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FIFTH
SECTION
CASE OF
YAREMENKO v. UKRAINE
(Application
no. 32092/02)
JUDGMENT
STRASBOURG
12 June
2008
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 Yaremenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Rait
Maruste,
Karel
Jungwiert,
Volodymyr
Butkevych,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and
Claudia Westerdiek, Section
Registrar.
Having
deliberated in private on 13 November 2007 and on 20 May 2008,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 32092/02) 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 Oleksandr
Volodymyrovych Yaremenko (“the applicant”), on 13 August
2002.
-
The Ukrainian Government (“the Government”) were
represented by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev, of
the Ministry of Justice.
- The
applicant alleged that he had been subjected to ill-treatment in
police custody and that his complaints about this had not been given
due consideration. He further complained that he had been deprived of
legal assistance of his own choosing during part of the proceedings
and that the above violations had resulted in an unfair trial.
- By
a decision of 13 November 2007, the Court declared the application
admissible.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1976 and is currently
imprisoned in the city of Zhytomyr, Ukraine.
A. Criminal proceedings against the applicant
- On
27 January 2001 the applicant was arrested on suspicion of murdering
a taxi driver, M., and of several other crimes committed in 2001
(“the 2001 crimes”) and was placed in a cell at the Kyiv
Kharkivsky District Police Department.
- The
same day the applicant requested Mr O. Kh. as his lawyer in the case.
This was allowed and the lawyer attended the initial questioning of
the applicant.
- On
28 January 2001 the applicant was questioned in the presence of his
lawyer by Mr G., an investigating prosecutor at the Kyiv Kharkivsky
District Prosecutor’s Office (“the Kharkivsky
Prosecutor’s Office”).
- On
1 February 2001 Mr M., a police officer at the Kyiv Kharkivsky
District Police Department (“the police department”), who
was in charge of investigating the death of a taxi driver, Kh., in
the summer of 1998, questioned the applicant with a view to
establishing his possible involvement in that crime. The crime was
classified as infliction of grievous bodily harm causing death, for
which legal representation of a suspect was not obligatory. The
applicant signed a waiver of his right to counsel. The applicant was
then questioned and confessed that he and Mr S. had murdered Kh. in
the summer of 1998 (“the 1998 crime”). On the same day
that criminal case was transferred to the Kharkivsky Prosecutor’s
Office on the ground that the applicant’s actions could be
classified as murder and the investigation of such a crime was within
the competence of the prosecutor’s office.
- On
2 February 2001 the criminal cases in respect of the 1998 and 2001
crimes were joined.
- On
the same day, the applicant participated in a videotaped on-site
reconstruction of the 2001 crimes. According to the minutes of this
investigative action, which was attended by the applicant, his
lawyer, two attesting witnesses, investigating prosecutor G. and
police officer M., who had questioned the applicant on the previous
day, the applicant made statements concerning the circumstances of
the 2001 crimes, but denied his involvement in the 1998 crime.
- On
2 February 2001, after the reconstruction had been conducted, the
applicant signed a waiver in respect of his counsel, O. Kh., on the
ground that the latter had prevented him from confessing to the 1998
crime. According to the applicant, while the waiver bore the date of
2 February 2001 it had actually been signed on a later date
under coercion from the police officers and the case investigator.
- Following
the reconstruction of 2 February 2001, the applicant’s lawyer,
O. Kh., sought a meeting with the applicant. However, his oral
requests, as well as written requests of 6 and 7 February, were
rejected by investigating prosecutor G.
- On
7 February 2001 the applicant, who was represented by a
newly appointed counsel, K., participated in a videotaped
on-site reconstruction of the 1998 crime and confessed that he had
committed it with Mr S.
- On
8 February 2001 the lawyer O. Kh. complained to prosecutor V. that
investigating prosecutor G. had not replied to his request for a
medical examination of the applicant, would not permit him to visit
the applicant and had tried to force the applicant to request
replacement of his lawyer.
- On
9 February 2001 O. Kh. was informed that he had been removed from the
case and was furnished with the investigator’s decision to that
effect dated 2 February 2001. The decision stated, inter alia,
that the applicant had confessed to the 1998 crime but had later
asserted his innocence on the advice of O. Kh. The investigator had
therefore decided to remove O. Kh. from the case on the basis of
Articles 61 and 130 of the Code of Criminal Procedure.
- On
9 February 2001 the applicant, who was represented by yet another
lawyer, M., was officially charged with the 1998 and 2001 crimes,
served with the indictment and questioned as an accused.
