CASE OF MAZUR v. UKRAINE
31 October 2019
This judgment is final but it may be subject to editorial revision.
In the case of Mazur v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
André Potocki, President,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 8 October 2019,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 59550/11) 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 Andriy Igorovych Mazur (“the applicant”), on 12 September 2011.
2. The applicant, who had been granted legal aid, was represented by Mr M. Tarakhkalo, Ms O. Chilutyan and Ms V. Lebid, lawyers practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.
3. On 19 April 2018 notice was given to the Government of the complaints under Article 3 of the Convention of ill-treatment of the applicant by the police as well as of the complaints under Article 6 of unfair criminal proceedings against him, and the remainder of the application was declared inadmissiblepursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1982 and lives in Tlumach.
A. The background to the case
5. On 2 November 2002 a minor girl, P., was found dead, with a number of bodily injuries, at a construction site in Tlumach, next to the bar where she had last been seen. On the same date a criminal investigation was instituted into her death. The applicant and his friends, who had been among the clientele of the bar, were questioned as witnesses at the time, but no further action was taken then in their respect. In August 2007 the investigative authorities looked into some operational information on the possible involvement of Tlumach residents in P.’s murder.
6. On 23 August 2007 D., a friend of the applicant, was placed in administrative detention for ten days for disobedience to the police. On 29 August 2007, during his administrative detention and in the absence of a lawyer, he made a “statement of voluntary surrender and confession to the police” and provided “explanations” in which he confessed to having witnessed the rape of P. by L., B., M. and the applicant. He also stated that it was L. who had murdered P. in order to cover up the sexual assault. He confirmed his confession during his questioning as a witness, in the course of a reconstruction of the crime, and during a face-to face confrontation with B., on 30 August, 1 and 2 September 2007 respectively. No lawyer was present during any of the above-mentioned investigative stages. Later on the applicant confirmed his testimony in the presence of a lawyer but eventually retracted his statements during trial as having been extracted by the police by means of ill-treatment and in the absence of a lawyer.
7. On 31 August 2007 B. was placed in administrative detention for seven days for disobedience to the police. On 2 September 2007, during his administrative detention, he was questioned on account of P.’s murder and confessed to having covered it up. On 3 September 2007 he made a statement of voluntary surrender and confession to the police in which he confessed to having raped P. and named L., D., M. and the applicant as his accomplices. On the following day, he confirmed his confession while being questioned as a witness and also in the course of a reconstruction of the crime, and provided additional details. No lawyer was present at any of the above-mentioned investigative stages. On 5 September 2007 B. retracted his self-incriminating statements and complained that the police had ill‑treated him in order to extract a confession, providing him with the details he had had to include in his confession.
8. On 3 September 2007 in order to verify D.’s confession, the regional police department seconded several police officers to Yalta, where the applicant was working at the time, and ordered them to bring him before the investigator in Ivano-Frankivsk.
B. The applicant’s detention from 4 to 7 September 2007, his alleged ill-treatment and the criminal proceedings against him
9. On 4 September 2007, at about 2 p.m., the police officers arrived at the applicant’s workplace in Yalta and took him to Ivano-Frankivsk. According to the applicant, he was de facto arrested in Yalta but the arrest was not recorded, he was not granted access to a lawyer and his relatives were not informed of his whereabouts.
10. On 6 September 2007, at the Ivano-Frankivsk Regional Police Department (“the Department”), the applicant made a statement of voluntary surrender and confession to the police in which he submitted, in particular, that in October 2002 he and his friends had been having a party at K.’s apartment; that one by one, L., D., M. and B. had had sexual relations with P. who had also been present; that the applicant had not had sex with P. as, at some point that night, she had refused to continue having sexual relations; that D. and L. had then gone to the bedroom where P. had been and when they had come back they had been arguing about who of the two of them had murdered P.; that his friends had then requested his help hiding the body but that he had refused and left. The handwritten text of the confession was followed by a statement, written in different handwriting, by which the applicant testified that everything set down in the document was correct and that no physical or psychological force had been used on him by the police.
