FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32092/02 by Oleksandr Volodymyrovych YAREMENKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 13 November 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr K. Jungwiert , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr R. Maruste , Mr M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 13 August 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Oleksandr Volodymyrovych Yaremenko, is a Ukrainian national who was born in 1976 and is currently imprisoned in the city of Zhytomyr , Ukraine . He is represented before the Court by Mr O. V. Khivrich, a lawyer practising in Kyiv , Ukraine . The respondent Government are represented by their Agent, Mrs V. Lutkovska.

A. The circumstances of the case

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

1. Criminal proceedings against the applicant

3 . On 27 January 2001 the applicant was arrested on suspicion of murdering a taxi driver, M., and of several other crimes committed in 2001 ( “ the 2001 crimes”) and was placed in a cell at the Kyiv Kharkivsky District Police Department.

4 . The same day the applicant requested Mr O. Kh. as his lawyer in the case. This was allowed and the lawyer attended the initial questioning of the applicant.

5 . On 28 January 2001 the applicant was questioned in the presence of his lawyer by Mr G., an investigating prosecutor at the Kyiv Kharkivsky District Prosecutor ’ s Office ( “ the Kharkivsky Prosecutor ’ s Office ”).

6 . On 1 February 2001 Mr M., a police officer at the Kyiv Kharkivsky District Police Department (“the p olice d epartment”), who was in charge of investigating the death of a taxi driver, Kh., in the summer of 1998, questioned the applicant with a view to establishing his possible involvement in that crime. Given that the crime was classified as infliction of grievous bodily harm causing death and legal representation of a suspect was therefore not obligatory , the applicant signed a waiver of his right to counsel. The applicant was then questioned and confessed that he and Mr S. had murdered Kh. in the summer of 1998 ( “ the 1998 crime”). On the same day this criminal case was transferred to the Kharkivsky Prosecutor ’ s Office on the ground that the applicant ’ s actions could be classified as murder and the investigation of such a crime was within the competence of the prosecutor ’ s office .

7 . On 2 February 2001 the criminal cases in respect of the 1998 and 2001 crimes were joined.

8 . On the same day, the applicant participated in a videotaped on-site reconstruction of the 2001 crimes. According to the minutes of this investigative action, which was attended by the applicant, his lawyer, two attesting witnesses, investigating prosecutor G. and police officer M., who had questioned the applicant on the previous day, the applicant made statements concerning the circumstances of the 2001 crimes, but denied his involvement in the 1998 crime.

9 . On 2 February 2001, after the reconstruction had been conducted, the applicant signed a waiver in respect of his counsel O. Kh., on the ground that the latter had prevented him from confessing to the 1998 crime. According to the applicant, the waiver was only technically dated 2 February 2001 but had actually been signed on a later dater under coercion from the police officers and the case investigator.

10 . Following the reconstruction of 2 February 2001, the applicant ’ s lawyer O. Kh., sought a meeting with the applicant. However, his oral requests, as well as written requests of 6 and 7 February, were rejected by investigating prosecutor G.

11 . On 7 February 2001 the applicant, who was represented by a newly ‑ appointed counsel K., participated in the videotaped on-site reconstruction of the 1998 crime and confessed that he had committed it with Mr S.

12 . On 8 February 2001 the lawyer O. Kh. complained to prosecutor V. that investigating prosecutor G. had not replied to his request for a medical examination of the applicant, would not permit him to visit the applicant and had tried to force the applicant to request replacement of his lawyer.

13 . On 9 February 2001 O. Kh. was informed that he had been removed from the case and was furnished with the investigator ’ s decision to that effect dated 2 February 2001. The decision stated, inter alia , that the applicant had confessed to the 1998 crime but had later asserted his innocence on the advice of O. Kh . The investigator had therefore decided to remove O. Kh. from the case on the basis of Articles 61 and 130 of the Code of Criminal Procedure.

14 . On 9 February 2001 the applicant, who was represented by yet another lawyer, M., was officially charged with the 1998 and 2001 crimes, served with the indictment and questioned as an accused.