- By
letter of 10 February 2001, prosecutor V. informed the lawyer O. Kh.
that his requests of 2, 6 and 7 February could not be met since he
had been removed from the applicant’s case.
- In
a complaint lodged on 12 February 2001 (see paragraph 36 below), the
applicant’s wife raised the issue, inter alia, of the
allegedly unlawful removal of O. Kh. from the case against her
husband.
- On
14 February O. Kh. complained to prosecutor V. about the decision to
remove him from the case, and asked him to quash that decision. In
his reply of 19 February 2001, prosecutor V. informed O. Kh. that his
removal from the case had been well-founded and was in accordance
with Article 61 of the Code of Criminal Procedure. He further noted
that the lawyer had breached professional ethics by advising his
client to assert his innocence and retract part of his previous
confession.
- In
his letter of 4 March 2001 to the General Prosecutor’s Office
(GPO) (see paragraph 39 below), the applicant complained that he had
signed the waiver in respect of O. Kh. under pressure from the police
officers and the case investigator.
- On
6 March 2001 O. Kh. complained to the Kyiv Prosecutor’s Office
about his removal. In its reply of 13 April 2001, the Kyiv
Prosecutor’s Office stated that the decision to remove the
lawyer had been well-founded and that, moreover, the criminal case
file contained the waiver in respect of the lawyer signed by the
applicant.
- On
10 March 2001 the applicant submitted a request to investigating
prosecutor G., asking that the lawyer M. be replaced by O. Kh., his
first lawyer in the case, as his defence counsel.
- On
24 April 2001 the Kharkivsky Prosecutor’s Office replied to the
applicant’s letter of 4 March 2001. It informed the applicant
that replacement of the lawyer had taken place at his request, that
lawyer O. Kh. was allowed to return to the case and that they had
found no violation of criminal procedural legislation in the
investigation of the criminal case against the applicant.
- On
27 May 2001 the applicant asked investigating prosecutor G. to
cross-examine him together with his co-accused S., since the
accusations against him had been mainly based on statements made by
Mr S.
- On
1 June 2001 investigating prosecutor G. replied that the
cross examination would be conducted after additional
questioning of S., in case any discrepancies emerged between the
testimonies of the applicant and Mr S.
- On
8 June 2001 the applicant was questioned in the presence of his first
lawyer O. Kh. He confirmed all the statements with regard to the 2001
crimes which he had made during the interview on 27 January 2001. He
also repeatedly claimed that he was innocent of the 1998 crime and
explained that he had been forced to confess to the latter crime by
officers from the police department.
- On
24 June 2001 investigating prosecutor G. informed the applicant that
his request for cross-examination had been rejected, since no
discrepancies had been found between the statements of the applicant
and S.
- On
the same date investigating prosecutor G. issued a new indictment,
which was served on the applicant on the following day.
- On
20 November 2001 the Kyiv Appellate Court, acting as a
first instance court, convicted the applicant and S. of the 1998
and 2001 crimes and sentenced them to life imprisonment. Three other
individuals were sentenced to between three and six years’
imprisonment. The court did not mention the fact of the lawyer’s
removal from the case in its judgment. The court also disregarded the
denials by the applicant and S. of their involvement in the 1998
crime on the ground that their confessions during pre-trial
investigation were detailed and consistent.
- On
18 April 2002 the Supreme Court of Ukraine upheld the
judgment of the appellate court. In reply to the applicant’s
complaint about a violation of his right to a defence, the Supreme
Court in its judgment of 18 April 2002 stated that it found
no evidence of a violation of the right to a defence or of any other
serious violation of criminal procedural law that could provide a
basis for quashing the judgment of the appellate court.
B. Allegations of ill-treatment and investigation into
them
- On
arrival at the Kharkivsky police station (according to the
Government, on 30 January 2001) the applicant was examined by a
paramedic who found him to be in good health.
- According
to the applicant, on 1 February 2001 he was beaten with truncheons on
wrists and shoulders by officers from the police department, who
forced him to sign a waiver of his right to counsel and to confess to
the 1998 crime, which he had not committed and about which he knew
nothing.
- On
2 February 2001 the applicant informed his lawyer O. Kh. about
the events of 1 February 2001. The lawyer advised the applicant to
assert his innocence and to complain about the ill-treatment. The
lawyer himself officially asked the authorities to conduct a medical
examination of the applicant. This request was handed to the
investigating prosecutor, G., who acknowledged its receipt by signing
a copy of the request. On an unknown date prosecutor G. replied to O.
