FIFTH SECTION
CASE OF
GRINENKO v. UKRAINE
(Application no. 33627/06)
JUDGMENT
STRASBOURG
15 November 2012
This judgment will become final in
the circumstances set out in Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Grinenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Dean Spielmann, President,
Mark Villiger,
Karel Jungwiert,
Boštjan M. Zupančič,
Angelika Nußberger,
Paul Lemmens, judges,
Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 16 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
33627/06) 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 Vladislav Leonidovich Grinenko (“the
applicant”), on 2 August 2006.
The applicant was represented by Mr A.P.
Bushchenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the
Government”) were represented by their Agent, Mr N. Kulchytskyy.
The applicant complained, in particular, of
police brutality and the lack of an effective investigation in that respect,
the unlawfulness of his arrest and preliminary detention, and the violation of his
rights under Article 6 §§ 1 and 3 of the Convention.
On 14 February 2011 the application was
communicated to the Government. Mrs G. Yudkivska, the judge elected in respect
of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The
President of the Chamber decided to appoint Mr S. Shevchuk to sit as an ad hoc
judge (Rule 29 § 1(b)).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1983 and lives in Kharkiv.
On 17 November 2004 I. and D.K. were arrested on
suspicion of attempting to arrange the murder of V., a businessman working in
Kharkiv. Both suspects were questioned. D.K. admitted his involvement in the
crime and said that the applicant had initiated the plot and agreed to pay for
the crime.
On 19 November 2004 the Kyiv Prosecutor’s Office
instituted criminal proceedings against the applicant, I. and D.K. on suspicion
of attempting to arrange the murder of V.
The investigative authorities submitted the
following account of events. The applicant’s father and V. were business partners.
The applicant was well acquainted with V. and persuaded him to enter into a
deal with R. R. then swindled V., causing him serious financial damage. V.
suspected the applicant of collusion with R., and their relationship seriously
deteriorated. The applicant then decided to arrange the murder of V. For this
purpose, the applicant met D.K., who lived in Kyiv and offered to assist him in
arranging the murder of V. The applicant wired money to D.K. to buy a gun. D.K.
started to look for a gun and an assassin to hire. He met I., who suggested
that he speak to Yu.K. as a possible assassin. When they met, Yu.K. asked D.K.
for information about V. and gave him a list of questions. The applicant
provided some of the answers to D.K. He also gave D.K. some money to be
transferred to Yu.K. After Yu.K. had received the information and the money, he
refused to commit the murder and approached the law-enforcement authorities.
At about 11 p.m. on 20 November 2004 the police arrested
the applicant at his apartment in Kharkiv, took him to the police station in
Kharkiv and then escorted him to Kyiv (about 450 kilometres away).
During
that night and the morning of 21 November 2004 the applicant was allegedly beaten
by police officers to make him confess to the crime. According to the
applicant, the police officers placed a gas mask over his head and blocked the
access to air; they also hung him up by handcuffs fixed to his wrists. He had
no access to a doctor in that period.
In the morning of 21 November 2004 the applicant’s
father hired a lawyer from Kharkiv, N.B., to represent the applicant.
Between 8.10 a.m. and 11.05 a.m. on that date a police
officer questioned the applicant as a witness in the case. The questioning was
carried out without a lawyer. Before being questioned the applicant had been warned
that refusing to give evidence and giving false evidence were criminal
offences. At the same time he was apprised of Article 63 of the Constitution,
which provides that a person is not liable for refusal to give evidence
regarding himself or herself and his or her relatives.
During questioning the applicant admitted that
he had asked D.K. to find someone who could murder V. in exchange for money.
D.K. had answered in the affirmative and they had agreed a price and the terms.
They later met in Kharkiv to inspect the locality. D.K. had taken part of the
payment from the applicant. Subsequently, D.K. had been arrested and the plan
to murder V. had fallen through.
After questioning, the applicant wrote a
confession and submitted it to the police officer who had questioned him. According
to the applicant, he wrote a confession, as dictated by a police officer, to
avoid any further ill-treatment.
At 1.05 p.m. on 21
November 2004 an investigator of the Shevchenkivskyy District Prosecutor’s
Office of Kyiv questioned I. in the presence of her lawyer. I. admitted that
she had helped D.K. to look for a gun and someone who could commit a contract
murder. She had assisted him in approaching Yu.K. as a possible assassin. She
further stated that she knew nothing about the applicant.
At 1.30 p.m. on 21 November 2004 the investigator,
relying on Articles 106 and 115 of the Code of Criminal Procedure, issued an arrest
report in respect of the applicant. According to the report, the applicant was
arrested on the grounds that he had been identified by an eyewitness. The
applicant was apprised of his procedural rights as a suspect.
At 1.50 p.m. on 21 November 2004 the investigator
apprised the applicant of his rights under Article 63 of the Constitution and his
right to have a lawyer. The applicant designated two lawyers who had been
admitted to the proceedings: a legal aid lawyer provided by the investigator
and N.B., hired by his father.
At 2 p.m. on 21 November 2004 the investigator
questioned the applicant as a suspect. Before the questioning, the applicant’s rights
under Article 63 of the Constitution were explained to him. The applicant was
questioned in the presence of the legal aid lawyer. Lawyer N.B. was absent.
