly part-time soldiers) to keep lookout for invaders and local brigands and to light a beacon fire to warn the inhabitants of local villages and towns nearby, of approaching strangers. The lit beacon was also to warn the next lookout tower in the chain and whose soldiers would likewise light their beacon to pass on the warning of approaching attackers to the local garrison who, if inclined and if they had been paid that week, would turn out to repel such attacks.
In view of its commanding open position on the hilltop it seems that a lookout tower may well have been part of the history of the original building on the site of the present Casa.
In 1604 a local farmer named ‘MA’ (probably M. Arcari) converted the previous building into a simple dwelling and farm. Another storey was likely added at the time, to make it 2 storeys high – usually with the animals living below and with the family’s one room above – for warmth from the animals in the winter.
The forests on the hillsides around Immoglie have been used for centuries for hunting wild boar and deer and for gathering mushrooms, truffles and wild asparagus. The forests also supplied trees for house construction but mainly for firewood. The farm and its land supported animal farming, with goats, sheep and some cattle. All were kept for milk for making pecorino – cheese from sheep’s milk such as ricotta and sardo; and for making caprino – cheese from goat’s milk. There are over 100 types of goat cheeses, the two major types of caprino being ‘fresco’ (fresh) and ‘stagipnato’ (aged). The animals, including pigs, chickens and rabbits, were also kept for meat. This way of life in the mountains with the farmstead, animals, fruit orchards, vineyards, olive groves and some food crops quietly continued unchanged for many centuries.
Back in these times a rich mozzarella cheese was also produced in the area. This was made from the milk of the domestic water buffalo – rather than from cow’s milk – hence the name ‘buffalo mozzarella’. So the cattle farmed here probably also included some water buffalo for their prized nutritious milk.
In these mountain areas, water buffalo are still reared today to provide valuable farm income from this centuries-old tradition of buffalo mozzarella cheese production.
Down in the valley alongside the river for irrigation, crops were grown – probably cannellini beans, corn and wheat. On the hill slopes, large numbers of vines were cultivated for wine, also fruit trees of fig, sharon (also known as kaki but in the UK called persimmon), pear, apple and cherry. Olive trees are the world’s oldest cultivated trees and were wide-spread throughout the area. Together with grape vines, cultivated olive trees have covered the local hillsides for hundreds of years and continue to be a regular source of income for many.
Today olive groves are still in abundance across the region and are still carefully tended for their virgin olive oil, cold pressed at the local community press or ‘oleificio’ (oil mill), from the olive fruit when ripe in late November and December.
The farmhouse was extended over the centuries with extra rooms, extra storeys, an annex cottage (ruined and now demolished) and farm buildings, which were added in 1777 with an arched walled courtyard and a 2 storey barn constructed – now converted to a 3 storey holiday home not owned by us but presently falling into disrepair.
The family of Arcari – builders of the original Casa and farm – can trace their ownership and ancestry at this same farmhouse, continuously for over 350 years from the early 1600’s until the early 1950’s. During this time the house had always been the family centre of this small farmstead but over time it has also been put to other local good uses including a single classroom school in the between-war years of the 1920’s and 30’s.
For lunch children enjoyed home-made pizzas cooked over wood in an old brick-lined oven in an outside store – only removed in 2007 during renovations as the pizza oven had been unused for many decades. The oven had crumbled and was beyond repair.
During the centuries of its history there have been many wars, plagues, natural disasters and difficult economic times here in the Val di Comino, but the Arcari owners of the Casa had always ‘soldiered on’ and maintained their continual presence in the area and at this same farmstead for over 350 years.
The plague of 1629-31 devastated Europe with Northern Italy particularly hard hit. In the North there were 1/4 million deaths. Some 60,000 people died in Milan alone, which decimated the population there by a half. In the East of Italy in Venice there were 46,000 deaths – at the time this was nearly 1/3 of the total Venetian population.
The infected were isolated, quarantined and then buried on an island in the lagoon. The island is called Lazzaretto Vecchio. The death toll was enormous. For example on the 9 November 1630, 595 people died in Venice – on one day alone. This huge number of daily fatalities greatly affected the city. Even the ruler of Venice – called the Doge – Nicolo Contarini died of the plague, leaving the new Doge, Francesco Erizzo to rule the Venetian empire in his place.
The central and southern regions of Italy were largely unaffected until the bubonic form of the plague arrived 25 years later in 1656-7. This resurgence of the plague was in the areas around Rome and Naples. In just one year, 1/2 of the 300,000 population of the city of Naples had died. Today (2015) the City of Naples has a population of almost 1 million and the Metropolitan City of Naples – in Italian ‘Città metropolitana di Napoli’ (with a total of 92 Municipalities – council districts) has a population of over 3 million. During World War II, Naples was the most bombed City in Europe.
In the 16 years from 1898 to 1914 nearly 750,000 Italians each year emigrated. It is thought that this is the largest mass migration in contemporary times (to 2015) and has led to around 25 million Italians emigrating to various countries abroad. In the Val di Comino area many locals were evacuated during the Second World War and never returned or in the hard economic times following the war, left the countryside for work in the industrial towns and cities at the coast. Huge numbers emigrated in search of a better life abroad and away from the harsh rural life in the mountains and countryside, so continuing the mass emigration started towards the end of the 1800’s.
The Farm and Land
The Farm and Land were rented out for a short time after the Second World War. Descendents of the original Italian Arcaris – but born and living in Wales UK – have been traced and have had an emotional reunion with their ancestral home in the summer of 2009, during a holiday at the Casa to coincide with the 100 year anniversary and the re-building and re-dedification of the family cappella or chapel just across the road from the Casa.
The coincidence of events leading to this reunion and the re-building of the cappella, is an amazing story in itself and told in the section ‘Family home re-discovered’ in our information folder at the apartment.
In the early 1950’s – after being in the Arcari family for at least 350 years – the complete farm with cottages, barns and land were sold by the Arcaris to the Valente family from nearby San Biagio Saracinisco and their new ownership then continued unbroken for another 50 years.
After an earthquake in 1905 the house was strengthened with extra walls and by the best known method available at the time – by inserting iron tie rods through the building in several directions and in a number of walls. End tie bars (sometimes round discs) and iron wedges were used to tighten the rods and hold the old stone walls together. These tie bars in the old farmhouse, can still be seen today over 100 years later.
This protection held good for almost 80 years until a big earthquake of magnitude 5.9 in May 1984, with an epicentre 10kms deep under the mountains above San Donato Val di Comino – quite some distance away.
This 1984 quake caused quite some damage to property in the area including some damage to the Casa (though not a great deal) but this signalled the opportunity to ‘grab the grants’ and to carry out even more major structural improvements using aid money from the central Italian government.