Kh., stating that his request could not be granted since he had been
removed from the case (see paragraph 16 above).
- At
the end of the interview on 9 February 2001 (see paragraph 17 above)
investigating prosecutor G. asked the applicant whether he had any
bodily injuries; the applicant answered that at the moment he had
none.
- On
12 February 2001 the applicant’s wife, Mrs S., complained to
the Kyiv City Prosecutor’s Office (“the Kyiv Prosecutor’s
Office”) that investigating prosecutor G. of the Kharkivsky
Prosecutor’s Office and (unnamed) police officers of the police
department had ill-treated the applicant in order to extract
confessions with regard to the 1998 crime. She further wrote that,
during the investigative action of 2 February 2001, the applicant had
retracted his confession and that the lawyer O. Kh. had requested a
medical examination of the applicant. In addition, she complained
that investigating prosecutor G. had also been threatening her. On
14 February 2001 the Kyiv Prosecutor’s Office
transferred the request to the Kharkivsky Prosecutor’s Office.
- Meanwhile,
on 13 February 2001 the applicant was transferred to a pre trial
detention centre. On arrival the applicant was examined by a doctor
and was found to be in good health. The applicant made no complaints
of ill-treatment.
- On
28 February 2001 the head of the Kharkivsky Prosecutor’s
Office, prosecutor V., issued a decision refusing to institute
criminal proceedings in respect of the allegations that bodily harm
had been inflicted on the applicant. The prosecutor noted that the
applicant had denied any physical violence against him and that no
evidence of unlawful actions by the police officers had been found.
However, he did not refer to the applicant’s wife’s
allegations concerning his subordinate, investigating prosecutor G.
That decision was sent to Mrs S. on 2 March 2001 with a cover letter
saying that the applicant had denied any violence towards him.
- On
4 March 2001 the applicant wrote a complaint to the Prosecutor
General of Ukraine. In his complaint the applicant stated that on
28 January 2001 police officers had forced him to confess to the
1998 crime, which he had not committed, and that on 2 February
2001 he had been forced to sign a waiver in respect of his lawyer O.
Kh., and had been warned by investigating prosecutor G. and by the
officers from the police department that he would have problems if he
refused to cooperate. The applicant asked the GPO to ensure that his
case was given objective consideration and to reinstate O. Kh. as his
defence counsel. On 23 March 2001 the Kyiv Prosecutor’s Office
forwarded this complaint to the Kharkivsky Prosecutor’s Office.
On 26 March 2001 the complaint was transferred to investigating
prosecutor G. for examination in the context of the investigation
into the criminal case against the applicant.
- According
to the Government, the applicant did not provide the names of the
officers from the police department who had allegedly ill-treated him
until he was questioned on 8 June 2001.
- On
21, 23 and 24 June 2001 investigating prosecutor G. questioned three
police officers who had been named by the applicant. All three denied
any coercion or other unlawful actions on their part.
- In
its judgment of 20 November 2001, the Kyiv Court of Appeal
stated that the applicant’s retraction of his confessions and
his allegations of ill treatment had been examined and found to
be groundless. The court based its conclusion on the fact that the
applicant had not complained of ill-treatment during the
investigation, that the first complaint about ill-treatment had been
lodged by the applicant on 4 March 2001, more than two months after
his arrest, and that the police officers and the investigating
prosecutor had denied the applicant’s allegations of
ill-treatment. The court also noted that the applicant had been
informed of his right to have a lawyer.
- The
applicant raised the issue of coercion in his appeal to the Supreme
Court.
- In
its judgment of 18 April 2002 the Supreme Court stated that it found
no evidence that the applicant had been ill-treated.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of Ukraine
- The
relevant provisions of the Constitution read as follows:
Article 28
“Everyone has the right to respect for his or her
dignity.
No one shall be subjected to torture, cruel, inhuman or
degrading treatment or punishment that violates his or her
dignity...”
Article 59
“Everyone has the right to legal assistance. Such
assistance is provided free of charge in cases envisaged by law.
Everyone is free to choose the defender of his or her rights.
In Ukraine, the advocacy acts to ensure the right to a
defence against accusation, and to provide legal assistance in
deciding cases in courts and other state bodies.”
Article 63
“A person shall not bear responsibility for
refusing to testify or to explain anything about himself or herself,
members of his or her family or close relatives in the degree
determined by law.