During questioning the applicant gave details of his communication with D.K.
and claimed that he had not taken any action with a view to arranging the
murder of V.
On 22 November 2004 a confrontation between the
applicant and the other suspect, D.K., was arranged with the assistance of the applicant’s
legal aid lawyer. The applicant contended that he had not asked D.K. to arrange
the murder; D.K. insisted that the applicant had asked him to do so.
On 24 November 2004 the Shevchenkivskyy District
Court of Kyiv extended the applicant’s preliminary detention to ten days.
On 25 November 2004 the investigator arranged confrontations
between I. and D.K., and later between D.K. and Yu.K. Both I. and D.K. were assisted
by lawyers.
On 30 November 2004 the applicant and I. were charged with the crime and questioned. According to the verbatim record, they were
questioned at the same time.
On the same date the applicant was questioned in
the presence of both of his lawyers. He maintained his previous statements of
21 November 2004 when he had been questioned as a suspect.
I. was also questioned in the presence of her
lawyer. She stated that in September 2004 D.K. had approached her to help him
find a gun. She had assisted him in looking for a gun, but to no avail. She had
further arranged and participated in the meeting between D.K. and Yu.K. during
which the former had explained that the latter’s task would be to “remove” a
person living in Kharkiv. She had acted as an intermediary in passing money
between D.K. and Yu.K.
On the same date, 30 November 2004, the
Shevchenkivskyy District Court of Kyiv ordered the applicant’s pre-trial
detention for two months.
On 21 December 2004 I. died in a road accident.
On 14 and
28 January 2005 the applicant was questioned in the absence of N.B. but in the
presence of the legal aid lawyer. According to the verbatim record provided by
the Government, while being questioned on 14 January 2005 the applicant had
informed the investigator that his confession of 21 November 2004 had been
obtained by means of ill-treatment.
The trial of the applicant and D.K. commenced in
March 2005 at the Kyiv Court of Appeal, acting as a first-instance court. Before
the trial, the applicant dismissed N.B. and subsequently, on 28 March 2005, he also
dismissed the legal aid lawyer and appointed another lawyer.
During the trial the applicant and D.K. denied
the charges. The applicant insisted that his negotiations with D.K. and the
other persons had not meant that he had wanted V. dead; his intention had been to
make R. explain to V. that the applicant had not been involved in R.’s fraud.
The
applicant further submitted that he had been arrested at 11 p.m. on 20 November
2004, taken to the police station in Kharkiv and then escorted to Kyiv. He alleged
that police officers had hit him in the stomach with truncheons, placed a gas
mask over his head and blocked his access to air, which had made it impossible
to breathe, and that his hands had swelled because the handcuffs had been too
tight. This treatment had resulted in his confessing to the crime.
D.K. asserted that after his arrest, the police
officers had started to threaten him so he had simply given up and signed all
the documents he had been told to sign. The court called his girlfriend as a
witness. She stated that on 17 November 2004 she had also been taken to the police
station together with D.K. On that day she had been questioned for six hours,
during which the police officers had sworn and shouted at her, and threatened to
rape her. After her release, she had gone to a doctor for examination.
When the
court summoned the police officers, the applicant identified one police officer
who had hit him in the stomach and another who had placed a gas mask over his
head. D.K. identified the police officer who had abused him psychologically. The
girlfriend of D.K. identified the police officer who had shouted at her and threatened
to rape her. The police officers denied the allegations of psychological and
physical ill-treatment. They admitted that they had arrested the applicant in Kharkiv
and had taken him to Kyiv.
The court also
questioned the investigator, who submitted that the applicant had made no
complaints of ill-treatment and that the applicant had been assisted by the
legal aid lawyer during questioning. In the investigator’s opinion, this had
been sufficient to ensure the applicant’s defence rights.
On 25 June 2005 the court found the applicant
guilty of attempting to arrange a murder and sentenced him to four and a half years’
imprisonment. The court also found that there had been no indication of a plan
for the murder to be committed by a group of people and dismissed that part of
the accusation.
The court based its findings on the applicant’s
confession of 21 November 2004 and other self-incriminating statements
given throughout the pre-trial investigation; the evidence provided by the
co-defendant at the pre-trial investigation; and the witness evidence provided by
Yu.K. and others during the pre-trial investigation and the trial. Given the
fact that by the time the trial took place, I. had died, the court examined the
statements that I. had made during the pre-trial investigation. The court also
referred to the material evidence and the expert opinions.
The court rejected the argument of the defence
that the applicant should have been regarded as having voluntarily refused to
commit the crime. It found in this regard that the applicant had been prevented
from committing the crime by the witness, Yu.K., who had informed the
law-enforcement authorities that the crime was being arranged.
The court further dismissed the arguments of the
defence that the evidence obtained by the investigation had been inadmissible.
It noted that there had been no indication that the applicant had been unlawfully
arrested and detained, or that he had been subjected to ill-treatment; neither
had there been any violation of the applicant’s rights of defence. Those rights
had been properly explained to him and he had been properly represented by
lawyers during the investigation. The fact that the records of the applicant’s
and I.’s questioning of 30 November 2004 indicated that they had been carried
out at the same time did not compromise the validity of those two separate measures.