11. According to the applicant, the police subjected him to ill-treatment in order to obtain the above confession. In particular, on the way from Yalta, a police officer hit him on his nose and demanded that he confess to P.’s murder. In the evening of 5 September 2007 they arrived first in Ivano‑Frankivsk but did not stay there before going on to the Tlumach police station. There, at an office on the second floor, he met the head of the criminal investigations unit and three police officers: G., Pav. and Gon. They accused him of the sexual assault and murder of P. and demanded his confession to those crimes, stating that his accomplices had been questioned and had implicated him. When the applicant refused to confess, the police officers started beating him about his head, kidneys and ears. During the beating they provided him with the details of the crime which he was supposed to state in his confession.He was also suffocated by means of a polyethylene bag. Then they handcuffed him to a radiator and left the room. Officer Gon. then returned and instructed a young officer to “practise on the applicant”. The applicant was beaten about his head with a plastic bottle filled with water until he lost consciousness. When he regained consciousness, he was vomiting. The officers again demanded that he confess and beat him when he refused. Officer Pav. threatened the applicant with a gun, saying that if he did not confess then he would shoot him and say that he had had to do so in order to try to prevent the applicant from escaping. The applicant spent that night handcuffed to a radiator in the investigation office of the Tlumach police station, without food or any opportunity to go to the toilet.
On 6 September 2007 the applicant was once again informed that his four acquaintances had implicated him in the crime. He was advised to testify, if he wished to avoid a life sentence, that he had witnessed, but not participated in, the crimes. He refused and was then taken to the Department, where he was beaten again and shown a copy of B.’s confession. Unable to bear the beating, he agreed to confess. Officer Got. came in and drafted the confession. The applicant signed it without reading it as he found the officer’s handwriting to be illegible and, in addition, his eye had been seriously damaged by the beating to the extent that he was no longer able to see. The officer read out the confession several times and demanded that he repeat it during all subsequent investigative actions if he wished to be allowed to return home. He spent that night handcuffed to a radiator in the Department and on the next day was taken before the investigator.
12. On 7 September 2007 the applicant, as a witness, confirmed his confession in detail when questioned by the investigator, and during a reconstruction of the crime and a face-to-face confrontation with K., the person who had rented the apartment in which P. had been murdered. No lawyer was present during those investigative steps. Officers G. and Pav. were present during the crime reconstruction. According to the applicant, he repeated his confession as the police officers had threatened further ill‑treatment and because he was physically exhausted, hungry and had a constant headache and nausea after the beatings. He wanted to go home. The applicant indicated that he was released at a time near midnight on that date.
13. On the morning of 8 September 2007 the applicant was admitted to the Tlumach hospital and remained there until 14 September 2007. He was diagnosed with a closed head injury in the form of a concussion and with a contusion to the soft tissues on his face.
14. On the same date, 8 September 2007, the applicant’s father, and on 10 September 2007 the applicant himself, complained to the Ivano‑Frankivsk prosecutor’s office of the unlawful detention of the applicant by the police between 4 and 7 September 2007 and of his ill‑treatment. In doing so, the applicant provided a detailed description of the treatment to which he had been subjected and retracted all statements he had made in police custody. The complaints were forwarded to the Tlumach prosecutor’s office for examination.
15. On 17 September 2007 the applicant was examined by a forensic medical expert. No copy of that expert’s report has been provided to the Court by the parties. According to the applicant, the report disappeared from the case file after the completion of the proceedings. The reason for the Government’s failure to provide the relevant document is unclear. The available material suggests that the expert diagnosed the applicant with a closed head injury in the form of a concussion and a contusion to the soft tissues on his face and a bruise around his right eye socket. The expert concluded that the injuries could have resulted from strikes to the applicant’s head by hard blunt objects, were “light” in their severity, and could have been sustained on the date indicated by the applicant.
16. On 15 October 2007, in reply to the complaint lodged by the applicant’s father, an assistant prosecutor of Tlumach refused to institute criminal proceedings against the police officers, having found no evidence that they had committed a criminal offence. The prosecutor concluded that the bruise on the applicant’s face, recorded by the forensic expert, had been caused by the applicant’s careless use of tools at his workplace in Yalta and that the applicant had invented his ill-treatment complaint in order to protract the criminal proceedings and to escape criminal responsibility. She relied on the police officers’ denial of any ill-treatment and on their statements that the applicant had been brought directly to Ivano-Frankivsk from Yalta on 6 September 2007 and, on the same day, having made his statement of voluntary surrender to the police, had been allowed to go home, although he had been requested to attend before the investigator the next day; that the applicant had raised no complaints during the investigative actions of 6 and 7 September 2007; that at the beginning of September 2007 the applicant had briefly visited the Tlumach police station, accompanied by the police officers and that once the bruise on the applicant’s face had become visible, the applicant had explained to officer G. that he had sustained the injury during his careless use of a drill in Yalta. The prosecutor further referred to the fact that the logbook of the Tlumach police station contained no entries that would confirm that the applicant had been taken there in September 2007. The applicant’s father appealed against this decision to the Tlumach prosecutor but to no avail.
17. On 17 October 2007 criminal proceedings were instituted against the applicant, B., L., and D. for having raped P.
18. On 23 October 2007 criminal proceedings were instituted against the applicant and B. for covering up the fact that P. had been murdered by L. The proceedings were joined to the murder case. Following the applicant’s request of the same date, a lawyer, Mn., was admitted to the case as his defence counsel.
