Two cans of diesel were found in his car and when questioned by the police he confessed to having stolen that diesel. Then, in the presence of two witnesses and without a lawyer, Mr Zaichenko signed a written statement attesting to his having stolen the diesel and to the fact that he was informed of the privilege against self-incrimination. In the later criminal investigations the applicant signed another confession stating that he indeed stole that diesel, that he had been informed of his rights and that he did not request legal assistance. However, in the subsequent trial for theft charges, he withdrew his pre-trial confession claiming that it was made under intimidation. Nonetheless Mr Zaichenko was convicted of theft, the court relying in particular on his pre-trial confession.

The ECHR found no violation of the applicant’s right to legal assistance, as guaranteed by article 6 (3) (c). In reaching this conclusion it took into consideration a number of circumstances of this case. First of all it took into account the fact that Mr Zaichenko chose not to exercise his right to legal representation during the road check and later during the pre-trial investigations. Secondly, the ECHR distinguished this case from other cases applying the Salduz jurisprudence by the fact that Mr Zaichenko was not formally arrested or interrogated in police custody but he was just stopped for a road check. Consequently Mr Zaichenko’s freedom of action was not sufficiently curtailed when he made the confession, if that would have been the case it could have been sufficient to activate the requirement for legal assistance. The ECHR also pointed out that the confession made during the road check was only used to open a criminal case against Mr Zaichenko. It also stressed out that after a criminal case was opened, Mr Zaichenko again confessed to theft and waived his right to legal assistance. With respect to Mr Zaichenko’s waiver of the privilege against self-incrimination the ECHR was not convinced of its validity. The ECHR further pointed out that this breach of due process at the pre-trial stage was not remedied at the trial and that the conviction was based on Mr Zaichenko’s self-incriminating statements. These facts lead the ECHR to find a violation of article 6 (1).