A suspect, an accused or a defendant has the right to a
defence...”
B. Code of Criminal Procedure (“the CCP”)
(before 29 June 2001)
- Article 4
of the Code provides that the court, prosecutor or investigator
shall, within their competencies, institute criminal proceedings in
every case where signs of a crime have been discovered and take all
necessary measures provided by law to establish the commission of the
crime and identify and punish the offenders.
- Article 22
of the Code prohibits extracting confessions from an accused or any
other participant in the proceedings through violence, threats or
other illegal means.
- Article 28
of the Code provides that any person who sustains material damage
from a crime shall be entitled to lodge a civil claim against the
accused person or persons who bear material liability for the actions
of the accused.
- Article 46 of the CCP as worded at the material time
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 where the person concerned had not reached
the age of majority (18 years), had disabilities that prevented him
or her from defending his or her own interests, or had no command of
the language of the proceedings.
A
waiver was also not permitted if the possible penalty was capital
punishment (later, a life sentence) or if the proceedings concerned
coercive medical measures.
- The
last paragraph of Article 48 of the CCP provided that the
investigator, the prosecutor or the court could not issue a ruling
concerning the legal position of the lawyer in the case.
- Article
61 of the CCP as worded at the material time provided that an
individual could not act as defence counsel if he or she had
participated in the same criminal proceedings in another capacity, or
was a relative of the judge, civil party or victim, or was providing
legal assistance to another person whose interests conflicted with
those of the defendant, or had a relative who was participating in
the same criminal proceedings in his or her official capacity.
In
such cases the individual was to refuse the assignment or could be
removed from the case by decision of the investigator, prosecutor or
judge.
- Article
130 provided that the investigator could issue procedural rulings in
the case.
C. Resolution of 25 March 1988 by the Plenary of the
Supreme Court of Ukraine on the application by the Ukrainian courts
of the criminal procedural legislation regulating the remittal of
cases for further investigation, with further amendments (repealed on
11 February 2005)
- The
relevant part of the Resolution, in the wording of 4 June 1993, reads
as follows:
“7. ...Particular importance should be attached to
verification of claims alleging illegal methods of investigation and
other violations of legality that could lead to self-incrimination or
the making of other untrue statements.
If in the court hearing it is established that such
allegations by the accused are not groundless and the court is unable
to verify them, the case shall be returned for additional
investigation on the basis of bias, incompleteness or lack of
objectivity in the preliminary or pre-trial investigation, with an
indication that the claims should be examined by the prosecutor.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
A. Alleged ill-treatment in police custody
- The
applicant complained that he had been ill-treated in custody. He
relied on Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
1. The parties’ submissions
- The
Government maintained that there was no evidence in support of the
allegations of ill-treatment. The applicant had twice been examined
by a doctor during the period in question and participated in
video-recorded investigative actions together with witnesses and the
lawyer. He had failed to raise this complaint immediately after the
alleged events and had not done so until a month later. He had also
denied any ill-treatment when asked during questioning on 9 February
2001.
- The
applicant disagreed. He maintained that only a medical examination
immediately after the alleged ill-treatment could have proved his
allegations. The applicant’s lawyer O. Kh. had made such a
request on 2 February 2001, but it had been refused on the
ground that the lawyer had been removed from the case.
2. The Court’s assessment
- The
Court has observed on many occasions that Article 3 of the
Convention enshrines one of the fundamental values of democratic
societies and as such prohibits in absolute terms torture or inhuman
or degrading treatment or punishment (see, for example, Aksoy v.
Turkey, judgment of 18 December 1996, Reports of
Judgments and Decisions 1996-VI, p. 2278, § 62, and
Aydın v. Turkey, judgment of 25 September 1997, Reports
1997 VI, § 81). The Court further indicates, as it has
held on many occasions, that the authorities have an obligation to
protect the physical integrity of persons in detention and that in
assessing evidence it has generally applied the standard of proof
“beyond reasonable doubt” (see Ireland v. the United
Kingdom, judgment of 18 January 1978, Series A no. 25,
pp. 64-65, § 161). Such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact. Where the events in issue lie
wholly, or in large part, within the exclusive knowledge of the
authorities, as in the case of persons within their control in
custody, strong presumptions of fact will arise in respect of
injuries occurring during such detention.