15 . By letter of 10 February 2001, prosecutor V. informed the lawyer O. Kh. that his requests of 2, 6, and 7 February could not be met since he had been removed from the applicant ’ s case.

16 . In her complaint of 12 February 2001 (see below ), the applicant ’ s wife inter alia raised the issue of the allegedly unlawful removal of O. Kh. from the case against her husband.

17 . On 14 February O. Kh. complained to prosecutor V. about the decision to remove him from the case, and asked him to quash that decision. In his reply of 19 February 2001, prosecutor V. informed O. Kh. that his removal from the case had been well-founded and was in accordance with Article 61 of the Code of Criminal Procedure. He further noted that the lawyer had breached professional ethics by advising his client to assert his innocence and retract part of his previous confession.

18 . In his letter of 4 March 2001 to the GPO (see below ), the applicant complained that he had signed the waiver in respect of O. Kh. under pressure from the police officers and the case investigator.

19 . On 6 March 2001 O. Kh. complained to the Kyiv Prosecutor ’ s Office about his removal. In its reply of 13 April 2001, the Kyiv Prosecutor ’ s Office stated that the decision to remove the lawyer had been well-founded and that, moreover, the criminal case file contained the waiver in respect of the lawyer signed by the applicant.

20 . On 10 March 2001 the applicant submitted a request to investigating prosecutor G., asking that the lawyer M. be replaced by O. Kh., his first lawyer in the case, as his defence counsel.

21 . On 24 April 2001 the Kharkivsky Prosecutor ’ s Office replied to the applicant ’ s letter of 4 March 2001. It informed the applicant that replacement of the lawyer had taken place at his request, that lawyer O. Kh. was allowed to return to the case and that they had found no violation of criminal procedural legislation in the investigation of the criminal case against the applicant.

22 . On 27 May 2001 the applicant asked investigating prosecutor G. to conduct his cross-examination alongside his co-accused S., since the accusations against him had been mainly based on statements made by Mr S.

23 . On 1 June 2001 investigating prosecutor G. replied that the cross ‑ examination would be conducted after additional questioning of S., in case any discrepancies emerged between the testimonies of the applicant and Mr S.

24 . On 8 June 2001 the applicant was questioned in the presence of his first lawyer O. Kh. He confirmed all the statements with regard to the 2001 crimes which he had made during the interview on 27 January 2001. He also repeatedly claimed that he was innocent of the 1998 crime and explained that he had been forced to confess to the latter crime by officers from the p olice d epartment .

25 . On 24 June 2001 investigating prosecutor G. informed the applicant that his request for cross-examination had been rejected, since no discrepancies had been found between the statements of the applicant and S.

26 . On the same date investigating prosecutor G. issued a new indictment, which was served on the applicant on the following day.

27 . On 20 November 2001 the Kyiv Appellate Court, acting as a first ‑ instance court, convicted the applicant and S. of the 1998 and 2001 crimes and sentenced them to life imprisonment. Three other individuals were sentenced to between three and six years ’ imprisonment. The court did not mention the fact of the lawyer ’ s removal from the case in its judgment.

28 . On 18 April 2002 the Supreme Court of Ukraine upheld the judgment of the appellate court. In reply to the applicant ’ s complaint about a violation of his right to a defence, the Supreme Court in its judgment of 18 April 2002 stated that it found no evidence of a violation of the right to a defence or any other serious violation of criminal procedural law that could provide a basis for quashing the judgment of the appellate court.

2. Allegations of ill-treatment and investigation into them

29 . On arrival at the Kharkivsky p olice s tation (according to the Government, on 30 January 2001) the applicant was examined by a paramedic who found him to be in good health.

30 . According to the applicant, on 1 February 2001 he was beaten with truncheons on wrists and shoulders by officers from the p olice d epartment, who forced him to sign a waiver of his right to counsel and to confess to the 1998 crime, which he had not committed and about which he knew nothing.

31 . On 2 February 2001 the applicant informed his lawyer O. Kh., about the events of 1 February 2001. The lawyer advised the applicant to assert his innocence and to complain about the ill-treatment. The lawyer himself officially asked the authorities to conduct a medical examination of the applicant. This request was handed to the investigating prosecutor, G., who acknowledged its receipt by signing a copy of the request. On an unknown date prosecutor G. replied to O. Kh., stating that his request could not be granted since he had been removed from the case (see below).

