FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30075/06 by Viktor Borysovych ZAMFERESKO and Others against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 23 November 2010 as a Chamber composed of:

Peer Lorenzen , President, Karel Jungwiert , Rait Maruste , Mark Villiger , Isabelle Berro-Lefèvre , Mirjana Lazarova Trajkovska , Ganna Yudkivska , judges, and Claudia Westerdiek , Registrar ,

Having regard to the above application lodged on 10 July 2006,

Having deliberated, decides as follows:

THE FACTS

The first applicant , Mr Viktor Zamferesko, is a Ukrainian national who was born in 1982 and is currently serving a life sentence in prison . The second and third applicants, Mrs Olga Kokhaykevych and Mr Ruslan Khomych respectively, are Ukrainian national s who live in Lviv.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

In 1995 the first applicant started suffering from schizophrenia . In the period between 2001 and 2004 he underwent various types of compulsory medical treatment on account of his mental illness.

1. Criminal proceedings against the first applicant

In January 2005 the first applicant and his friend were charged with robbing K. The first applicant remained at liberty during the pre-trial investigation in the case.

On 7 April 2005 the police instituted criminal proceedings in respect of the murder of two women: Kh. and T. The second applicant was the mother of Kh. and the third applicant was Kh. ’ s former husband.

On 8 April 2005 the investigator questioned Sh., who had been living with Kh. for about one year prior to the murders. The same day Sh. ’ s apartment was searched.

In the evening of 9 April 2005 the first applicant was arrested on suspicion of having committed the murders. According to the first applicant, after his arrival at the police station the officers started pressuring him to make him confess to the murders. His requests to provide him with a lawyer were ignored. The officers showed him a gun and hinted that they could easily shoot him because, in view of his mental illness, nobody would doubt their account of events. They then punched him and started hitting him with a bat . He parried the bat blows with his arms, but soon gave up and wrote a confession which was dictated to him by the police officers.

On 10 April 2005 the police officers questioned the first applicant again and carried out a reconstruction of the events at the scene of the crime. In the course of those investigative actions, which were held in the presence of a legal-aid lawyer, G., the first applicant confessed to the crimes.

On 11 April 2005 the first applicant was examined by a medical expert. Following the medical examination the expert issued a report concluding that the first applicant suffered from bruising on both arms and an abrasion to his right arm which had been inflicted by blunt objects and could have been sustained on 9 April 2005. The expert also stated that the first applicant had an injury on his right hand which could have been inflicted on 6 April 2005.

On 13 April 2005 the first applicant again confessed to the murders and denied that any physical or psychological pressure had been applied to him when he had written the initial confession to the murders. The questioning was held in the presence of the lawyer.

Subsequently, the first applicant changed his lawyer during the pre-trial investigation, but later on reappointed G. When questioned on 14 June 2005, in the presence of the new lawyer, he denied any involvement in the murders while acknowledging his guilt in the robbery.

On 14 June 2005 the investigator questioned Sh. and refused to institute criminal proceedings against the latter on the ground that no corpus delicti had been established.

On the same day the investigator refused to institute criminal proceedings in respect of the alleged ill-treatment of the first applicant by police officers for lack of evidence that any crime had been committed.

On an unspecified date the case was referred to the Lviv Regional Court of Appeal for trial.

During the trial the first applicant raised the issue of his alleged ill-treatment. He admitted that he had robbed K., but denied that he had committed the murders. He insisted that the police officers had illegally compelled him to confess to the murders.

On 23 September 2005 the Lviv Regional Court of Appeal found the first applicant guilty of the robbery and the murders and sentenced him to life imprisonment. The court based its conclusions, inter alia , on the confession of 9 April 2005. The court also concluded that the first applicant was mentally sound, relying on the relevant expert opinions.

The court also examined the first applicant ’ s contentions of ill-treatment. It called all the police officers dealing with the first applicant and questioned them in the present of the first applicant and his lawyer. It further had regard to the other evidence available in the case file. The court concluded that the allegations of ill-treatment were unsubstantiated. In particular, there had been no eyewitness except for the police officers and they denied having used any force or duress in respect of the first applicant; moreover, in the presence of his lawyer, the first applicant had subsequently acknowledged having committed the murders.

The first applicant appealed in cassation claiming that he had confessed to the murders against his will and as a result of ill-treatment by the police officers.

On 10 January 2006 the Supreme Court upheld the conviction of the first applicant, finding that his guilt had been well established by various pieces of evidence including his confession of 9 April 2005. The allegations of ill-treatment had been rejected as unsubstantiated. The first applicant was still represented by G.

Subsequently, the first applicant retained a new lawyer, who requested a review of the case in the light of new and exceptional circumstances. Those requests were rejected as unfounded.

On 18 December 2009, at the request of the first applicant ’ s mother, the Kyiv Scientific and Research Institute of Forensic Examination issued a report concluding that the confession of 9 April 2005 had been written by the first applicant with the active assistance of another person.