- The
Court notes that the applicant alleged that he had been subjected to
ill-treatment while in police custody in the Kharkivsky District
Police Department. In support of these allegations, the applicant
submitted that the request of his lawyer for him to undergo a medical
examination had not been granted and he had been forced to waive his
right to the lawyer of his choice and obliged to incriminate himself.
- The
Court notes that no special medical examination was conducted in
respect of the ill-treatment allegations made by the applicant and
his lawyer. There is no evidence that the applicant was actually
ill-treated. The Court considers that the circumstances surrounding
the applicant’s detention in the Kharkivsky District Police
Department, in particular his abrupt retraction of the confession
immediately after arrival of his lawyer, evoke some suspicion of
physical or psychological pressure having been put on him at the
beginning of February, even though the medical examination of 13
February did not establish any signs of bodily harm. This medical
examination, however, unlike in the Altay case (see Altay v.
Turkey, no. 22279/93, §§ 13-14, 22 May 2001),
was not specifically designed to verify the allegations of
ill-treatment. It was a routine examination performed on arrival in a
penitentiary establishment. Moreover, it was conducted twelve days
after the alleged ill-treatment took place. In any event, the Court
considers that on the basis of the evidence, it could not be
established to the requisite standard of proof that the applicant was
ill-treated while in police custody in breach of Article 3 of the
Convention.
- The
Court accordingly finds no violation of Article 3 of the Convention
in this regard.
B. Adequacy of the investigation
1. The parties’ submissions
- The
applicant further complained under Article 3 of the Convention that
the State authorities had failed to undertake a thorough and
effective investigation into the complaints about his ill-treatment.
- The
Government raised a preliminary objection as to non-exhaustion of
domestic remedies concerning that complaint under Article 3 of
the Convention. They maintained that the applicant and his
representative had failed to challenge the decision of the prosecutor
refusing to institute criminal proceedings within the seven days
provided for by law and that, therefore, the applicant had not
exhausted the remedies available to him under domestic law as
required by Article 35 § 1 of the Convention. The Government
also submitted that the applicant’s first complaint had been
too vague and that he had not given the names of the police officers
who had allegedly ill-treated him until June 2001, more than four
months after the alleged events had taken place. Had the applicant
given the names earlier, the relevant authorities would have been in
a better position to investigate the allegations. The Government
maintained that the investigation conducted following the applicant’s
complaints had complied with the requirements of Article 3 of the
Convention.
- The
applicant maintained that he had done what he could in the
circumstances of the case to use the available remedies. Any
shortcomings in his exhaustion of the domestic remedies could be
explained by the deprivation of real legal assistance and other
intimidation by his alleged offenders. On 2 February 2001 the
applicant’s lawyer O. Kh. had requested a medical examination
of the applicant on account of his allegations of ill-treatment, but
this request had remained unanswered. He argued that following the
removal of his lawyer and further intimidation by the investigative
authorities he was afraid to complain about the ill-treatment and did
so only after he felt he was in relative safety. When he did complain
about ill-treatment in March 2001 the authorities had conducted an
investigation in the framework of the criminal proceedings against
him and therefore he had raised his complaints of ill treatment
before the trial court, which was competent to act on those
complaints. That practice was recommended by the Resolution of
25 March 1988 issued by the Plenary of the Supreme Court of
Ukraine (see paragraph 53 above).
2. The Court’s assessment
- The Court reiterates that where an individual raises
an arguable claim that he or she has been seriously ill-treated by
the police in breach of Article 3, that provision, read in
conjunction with the States’ 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 capable of leading to the identification and punishment
of those responsible (see Assenov and Others v. Turkey,
judgment of 28 October 1998, Reports 1998-VIII, p. 3290,
§ 102, and Labita v. Italy [GC], no. 26772/95, §
131, ECHR 2000-IV). The minimum standards as to effectiveness defined
by the Court’s case-law also include the requirements that the
investigation must be independent, impartial and subject to public
scrutiny, and that the competent authorities must act with exemplary
diligence and promptness (see, for example, Isayeva and Others v.
Russia, nos. 57947/00, 57948/00 and 57949/00, §§
208-13, 24 February 2005).
- The
Court notes that in the instant case, following the applicant’s
complaints to the General Prosecutor’s Office at the beginning
of March 2001 (see paragraph 39 above), the investigation into his
allegations was conducted in June 2001, when the alleged offenders
were questioned. However, no separate procedural decision was taken
and no appeal was possible. Hence, when the prosecutor decided to
conduct an investigation into the applicant’s allegations in
the framework of the criminal proceedings against him (see paragraph
39 above), the applicant had no other choice than to raise his
complaints about ill-treatment before the trial court.