As part of the government aid scheme, the Casa benefited from a ‘belt and braces’ structural job of all new reinforced concrete floors and ceilings throughout; both external and internal steel mesh reinforcement affixed to walls with hooked rods through the walls to connect the inside and outside mesh panels together; re-rendering of both inside and outside walls both to strengthen and to cover the mesh reinforcement; buttresses and strengthened walls with concrete underpinning; new lintels over windows; new roof of timbers and tiles; and other major structural improvements many of which it is doubtful were necessary but which brought the Casa up to the standards of present-day earthquake measures.
The house has now stood for over 4 centuries and through many major earthquakes. After each, more and better protection measures have then been installed right up to the best modern-day standards. For example, to comply with up-to-date building regulations, engineers designed an extension with the very latest reinforced foundations, walls and pillars using huge quantities of steel and concrete so that the new extension cost more for the foundations than for the building itself.
Having stood the test of time and nature catastrophes, the old farmhouse has had all the best improvements added, so that the Casa should be in great shape for another 400 years.
In keeping with Italian tradition, in the mid 1990’s on the death of the elderly Valentes, the farm and land were willed to be divided variously between 5 siblings. One brother was left the upstairs of the house whilst the downstairs was left to another brother living in France. Various land, barns and other ruins were willed to sisters. So the whole farm was unfortunately split, and with various owners living in other countries or towns away from the area, the house was not lived in, and fell into acute disrepair, requiring total modernisation and major refurbishment work including new utility services, drainage, plumbing, electrics, air conditioning, heating, tiling, windows and doors and all new kitchen and bathroom facilities. We were able to buy several parts of the old farm, land and buildings and put back together as much as we could of the old farmstead.
A sympathetic refurbishment gave the farmhouse the care and attention it deserved and careful renovations were carried out to retain many of the old features and the character of the old Casa – although the outside pizza oven was beyond repair unfortunately, so was removed in 2007, together with a ruined old 2 storey barn.
The Casa was fully converted into two separate, self-contained apartments and a new sitting room extension, balcony and garden store were carefully designed and added in 2008.
Long gone from the Casa are the animals and farming – indeed commercial farming across the whole area had declined and is now limited to cannellini bean crops, corn, vines for wine, olives for oil and of course grazing for sheep, goats and cattle, raised primarily for milk and cheese production but also for meat. However, many local small farms and gardens still produce excellent seasonal fruit and vegetables for local shops, for markets and for direct sales.
The name Casa Bella Vista was only coined in 2007 when we bought and renovated the old farmhouse.
One of our builders suggested ‘Casa Ventosa’ – Windy House – after the strong, winter winds blustering along the valley and through the mountains.
The heating contractor suggested ‘Casa Calda’ – Warm House – at the same time he was installing the many central heating and AC units – all in addition to fireplaces for log fires and a wood burning, tiled stufa – Italian stove – in our own apartment.
However, everyone who worked on, or visited the farmhouse commented on the amazing views and the stunning sunsets so it had to be Casa Bella Vista – House with the beautiful View.
So started another chapter in the long history of the house from military lookout post, to animal shelter, stable, shepherd hut, early dwelling, to small home and farm and now a 21st century holiday home bringing much needed revenue to this majestic, rural, mountain area.
But throughout the ages the few things remaining unchanged have been the peaceful rural setting, the quiet calm of the mountains and the ever-constant beauty of the scenery and the views.
After 4 centuries, only now is all of this available to everyone to share with us this unique setting, as our welcome guests at Casa Bella Vista.
Discover 'Casa Bella Vista'
A 400 year old farmhouse located in an outstanding rural Italian setting, on a hill-top above Immoglie and enjoying stunning views.

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Your family will love this easy chicken tortilla soup recipe! It’s chunky, hearty, and really easy to control the level of spiciness. This soup was a BIG hit with our family, so much so that I now make a double batch. Even the one year old and three […]
Holy Guacamole Batman! This guacamole bacon burger dip recipe will knock you out! It’s got seven flavorful layers of ground beef, guacamole, lettuce, cheese, tomatoes, onions and bacon. It’s also easy to make it dairy free for those of us who (sadly) have to stay […]
We love the unique flavor and rich broth of this Asian pork belly bean soup. In fact we love it so much, we decided to have Corban make a video about it. This Asian pork belly bean soup recipe was originally published in May of […]
If you’re wondering how to cook a turkey, you’ve come to the right place. While our cooking turkey in a bag method, passed down by my father, is tried and true, sometimes you want to step out of the box a little and try something […]
This homemade vegetable stock recipe just might blow your mind! (Today’s post is an update from the archives, originally posted in October of 2010.) When you’re on a tight budget, you’re always looking for ways to scrimp and save. One of the easiest ways to […]
Tired of boring ground beef recipes? This Thai ground beef recipe is a quick and easy dinner idea, and super kid friendly. It’s also gluten free and simple to make paleo. Plus learn how to make your own toasted rice powder!
I am finally able to start working a little bit of dairy back into my diet, a full year after having to stop eating dairy while breastfeeding. I still need to do small amounts (like a little milk in my tea, or one serving of […]

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New tax increment finance districts proposed to fund convention hotel, parking, development in Core to Shore in Oklahoma City.
Two new tax increment finance districts, one which could help finance a convention hotel and parking garage south of downtown, could become a reality later this year.
Cathy O’Connor, president of The Alliance for Economic Development of Oklahoma City, proposed the two districts as more than $1 billion in development is set to be built west and south of the Central Business District.
Tax increment financing, or TIF, districts are used across the country to assist in development, often in urban areas. A TIF district allows a city, town or county to dedicate increased tax revenues for the area — referred to as increment — toward improvements and projects in the district.
Downtown Oklahoma City already has two districts – one that is 15 years into a 25-year term and another started in 2009 with construction of Devon Energy Center with increment proceeds dedicated to the Project 180 makeover of downtown parks, streets and sidewalks.
Tuesday, the city council approved moving forward with efforts to create a “South Central Downtown TIF,” which would be bordered by E.K. Gaylord and Western avenues, Main Street and the future Crosstown Boulevard, and a “Core to Shore TIF” south of the boulevard, north of the Oklahoma River, east of Western Avenue and west of Lincoln Boulevard.
The proposed South Central Downtown TIF, O’Connor said, currently produces minimal tax revenues. But Houston-based developer Hines is set to build a 27-story tower and two garages along Sheridan Avenue between Hudson and Walker avenues. Hines is not asking for TIF assistance for the project. And while no cost estimate has been revealed by the developer, the size of the project would suggest it will exceed $250 million.
Clayco, which is seeking to develop two 25-story office towers and two 26-story residential towers south of the Hines’ projects, is expected to file a formal application for tax increment financing assistance for a development estimated at $554 million.