On 15 and 18 July the applicant’s lawyer
submitted objections, which were included in the verbatim record of the
hearings.
On 25 July 2005 the applicant’s lawyer appealed
in cassation, claiming that the first-instance court had misinterpreted the
facts; wrongly assessed the evidence; failed properly to examine the applicant’s
submissions, including those concerning his unlawful detention and ill-treatment
and the violation of his defence rights; and unduly relied on I.’s statements.
On 2 February 2006 the Supreme Court held a
hearing on the applicant’s case. After it had heard the parties to the
proceedings, including the applicant and his lawyer, and examined the evidence
in the case, the Supreme Court dismissed the cassation appeal as groundless. It
referred to the available evidence, including the applicant’s confession of 21 November
2004, and found that the applicant’s guilt had been well established. It also found
that the applicant had been arrested and detained lawfully, the police officers
had not pressurised the applicant and his defence rights had not been impaired.
It therefore upheld the judgment of the first-instance court in respect of the
applicant.
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine
The relevant provisions of the Constitution can
found in the judgment in the case of Shabelnik v. Ukraine (no. 16404/03,
§ 25, 19 February 2009) and Osypenko v. Ukraine (no. 4634/04, § 32, 9 November 2010).
B. Code of Criminal Procedure of 28 December 1960
(“the CCP”)
The relevant provisions of the CCP are quoted in
Osypenko v. Ukraine (cited above, § 33), Smolik v. Ukraine (no.
11778/05, § 32, 19 January
2012) and Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012).
C. The Act “On procedure for compensation for damage
caused to citizens by the unlawful acts of bodies of enquiries, pre-trial
investigation authorities, prosecutor’s offices and courts” of 1 December
1994 (“the Compensation Act”)
The relevant provisions of the Compensation Act
(as worded at the relevant time) can be found in the judgment of Afanasyev
v. Ukraine (no. 38722/02, § 52, 5 April 2005).
III. RELEVANT INTERNATIONAL MATERIAL
Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (“the CPT”) from 9 to 21 October 2005
The relevant extracts
from the report read as follows:
“38. It appears from the information gathered during
the 2005 visit that the prompt and accurate recording of a person’s
detention (i.e. from the moment he/she is obliged to remain with the Internal
Affairs staff) remains a considerable area of concern. The delegation’s
findings revealed that, in many instances, periods of detention (from several
hours up to one day) went unrecorded in the protocols of detention. At the same
time, custody registers often contained incorrect data, and on occasion,
misleading information. By way of illustration, the register of a district
police station indicated that a person was detained there for two hours while
it was subsequently established that the person in question was in fact held at
the police station concerned for three days. Resolute action is required on the
part of the Ukrainian authorities to put an end to this state of affairs.
The CPT recommends that steps be taken immediately to ensure
that whenever a person is deprived of liberty by the Militia, for whatever
reason, this fact is formally recorded without delay. Further, once a detained
person has been placed in a cell, all instances of his/her subsequent removal
from the cell should be recorded; that record should state the date and time
the detained person is removed from the cell, the location to which he/she is
taken and the officers responsible for taking him/her, the purpose for which
he/she has been removed from the cell, and the date and time of his/her return.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that on 20 and 21
November 2004 he had been ill-treated by the police and that there had been no effective
investigation of his allegations. The applicant 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.”
A. Admissibility
1. The parties’ submissions
The Government contended that the applicant had
mentioned his allegation of ill-treatment to the authorities for the first time
on 14 January 2005. He had maintained that complaint during the criminal trial.
This, however, had not been an effective way of raising the complaint of
ill-treatment at the domestic level. The applicant should have submitted a
separate application to the prosecutor’s office requesting that criminal
proceedings be instituted against the police officers concerned. Such an
application would have enabled the authorities to carry out pre-investigative
enquiries and decide whether to open an investigation in that respect. The
refusal to investigate could have been further challenged before the higher
prosecutor or the courts, as provided for by Articles 99-1 and 236-1 of the CCP.
The Government thus asserted that the applicant had failed to exhaust domestic
remedies in respect of his complaint of ill-treatment.
The applicant disagreed and claimed that he had informed
the investigator and the courts dealing with his criminal case about the
alleged ill-treatment. If they had not been empowered to investigate such
issues, they should have referred the complaint to the appropriate authority,
as required by Article 97 of the CCP.
2. The Court’s assessment
The Court notes that under Article 97 of the CCP
a prosecutor, investigator, inquiry officer or judge is obliged to accept
applications or notifications as to a committed or planned crime, including in
cases that are outside their competence. Upon receipt of such information,
those public officers should either institute criminal proceedings, refuse to
institute criminal proceedings, or remit the material for examination in
accordance with the rules of jurisdiction.