- In
the Court’s opinion, it could therefore be said that the
applicant himself took sufficient steps to bring his complaints to
the attention of the relevant domestic authorities. Furthermore, they
were supplemented by the steps taken by his wife and the lawyer O.
Kh. (see paragraphs 34 and 36 above).
- As
concerns the adequacy of the investigation into the applicant’s
allegations of ill-treatment, the Court considers that it had serious
deficiencies. It notes in particular that no timely and specific
medical examination was conducted on the applicant, despite the
explicit request of his lawyer the day after the alleged
ill-treatment took place.
- The
Court recalls that following a complaint by the applicant’s
wife the prosecutor decided not to institute criminal proceedings in
respect of the above allegations. It does not appear that any
investigative actions were actually taken, given that neither the
applicant nor his wife was questioned. The prosecutor’s
decision of 28 February 2001 referred only to the fact that, during
questioning on 9 February, that is, prior to his wife’s
complaint of 12 February, the applicant had denied having any
injuries. Furthermore, none of the alleged perpetrators of the
offence were questioned at that time. In this connection the Court
cannot agree with the Government that the applicant’s wife, in
February 2001, and the applicant himself, in March 2001, provided
information of so general a nature that the identity of the alleged
perpetrators could not be established. In her complaint of
12 February the applicant’s wife referred to the
investigating prosecutor G. and unnamed officers of the Kharkivsky
District Police Department. In the Court’s opinion that
information would have been sufficient for an independent
investigator to identify those concerned, had the allegations of the
applicant’s ill-treatment been considered seriously.
- The
Court further notes that the investigation into the applicant’s
allegations lacked the requisite independence and objectivity. The
first questioning of the applicant about his alleged ill-treatment
was conducted by the investigating prosecutor G., whom the
applicant’s wife, in her complaint of 12 February, clearly
named among those who had coerced her husband. Moreover, in his
refusal to institute criminal proceedings following the complaint of
ill-treatment, prosecutor V., the head of the Kharkivsky District
Prosecutor’s Office, did not even mention prosecutor G.,
who was from the same District Prosecutor’s Office. What is
more, when the applicant provided the names of the other alleged
perpetrators from the Kharkivsky Police Department, they were
questioned by their alleged accomplice - investigating prosecutor G.
- In
the Court’s opinion, these facts provide sufficient basis for
it to conclude that the State authorities fell short of their
obligation to conduct an effective and independent investigation into
the allegations of ill-treatment as required by Article 3 of the
Convention. Accordingly, it dismisses the Government’s
preliminary objection and finds that there has been a violation of
Article 3 of the Convention in this respect.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant also complained that he had been forced to incriminate
himself and that, therefore, the trial against him had been unfair.
He relied on Article 6 § 1 of the Convention, which in so far as
relevant provides:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”
A. The parties’ submissions
- The
Government maintained that the Ukrainian legislation provided for the
rights of the suspect to keep silent and not to incriminate himself.
They further noted that the applicant had been informed of these
rights but had waived them and had voluntarily agreed to confess to
the crimes of which he was suspected. They reiterated that he had
raised the issue of coercion and claimed his innocence only at a
later stage and that his allegations of ill treatment had been
unfounded. Therefore, the Government could not be responsible for the
applicant’s free choice to confess.
- The
applicant disagreed. He said that as far back as 2 February 2001 he
had denied allegations of his involvement in the murder of 1998 and
had confessed to the 1998 crime and testified about it only briefly
and under coercion from the investigators.
B. The Court’s assessment
1. General principles
- The
Court reiterates that its duty, according to Article 19 of the
Convention, is to ensure the observance of the engagements undertaken
by the Contracting States to the Convention. In particular, it is not
its function to deal with errors of fact or of law allegedly
committed by a national court unless and in so far as they may have
infringed rights and freedoms protected by the Convention. While
Article 6 guarantees the right to a fair hearing, it does not lay
down any rules on the admissibility of evidence as such, which is
primarily a matter for regulation under national law (see Schenk
v. Switzerland, judgment of 12 July 1988, Series A
no. 140, p. 29, §§ 45-46, and Teixeira de
Castro v. Portugal, judgment of 9 June 1998,
Reports 1998-IV, p. 1462, § 34).