19. From 12.30 to 1.45 p.m. on 23 October 2007 the applicant was questioned as a suspect in his lawyer’s presence. He again retracted all his previous self-incriminating statements on the basis that they had been extracted by the police by means of ill-treatment, and denied his involvement in any crime. In reply to the investigator’s question as to why he had not complained of his ill-treatment to the investigator on 7 September 2009 or during the reconstruction of the crime scene on that date, the applicant stated that he had been afraid that his complaint would have entailed further ill-treatment and that he would not be released as promised.
20. Around 5 p.m. on 23 October 2007 the applicant was arrested by the investigator as a suspect in the criminal proceedings and on 26 October 2007 his pre-trial detention was ordered by a court.
21. On 5 November 2007 and 25 January 2008 the applicant was charged with the sexual assault of a minor, committed as a member of a group, and with covering up a crime. When questioned as an accused in the presence of his lawyer, Mn., he denied his guilt and refused to give any further evidence.
22. On 22 February 2008 the criminal case against the applicant and his alleged accomplices was sent for trial to the Kalush Town Court. During the trial the applicant again complained that he had been unlawfully detained and ill-treated by the police in order to extract his confessions. The police officers denied administering any ill-treatment. Officer Gav. submitted that he had seen a bruise to the applicant’s eye when at the Department and that the applicant had then explained to him that he had sustained the injury as a result of a fight with B. and other persons in Yalta before his arrest.
23. In November 2008 the Kalush Town Court ordered the Department to establish the origin of the applicant’s black eye, which had been visible on a video‑recording of the reconstruction of the crime and confirmed by the results of the forensic medical examination of 17 September 2007.
24. On 23 December 2008, having questioned the police officers, who had denied any ill-treatment and confirmed that the applicant had had no injuries when arrested in Yalta, and referring to the prosecutor’s refusal to institute criminal proceedings upon the applicant’s ill-treatment complaint (see paragraph 16 above), the internal investigation unit of the Department concluded that there was no evidence of the applicant’s ill-treatment by the police. It was further noted in the relevant decision that in view of the discrepancies in the evidence given, it appeared impossible to confirm or disprove whether the bodily injuries had been inflicted on the applicant as a result of either the careless use of work tools or getting into a fight in Yalta.
25. On 3 February 2009 the Kalush Town Court sent the case back to the Tlumach prosecutor’s office and ordered an additional investigation, pointing to inconsistencies in the evidence, including in the testimony given by the defendants, and to a number of other procedural and factual deficiencies which had to be eliminated. The court found, inter alia, that there had been no evidence in the case other than the statements of the defendants made during their administrative detention, which had been inconsistent with each other in relation to specifics and had been changed on a number of occasions. It noted also that a number of factual circumstances had yet to be verified and established.
The Kalush Town Court further instructed the prosecutor to establish the origin of the applicant’s and other defendants’ injuries. It noted in that connection that the applicant’s written statement, referred to by police officers, that he had sustained the injury in Yalta had been disproven at the trial, and that it had been established that the applicant had had no visible injuries when taken into police custody in Yalta.
The court also found that the lawfulness of the applicant’s arrest in Yalta and the investigative measures conducted with him thereafter had yet to be proved. It noted, inter alia, that, according to the police officers’ mission orders, they had arrived in Yalta on 4 September 2007, departed on 6 September 2007 and returned to Ivano-Frankivsk on 7 September 2007, but the applicant had confessed to the crimes in Ivano-Frankivsk on 6 September 2007. It also pointed out that the officers had stated at the trial that they had departed with the applicant from Yalta late in the evening and, having travelled for about twenty-four hours, arrived in Ivano-Frankivsk, “late at night”. In addition, officer G. testified before the court that on the morning after the applicant had been delivered from Yalta, he, and officer Gon., had taken a parcel from the applicant’s father for the applicant.
26. On 7 May 2009 the Ivano-Frankivsk Court of Appeal upheld the above‑mentioned ruling of the Kalush Town Court.
27. In the context of the additional investigation, a traumatologist from the Tlumach hospital was questioned as a witness. He submitted, inter alia, that, when admitted to the hospital in 2007, the applicant had explained that his injuries had resulted from a domestic incident and the relevant notations had accordingly been made in his medical file. He subsequently confirmed that testimony at trial, in December 2009, and also submitted that the police officers had not visited the applicant at the hospital.