In the present case the applicant notified the
investigator in charge of his criminal case about the alleged ill-treatment
(see paragraph 27 above), but the investigator did not take a separate decision
on this issue and later even claimed before the trial court that the applicant
had not complained of ill-treatment (see paragraph 33 above). The applicant further
made that complaint before the trial court, which, rather than referring the matter
to the investigative authorities, took cognisance of the applicant’s complaint
and dismissed it after examination on the merits. The applicant then raised the
issue in his cassation appeal to the Supreme Court. It follows that the applicant
sufficiently informed the domestic authorities of the alleged ill-treatment and
provided them with appropriate opportunities to address the matter effectively.
Accordingly, the complaint cannot be rejected on
the grounds of non-exhaustion of domestic remedies and the Government’s
objection in this regard should be dismissed. Neither can the applicant be
reproached for having missed the six-month time-limit as he reasonably expected
that the courts would give attention to those issues in the course of the
criminal proceedings against him (see Kaverzin v. Ukraine, cited above, § 99).
The Court further notes that the applicant’s complaints
under Article 3 of the Convention are not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. They are not inadmissible
on any other grounds. They must therefore be declared admissible.
B. Merits
1. Alleged ill-treatment
(a) The parties’ submissions
The Government contended that the applicant’s
allegations of ill-treatment had not been supported by appropriate evidence and
therefore could not be established beyond reasonable doubt.
The applicant disagreed and asserted that his
allegations had been supported by the statements made by the co-defendant and
his girlfriend during the trial. He further claimed that his undocumented
detention on the night of 20 November 2004 had also supported his version of
the events.
(b) The Court’s assessment
The Court reiterates that Article 3 of the Convention
prohibits in absolute terms torture and inhuman or degrading treatment.
Ill-treatment must attain a minimum level of severity if it is to fall within
the scope of Article 3. The assessment of this minimum is relative: it depends
on all the circumstances of the case, such as the duration of the treatment,
its physical and mental effects and, in some cases, the sex, age and state of
health of the victim. In respect of a person deprived of his liberty, recourse
to physical force that has not been made strictly necessary by his own conduct
diminishes human dignity and is in principle an infringement of the right set
forth in Article 3 (see Labita v. Italy [GC], no. 26772/95, §§ 119-20,
ECHR 2000-IV).
In assessing evidence, the Court 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). However, 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 under their control in
custody, strong presumptions of fact will arise in respect of injuries
occurring during such detention. Indeed, the burden of proof may be regarded as
lying with the authorities to provide a satisfactory and convincing explanation
(see Ribitsch v. Austria, 4 December 1995, Series A no. 336, § 34, and Salman
v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).
In the present case the applicant made fairly detailed
submissions as to the methods of ill-treatment employed by the police officers
against him (see paragraphs 10, 30 and 32 above). These methods of ill-treatment
(in particular, the alleged beating with truncheons and suspending the
applicant by handcuffs fixed to his wrists) would normally have caused the
applicant to sustain visible physical injuries. The applicant himself claimed
that his hands had swelled because the handcuffs had been too tight (see paragraph 30
above). According to the case file, the applicant’s lawyer saw him on the
afternoon of 21 November 2004, immediately after the alleged ill-treatment, but
made no statement that the applicant had suffered any injuries. Nor is there
any explanation as to why the applicant and his lawyers failed to request a medical
examination and to report the injuries.
While the statements made by the applicant’s co-defendant
and his girlfriend during the trial could to some extent be considered to
support the applicant’s account of events, this evidence was given by
individuals who could not be considered unbiased. Moreover, these individuals
were referring to their own treatment by the police, not the ill-treatment allegedly
inflicted on the applicant.
In sum, the material in the case file is not
sufficient to conclude beyond reasonable doubt that the applicant was subjected
to treatment prohibited under Article 3 of the Convention. There has therefore
been no violation of the substantive limb of that provision.
2. Procedural obligations under Article 3 of the
Convention
(a) The parties’ submissions
The Government contended that as the applicant
had not complained of ill-treatment to the prosecutor’s office, the State had
been under no procedural obligation to investigate the alleged events.
The applicant disagreed and argued that the
State had failed in its obligation to investigate his allegations of
ill-treatment effectively.
(b) The Court’s assessment
The Court reiterates that where an individual makes
an arguable claim that he has been ill-treated by the State authorities in
breach of Article 3, that provision, read in conjunction with the State’s
general duty under Article 1 of the Convention, requires by implication that
there should be an effective official investigation. For the investigation to
be regarded as “effective”, it should in principle be capable of leading to the
establishment of the facts of the case and to the identification and punishment
of those responsible. This is not an obligation of result, but one of means.
The authorities must have taken the reasonable steps available to them to secure
the evidence concerning the incident, including, inter alia, eyewitness
testimony, forensic evidence, and so on. Any deficiency in the investigation
which undermines its ability to establish the cause of injuries or the identity
of the persons responsible will risk falling foul of this standard, and a
requirement of promptness and reasonable expedition is implicit in this context
(see, among many authorities, Mikheyev v. Russia, no. 77617/01, § 107
et seq., 26 January 2006, and Assenov and Others v. Bulgaria, 28 October
1998, Reports 1998-VIII, §§ 102 et seq.).
As to the present case, the Court considers that
the applicant made an arguable complaint of ill-treatment before the domestic
authorities which triggered their procedural obligation under Article 3 of the
Convention to carry out an effective investigation of the alleged facts.
Meanwhile, the applicant’s allegations were examined exclusively by the courts
in the course of legal argument concerning the admissibility of evidence at
trial. This examination was limited in scope as it amounted only to the
questioning of the police officers, the defendants and one witness. Accordingly,
there has been no full-scale investigation of the matter for the purpose of Article
3 of the Convention. Furthermore, following that examination the courts decided
to give preference to the police officers’ account of the facts without making
any genuine attempt to remove the discrepancies between the applicant’s specific
and concrete statements and the submissions by the police officers. In these
circumstances the Court considers that the State has failed to take the necessary
steps aimed at effective investigation of the allegations of ill-treatment.
In view of the above, the Court holds that there
has been a violation of Article 3 in its procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 (c) OF THE
CONVENTION
The applicant complained under Article 5 § 1 of
the Convention that between 11 p.m. on 20 November and 1.30 p.m. on 21 November
2004 his detention had not been recorded by the authorities, no formal decision
had been made on that account, and his procedural status had been unclear in
that period. The applicant further complained under Article 5 § 1 (c) of the
Convention that his detention as a suspect, formalised at 1.30 p.m. on 21 November
2004, had been unlawful in so far as it did not comply with Article 29 of the
Constitution or Article 106 of the CCP.
Article 5 § 1 of the Convention provides, in so
far as relevant, as follows:
“1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before the competent legal authority
on reasonable suspicion of having committed an offence or when it is reasonably
considered necessary to prevent his committing an offence or fleeing after
having done so;”
A. Admissibility
As regards the applicant’s complaint concerning
his detention between 11 p.m. on 20 November and 1.30 p.m. on 21 November 2004,
the Government contended that the applicant had failed to exhaust domestic
remedies. In particular, the applicant could have challenged his detention under
Article 106 of the CCP and could then have lodged a civil claim for damages.
The Government cited domestic court decisions adopted in 2006 and 2007 showing
that there had been two examples of successful claims for damages for unlawful
arrest and detention.
The applicant disagreed and contended that the
remedies suggested by the Government had not been effective.
The Court notes that the applicant’s arrest and
detention were carried out in the course of the investigation of a criminal
case, and thus any claim for damages, if submitted, would have fallen within
the ambit of the Compensation Act. Under that Act, as worded at the relevant
time, the applicant could have claimed compensation provided that the relevant
criminal case had been terminated on exonerative grounds or had resulted in his
acquittal. This, however, had not happened in the applicant’s case. It follows
that any claim for damages made by the applicant would have had no prospect of
success (see Smolik v. Ukraine, cited above, § 41). The examples of domestic judicial
practice provided by the Government are immaterial as they refer to 2006 and
2007, when the relevant legislation had been amended, whereas the events
complained of took place in 2004.
The Court further notes that the applicant complained
before the courts dealing with his criminal case of unlawful arrest and
detention as well as ill-treatment. The issues of unlawful arrest and detention
were closely connected with the alleged ill-treatment and there is no
particular reason to believe that the applicant should have taken any other
steps to exhaust any remedies in respect of those complaints. It follows that
the applicant complied with the rule of exhaustion of domestic remedies and the
Government’s objection in this respect should be dismissed. Similarly, there are
no grounds for dismissing the present complaints under the six-month rule, as
the application was made within six months of the decision of the Supreme Court
finding that the applicant’s arrest and detention had been lawful.
The Court further considers that this part of the
application is not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention. It is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. As to the applicant’s detention between 11 p.m. on
20 November and 1.30 p.m. on 21 November 2004
(a) The parties’ submissions
The Government submitted that there had been no
violation of the applicant’s right to liberty between 11 p.m. on 20 November
and 1.30 p.m. on 21 November 2004. They referred to the findings of the domestic
courts in that respect and maintained that domestic law provided sufficient
safeguards for the prompt and accurate recording of a person’s detention.
The applicant argued that he had been arrested at
11 p.m. on 20 November 2004 and his detention had not been recorded until
1.30 p.m. on 21 November 2004. The fact that he had been detained during that
period had been acknowledged by the police officers during the trial. He
therefore contended that he had remained in police custody for a considerable
time before it was registered.
The applicant further asserted that, as his
detention had not been formalised in that period, he had had no clear status
and the domestic authorities had not recognised his procedural rights.
(b) The Court’s assessment
The Court reiterates that the unacknowledged
detention of an individual is a complete negation of the fundamentally
important guarantees contained in Article 5 of the Convention, and discloses a
grave violation of that provision. Failure to record such matters as the date,
time and location of detention, the name of the detainee, the reasons for
detention and the name of the person carrying it out must be seen as
incompatible with the requirement of lawfulness and with the very purpose of
Article 5 of the Convention (see Menesheva v. Russia, no. 59261/00, § 87,
ECHR 2006-III with further references).
It appears from the police officers’ testimonies
and the other material in the case file that the applicant was taken into
custody by the police officers in the evening of 20 November and that as from
that moment he had remained under the effective control of the police officers
at the police station in Kharkiv, in the car during the drive to Kyiv, and then
at the police station in Kyiv. The Court considers that during the period under
examination, the applicant was deprived of his liberty within the meaning of
Article 5 § 1 of the Convention (compare Osypenko v. Ukraine, cited
above, §§ 46-49).
Furthermore, the Government have not confirmed that
any record was made of the applicant’s detention from the moment of his arrest
to the time the arrest report was drawn up (1.30 p.m. on 21 November 2004). Such
a delay in the formalisation of the applicant’s status, as well as in the proper
explanation to him of his procedural rights, appears to be arbitrary and in
contravention of the principle of legal certainty, especially against the
background of extensive questioning of the applicant during that period of
time.
In this regard the Court cannot overlook the CPT’s
findings, which suggest that there is no established practice of keeping proper
records of detention by the Ukrainian police (see paragraph 44 above). The
Court considers that the failure of the police to document the applicant’s
detention in the present case stems from a lack of sufficient safeguards to
ensure that any involuntary retention of a person by the authorities is
recorded properly and in sufficient detail, these records are publicly
available, the status of the person is formalised immediately he or she is taken
into custody by the authorities, and all the person’s rights are immediately
clearly explained to him or her (see Smolik, cited above, § 47).
The foregoing considerations are sufficient to
enable the Court to conclude that the applicant’s initial detention was not
lawful under Article 5 § 1 (c) of the Convention. There has accordingly been a
violation of that provision of the Convention in relation to this period of the
applicant’s detention.
2. As to the applicant’s detention on the basis of the
arrest report drawn up at 1.30 p.m. on 21 November 2004
(a) The parties’ submissions
The Government contended that the report of the
applicant’s arrest had been based on the reasonable suspicion that the
applicant had committed the crime. That suspicion was based on the statements of
D.K., who had identified the applicant as the person who had attempted to
arrange the murder. The Government maintained that the applicant’s detention on
the basis of the arrest report had been lawful and compatible with Article 5 § 1
(c) of the Convention.
The applicant asserted that his detention on the
basis of the arrest report of 21 November 2004 had been contrary to domestic
law. In particular, there had been no grounds, under Article 29 of the
Constitution and Articles 106 and 115 of the CCP, for arresting him without a
court order. The authorities had failed to obtain a preliminary warrant for his
arrest, as required by Article 165-2 § 4 of the CCP.
(b) The Court’s assessment
The Court reiterates that the expressions
“lawful” and “in accordance with a procedure prescribed by law” in Article 5 §
1 essentially refer back to national law and enshrine the obligation to conform
to the substantive and procedural rules thereof. Although it is in the first
place for the national authorities, notably the courts, to interpret and apply
domestic law, under Article 5 § 1 failure to comply with domestic law entails a
breach of the Convention and the Court can and should review whether this law
has been complied with (see, among many other references, Benham
v. the United Kingdom, 10 June 1996, § 41, Reports
1996-III, and Assanidze
v. Georgia [GC], no. 71503/01, § 171, ECHR 2004-II).
Under Article 5 § 1 (c) a person may be detained
in the context of criminal proceedings only for the purpose of bringing him
before the competent legal authority on reasonable suspicion of his having
committed an offence. A “reasonable suspicion” that a criminal offence has been
committed presupposes the existence of facts or information that would satisfy
an objective observer that the person
concerned may have committed an offence (see Włoch v.
Poland, no. 27785/95, § 108, ECHR 2000-XI).
The Court notes that at 1.30 p.m. on 21 November
2004 the investigator documented the applicant’s detention by drawing up an arrest
report. The applicant was detained on the basis of that report until 24 November
2004. The investigator did not obtain a preliminary arrest warrant from a
court, as required by Article 29 of the Constitution and Article 165-2 § 4 of
the CCP, but based his decision to arrest the applicant without a court order on
Articles 106 and 115 of the CCP. According to the report, the applicant was
arrested because he had been identified by an eyewitness. The report did not
specify who had identified the applicant, or say whether that person was really
an eyewitness. If the investigator had meant to imply that D.K. had identified the
applicant, as the Government contend, the investigator should have explained why
he had considered him as an eyewitness, when in fact D.K. had been a suspect. However,
the Court will not speculate in this regard: it is sufficient to note that the
arrest report contained formulaic phrases without any indication as to why
Articles 106 and 115 of the CCP could be applied in the applicant’s case. The
report did not refer to any factual circumstances that would persuade an
independent observer that there had been a reasonable suspicion that the
applicant had committed a crime.
In these circumstances the Court finds that the
applicant’s detention, based on the arrest report of 21 November 2004, should
be regarded as arbitrary and incompatible with the requirements of Article 5 § 1
(c) of the Convention. There has therefore been a violation of that provision.
III. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c)
OF THE CONVENTION
The applicant contended that following his
arrest he had been denied access to a lawyer. The day after his arrest, the
investigator had provided him with a legal aid lawyer whereas the applicant had
wanted to be represented by the lawyer hired by his father. His questioning on
21 November 2004 and on 14 and 28 January 2005, as well as the
confrontation with the other defendant on 22 November 2004, had been carried
out without the presence of the lawyer hired by the applicant’s father.
The applicant further complained that his right
to remain silent and not to incriminate himself had been violated on several
accounts. His self-incriminating statements had been obtained by the
police and the investigator by means of ill-treatment on 20 and 21 November 2004.
In the morning of 21 November 2004 the police had questioned him as a witness after
warning him that refusing to give evidence and giving false evidence were
criminal offences. After he had been formally recognised as a suspect, the
police had continued to question him without properly explaining his procedural
rights.
The relevant parts of Article 6 of the
Convention provide 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;
”
A. Admissibility
The Court considers that this part of the application
is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. The parties’ submissions
The Government contended that the domestic
courts had not found any violation of the applicant’s rights of defence or the
principles of fair trial. They maintained that the applicant’s complaints did
not give rise to a violation of Article 6 of the Convention.
The applicant disagreed and argued that his
complaints gave sufficient grounds to conclude that his rights under Article 6
of the Convention had been breached.
2. The Court’s assessment
The Court reiterates that Article 6 § 1 requires
that, as a rule, access to a lawyer should be provided from the first time a
suspect is questioned by the police, unless it is demonstrated, in the light of
the particular circumstances of each case, that there are compelling reasons to
restrict this right. Even where compelling reasons may exceptionally justify
denial of access to a lawyer, such a restriction - whatever its justification -
must not unduly prejudice the rights of the accused under Article 6. The rights
of the defence will in principle be irretrievably prejudiced when incriminating
statements made during questioning by police without access to a lawyer are
used for a conviction (see Salduz
v. Turkey [GC], no. 36391/02, § 55, 27 November 2008).
It has been established that on 20 November 2004
the police took the applicant to the police station in Kyiv because they had
suspected him of committing a crime.
Also, it is not disputed that on the morning of
21 November 2004 the police questioned the applicant without the presence of a
lawyer. Likewise, the applicant wrote a confession on that day without the
presence of a lawyer.
The Court considers that, by virtue of the above-mentioned
principles, the applicant was entitled to have access to a lawyer as from the
first questioning session that took place on 21 November 2004. There is no
indication that the applicant waived that right.
The question, therefore, is whether the absence
of a lawyer had been justified by a compelling reason. On the facts, the Court
does not find any compelling reason for restricting the applicant’s right to a
lawyer during that time. The Court further notes that the initial confession,
obtained without a lawyer, was used by the courts for the applicant’s
conviction (see paragraph 35 above). In these circumstances the applicant’s
defence rights were prejudiced irretrievably.
Furthermore, while there is no conclusive
evidence that the applicant had been subjected to ill-treatment at the relevant
time, the circumstances of the case suggest that the absence of any legal
assistance at the initial stage of the investigation affected the applicant’s
right to remain silent and not to incriminate himself. In particular, the Court
cannot overlook the fact that on the morning of 21 November 2004 the applicant
was questioned as a witness regardless of the fact that criminal proceedings
had been opened against him and two other individuals. During that questioning without
a lawyer the applicant, having been warned that he would be criminally liable
if he refused to testify and that he had the right not to testify against
himself, could have been confused about his rights (compare Shabelnik v.
Ukraine, cited above, § 59).
Lastly, it appears that despite the fact that
the applicant designated two lawyers as his representatives, on several occasions
the investigator questioned the applicant exclusively in the presence of the
legal aid lawyer. There is no indication that the lawyer hired by the applicant’s
father had been properly notified of those investigatory measures.
The above considerations are sufficient for the
Court to conclude that there has been a violation of Article 6 §§ 1 and 3 (c)
of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d)
OF THE CONVENTION
The applicant complained that in their decisions
the courts had referred to statements made by I., who by the time of the trial
had died and therefore could not be challenged in open court. Moreover, the
courts had not properly examined whether I. had been provided with procedural
guarantees when making the statements.
The relevant parts of Article 6 provide 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:
...
(d) to examine or have examined witnesses against
him and to obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him”.
A. The parties’ submissions
The Government contended that the applicant’s
guilt had been well established by various pieces of evidence. I.’s statements given
at the pre-trial investigation and examined by the courts had had little
relevance for the findings in respect of the applicant. They maintained that
there had been no appearance of a violation of the principles of fair trial in
that respect.
The applicant contended that I.’s testimony had
been significant for the interpretation of the particular circumstances of his
case and in determining his guilt.
B. The Court’s assessment
1. The relevant principles
The Court reiterates that the admissibility of
evidence is primarily a matter for regulation by national law and as a general
rule it is for the national courts to assess the evidence before them. The
Court’s task under the Convention is not to give a ruling as to whether
statements of witnesses were properly admitted as evidence, but rather to
ascertain whether the proceedings as a whole, including the way in which
evidence was taken, were fair (see, among other authorities, Doorson v. the
Netherlands, 26 March 1996, § 67, Reports of Judgments and
Decisions 1996-II, and Van Mechelen and Others v. the
Netherlands, 23 April 1997, § 50, Reports of Judgments and Decisions
1997-III).