- It
is therefore not the role of the Court to determine, as a matter of
principle, whether particular types of evidence – for example,
evidence obtained unlawfully in terms of domestic law – may be
admissible or, indeed, whether the applicant was guilty or not. The
question which must be answered is whether the proceedings as a
whole, including the way in which the evidence was obtained, were
fair. This involves an examination of the “unlawfulness”
in question and, where violation of another Convention right is
concerned, the nature of the violation found (see, inter alia,
Khan v. the United Kingdom, no. 35394/97, § 34,
ECHR 2000-V; P.G. and J.H. v. the United Kingdom,
no. 44787/98, § 76, ECHR 2001-IX; and Allan
v. the United Kingdom, no. 48539/99, § 42,
ECHR 2002-IX).
- In
determining whether the proceedings as a whole were fair, regard must
also be had to whether the rights of the defence have been respected.
It must be examined in particular whether the applicant was
given the opportunity of challenging the authenticity of the evidence
and of opposing its use. In addition, the quality of the evidence
must be taken into consideration, including whether the circumstances
in which it was obtained cast doubts on its reliability or accuracy.
While no problem of fairness necessarily arises where the evidence
obtained was unsupported by other material, it may be noted that
where the evidence is very strong and there is no risk of its being
unreliable, the need for supporting evidence is correspondingly
weaker (see, inter alia, Khan, cited above, §§ 35,
37, and Allan, cited above, § 43).
- As
regards the use of evidence obtained in breach of the right to
silence and the privilege against self-incrimination, the Court
recalls that these are generally recognised international standards
which lie at the heart of the notion of a fair trial under Article 6.
Their rationale lies, inter alia, in the protection of
the accused against improper compulsion by the authorities, thereby
contributing to the avoidance of miscarriages of justice and to the
fulfilment of the aims of Article 6. The right not to
incriminate oneself, in particular, presupposes that the prosecution
in a criminal case seek to prove their case against the accused
without resort to evidence obtained through methods of coercion or
oppression in defiance of the will of the accused (see, inter
alia, Saunders v. the United Kingdom, judgment of
17 December 1996, Reports 1996-VI, p. 2064,
§ 68; Heaney and McGuinness, cited above, § 40;
J.B. v. Switzerland,
no. 31827/96, § 64, ECHR 2001-III; and Allan,
cited above, § 44).
2. Application of those principles to the present case
- Notwithstanding
the Government’s arguments that the applicant’s right to
silence was protected in domestic law, the Court notes that the
applicant’s lawyer was dismissed from the case by the
investigator after having advised his client to remain silent and not
to testify against himself. This reason was clearly indicated in the
investigator’s decision. It was also repeated twice in the
prosecutors’ replies to the lawyer O. Kh.’s complaints.
In one of those replies (dated 19 February) it was also noted that
the lawyer had breached professional ethics by advising his client to
claim his innocence and to retract part of his previous confession.
- Moreover,
the Court finds it remarkable that the applicant and Mr S, over two
years later, gave very detailed testimonies which according to
investigator contained no discrepancies or inconsistencies. This
degree of consistency between the testimonies of the applicant and
his co-accused raise suspicions that their accounts had been
carefully coordinated. The domestic courts however considered such
detailed testimonies as undeniable proof of their veracity and made
them the basis for the applicant’s conviction for the 1998
crime despite the fact that his testimony had been given in the
absence of a lawyer, had been retracted immediately after the
applicant was granted access to the lawyer of his choice, and had not
been supported by other materials. In those circumstances, there are
serious reasons to suggest that the statement signed by the applicant
was obtained in defiance of the applicant’s will.
- In
light of the above considerations and taking into account that there
was no adequate investigation into the allegations by the applicant
that the statement had been obtained by illicit means (see paragraphs
67-70), the Court finds its use at trial impinged on his right to
silence and privilege against self-incrimination.
- Accordingly,
in this respect there has been a violation of Article 6 § 1
of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 6 § 3 (c) OF THE
CONVENTION
- The
applicant complained that he had been deprived of legal assistance of
his own choosing during a crucial part of the proceedings, in
violation of Article 6 § 3 (c) of the Convention, which
provides:
“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. The parties’ submissions
- The
Government maintained that all the lawyers in the applicant’s
case had been appointed and removed on the basis of the applicant’s
requests. They noted that the lawyer O. Kh. had been admitted back to
the case at the applicant’s request. They underlined that the
applicant’s initial complaints about a violation of his right
to defence had been unclear and had been properly detailed only after
a significant lapse of time.