28. On 3 July 2009 another forensic medical examination by a panel of experts was conducted, following an order by the investigator. No copy of that report has been provided to the Court by the Government despite the Court’s request. The prosecutor’s decision of 26 August 2009 refusing to institute criminal proceedings against the police officers (see paragraph 30 below) suggests that the experts concluded that the applicant had had an eye injury (a bruise around his right eye) which could have been caused by a punch or by indirect pressure from a blunt object within a day before the applicant’s hospitalisation at the Tlumach hospital. According to the experts, it was most likely that the applicant’s injury had been sustained domestically, as the result of a fall, as suggested by the applicant at the hospital. The injury, according to them, could not have been the result of repeated kicks and prolonged beatings, and there had been no other injuries which corresponded to the applicant’s description of his ill-treatment.
29. In July and August 2009 the prosecutor further questioned the applicant and the police officers, including those on duty on 5 and 6 September 2007, and conducted face-to-face confrontations between the applicant and the alleged perpetrators. The applicant denied his involvement in the crimes and maintained that the police had ill-treated him in order to obtain his confession. He submitted, inter alia, that when at the Tlumach hospital he had not wished to tell the doctors about the police’s violence and had therefore stated that his injuries had resulted from a domestic accident that had occurred two days before his hospitalisation. He was not able to explain to the investigator why there had been no other injuries noted in his medical file or during his forensic medical examination of 3 July 2009 which would have fitted his account of the ill-treatment. The police officers, in turn, denied administering any ill-treatment either during his transfer from Yalta or thereafter. They noted that the applicant had not been arrested in Yalta but had voluntarily followed them to give explanations to the investigator. The officers also denied the fact that the applicant had been delivered to the Tlumach police station either on 5 or 6 September 2007 and submitted that from Yalta they had arrived directly at the Department on 6 September 2007. Officer G. submitted that the applicant had been released on the same day, once he had signed his confession. He also stated, in reply to the applicant’s lawyer’s questions, that he did not remember if the applicant’s entry to and departure from the Department had been recorded in any way. The convoying officers testified that the applicant had had no visible bodily injuries during his transportation from Yalta to the Department.
30. On 26 August 2009 the prosecutor’s office refused to institute criminal proceedings in respect of the ill-treatment complaints of the applicant and his co-accused. As far as the applicant was concerned, the prosecutor found that the bruise recorded by the forensic medical experts had been sustained by the applicant after he had been released from custody. In that connection, he relied on the statements given by the police officers, including officer G.’s statement that he had released the applicant late in the evening on 6 September 2007, and the applicant’s explanation given to the Tlumach hospital regarding the origin of his injury, supported by the results of the forensic medical examination of 3 July 2009.
31. On 27 August 2009 the additional investigation was completed and in September 2009 the criminal case against the applicant and others was sent for trial to the Ivano-Frankivsk Court of Appeal. During the trial the defendants pleaded not guilty and again retracted the self‑incriminating statements that they had made at the investigation stage, stating that they had been obtained by the police by means of ill-treatment during their administrative or unrecorded detention, in the absence of a lawyer.
32. On 4 August 2010 the Ivano-Frankivsk Court of Appeal, sitting as a first‑instance court, found the defendants, including the applicant, guilty as charged and sentenced them to various terms of imprisonment. The applicant was sentenced to a term of seven years’ imprisonment. His conviction was primarily based on his confession of 6 September 2007, the confessions made by his co-defendants, the records of his questioning as a witness, the reconstruction of the crime and the face-to-face-confrontation, all of 7 September 2007. The court found that evidence to be reliable, admissible, adequate and sufficient since it had all been consistent, had been corroborated by other evidence in the case, and had been obtained by lawful methods of investigation, without any significant violations of procedural rules. Thus, according to the court, the applicant’s and B.’s confessions had been corroborated by statements made by their cellmates in police custody, who had said that the applicant and B. had told them that they had participated in a crime; by the statements of other attesting witnesses and police officers to the extent that the defendants had given their statements of their own free will during the investigative steps taken; and by indirect evidence given by other witnesses. It noted that the details of the crime provided by the defendants, including the place of the murder and construction features of the building where the body had been hidden would only be known to them if they had been the perpetrators. It also found that it was not prohibited by law to question defendants about a murder while they were being held on administrative detention. The inconsistencies between the defendants’ statements were declared insignificant and explained by the amount of time that had elapsed since the crime had been committed in addition to the effects of alcohol on the defendants at the time it had been committed.