The city, meanwhile, recently issued a request for formal development proposals for a convention hotel, and various consultants have advised public assistance of at least $50 million will be necessary to make the project a reality.
“It is our hope in this area we will be able to use the entire 25-year horizon available for TIF to create revenue to support new convention center hotel and parking required for hotel and other development in the area,” O’Connor said.
The second proposed district would start south of the Myriad Gardens, where consultants on the Core to Shore plan have suggested the city should aspire to replace blight with a mix of offices, housing, hotels, retail and parking.
“We’re looking at increasing the density around the park and convention center considerably,” O’Connor said. “This is an area we’ve been working on many years and we’ve done several plans.”
Tuesday’s city council vote authorizes Mayor Mick Cornett to appoint committees for both proposed districts to come up with final proposals that would require yet another vote by the city council. O’Connor said she already has visited with affected taxing jurisdictions, including local schools, and they are supportive of the effort.
City Manager Jim Couch, meanwhile, reminded the council the original tax increment financing district is still set to expire in a decade, at which time schools, libraries, the county and the city-county health department would see a huge boost in proceeds as a result of downtown redevelopment.
Schools have already netted $12 million from the original downtown district, which allocates only 50 percent of increment growth to the district and distributes the rest to the taxing jurisdictions. The district also reserves proceeds for special projects for the jurisdictions within the area.
Examples of projects that received TIF assistance include sewer repairs at the Oklahoma County jail, development of the John W. Rex Elementary, and improvements to Emerson School.
CORRECTION: An earlier version of this article about the proposed creation of new tax increment financing districts should have reported schools have already netted $12 million from the original downtown tax increment finance district since inception. (The story has been corrected.)


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Luisa Glass Bracelet
This red and pink fused glass bracelet is a unique bracelet on a simple white plated chain. This is a versatile piece. It can be worn with a simple outfit for a touch of color, as well as with a more formal dress as a beautiful statement piece.
Coletta Collections Exclusive

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I like to play Call of Duty and The Elder Scrolls on PS3, im bad at arts, like really bad, my favourite band is linkin park, the concert of 26 of may of 2012 Rock in Rio in Lisbon was the best moment of my life, i went there with my brother, i also like Bon Jovi and Maroon 5, i play water polo and i im on the 8 year of school
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Mystery pictures of Royal Marines in Portsmouth, can you help? | Nostalgia
If anyone can date the picture or tell me the occasion I should be grateful. It may be a parade before the men went off to war, or one held on their return.
I do know that on January 25, 1927, Portsmouth gave a send-off to 1,000 marines selected for service in China. They embarked the troopship Minnesota which sailed the next day. Contingents of the Royal Army Service Corps also left Hilsea Barracks for the same destination.
The second picture is a painting captioned ‘Royal Marine Barracks, Portsmouth’. Geoffrey says it looks older than 1864 but can't be. Where this painting came from I do not know, not even the artist's name.
Corporation records for 1927 report: ‘After being stationed at Gosport for 77 years the Royal Marine Light Infantry returned to Portsmouth on August 1 and amalgamated with the Royal Marine Artillery at Eastney, the united corps being called Royal Marines.’


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Kiplinger's ranks the U.S. cities with the most millionaires based off an annual survey by research firm Phoenix Marketing International of wealthy residents in 942 urban areas.
Which U.S. cities are home to the most millionaires? The results may surprise you.
The departure lounge at Brussels Airport partially reopened Sunday for the first time since suicide bombers attacked on March 22, about six weeks ago.
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I’m so depressed by the lack of chocolate in my life that I currently struggle to stay awake. Fortunately, I have a trusty envelope of Easy Awesomeness, which I cracked open today and found this gem. I’ve also been mainlining “Gilmore Girls”, and the food onscreen has been making me hungry. So today, for the first time in living memory, I made French Toast.
I mixed 1/4th cup of milk with one egg in a bowl, soaked two slices of white bread in it, fried them in butter, then spread them with more butter*, and sprinkled the results with sugar.
I forgot to take a photo, but French Toast is one of the most buttery-summery-toastedy-looking dishes on earth. Play along at home rating: extremely easy and rewarding.
Here’s another fiesty figure of history – but be warned, I was too morose to sit at the computer long enough to read it, so I don’t know the rating.
A more detailed version of her exploits:
*and extra butter
Coming soon: Fly a kite. A better mood. Etc.
9 thoughts on “#35: Cook with butter”
I suggest the addition of a sprinkle of nutmeg in the egg mix….. It adds that extra something. And use raw sugar – the slightly molasses taste is wonderful.
Sounds good, Ann. I had a feeling a little bit of cinnamon might be a French toast thing. What do you think?
I dont like cinnamon so in my opinion its a no go, but for those out there who do, why not?
Ann: I think cinnamon and nutmeg are fairly similar. Well worth switching around in experiments.
I find them very different. I would add cinnamon to the sugar, but not the egg mix……
Ann: fair enough. I associate nutmeg with drinks (milkshakes etc) and cinnamon with cinnamon toast and/or pie.
Melt a good chunk of butter in a saucepan, add rice and stir it around until the butter has been absorbed. Add your favourite type of stock (fresh, cartoned or from powder – any will do). Boil it with the lid off until the liquid level is below the top of the rice, then take it off the heat, put the lid on and leave it for 5-10 mins.
If you want to make it healthier (and even tastier!) add garlic (and/or peas, diced carrot, shreds of cooked chicken, bacon, …) when you add the stock.
So damned delicious, and very inexpensive.
W: Thank you! I was thinking about your buttered rice only a few days ago. Is the rice cooked or still raw when you put it with the butter? Inquiring minds need to know!


Of course, we are always thinking about cost/value/likelihood we can upgrade the best content in the vertical—it is almost always the case that the low competition content, although lower benefit, also doesn’t need the same content quality the high competition terms do, so we can sometimes capture more benefit at a faster velocity by hitting those terms earlier.
Social media is one of the most popular free marketing tools around, and plays a role in driving traffic to your website. Use Facebook, Instagram, and LinkedIn to promote blog posts and other useful pages on your website. This way you can turn your social media audience into website visitors, and draw traffic from their networks if you post shareable content.
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I’d add one thing to number 5: Writing good copy is crucial not just for your Title/snippet, but for your whole page, especially your landing page. You want people to stay on your page for a while and (hopefully) even navigate to other pages you have. Google looks at bounce rate and where they go after they hit your page. Learning to write good copy can not only increase conversion (if you’re selling something) but make your content more impactful and engaging. There are free books at most libraries or online to help.