2. Post-conviction detention issues

Following his conviction, the first applicant was transferred to Sokalska Prison no. 47 to serve his life sentence.

On 17 November 2007 a group of hooded prison officers burst into the cell of the first applicant and started beating him and other inmates. The officers ordered the prisoners to undress down to their underwear. They ordered them to squat down thirty times and then to go out into the prison yard. Despite the fact that the temperature was -6 degrees Celsius, the first applicant had to stay in the prison yard for two hours wearing only his underclothes.

A few days later the first applicant contacted his lawyer and described what had happened.

On 19 November and 10 December 2007 an inmate, B., complained to the Lviv Regional Prosecutor ’ s Office, claiming that on 17 November 2007 a group of special prison officers had ill-treated him. He alleged the same acts of ill-treatment. It appears that he received no reply to his complaints.

According to the first applicant, he has not been provided with appropriate medical treatment during his detention in the prison. On 21 December 2007 the prison administration informed the lawyer of the first applicant that the latter was being regularly examined by the medical staff of the prison; had been diagnosed with a spine disorder and schizophrenia and provided with the requisite medical treatment and assistance at the medical unit of the prison; and that from the time of his arrival at the prison his health had not deteriorated.

B. Relevant international material

The international material relevant for the present case has been summarised in the judgment of Davydov and Others v. Ukraine ( nos. 17674/02 and 39081/02 , § § 101 , 102, 104 – 106, 1 July 2010 ).

C . Relevant domestic law

1. Constitution of Ukraine of 28 June 1996

Article 28 §§ 1 and 2 provide that e veryone has the right to respect for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity .

Article 62 § 3 provides that a n accusation cannot be based on illegally obtained evidence.

2. Code of Criminal Procedure of 28 December 1960

Article 4 of the Code provides that the court, the prosecutor, the investigator or the body of inquiry must, to the extent that it is within their power to do so, institute criminal proceedings in every case where signs of a crime have been discovered, take all necessary measures provided by law to establish whether a crime has been committed and establish the identity of the perpetrators and punish them.

Article 99 § 1 of the Code provides that if there are no grounds on which to institute criminal proceedings, the prosecutor, the investigator, the body of inquiry, or the court shall take a decision refusing to institute criminal proceedings and give relevant notice to interested persons, companies, institutions or organisations.

COMPLAINTS

1. The first applicant makes the following complain t s :

i) under Article 3 of the Convention that he was ill-treated by police with the purpose of obtaining his confession to the murders;

ii) under Article 3 of the Convention that he has not been provided with appropriate medical assistance in Sokalska Prison no. 4 7;

iii) under Article 3 of the Convention that on 17 November 2007 he was subjected to ill-treatment by a group of special prison officers ;

iv) under Article 5 § 1 of the Convention that on 9 April 2005 he was un lawfully arrested by the police;

v) under Article 6 § 1 of the Convention that his right to a fair trial was violated because the courts convicted him on the basis of his self-incriminatory statements which were obtained against his will and as a result of ill-treatment;

vi) that he had not been provided with access to a lawyer as from the first questioning of him by the police;

vii) under Article 6 § 1 of the Convention that Sh. was not questioned at the trial and the latter ’ s involvement in the murders was not properly examined , and, further , that his legal - aid lawyer , G., failed to provide him with effective legal representation .

vii) under Article 6 § 1 of the Convention that his requests for a review of the criminal case in the light of new and exceptional circumstances were arbitrarily refused.

viii) under Article 34 of the Convention that the domestic authorities refused his representative ’ s requests for copies of the materials of the case file.

2 . The second and third applicants complain that the domestic authorities violated their right to a fair trial in that they convicted the first applicant , who, in their opinion, did not commit the murders.

THE LAW

1. The first applicant complains that he was ill-treated by the police with the purpose of obtaining his confession to two murders. He further complains that on 17 November 2007 he was subjected to ill-treatment by a group of special prison officers. The first applicant relies 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.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.

2. The first applicant that his right to a fair trial was violated because the courts convicted him on the basis of self-incriminatory statements which were obtained against his will and as a result of ill-treatment. He also complains that he was not provided with access to a lawyer as from the first questioning of him by the police .

The complaints fall under Article 6 § § 1 and 3 (c) of the Convention which provide in so far as relevant, 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;”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.

3. The Court has examined the remainder of the first applicant ’ s complaints, the complaints of the second and third applicants. It considers that, in the light of all the materials 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.

It follows that this part of the applications must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Cou rt unanimously

Decides to adjourn the examination of the first applicant ’ s complaints under Article 3 of the Convention (alleged ill-treatment at the police station; alleged ill-treatment by prison officers), Article 6 §§ 1 and 3 (c) of the Convention (privilege against self-incrimination; lack of access to a lawyer as from the first questioning).

Declares the remainder of the application inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar President