FOURTH SECTION
\nCASE OF BONDAR v. UKRAINE
\n(Application no. 18895\/08)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n16 April 2019<\/p>\n
This judgment will become final in the circumstances set out in Article\u00a044 \u00a7\u00a02 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Bondar v. Ukraine,<\/strong><\/p>\n The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:<\/p>\n Jon Fridrik Kj\u00f8lbro, President, Having deliberated in private on 26 March 2019,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 18895\/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Ukrainian national, Mr Mykhaylo Vasylyovych Bondar (\u201cthe applicant\u201d), on 8 April 2008.<\/p>\n 2.\u00a0\u00a0The applicant, who had been granted legal aid, was represented by Mr\u00a0O.V.\u00a0Levytskyy, a lawyer practising in Kyiv. The Ukrainian Government (\u201cthe Government\u201d) were represented by their Agent, Mr\u00a0I.\u00a0Lishchyna.<\/p>\n 3.\u00a0\u00a0The applicant alleged, in particular, that the police had ill-treated him in order to extract a confession and that the criminal proceedings against him had been unfair in that the confession given under duress had been admitted into evidence and the courts had refused to recall a witness who had initially given incriminating evidence but had then retracted it.<\/p>\n 4.\u00a0\u00a0Those allegations were initially made by the applicant\u2019s mother in her letter to the Court of 8 April 2008. In that letter, without mentioning any provisions of the Convention she stated that her son had been unjustly convicted for the murder he had not committed. She described the ill-treatment he had allegedly suffered in August 2003 (see paragraph\u00a011 below) and stated that the courts refused to call \u201cmany witnesses\u201d. According to the version of the Rules of Court then in force (see, for example, Viktor Nazarenko v. Ukraine, no. 18656\/13, \u00a7\u00a7\u00a030-32, 3 October 2017), 8 April 2008 is considered the date of introduction of the application (see paragraph 1 above). An exchange of correspondence followed and the Registry set the deadline to submit a filled in application form and all accompanying documents to 23 February 2009. The applicant submitted that application form on 9 January 2009 (see paragraph 40 below).<\/p>\n 5.\u00a0\u00a0On 6 March 2017 the Government were given notice of theapplicant\u2019s complaints in respect of alleged ill-treatment and the alleged admission of his confession in evidence. On 28 May 2018 further observations were requested from the Government in respect of the applicant\u2019s complaint concerning the refusal to recall the above-mentioned witness. At the time of communication the remainder of the application was declared inadmissible pursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n 6.\u00a0\u00a0The applicant died on 3May 2012. The applicant\u2019s mother, Ms\u00a0Kateryna Mykhailivna Bondar, expressed the wish to pursue the application on his behalf.<\/p>\n 7.\u00a0\u00a0As Ms Ganna Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court), the Vice-President of the Section decided to appoint Mr Sergiy Goncharenkoto sit as an ad hoc judge (Rule\u00a029\u00a0\u00a7\u00a01(a)).<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 8.\u00a0\u00a0The applicant was born in 1960 and died in 2012.<\/p>\n A.\u00a0\u00a0Criminal proceedings against the applicant<\/strong><\/p>\n 9.\u00a0\u00a0On 26 July 2003 the body of a man, Mr Z., was discovered in the applicant\u2019s village in the Nemyriv district of the Vinnytsya Region.<\/p>\n 10.\u00a0\u00a0On 27 July 2003 the applicant was arrested, ostensibly for the administrative offence of maliciously disobeying a police officer.<\/p>\n 11.\u00a0\u00a0According to the applicant, he was arrested on suspicion of Z.\u2019s murder, and on 1 August 2003 the police ill-treated him to make him confess to the murder. In particular, he alleges that he was dunked in a vat of heavily chlorinated water, had electric shocks applied to his genitalia, and was beaten and hung by his elbows from a metal rod for a substantial period of time.<\/p>\n 12.\u00a0\u00a0On 1 and 8 August 2003 a witness,Mr I., was questioned by the police and stated that on the night of the murder he had seen the applicant in the victim\u2019s backyard and that he had then, with blood on his hands, come to his house and told him that he had hit the victim.<\/p>\n 13.\u00a0\u00a0On 4 August 2003 the applicant, in the absence of a lawyer,confessed to Z.\u2019s murder.<\/p>\n 14.\u00a0\u00a0On 6 August 2003 he was formally arrested on suspicion of the murder.<\/p>\n 15.\u00a0\u00a0On 7 August 2003 he was questioned in the presence of a lawyer and retracted his confession as having been given under duress.In view of his allegations the next day the investigator requested a forensic medical opinion concerning his injuries.<\/p>\n 16.\u00a0\u00a0On 10 August 2003 a forensic medical expert observed a number of injuries on the applicant\u2019s body. The expert noted that the applicant was alleging that he had been tortured. He documented a number of haematomas and abrasions and concluded that they could have been inflicted at the time and in the circumstances alleged by the applicant.<\/p>\n 17.\u00a0\u00a0On 15 August 2003 a district court judge rejected the investigator\u2019s request to remand the applicant in custody and released him, holding that there was no evidence in the file to show that there was a reasonable suspicion against him and noting his allegation that his confession had been coerced.<\/p>\n 18.\u00a0\u00a0On 16 August 2003 the applicant was released. Prior to his release he wrote a statement in the presence of the officer on duty at the police station affirming that he had not been ill-treated and had no complaints against the police.<\/p>\n 19.\u00a0\u00a0From 22 August to 19 September 2003 the applicant underwent a course of rehabilitation treatment in hospital, after being diagnosed with \u201cpost-traumatic paresis of the forearm nerves due to compression of both forearms\u201d.<\/p>\n 20.\u00a0\u00a0On 26 September 2003 the prosecutor\u2019s office refused to institute criminal proceedings against the police officers for ill-treatment. It was noted that they had denied having ill-treated the applicant, that the applicant had made a statement on 16 August 2003 affirming that he had not been ill\u2011treated and that the police unit in question had not been equipped with an electric shock device.<\/p>\n 21.\u00a0\u00a0On 5 February 2004 Ms G., Ms K. and Mr N. made videotaped statements to the investigator to the effect that, in October 2003, the applicant had confessed to them all (on the same occasion) that he had committed the murder.<\/p>\n 22.\u00a0\u00a0On an unspecified date in 2004 the investigation into the murder was suspended because the perpetrator could not be identified.<\/p>\n 23.\u00a0\u00a0On 1 February 2007 a certain Ms O., who was in prison, informed the prison authorities that in July 2004, when she had lived in the same village as the applicant, he had confessed to her that he had murdered Z. and had described the circumstances of the murder to her.<\/p>\n 24.\u00a0\u00a0On 8 February 2007 she repeated her statement to Mr S., an investigator of the Nemyriv district prosecutor\u2019s office. Her statement was video-recorded.<\/p>\n 25.\u00a0\u00a0The investigation was resumed.<\/p>\n 26.\u00a0\u00a0On 20 February 2007, based in part on O.\u2019s new evidence, the applicant was again arrested on suspicion of the murder.<\/p>\n 27.\u00a0\u00a0The applicant stood trial for murder before the Vinnytsya Regional Court of Appeal, sitting as the trial court.<\/p>\n 28.\u00a0\u00a0O. was examined and cross-examined by the defence in court on 10\u00a0October 2007. She confirmed her testimony incriminating the applicant.<\/p>\n 29.\u00a0\u00a0At a hearing on 12 November 2007 the trial court examined a letter dated 11 October 2007 which O. had sent to the trial court. In it sheasked the court to disregardher statements and stated that she had given them under pressure from S., the investigator (see paragraph 24 above). She also asked to be examined againin court. The defence asked for the same. The trial court ordered the prosecutor\u2019s office to investigate O.\u2019s allegations and held that the defence\u2019s application to have herre-examined would be considered after the investigation was completed.<\/p>\n 30.\u00a0\u00a0The investigation was conducted by the Nemyriv district prosecutor. O., who was still in prison at the time, was questioned.She reaffirmed her incriminating statements as having been made of her own free will and stated that she had written to the trial court because one of the applicant\u2019s lawyers hadsaid, in the course of the cross-examination, that she might be criminally liable for any false statements.S., the investigator who had questioned O. in February 2007, and the two police officers present on that occasion were also questioned and denied that any pressure had been used to compel O. to make a statement.On 6 December 2007 the prosecutor refused to institute criminal proceedings against S. for lack of constituent elements of a crime in his actions.<\/p>\n 31.\u00a0\u00a0On 11 January 2008 the trial court received another letterfrom O., in which she retracted her previous letter. The defence again asked that she be called. The trial court refused to recall her as a witness.<\/p>\n 32.\u00a0\u00a0On 25 February 2008 the trial court convicted the applicant of murder and sentenced him to thirteen years\u2019 imprisonment. It relied on the evidence of the witnesses O., I., G., K. and N. (see paragraphs 29, 12 and 21above respectively), who had reiterated in court their statements given in the course of the pre-trial investigation. It also relied on the statements of a number of other witnesses who had testified regarding various aspects of the case other than the applicant\u2019s guilt. In the trial court\u2019s judgment the evidence of I., K., G. and O. was mentioned separately, and in that order, as disproving the applicant\u2019s denials of his guilt.<\/p>\n 33.\u00a0\u00a0As to I.\u2019s statements in particular, the trial court stated that they were detailed and directly pointed to the applicant\u2019s guilt. I. had not only made those statements in the course of the pre-trial investigation and in court but had also reiterated them in the course of face-to-face confrontations with the applicant and another witness in the course of the pre-trial investigation. G.\u00a0and K. had also reiterated their statements in confrontations with the applicant.<\/p>\n 34.\u00a0\u00a0As to O.