Meta tags. Meta tags still play a vital role in SEO. If you type any keyword into a search engine, you’ll see how that keyword is reflected in the title for that page. Google looks at your page title as a signal of relevance for that keyword. The same holds true for the description of that page. (Don't worry about the keyword title tag -- Google has publicly said that it doesn't pay attention to that tag, since it has been abused by webmasters and all those trying to rank for certain keywords.)
When referring to the homepage, a trailing slash after the hostname is optional since it leads to the same content ("https://example.com/" is the same as "https://example.com"). For the path and filename, a trailing slash would be seen as a different URL (signaling either a file or a directory), for example, "https://example.com/fish" is not the same as "https://example.com/fish/".
After you have identified your target keywords, you need to create a page targeting that keyword. This is known as SEO content. In many cases, it makes sense to publish a blog post targeting keywords. However, you need to make decisions based on the search intent. If your target keyword phrase is “buy black Nike shoes”, then it doesn’t make sense to create a long-form piece of content.
An SEO technique is considered white hat if it conforms to the search engines' guidelines and involves no deception. As the search engine guidelines are not written as a series of rules or commandments, this is an important distinction to note. White hat SEO is not just about following guidelines but is about ensuring that the content a search engine indexes and subsequently ranks is the same content a user will see. White hat advice is generally summed up as creating content for users, not for search engines, and then making that content easily accessible to the online "spider" algorithms, rather than attempting to trick the algorithm from its intended purpose. White hat SEO is in many ways similar to web development that promotes accessibility, although the two are not identical.
There are a number of ways to optimize your website for conversion—such as by including calls to action and lead capture forms in the right places, providing the information your visitors are seeking, and making navigation easy and intuitive. But the first step is to be attracting the right visitors to your site in the first place. Your goal when it comes to website traffic is to be driving more qualified visitors to your site. That is, those who are most likely to convert into leads and customers.
SEO is also about making your search engine result relevant to the user's search query so more people click the result when it is shown in search. In this process, snippets of text and meta data are optimized to ensure your snippet of information is appealing in the context of the search query to obtain a high CTR (click through rate) from search results.
Guest blogging is a great way to generate free traffic – all you have to invest is the time to write an article. Get in touch with the most popular blogs in your industry and ask if they’ll let you write a guest post. Most website owners will have no objections to having other people write free content for them. (ask Michael how I know…wink, wink) If you’re having trouble finding blogs to guest post on check out www.myblogguest.com – they have a full community of bloggers that are ready and waiting for your content.
Why? Today, we're faced with a plethora of disinformation and misinformation, crafted and concocted by clever minds looking more to extract money from you than help you to earn it. That latest "proven traffic system" that you just plopped down $997 for isn't going to bring you the results you expected. That new video series by the latest raving internet marketer on how you can drive "unlimited" traffic to your website? Nope. That isn't going to work either.
If you own, manage, monetize, or promote online content via Google Search, this guide is meant for you. You might be the owner of a growing and thriving business, the webmaster of a dozen sites, the SEO specialist in a Web agency or a DIY SEO ninja passionate about the mechanics of Search : this guide is meant for you. If you're interested in having a complete overview of the basics of SEO according to our best practices, you are indeed in the right place. This guide won't provide any secrets that'll automatically rank your site first in Google (sorry!), but following the best practices outlined below will hopefully make it easier for search engines to crawl, index and understand your content.
While short-tail keywords are often searched more frequently, it is more difficult to rank for them on search engines. Targeting long-tail keywords, on the other hand, gives you a better chance of ranking higher (even on the first page) for queries specific to your products and services—and higher ranking means more traffic. Plus, as search engines and voice-to-text capabilities advance, people are using more specific phrases to search online. There are many free tools available to help you find keywords to target, such as Answer the Public.
Thanks for sharing such quality content online. I really loved the way you have written this blog post. SEO is the most important factor if you want to increase your online network. SEO, not just only helps in getting more organic traffic via search engines but also builds a good brand authority online. I have learned a few new tips which I think can help me out improving my blog’s SEO score. Looking forward to more quality content in the future… 🙂
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The days when internet browsing was done exclusively on desktop PCs are long gone. Today, more people than ever before are using mobile devices to access the web, and if you force your visitors to pinch and scroll their way around your site, you’re basically telling them to go elsewhere. Ensure that your website is accessible and comfortably viewable across a range of devices, including smaller smartphones.
There were some great tips in this article. I notice that many people make the mistake of making too many distracting images in the header and the sidebar which can quickly turn people off content. I particularly dislike google ads anchored in the centre of a piece of text. I understand that people want to make a revenue for ads but there are right ways and wrong ways of going about this. The writing part of the content is the important part, why would you take a dump on it by pouring a load of conflicting media in the sides?


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Europejskiego Trybunału Praw Człowieka
z dnia 12 stycznia 2012 r.
CASE OF TRYMBACH v. UKRAINE
(Application no. 44385/02)
12 January 2012
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 Trymbach v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Dean Spielmann, President,
André Potocki, judges,
Mykhaylo Buromenskiy, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 6 December 2011,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 44385/02) 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 Viktor Alekseyevich Trymbach ("the applicant"), on 2 October 2002.
2. The applicant was represented by Mr Y.V. Fedorchuk, a lawyer practising in Dnipropetrovsk. The Ukrainian Government ("the Government") were represented by their Agent, Mr Y. Zaytsev, from the Ministry of Justice.
3. On 13 March 2006 the President of the Fifth Section decided to give notice of the application to the Government. On 26 January 2010 the Court invited the parties to submit further observations as regards the applicant's complaint under Article 6 concerning his right to defence. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). Due to the absence of a national Judge at the relevant time, Mr M. Buromenskiy was appointed to sit as ad hoc judge (Rule 29 § 1(b)).
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1954 and lives in Krivyy Rig.
5. In the early morning of 23 May 2000 the applicant noticed three people trying to dismantle an electricity sub-station not far from his farm. According to the applicant, he approached them with a gun and warned them, but they threatened him and fired at him, forcing him to use his shotgun against them in self-defence. As a result, all three of them died.
6. The same day criminal proceedings were instituted and the applicant was questioned by the police.
7. According to the applicant, the investigator told him that it would take a lot of time to fetch a lawyer and he therefore agreed to be without a lawyer since he wanted to help the investigation.
8. On 24 May 2000 the applicant was arrested on suspicion of murder.
9. According to the applicant, on 24 May 2000 the Prosecutor of Kherson Region gave an interview to a TV channel and informed the public that the applicant was guilty of murdering three people and that he would be punished with up to fifteen years' imprisonment. In the proceedings before the Court, the Government could not confirm or deny this.
10. On the same day several people were questioned about the circumstances of the case. One of them, fifteen-year-old Mr R., said that two or four years previously he had seen an object which resembled a rifle in the possession of Mr K., one of the victims. However, he could not describe it and did not know whether anyone in the village had seen a small-bore rifle recently.
11. On 27 May 2000 the applicant was questioned by an investigator. Before being questioned he was given a paper explaining his right to be represented and not to incriminate himself, with an explanation of the pertinent legal provisions of the Constitution and the Code of Criminal Procedure. He signed this paper and wrote that he would defend himself. According to the applicant, he wrote this at the request of the investigator.
12. On 6 June 2000 the lawyer chosen by the applicant entered the proceedings.
13. The same day the Hryvnia newspaper published an article entitled 'Volnaya Ukraina is bleeding' ('Bольная Украина истекает кровью') about the incident of 23 May 2000 and about problems with power cuts caused by the theft of electric power cables for scrap metal. The article described the applicant's version of events, in which he stated that the victims had been trying to steal metal parts from an electricity transformer and he had warned them and then fired at their motorcycle with his shotgun. They had fired back with a rifle and he had fired two shots in their direction. The article continued as follows:
"The investigation is not able to confirm that there was an EXCHANGE OF FIRE near the sub-station. The Prosecutor of Golopristansky District, Sergey Mikhalkov, stresses: 'Despite the efforts made, we did not find any spent cases from the sawn-off small-bore rifle. On the other hand, there were two unused cartridges. Searches in the houses of those killed produced no results either: neither ammunition packaging nor spare parts for the weapon have been found. The fingerprints did not stay on the rifle - it was raining, and the barrel was oiled. Incidentally, none of the acquaintances of the deceased ever saw the sawn-off rifle in their possession. Therefore, the criminal proceedings against Victor Trymbach were initiated not on account of his exceeding the limits of self-defence, but under Article 93 'd' of the C[riminal] C[ode]. Under this Article the sentence can be up to life imprisonment. In previous years a person could even risk execution (by shooting).'"
14. On 13 July 2000 the applicant was questioned in the presence of his lawyer and confirmed his version of events, which had been stated when he had previously been questioned.
15. On 9 September 2000 the applicant's lawyer lodged an application in which, among other things, he requested that a witness, K., be examined, and this request was granted.
16. According to the applicant, as the police were unable to prove his guilt they threatened to turn him into a drug addict. During the night of 30–31 October 2000 his cellmates, who were criminals collaborating with the police, tortured him physically and psychologically to extract a confession from him. They persuaded him to write a note to his friend and even assisted him in drafting it. The note read:
"Hello B.! I met P. and he told me that you were interested in my problems. Thank you for your man's attention. I will immediately answer your questions. I am sharing a cell with normal pals, the relations are normal. I know P. and trust him. As to what I said to the lawyer, it is my business. You should understand that I am accused under Article 93 and it is not a joke. Therefore I have to talk about prison pressure, but really everything is OK. P. advised me that before the court I should deny my testimony and say that they were killing (torturing) me here. That's it, thank you for your concern. Yours, Viktor."
17. On 2 November 2000 the applicant was transferred to a different cell.
18. On 3 November 2000 the applicant's lawyer complained to the prosecutor that the applicant had been ill-treated by his cellmates, who were forcing him to confess.
19. According to the report prepared by the prosecutor from the Kherson Regional Prosecutor's Office on 20 November 2000, on 3 November he proposed that the applicant undergo a medical examination in order to establish any signs of physical violence. The applicant refused and made a written statement in the presence of his lawyer that he had not been subjected to any physical violence.
20. On 22 November 2000 the Deputy Prosecutor of the Kherson Region informed the applicant's lawyer that his complaint that the applicant had been ill-treated had been checked and the account could not be confirmed.
21. On 27 November 2000 the Kherson Regional Prosecutor's Office charged the applicant with three murders and unlawful possession of weapons (additional proceedings concerning the latter offence were instituted on 20 November 2000). The indictment mentioned that relatives and friends of the victims, including those who had seen them just before they left to dismantle the sub-station, did not see and were not told about any weapon in the possession of the victims. Searches of the victims' homes produced no result either. The indictment also mentioned three anonymous witnesses questioned by the prosecution under assumed names: Mr Ivanov, Mr Petrov and Mr Sergeyev, who were detained in the same cell as the applicant and to whom he had apparently confessed that on 23 May 2000 he had intentionally killed three people as they were trying to steal electric cables from the local electricity sub-station which supplied electricity to his farm. The applicant alleged that he had acted in self-defence and that he was responding to gunshots fired at him. The investigation revealed no evidence to corroborate the applicant's allegations.
22. On 4 December 2000 Kherson Regional Court opened judicial proceedings.
23. On 15 February 2001 the applicant's lawyer lodged an application for the examination of the anonymous witnesses. This application was granted and during the proceedings the three anonymous witnesses were examined in the presence of the applicant's lawyer, while the applicant himself was removed from the courtroom. Later, one of the witnesses agreed to disclose his identity; he participated in the proceedings under his real name and was questioned in the presence of the applicant.
24. On 30 May 2001 Kherson Regional Court remitted the case for further investigation, to check the applicant's allegations that his cellmates had forced him to write a note and even assisted him in drafting it and to conduct a handwriting analysis of a correction on the draft note which had allegedly been made by Mr N. On 17 July 2001 the Supreme Court overruled the above decision, considering that the handwriting analysis could be conducted within the judicial proceedings and therefore that there was no need to return the case for investigation.
25. The above-mentioned analysis could not establish who had written the corrections on the draft note, whether it was Mr N., the applicant or someone else.
26. On 21 March 2002 the Kherson Regional Court of Appeal sentenced the applicant to fifteen years' imprisonment for multiple murder and unlawful possession of a weapon. The Court of Appeal based the applicant's conviction on the following: the rifle found near one of the deceased was not loaded, there were only two full cartridges near it and no empty cases; the police officer who arrived first at the scene of the crime testified that the rifle was clean, although everything around, including the hands of the deceased, was covered in oil; statements by the applicant's cellmates Mr N. and Mr Y,. who maintained that the applicant had told them that the rifle had been taken to the scene of the crime after the shooting; the statements of Mr and Mrs Shch., the applicant's neighbours, who stated that they had heard four shots, the forensic examination which concluded that the applicant had fired at the victims four times; all three victims were hit in the vital organs from a distance of ten to fifteen metres (the first two shots) and four metres (the last two shots) and not from the place indicated by the applicant, which was thirty-one metres away from the bodies; the fact that the applicant had cartridges loaded with salt but actually used cartridges loaded with lead shot; and the testimony of two witnesses about previous aggressive behaviour by the applicant.
27. The applicant appealed in cassation. He complained, inter alia, that the authorities had not made enough effort to bring to the court Mr R., who was outside the territory of Ukraine, and that witnesses who could have given positive character references for him had not been summoned to the court. He also complained that due to his lack of knowledge and experience the investigation had left him without a lawyer until 6 June 2000.
28. On 25 June 2002 the Supreme Court rejected the applicant's appeal against the judgment of 21 March 2002, finding no infringements of procedural or substantive law in the examination of the case. It noted in particular that Mr and Mrs Shch had only heard shots from a shotgun and not shots from a small-bore rifle, and they had confirmed this during the on-site reconstitution. The Supreme Court also observed that there had been no serious procedural violations that would require quashing of the judgment. It decided, however, to reduce the applicant's sentence to ten years' imprisonment, given that the victims had also been acting unlawfully.
29. On 31 August 2005 the President of Ukraine issued a decree granting amnesty to a number of convicted persons, including the applicant, whose sentence was reduced to eight years' imprisonment.
II. RELEVANT DOMESTIC LAW
A. Criminal Code (1960) (in force at the material time)
30. Under Article 93 of the Code, the murder of several people was punishable by imprisonment for eight to fifteen years or by a life sentence.
B. Code of Criminal Procedure (1960)
31. Article 46 of the CCP, as worded at the time of the initial stage of the investigation, provided that a suspect, accused or defendant was entitled to waive his or her right to defence counsel. Such a waiver was permissible only on the initiative of the suspect, accused or defendant himself or herself. A waiver was not permitted, inter alia, if the possible penalty was a life sentence.
32. According to paragraph 1 of Article 370, as worded at the time of the trial, substantial violations of the requirements of the criminal procedural legislation are considered to be those which have impeded or could have impeded the court in the complete and thorough examination of a case and in issuing a lawful, reasoned and just verdict. Paragraph 2 of this Article lists a violation of the right of an accused to defence among the substantial violations of the requirements of the criminal procedural legislation which warrant the quashing of a verdict in any event (that is, regardless of whether the requirements of paragraph 1 have been met).
I. ALLEGED VIOLATION OF ARTICLES 6 § 2 AND 13 OF THE CONVENTION
33. The applicant complained that the day after the incident the Regional Prosecutor had declared in a TV interview that the applicant was definitely guilty and had guaranteed that he would be sentenced to fifteen years' imprisonment. Furthermore, a local newspaper had published an article two weeks after the tragedy in which the prosecutor allegedly called him a serial killer who would be sentenced to life imprisonment. The applicant invoked Article 6 § 2 of the Convention, which reads:
"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."
34. The Court further considered that this complaint might raise an issue under Article 13, which read as follows:
"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."
35. The Government submitted an article, a copy of which was kept in the applicant's criminal case file and to which the applicant referred. They neither confirmed nor denied the existence of a TV interview with the Regional Prosecutor.
36. With respect to the article in question (see paragraph 13 above) the Government noted that it did not contain any reference to the applicant as a "serial killer" and the prosecutor had not said anything about the applicant's guilt.
37. The Government maintained that the applicant could institute defamation proceedings against the relevant prosecutors and media if he considered any statements to be defamatory. This was provided for by Article 7 of the Civil Code and this remedy was effective.
38. The applicant considered that the article in question contained a statement of his guilt and also reiterated that there had been a TV interview with the Regional Prosecutor. He further stated that he had no effective remedies as he had no press or TV set in his cell.
39. The Court reiterates that Article 6 § 2 requires that no representative of a State or a public authority should declare a person guilty of an offence before their guilt has been established by a "court" (see, among other authorities, Allenet de Ribemont v. France, 10 February 1995, §§ 35-36, Series A no. 308). Whether a statement by a public official is in breach of the principle of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made (see Daktaras v. Lithuania, no. 42095/98, § 43, ECHR 2000-X).
40. In the instant case the applicant alleged that there had been two statements that he was guilty made by the prosecutors through the media.
41. The Court will proceed first with the newspaper publication which is available to it. The Court notes that the prosecutor's statement, as quoted in the facts, does not appear to contain any statement of the applicant's guilt but explains why the criminal proceedings were initiated on a charge of murder rather than excessive self-defence. The Court considers that the quote from the prosecutor was couched in terms that cannot be characterised as a statement of the applicant's guilt and, therefore, that the statement by the prosecutor in his interview given to the newspaper did not breach the principle of the presumption of innocence.
42. As to the alleged TV interview with the Regional Prosecutor, the applicant gave no details as to what channel had broadcast it or what exactly had been said. Furthermore, in view of the applicant's own admission that he had had no access to television while in detention, the applicant's allegations appeared to be hearsay, without any reference to a source. Lastly, the applicant's interpretation of the above-mentioned newspaper article leaves doubts as to the applicant's accuracy in presenting the essence of the prosecutor's TV interview, even assuming that it actually took place. Therefore, this complaint by the applicant is unsubstantiated.
43. In the absence of any arguable claim under Article 6 § 2 of the Convention, the Court is not required to consider whether there were effective domestic remedies, as required by Article 13, in respect of the above complaint.
44. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF THE CONVENTION
45. The applicant complained under Article 6 § 1 that the trial proceedings against him had been too long and unfair and in particular that the courts, in violation of Article 6 § 3 (d), had based their findings, that he had planted the sawn-off rifle at the crime scene to pretend that there had been an exchange of fire, on the testimony of three anonymous witnesses, whom he personally had not been allowed to question at the hearing. He complained that the courts had not summoned witnesses in his defence.
46. The applicant also complained under Article 6 § 3 (b) and (c) of the Convention that at the initial stage of investigation he had not had a lawyer, although legal representation was obligatory under the domestic law. The Court considers that this complaint shall be examined under Article 6 § 3 (c), which is the relevant provision.
47. Article 6 provides, in so far as relevant, as follows:
"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time 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;
(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..."
1. Length of the proceedings
48. The applicant complained that the proceedings against him had been unreasonably long.
49. The Court notes that the impugned proceedings lasted from 23 May 2000 to 25 June 2002, that is two years, one month and two days. They included investigation and hearings at two levels of jurisdiction. In the Court's opinion, this period is not so excessive as to raise an arguable claim under Article 6 § 1 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention..
2. Right to summon witnesses
50. The Government noted that the three witnesses in question had agreed to testify in court only on condition that they were protected as witnesses. It was therefore decided that they would participate anonymously and under false names. The Government submitted records of the hearings, testifying that although the applicant and his relatives had been removed from the courtroom when the anonymous witnesses were questioned, the applicant's lawyer had been present and had been able to put any questions to them. Furthermore, one of the anonymous witnesses later agreed to reveal his identity and participated in the proceedings under his real name and in presence of the applicant. The Government noted that all witnesses had been questioned on an equal footing and the applications of the applicant's lawyer to question particular witnesses had been granted.
51. The applicant challenged the reliability of the anonymous witnesses, alleging that he knew their identity anyway and that they were all criminals who had collaborated with the police and who had testified against him at the request of the investigator. He also complained that Mr R., who had testified during the pre-trial investigation that he had seen a rifle in the possession of the victim, had not been summoned before the court, and that other witnesses for the defence had not been summoned either.
52. The Court reiterates that all the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence. As a general rule, paragraphs 1 and 3 (d) of Article 6 require that the defendant be given an adequate and proper opportunity to challenge and question witnesses against him, either when they make their statements or at a later stage (see Lüdi v. Switzerland, judgment of 15 June 1992, § 49, Series A no. 238). A conviction should not be based either solely or to a decisive extent on statements which the defence has not been able to challenge (see, mutatis mutandis, Doorson v. the Netherlands, 26 March 1996, § 76, Reports 1996–II).
53. Turning to the facts of the present case, it should be noted that the arrangements made by the domestic authorities to question the anonymous witnesses in court and with the direct involvement of the applicant's lawyer seems to be compatible with the requirements of Article 6 § 3 (d). Furthermore, one of the anonymous witnesses further agreed to reveal his identity, and participated in the proceedings under his real name and gave evidence in the applicant's presence. Therefore, it could not be said that the courts' findings in this part were based on the statements of witnesses whom the defence could not challenge. The Court concludes that this complaint of the applicant is manifestly ill-founded.
54. As to the witnesses who did not appear before the court, the applicant's allegations focus on the failure to summon Mr R., who had been questioned during the pre-trial investigation at the age of fifteen and who said that he had seen some object resembling a rifle in the possession of one of the deceased two or four years prior to the events but could not give any more details. As is apparent from the case file material, Mr R. could not be summoned because he was abroad. As to the other witnesses, the applicant did not specify why their appearance before the court was crucial for his case. In this connection the Court observes that the domestic courts are better placed to assess the evidence before them, that the applicant did not challenge the Government's contentions that all the requests of the defence to hear particular witnesses had been satisfied, and lastly, neither in his appeal to the Supreme Court nor in his application to this Court did the applicant substantiate his argument that the failure of the above-mentioned witnesses to appear had affected the fairness of the proceedings in their entirety.
55. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
3. Right to defence
56. The Court notes that the applicant's complaint about lack of legal assistance at the initial stage of investigation is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties' submissions
57. The applicant noted that he had agreed to be without a lawyer at the beginning of the investigation, because he wanted to help the investigation. However, legal representation was obligatory under the law, given the gravity of the charges against him. He maintained that because of the absence of a lawyer, the gathering of evidence at the initial stage had been unsatisfactory and had influenced the outcome of the proceedings.
58. The Government stated that the absence of a lawyer at the initial stage of the investigation did not affect the fairness of the proceedings. The applicant's statements during the investigation and trial had been the same whether the lawyer was present or not. The only issue that had to be decided was whether it was intentional killing or killing in self-defence, and the domestic authorities had proved that the applicant had intentionally killed three people, on the basis of material evidence and witness statements. Furthermore, the Supreme Court found no procedural violations which could call into question the first-instance court's findings as to the applicant's guilt in respect of the offences with which he had been charged. They concluded that the present case did not disclose any circumstance capable of giving rise to doubts as to the fairness of the proceedings as a whole.
2. The Court's assessment
(a) General principles
59. The Court reiterates that the requirements of paragraph 3 of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1 of that Article and thus they are to be examined together (see Van Geyseghem v. Belgium [GC], no. 26103/95, § 27, ECHR 1999–I). On the whole, the Court is called upon to examine whether proceedings in their entirety were fair (see Balliu v. Albania, no. 74727/01, § 25, 16 June 2005).
60. The Court emphasises that, although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of fair trial (see Krombach v. France, no. 29731/96, § 89, ECHR 2001–II). As a rule, access to a lawyer should be provided from the first time a suspect is questioned by the police, unless it can be demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right (see Salduz v. Turkey [GC], no. 36391/02, § 55, 27 November 2008). The right to defence will in principle be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer are used for a conviction (ibid).
61. Lastly, the Court reiterates that a waiver of a right guaranteed by the Convention - in so far as it is permissible - must not run counter to any important public interest, must be established in an unequivocal manner, and must be attended by minimum safeguards commensurate to the waiver's importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006–II).
(b) Application of the above principles to the present case
62. The Court notes that, at the time of the applicant's arrest, Ukrainian legislation provided for obligatory legal representation as early as at the inquiry stage and namely from the moment of the arrest if, inter alia, a possible penalty for the offence of which the person was suspected was life imprisonment (see paragraphs 30 and 31 above). Although the applicant was ultimately sentenced to ten years' imprisonment, the above rule on obligatory representation applied to him.
63. The Court further observes that the case file material it has in its possession contains a waiver of legal representation and in his submissions to this Court he confirmed that he agreed to be questioned without a lawyer on 23 May 2000 (see paragraph 7 above). On 27 May 2000, he further signed a paper describing in detail his procedural right to defence and signed it confirming that he read them and wished to represent himself (see paragraph 11 above).
64. Although the absence of a lawyer during the first two weeks of the investigation were clearly not in compliance with the requirements of the domestic law, the Court reiterates that while its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed the rights and freedoms protected by the Convention (see, among many other authorities, Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, § 45, and Streletz, Kessler and Krenz v. Germany [GC], no. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001-II). In the circumstances of the present case, the violation of the procedural requirement as to the applicant's representation does not appear to have had any bearing on the general fairness of the proceedings. There is no indication or allegation that the applicant made any statements against himself that he would later retract or change. It appears that the applicant consistently advanced his version of events (see paragraph 5 above), which did not change from the first time he was questioned to the submission made before this Court. His version had been overturned by the results of numerous forensic expert examinations and not through any illicit means or methods. Furthermore, in the appeal proceedings the applicant complained that his right to defence had been violated on the sole ground that he had to be legally represented under domestic law as the maximum possible punishment for the crime he had been charged with had been a life sentence. He did not advance any arguments and did not suggest the existence of any concrete prejudice caused by lack of lawyer during the initial stage of investigation. The higher courts did not find any such prejudice either. In particular, the Supreme Court established no procedural violations serious enough to necessitate a referral of the case for re-investigation or retrial (see paragraph 28 above).
65. The Court also considers that it was not suggested by the applicant that he had been forced to waive his right to legal representation or that he had not been aware that he was suspected, and eventually accused, of multiple murder which implied obligatory legal representation (see and compare Leonid Lazarenko v. Ukraine, no. 22313/04, § 42, 28 October 2010). According to the applicant's own submissions, he agreed to be without a lawyer since he wanted to help the investigation (see paragraphs 7 and 57 above). The Court, therefore, concludes that the waiver was a genuine one.
In these circumstances the Court concludes that there has been no violation of Article 6 § 1 taken together with Article 6 § 3 (c) of the Convention in the present case.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
66. The applicant complained under Article 2 of the Convention that the domestic authorities had disregarded his contention that he had acted in self–defence and was protecting his own life. Under Article 3 of the Convention, the applicant complained that he had been threatened and tortured by his cellmates, who were collaborating with the police and who were forcing him to confess.
67. The Court has examined the remainder of the applicant's complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
FOR THESE REASONS, THE COURT
1. Declares unanimously the complaint concerning the lack of legal assistance at the initial stage of the investigation admissible and the remainder of the application inadmissible;
2. Holds by four votes to three that there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention.
Done in English, and notified in writing on 12 January 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Spielmann, Power-Forde and Buromenskiy is annexed to this judgment.
JOINT DISSENTING OPINION OF JUDGES SPIELMANN, POWER-FORDE AND BUROMENSKIY
The lack of access to legal assistance during the first two weeks of the applicant's detention in custody, pending an investigation into serious criminal charges, is not in dispute. The majority finds no violation of Article 6 § 1 in conjunction with Article 6 § 3 (c) of the Convention. Its finding is based, essentially, upon the apparent absence of any concrete prejudice caused to the applicant by the lack of legal representation during this initial stage of investigation (§ 64). We consider that there has been a violation of the said provisions. Our reasoning is based upon what we deem to be well settled principles of this Court's jurisprudence.
Although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Salduz v Turkey, [GC] no. 36391/02, §54, 27 November 2008, § 51; Poitrimol v. France, 23 November 1993, § 34, Series A no. 277–A; and Demebukov v. Bulgaria, no. 68020/01, § 50, 28 February 2008). The Court has frequently repeated that in order to determine whether the aim of Article 6 - a fair trial - has been achieved, regard must be had to the entirety of the proceedings, including, the pre-trial proceedings (see Panovits v Cyprus, § 64, and Imbrioscia v Switzerland, no. 13972/88, § 38, 24 November 1993).
That the right of access to a lawyer is 'triggered' as from the first interrogation of a suspect by the police is also firmly established in the Court's case law (see Panovits, cited above, § 66, and Salduz, cited above, § 55). Indeed, the concept of fairness enshrined in Article 6 "requires that the accused be given the benefit of the assistance of a lawyer already at the initial stages of police interrogation" (see Panovits, cited above, § 66). This principle reflects the Court's recognition of the fact that evidence obtained during the investigation stage can determine the framework in which the offence charged will be considered at the trial (see Salduz, cited above, § 54). From the moment of arrest until the handing down of sentence, criminal proceedings form an organic and interconnected whole and an event that occurs at one stage may influence and, at times, determine what transpires at another. This 'holistic' approach to criminal proceedings is reflected in the Grand Chamber's finding in Salduz that neither the legal assistance provided subsequently nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during the time spent in police custody (Salduz, cited above, § 58). Consequently, the Court proceeded to find a violation of Article 6 in that case.
In the circumstances of the present case, we take the view that, firstly, the test adopted by the majority in § 64 of the judgment (namely, whether the lack of legal assistance had any bearing on the general fairness of the proceedings) is not the correct one. The correct test, in our view, is that Article 6 §1 requires, that as a rule, a suspect has a right of access to a lawyer from his or her first interrogation by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right (Salduz, cited above, §55). In other words, there is a presumption that a trial will be unfair unless access to a lawyer has been given from a suspect's initial interrogation by police. However, even proceeding upon the test used by the majority, we cannot share its view that the absence of legal assistance at the early stage of investigation appears to have had no bearing on the general fairness of the applicant's trial. One simply cannot speculate as to how that trial would have proceeded or how the defence would have been conducted had the applicant been given access to a lawyer at that initial stage of the proceedings.
We can accept, as does the majority, that in the present case the applicant did not retract any statements made during those early weeks in custody when questioned without the benefit of access to a lawyer. However, it does not follow that the lack of legal assistance at such a crucial stage in the criminal investigation had no bearing on the general fairness of the applicant's trial. To draw such a conclusion is to overlook the fact that access to a lawyer involves much more than advice in relation to the making of statements. The applicant complains that because of the absence of a lawyer the gathering of evidence in support of his defence was unsatisfactory. This submission appears to us to be entirely plausible. Legal assistance includes a whole panoply of services which are put at an accused person's disposal so that he can defend himself, effectively, in a criminal trial. As the Court has stated in Dayanan v Turkey, no. 7377/03, 13 October 2009:
Indeed, the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person's defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention.
None of the above was available to the applicant at the initial stage of the criminal investigation and thus we are not convinced that his criminal trial was 'fair' within the meaning of Article 6.
The majority also rely on the fact that, notwithstanding the provisions of domestic law (which required obligatory legal representation in view of the gravity of the offence in issue) the applicant had waived his right to legal assistance. It concludes that this waiver was a genuine one (§ 64). The applicant, however, claims that, prior to the waiver, he was informed by the investigator that 'it would take a lot of time to fetch a lawyer' and that he agreed to forsake such assistance "since he wanted to help the investigation" (§ 7). The majority's conclusion as to the genuineness of the 'waiver' fails, in our view, to pay sufficient regard to the reality of the vulnerable position of an accused person at such a critical time. As the Court noted in Salduz and subsequently reiterated in Borotyuk c. Ukraine, no. 33579/04, 16 December 2010:
[A]n accused person often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence.
The Court has held that in most cases, this particular vulnerability could only be properly compensated for by the assistance of a lawyer (see Salduz, cited above, § 54). Given the gravity of the charges in question and the applicant's admitted desire to help the investigator, this, in our view, is such a case.
We consider that both the safeguards envisaged by the national legislation and the guarantee of fairness enshrined in Article 6 of the Convention required that the applicant should have had the benefit of access to a lawyer from his first interrogation as a suspect by the police. This is what the case law of the Court requires unless it is demonstrated, in the light of the particular circumstances of each case, that there are compelling reasons to restrict this right (see Salduz, cited above, § 55). We find no such reasons in this case.

domain: law


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The Red River flows through several urban areas along its path including Fargo-Moorhead and Greater Grand Forks in the United States and Winnipeg in Canada. The Red is about 885 kilometres (550 miles) long, of which about 635 kilometres (395 miles) are in the United States and about 255 kilometres (155 miles) are in Canada. The river falls 70 m (229.7 ft) on its trip to Lake Winnipeg where it spreads into the vast deltaic wetland known as Netley Marsh.
In the United States, the Red River is sometimes called the Red River of the North, to distinguish it from the Red River that is a tributary of the Mississippi River, and that forms part of the border between Texas and Oklahoma.
Long a highway for trade, the Red has been designated as a Canadian Heritage River.