32 . At the end of the interview on 9 February 2001 (see above) investigating prosecutor G. asked the applicant whether he had any bodily injuries; the applicant answered that at the moment he had none.

33 . On 12 February 2001 the applicant ’ s wife, Mrs S., complained to the Kyiv City Prosecutor ’ s Office ( “ the Kyiv Prosecutor ’ s Office ”) that investigating prosecutor G. of the Kharkivsky Prosecutor ’ s Office and (unnamed) police officers of the p olice d epartment had ill-treated the applicant in order to extract confessions with regard to the 1998 crime. She further wrote that, during the investigative action of 2 February 200 1 , the applicant had retracted his confession and that the lawyer O. Kh., had requested a medical examination of the applicant. She further complained that investigating prosecutor G. had also been threatening her. On 14 February 2001 the Kyiv Prosecutor ’ s Office transferred the request to the Kharkivsky Prosecutor ’ s Office.

34 . Meanwhile, on 13 February 2001 the applicant was transferred to a pre ‑ trial detention centre. On arrival the applicant was examined by a doctor and was found to be in good health. The applicant made no complaints of ill-treatment.

35 . On 28 February 2001 the head of the Kharkivsky Prosecutor ’ s Office , prosecutor V., issued a decision refusing to institute criminal proceedings in respect of the allegations that bodily harm had been inflicted on the applicant. The prosecutor noted that the applicant had denied any physical violence against him and that no evidence of unlawful actions by the police officers had been found. However, he did not refer to her allegations concerning his subordinate, investigating prosecutor G. This decision was sent to the applicant ’ s wife on 2 March 2001 with a cover letter saying that the applicant had denied any violence towards him.

36 . On 4 March 2001 the applicant wrote a complaint to the Prosecutor General of Ukraine . In his complaint the applicant stated that on 28 January 2001 police officers had forced him to confess to the 1998 crime, which he had not committed, and that on 2 February 2001 he had been forced to sign a waiver in respect of his lawyer O. Kh., and had been warned by investigating prosecutor G. and by the officers from the p olice d epartment that he would have problems if he refused to cooperate. The applicant asked the General Prosecutor ’ s Office ( GPO ) to assist in objective consideration of his case and to reinstate O. Kh. as his defence counsel. On 23 March 2001 the Kyiv Prosecutor ’ s Office forwarded this complaint to the Kharkivsky Prosecutor ’ s Office . On 26 March 2001 the complaint was transferred to investigating prosecutor G. for examination in the context of the investigation into the criminal case against the applicant.

37 . According to the Government, the applicant did not provide the names of the officers from the p olice d epartment who had allegedly ill-treated him until he was questioned on 8 June 2001.

On 21, 23 and 24 June 2001 investigating prosecutor G. questioned three police officers who had been named by the applicant. All three denied any coercion or other unlawful actions on their part.

38 . In its judgment of 20 November 2001, the Kyiv Court of Appeal stated that the applicant ’ s retraction of his confessions and his allegations of ill ‑ treatment had been examined and found to be groundless. The court based this conclusion on the factors that the applicant had not complained of ill-treatment during the investigation , that the first complaint about ill-treatment had been lodged by the applicant on 4 March 2001, more than two months after his arrest , and that the police officers and the investigating prosecutor had denied the applicant ’ s allegations of ill-treatment. The court also noted that the applicant had been informed of his right to have a lawyer.

39 . The applicant raised the issue of coercion in his appeal to the Supreme Court.

40 . In its judgment of 18 April 2002 the Supreme Court stated that it found no evidence that the applicant had been ill-treated .

B. Relevant domestic law

1. Constitution of Ukraine

41 . Relevant provisions of the Constitution read as follows:

Article 28

“Everyone has the right to respect for his or her dignity.

No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity ... ”

Article 59

Everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose the defender of his or her rights.

In Ukraine , the advocacy acts to ensure the right to a defence against accusation and to provide legal assistance in deciding cases in courts and other state bodies.

Article 63

A person shall not bear responsibility for refusing to testify or to explain anything about himself or herself, members of his or her family or close relatives in the degree determined by law.

A suspect, an accused or a defendant has the right to a defence ...

2. Code of Criminal Procedure (the CCP ) (before 29 June 2001)

42 . Article 4 of the Code provides that the court, prosecutor or investigator shall, within their competencies, institute criminal proceedings in every case where signs of a crime have been discovered, take all necessary measures provided by law to establish the commission of the crime and the identity of the offenders and punish them.

43 . Article 22 of the Code prohibits extracting confessions from an accused or any other participant in the proceedings through violence, threats or other illegal means.

44 . Article 28 of the Code provides that the person who sustained material damage from the crime shall be entitled to lodge a civil claim against the accused person or persons who bear material liability for the actions of the accused.

45 . Article 46 of the CCP as worded at the material time provided that a suspect, accused or defendant was entitled to waive his or her right to defence counsel. Such a waiver was permissible only on the initiative of the suspect, accused or defendant himself or herself.

A waiver was not permitted where the person concerned if such person either had not reached the age of majority (18 years), or had disabilities that prevented him or her from defending his or her own interests , or had no command of the language of the proceedings.

A waiver was also not permitted if the possible penalty was capital punishment (later, a life sentence) or if the proceedings concerned coercive medical measures.

46 . Article 61 of the CCP as worded at the material time provided that an individual could not act as defence counsel if he or she either had participated in the same criminal proceedings in a nother capacity, or was a relative of t he judge, civil party or victim, or was providing legal assistance to another person whose interests conflic ted with those of the defendant, or had a relative who was participating in the same criminal proceedings in his or her official capacity.

47 . On these grounds, the individual was to refuse the assignment or could be removed from the case by a decision of the investigator, prosecutor or judge.

3 . Resolution of 25 March 1988 by the Plenary of the Supreme Court of Ukraine on the application by the Ukrainian courts of the criminal procedural legislation regulating the remittal of cases for further investigation, with further amendments (repealed on 11 February 2005)

48 . The relevant part of the Resolution, in the wording of 4 June 1993, reads as follows:

“7. ... Particular importance should be attached to verification of claims alleging illegal methods of investigation and other violations of legality that could lead to self-incrimination or to making other untrue statements.

If in the court hearing it is established that the arguments of the accused about the use of illegal measures towards him or her are not groundless and the court is unable to verify them, the case shall be returned for additional investigation on the basis of its bias, incompleteness or lack of objectivity of the preliminary or pre-trial investigation, with an indication as to the necessity of such a claim being examined by the prosecutor.”

COMPLAINTS

49 . The applicant complained under Article 3 of the Convention that he had been subjected to ill-treatment in police custody , but complaints about this were not considered properly . He further complained that he had been deprived of legal assistance of his own choosing during part of the proceedings, in violation of Article 6 § 3 (c) of the Convention. Finally, relying on Article 6 § 1 of the Convention, he complained that the above violations had resulted in an unfair trial.

THE LAW

I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION

50 . The Government raised a preliminary objection as to non-exhaustion of domestic remedies concerning the applicant ’ s complaints under Article 3 of the Convention. They maintained that the applicant and his representative had failed to challenge the decision of the prosecutor refusing to institute criminal proceedings within the seven days provided for by law and that , therefore, the applicant had not exhausted the remedies available to him under domestic law as required by Article 35 § 1 of the Convention. The Government also submitted that , had the applicant provided the names of the persons who had allegedly beaten him in February 2001 and not four months later, the relevant authorities would have been in a better position to investigate the allegations.

51 . The applicant maintained that he had raised his complaints of ill ‑ treatment before the trial court and that the latter was competent to act on th o se complaints . That practice was recommended by the Resolution of 25 March 1988 issued by the Plenary of the Supreme Court of Ukraine (see Relevant domestic law ). He further maintained that the removal of the lawyer whom he trust ed explained why his complaints had been made belatedly .

52 . The Court notes that the Government ’ s objection is closely linked to the applicant ’ s complaint under Article 3 of the Convention about the ineffectiveness of the investigation. In these circumstances, it considers that the objection should be joined to the merits of the applicant ’ s complaints.

II . ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

A. Alleged ill-treatment in police custody

53 . The applicant complained that he had been ill-treated in custody. He relied on Article 3 of the Convention, which provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

54 . The Government maintained that there was no evidence in support of the allegations of ill-treatment. The applicant had twice been examined by a doctor during the period in question and participated in video-recorded investigative actions together with witnesses and the lawyer. H e had failed to raise this complaint immediately after the alleged events and had not done so until a month later. He had also denied any ill-treatment when asked during questioning on 9 February 2001.

55 . The applicant disagreed. He maintained that only a medical examination immediately after the alleged ill-treatment could have prove d his allegations. T he applicant ’ s lawyer Kh. had made such a request on 2 February 2001, but it had been refused on the ground that the lawyer had been removed from the case.

56 . The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

B. Adequacy of the investigation

57 . The applicant further complained under Article 3 of the Convention that the State authorities had failed to undertake a thorough and effective investigation into the complaints about his ill-treatment.

58 . The Government submitted that the applicant ’ s first complaint had been too vague and that he had not given the names of the police officers who had allegedly ill-treated him until June 2001 , more than four months after the alleged events had taken place. The Government maintained that the investigation conducted following the applicant ’ s complaints had complied with the requirements of Article 3 of the Convention.

59 . The applicant maintained that the investigation into the complaints about his ill-treatment had not been conducted properly. Following his wife ’ s complaint about his ill-treatment neither she nor the applicant had been questioned by the prosecutors . Moreover, as far back as 2 February 2001 the applicant ’ s lawyer Kh. had requested a medical examination of the applicant on account of his allegations of ill-treatment.

60 . The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

III . ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

61 . The applicant also complained that he had been forced to incriminate himself and that , therefore, the trial against him had been unfair. He relied on Article 6 § 1 of the Convention , which in so far as relevant provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

62 . The Government maintained that the Ukrainian legislation provided for the right of the suspect to keep silent and not to incriminate himself. They further noted that the applicant had been informed of these rights but had waived them and had voluntarily agreed to confess to the crimes of which he was suspected. They reiterated that he had raised the issue of coercion and claimed his innocence only at a later stage and that his allegations of ill ‑ treatment had been unfounded. Therefore, the Government could not be responsible for the applicant ’ s free choice to confess.

63 . The applicant disagreed. He said that as far back as 2 February 2001 he had denied allegations of his involvement in the murder of 1998 and had confessed to the 1998 crime and testified about it only briefly and under coercion from the investigators.

64 . The Court considers, in the light of the parties ’ submissions, that this complaint raises serious questions of fact and law, the determination of which requires an examination on the merits. The Court concludes therefore that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

I V . ALLEGED VIOLATION OF ARTICLE 6 § 3 (c) OF THE CONVENTION

65 . The applicant complained that he had been deprived of legal assistance of his own choosing during a crucial part of the proceedings, in violation of Article 6 § 3 (c) of the Convention, which provides:

“3. Everyone charged with a criminal offence has the following minimum rights: ...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;...”

66 . The Government maintained that all the lawyers in the applicant ’ s case had been appointed and removed on the basis of the applicant ’ s requests. They noted that the lawyer Kh. had been admitted back to the case at the applicant ’ s request. They underlined again that the applicant ’ s initial complaints about a violation of his right to defence had been unclear and had been properly detailed only after a significant lapse of time.

67 . The applicant maintained that his lawyer Kh. had been removed from the case unlawfully. He further maintained that two other lawyers who represented him had been only notionally involved , since they had seen the applicant just once each and only during questioning . He further complained that he had signed the requests for removal and appointment of lawyers under coercion . This was also borne out by the fact that he had requested that his lawyer Kh. be put back on the case as soon as he could do so.

68 . The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these r easons, the Court unanimously

Joins to the merits the Government ’ s preliminary objection based on non-exhaustion of domestic remedies;

Declares the application admissible, without prejudging the merits of the case.

C laudia Westerdiek P eer Lorenzen Registrar President