The court rejected the defendants’ allegations of ill-treatment as unsubstantiated, regarding them as a part of their defence strategy. The court relied in this respect on the results of the prosecutor’s investigation into the defendants’ complaints, the statements of the police officers and other attesting witnesses given at trial, as well as some unspecified statements provided by doctors Me., F., and Pl. and medical evidence examined at trial. It went on to note that during the pre-trial investigation the applicant and B. had testified in writing that their injuries had resulted from domestic incidents. Finally, the court referred to the results of a technical forensic examination of B.’s and D.’s voluntary surrenders to the police, according to which they had written their confessions of their own free will, without being affected by unusual circumstances. At the same time, the court found no objective evidence to confirm B.’s statement, set out in his confession, that he had had sexual relations with P. The court also noted that the existence of certain inconsistencies between the defendants’ statements was evidence against their allegations of ill-treatment.
33. The applicant and his lawyer appealed in cassation against the conviction. The applicant challenged the court’s assessment of the evidence and objected to the admissibility of his self‑incriminating statements, and those of his co-defendants, as they had been made under police duress during their unrecorded or administrative detention, in the absence of a lawyer, and had been retracted at trial. He noted in this context that the existence of bodily injuries on him had been confirmed by a number of items of evidence, including the forensic medical report of 2007 and a video-recording of the reconstruction of the crime scene, which had been disregarded by the first‑instance court. He also pointed to the inconsistent explanations of the origin of his injuries given by the police officers throughout the investigation. He went on to note that the witnesses referred to by the court had withdrawn their statements during the trial and had submitted that they had been forced to testify against the applicant and his co-defendants by the investigating authorities and that the statements of the people who had allegedly been their cellmates while in police custody could not be seen as reliable evidence as those alleged witnesses were serving their prison sentences and were under the authority of the police. Lastly, the applicant pointed to the first-instance court’s failure to assess evidence in his favour.
34. In his appeal, the applicant’s lawyer raised similar arguments. He challenged the admissibility and assessment of evidence and stated, inter alia, that the applicant’s detention, during which he had made the self‑incriminating statements, was unrecorded and unlawful, and that no access to a lawyer had been granted to him during that period. He further pointed out that the confessions of the applicant’s co-defendants had been obtained in a similar way. The lawyer noted the trial court had rejected the applicant’s allegation of ill-treatment merely on the basis of the statements of the police officers, ignoring the results of the forensic medical examination of 17 September 2007 and other evidence of bodily injuries on the applicant. Finally, he pointed out inconsistencies between the statements of the defendants and other witnesses and the factual circumstances of the case and complained of the trial court’s failure to properly assess other evidence in the applicant’s favour, including that suggesting that the crime had been committed by an unidentified man with whom P. had last been seen, hours before her death.
35. On 22 March 2011 the Supreme Court of Ukraine, sitting as the second-instance court, upheld, in substance, the arguments and conclusions of the lower court with respect to the applicant. At the same time, it acknowledged that, when questioned as a witness, the applicant had not been provided with a lawyer but had been warned about his criminal liability if he failed to testify which, according to the court, raised doubts as to the admissibility of the evidence obtained in such a way. It therefore ruled that the reference to the applicant’s questioning as a witness should be excluded from the body of the judgment. It further absolved the applicant from serving his sentence for the charge of covering up the murder. The Supreme Court rejected the defendants’ ill-treatment complaints, referring merely to the level of detail provided by them as regards the circumstances of the crime, witnesses’ statements, and the fact that no evidence in support of the defendants’ allegations had been found in the course of the prosecutor’s investigation.
II. RELEVANT DOMESTIC LAW
36. The relevant provisions of the Constitution of Ukraine and the Code of Criminal Procedure can be found, in particular, in the Court’s judgment in the case of Kaverzin v. Ukraine (no. 23893/03, §§ 44 and 45, 15 May 2012).
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The applicant complained that between 4 and 7 September 2007 he had been subjected to torture at the hands of the police with a view to obtaining his confession to the crimes. He relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
37. The Government stated that the applicant had not exhausted domestic remedies in respect of this complaint because he had not appealed against the decision of 26 August 2009 not to institute criminal proceedings against the police officers. They further argued that the applicant’s complaints of ill-treatment during the trial and in his appeal to the Supreme Court did not mean that he had exhausted domestic remedies.
38. In the alternative, the Government submitted that if the applicant had considered that there were no effective remedies available to challenge the decision of the prosecutor of 26 August 2009, he should have raised that issue before the Court within a period of six months after that decision was taken. However, the applicant had lodged his application much later – on 12 September 2011.
39. The applicant disagreed. He submitted that he had been ill-treated and had sufficiently raised his complaint before the relevant authorities. He also submitted that he had not been provided with a copy of the prosecutor’s decision referred to by the Government.
40. The Court notes that it has previously rejected similar objections by the Government as to the non-exhaustion of domestic remedies in the context of allegations of ill-treatment, for example in the case of Kaverzin v. Ukraine (no. 23893/03, §§ 84-99, 15 May 2012). In that case, in similar factual circumstances, the Court concluded that the applicant had taken sufficient steps at the domestic level to bring his complaints of police ill‑treatment to the attention of the national authorities, noting that the fact that the complaints had been rejected by the prosecutor had not prevented the domestic courts from examining them on their merits in the course of the applicant’s trial. The Court further concluded that in such circumstances it had been reasonable for the applicant to wait for the completion of the trial before raising the complaints before the Court and he had accordingly complied with the six-month rule provided in Article 35 § 1 of the Convention (ibid., § 99). The Court sees no reason to depart from those findings in the present case and therefore considers that this complaint cannot be rejected for failure to exhaust domestic remedies or for non‑compliance with the six-month time-limit.
41. The Court thus finds that this complaint 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
42. The applicant submitted that his ill-treatment was sufficiently corroborated by the available evidence, in particular the medical evidence of his injuries, recorded after the applicant had been released from unlawful police custody late at night on 7 September 2007. The Government had failed to provide any explanation for his injuries. The investigation following his complaints of ill-treatment had been ineffective, with the authorities providing different false stories as regards the origin of his injuries.
43. The Government did not make any submissions on the merits of this complaint, having argued that it was inadmissible.
2. The Court’s assessment
44. The relevant general principles of the Court’s case-law are summarised in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-90 and 100‑01, ECHR 2015), and El-Masri v. the former Yugoslav Republic of Macedonia ([GC], no. 39630/09, §§ 182-85, ECHR 2012).
45. Turning to the present case, the Court notes that it is uncontested that
when in police custody on 6 September 2007 the applicant confessed to a crime, and that upon his admission to the Tlumach hospital on the morning of 8 September 2007, injuries were recorded on him. It is also evident from the case file that the applicant had no injuries prior to his encounter with the police and that at least by the morning of 7 September 2007 his eye injury was already visible.
46. No evidence, including formal records, was adduced by the Government before the Court to prove the fact that the applicant had indeed been released on the evening of 6 September 2007, as asserted by the police. On the contrary, statements made by officer G. during the proceedings at the Kalush Town Court suggest that the applicant was still in police custody on the morning of 7 September 2007 (see paragraph 25 in fine). In such circumstances, the Court is inclined to give greater weight to the applicant’s submissions on this matter. It therefore finds it established that from 4 September 2007 until late in the evening of 7 September 2007 the applicant was in de factouninterrupted police custody and that he sustained injuries while under the control of the authorities.
47. The applicant maintained that the injuries had been a result of his ill‑treatment by the police when seeking to extract a confession from him late at night on 5 to 6 September 2007. In the Court’s view, the applicant’s version of events is sufficiently coherent and detailed. The very fact that he confessed after being held in undocumented detention for at least two days, in a setting lacking procedural guarantees, such as the availability of a lawyer, and retracted his confession soon afterwards, creates the appearance that his confession may not have been given freely. Corroborated by evidence of physical injuries, this gives rise to a strong presumption that the police officers resorted to physical ill-treatment as a means of breaking the applicant’s psychological resistance in order to obtain self-incriminating statements (compare Belousov v. Ukraine, no. 4494/07, § 63, 7 November 2013). It was for the State to refute these allegations.
48. However, in the proceedings before this Court, the Government did not advance any explanation of how the applicant’s injuries had been caused. They limited themselves to stating that the applicant’s allegation of ill-treatment was inadmissible.
49. As regards the explanation given at the domestic level in relation to the applicant’s injuries, the Court cannot subscribe to the conclusion reached by the investigating authorities for the following reasons.
50. While, as suggested by the available evidence, the applicant’s allegations were supported by the forensic medical examination report of 17 September 2007, the initial inquiry ended, on 15 October 2007, in a refusal to institute criminal proceedings against the alleged perpetrators. The prosecutor found, mainly on the basis of the statements given by the police officers allegedly involved in the applicant’s ill-treatment and in the absence of any official records confirming the applicant’s presence at the Tlumach police station on the dates stated by the applicant, that the injuries recorded by the forensic expert had been sustained by the applicant at some stage at his workplace in Yalta (see paragraph 16 above). That explanation was subsequently rejected by the trial court in the applicant’s criminal case, and the case was sent back to the prosecutor’s office for additional investigation (see paragraph 25 above). In doing so, the court also paid attention to the inconsistencies of the available evidence as regards the dates of the police officers’ arrival from Yalta and the applicant’s whereabouts.
51. Having admittedly taken a number of measures to scrutinise the applicant’s allegations, the prosecutor’s office eventually expressed an opinion on 26 August 2009 that the applicant had sustained his injuries as the result of a domestic incident after being released from police custody on 6 September 2007 (see paragraph 30 above).
52. However, it remains unclear to the Court why the prosecutor’s office relied in this respect on the applicant’s statement made at Tlumach hospital about the origin of his injuries in spite of his more recent and consistent submissions before the relevant authorities that the injuries had resulted from his ill-treatment by the police. Moreover, there is nothing in the documents available before the Court to suggest that any attempt whatsoever was made by the investigative authorities to establish the circumstances of the alleged domestic incident, to which they referred to explain the origin of the applicant’s injuries or to provide details of that incident. This, however, was not seen as an obstacle to dismissing the applicant’s allegation of ill-treatment as unsubstantiated.
53. The Court also can find no explanation on the part of the authorities as to why the credibility of the police officers’ statements as regards the applicant’s movements between 4 and 7 September 2007 was given preference by the prosecutor over the applicant’s version of events. There is nothing to confirm the police officers’ statements that the applicant was released on the day of his arrival in Ivano-Frankivsk, after signing the confession, as it appears that no relevant records were drafted by the police. Moreover, statements made by officer G. during the proceedings at the Kalush Town Court (see paragraph 25 in fine) in fact support the applicant’s version of events. There is also no evidence before the Court that the prosecutor tried to find any objective evidence, such as statements from third-party witnesses, to confirm the date of the applicant’s release.
54. Likewise, as regards the medical evidence relied upon by the prosecutor, the Court cannot but note that it is not clear, in the absence of any comments on the Government’s part and the relevant documents, why the conclusion of the first forensic medical examination, which was conducted shortly after the alleged ill-treatment (see paragraph 15 above), when the injuries were still visible, and which corroborated the applicant’s allegations, was doubted by the prosecutor and a new expert examination requested. The new examination – which was conducted almost two years after the events in question – resulted, as is apparent from the prosecutor’s decision, in a different conclusion as regards the date and the origin of the injuries and was accepted by the prosecutor, again without any reasoning being provided to justify such a decision. Nor have the Government provided any justification for the prosecutor’s preference.
55. Although the domestic courts dealing with the applicant’s criminal case eventually addressed his repeated complaints of ill-treatment by the police, the shortcomings in the pre‑investigation inquiry noted above were not remedied. Ultimately, the Supreme Court rejected the complaint as unsubstantiated, relying on the findings of the prosecutor (see paragraph 35 above).
56. In view of these circumstances, the Court considers that the domestic authorities’ conclusions as regard the origin of the applicant’s injuries were not based on a thorough investigation into the matter.
57. That being the case, the Court cannot but conclude that the applicant’s injuries were inflicted as a result of ill-treatment by the police.
58. Accordingly, there has been a violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
59. The applicant complained that his right to a fair trial had been violated because his conviction in criminal proceedings had been based on confessions obtained from him and his co-defendants as a result of ill‑treatment by the police and in the absence of a lawyer. He relied on Article 6 §§ 1 and 3 (c) of the Convention which, as far as relevant, read as follows:
“1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … 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; …”
60. The Court notes that this complaint 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
(a) The applicant
61. The applicant maintained that he had been coerced by the police into confessing to his participation in P.’s sexual assault and covering up her murder in the absence of any legal assistance. In the same way evidence had been obtained from his alleged accomplices, who had first been taken into administrative detention, in order to make them available to the police, and beaten. His self-incriminating statements had been the only direct evidence against him and, together with the confessions of his co-defendants, had been the primary evidence used to secure his conviction, despite the fact that he had retracted his confession shortly after he had been released from unlawful police custody. He further relied on the other arguments that he and his lawyer had advanced before the domestic courts (see paragraphs 33 and 34 above).
(b) The Government
62. The Government argued that the applicant had given his statement of voluntary surrender and confession of his own free will. He had voluntarily confirmed his self-incriminating statements on 7 September 2007 as a witness, having been informed of his right not to incriminate himself. Once criminal proceedings had been instituted against the applicant and he had been arrested as a suspect, on 23 October 2007 he had been provided with access to a lawyer of his choice.
63. They further submitted, in reliance on the conclusions of the domestic authorities, that there had been no evidence that the applicant and his accomplices had been ill-treated by the police.
64. Lastly, the Government noted that the applicant’s self-incriminating statements were not the sole evidence on which his conviction had been based and that his guilt had been sufficiently proven by other evidence in the case, including witness statements and the results of forensic examinations.
2. The Court’s assessment
65. The Court notes that although the admissibility of evidence is, as a matter of principle, a prerogative of the domestic courts and its role is limited to assessing the overall fairness of the proceedings; particular criteria apply concerning evidence obtained by a measure found to violate Article 3 of the Convention. The admission of statements obtained through ill-treatment in breach of Article 3 as evidence for the purpose of establishing the relevant facts in criminal proceedings renders the proceedings as a whole unfair, irrespective of its probative value and whether its use was decisive in securing the defendant’s conviction (see, for example, Gäfgen v. Germany [GC], no. 22978/05, § 166, ECHR 2010, with further references).
66. In the present case, the Court notes that when finding the applicant guilty and convicting him, the first-instance court relied primarily on his statements of voluntary surrender and confession to the police of 6 September 2007 and his statements given as a witness during a number of investigative steps taken on 7 September 2007, all of which were retracted by the applicant shortly after they had been given. The appellate court excluded the statements given by the applicant during his questioning as a witness from the body of evidence, having found that the questioning had been conducted in breach of the applicant’s procedural rights (see paragraph 35 above). The remaining evidence was taken on board by the Supreme Court with no doubts being raised as to its admissibility.
67. The Court notes its finding of a violation of Article 3 of the Convention in respect of the circumstances under which the applicant confessed to committing the crimes on 6 September 2007 (see paragraphs 57 and 58 above). It therefore considers that his statement of voluntary surrender and confession, which the applicant made at the hands of police and in the absence of a lawyer, cannot be regarded as having been given knowingly and voluntarily. Regardless of whether the applicant confirmed his confession when questioned as a witness in the lawyers’ absence on 7 September 2007 or not, and regardless of the weight given to the impugned statement of voluntary surrender and confession as evidence for his conviction, the Court concludes that the use of the evidence obtained by ill-treatment rendered the criminal proceedings against the applicant unfair (see, for example, Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, §§ 258-61, 21 April 2011; Zhyzitskyy v. Ukraine, no. 57980/11, §§ 64-66, 19 February 2015; and Zyakun v. Ukraine, no. 34006/06, § 63, 25 February 2016).
68. There has, accordingly, been a violation of Article 6 § 1 of the Convention.
69. In view of this finding, the Court does not consider it necessary to address the remaining complaints concerning the breach of his right to a fair trial (see, mutatis mutandis, Aleksandr Vladimirovich Smirnov v. Ukraine, no. 69250/11, § 74, 13 March 2014).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
70. 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.”
71. The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage.
72. The Government contested this claim as exorbitant.
73. The Court observes that it has found violations of Article 3 and Article 6 § 1 of the Convention in the present case. As regards the violation of Article 6 § 1, the Court cannot speculate as to the outcome of the proceedings had they been conducted in a manner compatible with Article 6 of the Convention. The Court notes that Article 445 of the Code of Criminal Procedure and section 10 of the Law on the Execution of Judgments of the European Court of Human Rights allow for the possibility of reopening proceedings and it therefore considers that the finding of a violation constitutes in itself sufficient just satisfaction (see Zakshevskiy v. Ukraine, no. 7193/04, §§ 50-51 and 133, 17 March 2016). As regards the violation of Article 3 of the Convention, ruling on an equitable basis, the Court awards the applicant EUR 11,000 in compensation for non-pecuniary damage.
B. Costs and expenses
74. The applicant also claimed EUR 3,750 in respect of his legal representation before the Court and requested that this amount be paid into his lawyer’s bank account. To substantiate that claim, the applicant submitted a legal assistance contract with Mr Tarakhkalo dated 1 August 2018, indicating an hourly rate of EUR 150, and a report of 31 October 2018 completed by Mr Tarakhkalo for twenty-five hours’ work, without any further details.
75. The Government contested the above claim as excessive.
76. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant, in addition to the legal aid granted (see paragraph 2 above), the sum of EUR 1,600 for costs and expenses. This amount is to be paid into the bank account of the applicant’s lawyer, Mr Tarakhkalo, as indicated by the applicant (see, mutatis mutandis, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288 and point 12 (a) of the operative provisions, 15 December 2016). The Court rejects the remainder of the claim for costs and expenses.
C. Default interest
77. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declaresthe complaints of ill-treatment in police custody and of an unfair trial in the applicant’s criminal case admissible;
2. Holdsthat there has been a violation of Article 3 of the Convention;
3. Holdsthat there has been a violation of Article 6 § 1 of the Convention on account of the use of evidence obtained by means of ill-treatment to secure the applicant’s conviction;
4. Holdsthat there is no need to examine the remainder of the applicant’s complaints under Article 6 of the Convention;
(a) that the respondent State is to pay, within three months, the following amounts,to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 11,000 (eleven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage sustained by the applicant on account of the violation of Article 3 of the Convention, to be paid to the applicant;
(ii) EUR 1,600 (one thousand six hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses incurred for the proceedings before the Court, to be paid into the bank account of the applicant’s representative, Mr Mykhailo Tarakhkalo;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismissesthe remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 31 October 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško André Potocki
Deputy Registrar President