\u2019s evidence, the trial court stated that she had reiterated her pre-trial statement in the course of the trial in the applicant\u2019s presence and that there had been no reason to distrust that testimony. Certain details she had provided coincided with those provided by I. and discovered in the course of a crime scene investigation. As to the retraction of her testimony, the court considered it appropriate to disregard it since the district prosecutor had checked her allegations that her initial statements had been given under pressure, had found those allegations unfounded and had delivered a reasoned decision refusing to institute criminal proceedings.<\/p>\n 35.\u00a0\u00a0On 24 March 2008 the applicant appealed in cassation. He argued primarily that the trial court had erred in itsassessment of the evidence. He also argued, among other things, that the court had unjustifiably refused to recall O. as a witness despite the retraction of her testimony and that a search conducted in his home in 2003- which had apparentlynot returned any incriminating items-had been unlawful for various reasons, including the fact that at the time it had been conducted he had been in detention being tortured.<\/p>\n 36.\u00a0\u00a0On 10 July 2008, in a final decision, a panel of three judges of the Supreme Court upheld the trial court\u2019s judgment. It found that the court had correctly assessed the evidence and that there were no grounds to put in doubt its findings.<\/p>\n 37.\u00a0\u00a0Following a request by the applicant for the proceedings to be reopened, on 21 May 2009 five judges of the Supreme Court asked the plenary formation of the Supreme Court (consisting of all the judges of the court\u2019s criminal and military divisions)to reopen the proceedings in the applicant\u2019s case in view of the exceptional circumstances (see paragraph\u00a042 below), to quash his sentence and to order a retrial. The judges argued, in particular: (i) that there was medical evidence in the file which indicated that the applicant had been seriously ill-treated in 2003, in particular by being hung by his elbows, (ii) that the investigation into his allegations in this regard had been superficial, and (iii) that the trial court had failed to comment on this. The judges also pointed out what they believed to be a number of contradictions in the evidence cited by the trial court in the judgment for the applicant\u2019s conviction.<\/p>\n 38.\u00a0\u00a0On 5 June 2009 the plenary formation of the court held that the arguments cited by the five judges could only serve as a basis for reopening the proceedings if they had been first investigated by the prosecutor\u2019s office and found to be \u201cnewly established circumstances\u201d justifying a reopening (see paragraph 42 below). However, the court observed that the prosecutor\u2019s office had not conducted such an investigation and had not made such a finding.<\/p>\n 39.\u00a0\u00a0The parties did not inform the Court whether the applicant attempted to initiate, before the prosecutor\u2019s office, an investigation of the type mentioned by the plenary formation of the Supreme Court.<\/p>\n B.\u00a0\u00a0The application to the Court<\/strong><\/p>\n 40.\u00a0\u00a0In the application, lodged by his initial representative on his behalf on 9 January 2009, the applicant described, in the \u201cStatement of the facts\u201dsection of the form, the ill-treatment he had allegedly suffered in August 2003 (see paragraph11 above). In the \u201cStatement of alleged violation(s) of the Convention and\/or Protocols and relevant arguments\u201d part of the form he complainedunder Article 6 \u00a7 2 that his right to be presumed innocent had been breached in that the domestic authorities had relied on evidence obtained unlawfully and under Article 6 \u00a7 3 (d) that the domestic courts had failed to re-examine O. after she had retracted her initial testimony.<\/p>\n 41.\u00a0\u00a0On 1 April 2013 Mr Levytskyy wrote to the Court on behalf of the applicant\u2019s mother concerning the applicant\u2019s death and expressed the mother\u2019s wish to pursue the application in his stead. In his letter Mr\u00a0Levytskyy provided two arguments concerning the applicant\u2019s mother\u2019s right to pursue the application. Firstly, he stated that the applicant had been convicted on the basis of statements made under torture. Secondly, Mr\u00a0Levytskyy stated that:<\/p>\n \u201cThe applicant\u2019s former representative…is a journalist by training. However, this is not why she described in the application the acts of torture but limited the application to a violation of Article 6 of the Convention only, leaving the acts of torture outside of the scope of the application… At the time the application was lodged in 2008-2009 the Court was declaring applications under Article 3 inadmissible where applicants failed to appeal to court against the prosecutor\u2019s office\u2019s decision not to institute criminal proceedings.\u201d<\/p>\n Mr Levytskyy went on to describe the Court\u2019s approach to the admissibility of such complaints adopted in Kaverzin v. Ukraine (no.\u00a023893\/03, \u00a7\u00a7 97-99, 15 May 2012) and asked the Court to allow the applicant\u2019s mother to pursue the application. The change in the Court\u2019s approach to the admissibility of complaints concerning alleged ill-treatment by law-enforcement officers, to which Mr Levytskyy referred, is described in paragraphs 59 and 60 below.