- The
applicant maintained that his lawyer O. Kh. had been removed from the
case unlawfully. He further maintained that two other lawyers who
represented him had been only notionally involved, since they had
seen the applicant just once each and only during questioning. He
further complained that he had signed the requests for removal and
appointment of lawyers under coercion. This was also borne out by the
fact that he had requested that his lawyer O. Kh. be put back on the
case as soon as he had been able.
B. The Court’s assessment
- The
Court reiterates 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 a fair trial (see Krombach v. France, no.
29731/96, § 89, ECHR 2001-II). Furthermore, Article 6 may also
be relevant before a case is sent for trial and in so far as the
fairness of the trial is likely to be seriously prejudiced by an
initial failure to comply with it (see Imbrioscia v. Switzerland,
judgment of 24 November 1993, Series A no. 275, p. 13, § 36, and
Öcalan v. Turkey [GC], no. 46221/99, § 131, ECHR
2005 ...). The manner in which Article 6 §§ 1 and 3
(c) are applied during the investigation depends on the special
features of the proceedings and the facts of the case. Article 6 will
normally require that the accused be allowed to benefit from the
assistance of a lawyer already at the initial stages of police
interrogation (see John Murray v. the United Kingdom, judgment
of 8 February 1996, Reports 1996 I, pp. 54-55, § 63,
and Öcalan, cited above, § 131).
- The
Court notes that in the instant case the applicant’s conviction
for the 1998 crime was based mainly on his confession, which was
obtained by the investigators in the absence of a lawyer and which
the applicant retracted the very next day and then from March 2001
on.
- The
Court further notes with concern the circumstances under which the
initial questioning of the applicant about the 1998 crime took place.
As can be seen from the relevant provisions of the Code of Criminal
Procedure cited in the Domestic Law part, there is a limited number
of situations in which the legal representation of the suspect is
obligatory. One of the grounds for obligatory representation is the
seriousness of the crime of which a person is suspected, and hence
the possibility of life imprisonment as a punishment. In the present
case the law-enforcement authorities, investigating the violent death
of a person, initiated criminal proceedings for infliction of
grievous bodily harm causing death rather than for murder. The former
was a less serious crime and therefore did not require the obligatory
legal representation of a suspect. Immediately after the confession
was obtained, the crime was reclassified as, and the applicant was
charged with, murder.
- The
Court is struck by the fact that, as a result of the procedure
adopted by the authorities, the applicant did not benefit from the
requirement of obligatory representation and was placed in a
situation in which, as he maintained, he was coerced into waiving his
right to counsel and incriminating himself. It may be recalled that
the applicant had a lawyer in the existing criminal proceedings, yet
waived his right to be represented during his questioning for another
offence. These circumstances give rise to strong suspicion as to the
existence of an ulterior purpose in the initial classification of the
offence. The fact that the applicant made confessions without a
lawyer being present and retracted them immediately in the lawyer’s
presence demonstrates the vulnerability of his position and the real
need for appropriate legal assistance, which he was effectively
denied on 1 February 2001 owing to the way in which the police
investigator exercised his discretionary power concerning the
classification of the investigated crime.
- As
to the removal of lawyer O. Kh. on 2 February 2001, the Government’s
argument that this was done solely at the applicant’s request
seems scarcely credible, since this was not mentioned in the removal
decision itself, and in the replies of the prosecutors it was
referred to as an additional ground for the lawyer’s removal.
- The
Court notes that the fact that two other lawyers who represented the
applicant saw him only once each, during questioning, and never
before the questioning took place seems to indicate the notional
nature of their services. It considers that the manner of and
reasoning for the lawyer’s removal from the case, as well as
the alleged lack of legal grounds for it, raise serious questions as
to the fairness of the proceedings in their entirety. The Court also
notes that the lawyer was allowed back onto the case in June 2001
without any indication that the alleged grounds for his removal had
ceased to exist.
- There
has therefore been a violation of Article 6 § 3 (c) of the
Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Dismisses the Government’s preliminary
objection;
- Holds that there has been no violation of
Article 3 of the Convention on account of the alleged
ill-treatment;
- Holds that there has been a violation of
Article 3 of the Convention on account of the failure of the
authorities to conduct an effective investigation into the
applicant’s allegations that he was ill-treated by the police
and prosecutors;
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- Holds that there has been a violation of
Article 6 § 3 (c) of the Convention;
Done in English, and notified in writing on 12 June 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