The evidence must normally be produced at a
public hearing, in the presence of the accused, with a view to adversarial
argument. There are exceptions to this principle, but they must not infringe
the rights of the defence (see Lüdi v. Switzerland, 15 June 1992, § 47,
Series A no. 238, and Van Mechelen and Others, cited above, § 51). Where
a conviction is based solely or to a decisive degree on depositions that have
been made by a person whom the accused has had no opportunity to examine or to
have examined, whether during the investigation or at the trial, the rights of
the defence are restricted to an extent that is incompatible with the
guarantees provided by Article 6. The term “witness” has an “autonomous”
meaning in the Convention system and therefore the fact that the depositions
were made by a co-accused rather than by a witness is of no relevance (see Lucà
v. Italy, no. 33354/96, §§ 40 and 41, ECHR 2001-II).
2. Application to the present case
In the present case the domestic courts
examined the statements made by I., one of the co-accused, during the pre-trial
investigation. The applicant contended that this had affected his defence
rights and compromised the fairness of the proceedings.
The Court first notes that, by the time the
trial started, I. had died and there had therefore been an objective reason why
she had not been examined directly by the courts. Secondly, there is nothing to
suggest that the courts failed to properly assess the admissibility of evidence
given by I.
In assessing the relevance of I.’s statements
for the applicant’s case, the Court notes that, according to those statements, I. knew nothing about the applicant and had communicated only with D.K. and later with
Yu.K. (see paragraph 15 above). While I.’s statements might have been relevant for
the conviction of D.K., neither the reasons given by the courts nor the
material in the case file suggest that they played a decisive role in the conviction
of the applicant.
It follows that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant complained under Article 5 § 3 of
the Convention that following his arrest he had not been brought promptly
before a judge and that the court decision of 30 November 2004 did not contain
relevant and sufficient reasons justifying his pre-trial detention. He also complained
under Article 5 § 4 of the Convention that he could not obtain appropriate
judicial review of the lawfulness of his pre-trial detention. Relying on Article
6 § 1 of the Convention, the applicant alleged that (a) the courts had wrongly
interpreted the oral evidence given by him and others during the trial; (b) the
courts had failed to give reasons for refusing his contention that he should
have been regarded as having voluntarily refused to commit the crime, and that
some of the evidence had been inadmissible; and (c) the Supreme Court had reconsidered
the issue of whether the murder was planned to be committed by a group of individuals
even though this particular issue had been resolved by the first-instance court.
Relying on Articles 6 and 7 of the Convention,
the applicant claimed that the courts should have regarded him as having been
unwilling to commit the crime. He further complained under Article 2 of
Protocol no. 7 that the Supreme Court, in reviewing the case, had
relied on an imprecise verbatim record of the trial. Lastly, the applicant complained
that there had been a violation of Article 2 of Protocol no. 7 and Article 14
of the Convention.
The Court has examined those complaints and
considers that, in the light of all the material in its possession and in so
far as the matters complained of are within its competence, they do not
disclose any appearance of a violation of the rights and freedoms set out in
the Convention or its Protocols. Accordingly, the Court rejects them as
manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the
Convention.
VI. 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.”
A. Damage
The applicant claimed 40,000 euros (EUR) in
respect of non-pecuniary damage.
The Government considered this claim unsubstantiated
and excessive.
The Court considers that the applicant must
have suffered distress and anxiety on account of the violation found. Ruling on
an equitable basis, as required by Article 41 of the Convention, it awards the
applicant EUR 14,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 8,176 for the
costs and expenses incurred before the Court.
The Government contended that the claim was unfounded.
. 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 sum of EUR 2,000, plus any tax that may be chargeable thereon, to
reimburse the fees and expenses of the applicant’s lawyer. The amount is to be
paid directly into the bank account of the applicant’s lawyer, Mr Arkadiy Bushchenko
(see, for example, Hristovi v. Bulgaria, no. 42697/05, § 109, 11 October
2011, and Singartiyski and Others
v. Bulgaria, no. 48284/07, § 54, 18
October 2011).
C. Default interest
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. Declares the complaints under Articles 3
(concerning alleged ill-treatment and lack of effective investigation in
that respect), 5 § 1 (concerning unlawfulness of the applicant’s arrest and
initial detention), 6 §§ 1 and 3 (concerning the right to legal assistance and
privilege against self-incrimination) of the Convention admissible and the
remainder of the application inadmissible;
2. Holds that there has been no violation of
Article 3 of the Convention in its substantive limb;
3. Holds that there has been a violation of
Article 3 of the Convention in its procedural limb;
4. Holds that there has been a violation of
Article 5 § 1 (c) of the Convention as regards the applicant’s unrecorded
detention between 20 and 21 November 2004;
5. Holds that there has been a violation of
Article 5 § 1 (c) of the Convention as regards the applicant’s detention based
on the arrest report of 21 November 2004;
6. Holds that there has been a violation of
Article 6 §§ 1 and 3 (c) of the Convention;
7. Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following amounts, to be
converted into the currency of the respondent State at
the rate applicable at the date of settlement:
(i) EUR 14,000 (fourteen thousand euros), plus any
tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand euros), plus any tax
that may be chargeable to the applicant, in respect of costs and expenses, to
be paid into the bank account of the applicant’s lawyer, Mr A. Bushchenko;
(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;
8. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified
in writing on 15 November 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
Claudia Westerdiek Dean
Spielmann
Registrar President