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n 42.\u00a0\u00a0At the relevant time the Code of Criminal Procedure of 1960 (Articles 400 to 404) laid downtwo procedures for reopening cases which had ended in final court decisions:<\/p>\n (i) a reopening based on newly established circumstances, such as falsified evidence or abuse of power by an investigator, prosecutor or judge, and<\/p>\n (ii) a reopening based on a serious error of substantive law or breach of procedural rules which led to a wrong decision on the substance of the case.<\/p>\n Under Article 400 to 407, the former could be initiated by prosecutors and the latter by at least five judges of the Supreme Court.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0LOCUS STANDI OF THE APPLICANT\u2019S MOTHER<\/p>\n 43.\u00a0\u00a0The Court notes that the applicant died after lodging his application under Article 34 of the Convention (see paragraph 6 above). It is not disputed that his mother is entitled to pursue the application on his behalf.In the light of its case-law on the matter (see Centre for Legal Resources on behalf of Valentin C\u00e2mpeanu v. Romania [GC], no. 47848\/08, \u00a7 97, ECHR 2014, with further references, and Singh and Others v. Greece, no.\u00a060041\/13, \u00a7 26, 19 January 2017), the Court sees no reason to hold otherwise.<\/p>\n 44.\u00a0\u00a0The Court observes that, as far as the complaints under Article 3 are concerned, a question can be asked whether those complaints, or at least all of their elements, wereduly lodged by the applicant himself while he was alive or whether they were only lodged by his mother after his death (see\u00a0paragraphs 40 and 41 above respectively). However, given the Court\u2019s conclusion below (see paragraphs 56 to 64) that those complaints are, in any event, out of time, the Court does not consider it necessary to address the first issue in detail.<\/p>\n 45.\u00a0\u00a0Accordingly, and subject to the proviso set out in the preceding paragraph, the Court accepts that Ms Bondar has standing to pursue the application on the applicant\u2019s behalf. However, reference will still be made to the applicant throughout the ensuing text.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION<\/p>\n 46.\u00a0\u00a0The applicant complained that he had been ill-treated by the policeand that the investigation conducted into the matter had been ineffective. He invoked Article 3 of the Convention, which reads:<\/p>\n \u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/p>\n Admissibility<\/p>\n 1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n 47.\u00a0\u00a0The Government submitted that neither the applicant nor his lawyer had appealed against the prosecutor\u2019s office\u2019s decision of 26 September 2003 not to institute criminal proceedings in respect of his allegations of ill\u2011treatment (see paragraph 20above). The applicant\u2019s reference to ill\u2011treatment in his appeal in cassation (see paragraph 35 above) had not constituted a challenge against that decision or a request to conduct a new investigation. It had been merely the applicant\u2019s defence against the charges and had been treated by the Supreme Court as such. For the Government, this meant that, in order to fall within the six-month period, the applicant\u2019s complaint had to have been lodged by 26 March 2004 at the latest, whereas in fact it had been lodged more than four years later.<\/p>\n 48.\u00a0\u00a0The applicant\u2019s submissions sent before notice of the application was given to the Government are summarised in paragraphs40 and 41above.After notice was given the applicant\u2019s representative submitted that the applicant had been ill-treated by the police in August 2003 and that the investigation conducted into the matter had been ineffective. He explained that the applicanthad not invoked Article 3 in his initial application because, at the time, the Court\u2019s approach to the admissibility of such complaints had been different: notably, to comply with the requirement of exhaustion of domestic remedies the applicant had been expected to appeal against the prosecutor\u2019s decision refusing to institute criminal proceedings against the police officers for ill-treatment. It had only been in its judgment inKaverzin v.\u00a0Ukraine (no.\u00a023893\/03, \u00a7\u00a7 97-99, 15 May 2012) that the Court had clarified that that was not an effective remedy to be exhausted. That was why the applicant had not raised the issue of a violation of Article\u00a03 in the \u201cStatement of alleged violations\u201d section of the application form. Given the state of the Court\u2019s case-law at the time, the applicant could not be blamed for such a formal flaw in his application. He could not have known that the Court would later change its approach to the question of effectiveness of the domestic remedy. Accordingly, he submitted that the complaints under Article 3 had been lodged within the six-month period.<\/p>\n
\nPaulo Pinto de Albuquerque,
\nIulia Antoanella Motoc,
\nCarlo Ranzoni,
\nGeorges Ravarani,
\nMarko Bo\u0161njak, judges,
\nSergiy Goncharenko, ad hoc judge,
\nand Marialena Tsirli, Section Registrar,<\/p>\n