FIFTH SECTION

DECISION

Application no. 6628/13 Oleksandr Yuriyovych MALCHENKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 12 November 2019 as a Committee composed of:

André Potocki, President, Mārtiņš Mits, Lәtif Hüseynov, judges,

and Milan Blaško, Deputy Sec ion Registrar ,

Having regard to the above application lodged on 15 January 2013,

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 Yuriyovych Malchenko, is a Ukrainian national who was born in 1989 and is serving a life sentence. He was represented before the Court by Mr M. Tarakhkalo, a lawyer practising in Kyiv.

2 . The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.

The circumstances of the case

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

4 . On 9 June 2009 criminal proceedings were instituted on account of the murder of B., F. and V. committed on 8 June 2009. It appears from the case file that the criminal case was investigated by a group of investigators.

5 . On the same date, 9 June 2009, the applicant was arrested as a suspect in the above murder and, at around noon according to the applicant, was taken to a police station.

6 . According to the applicant, at the police station he was ill-treated until 11 p.m. to extract his confession. In particular, police officers hit him with their fists and rubber truncheons and kicked his legs and ribs while he was sitting on a chair with his hands handcuffed behind his back. They further placed a plastic bottle filled with water on the back of his head and his neck and hit him through the bottle with their fists and a rubber truncheon.

7 . Still on 9 June 2009, an arrest report was drawn up by investigator K. indicating that the applicant had been arrested at 11 p.m. in the presence of Mrs F., a lawyer. It also bore a handwritten statement by the applicant in which he partly admitted his guilt and attested that no force had been used against him by the police. At the same time, 11 p.m., the applicant signed a record confirming that his right to legal assistance had been explained to him by K. and noting that he wished lawyer F. to represent him. On the same date lawyer F. was admitted to the proceedings by investigator O.

8 . The record of the applicant ’ s questioning indicated that, from 11 p.m. to midnight on the same day, he was questioned by investigator K. as a murder suspect. He testified, in particular, that on 8 June 2009, on the instructions of another suspect, he had hit victims F. and V. on their legs and backs, with a bat. He submitted that he had thought that the victims were already dead when he had hit them, from blows from other suspects. The applicant stated that he had helped dispose of the bodies afterwards. The applicant and lawyer F. signed the record of the applicant ’ s questioning.

9 . The applicant submitted that he had been forced to sign a statement requesting that lawyer F. represent him and that F. had in fact been absent prior to and during his first questioning by the police, although she came to sign the record of the questioning afterwards. She had instead been present next door at the questioning of D., another suspect.

10 . The record of D. ’ s questioning, signed by D. and lawyer F., indicated that from 10.20 p.m. on 9 June to 1.45 a.m. on 10 June 2009 a police investigator had questioned D. in connection with the same events of 8 June 2009. D. testified that he had seen the applicant and several other individuals beating up and murdering victims B., F. and V.

11 . At an unspecified time on 10 June 2009 a forensic medical expert, having examined the applicant, noted that he had a bruise on the left side of his torso measuring 2.8 to 3.7 cm. The expert classified this as a light bodily injury. He observed that the injury had likely been inflicted with a blunt object at most 24 hours prior to the examination. According to the record of the examination, the applicant told the expert that he had not been involved in any fights for two weeks prior to his arrest and that he had not been ill ‑ treated by the police. According to the applicant, the examination had taken place straight after his first questioning by the police.

12 . On 18 June 2009 the applicant was questioned by investigator O. as an accused. He mainly repeated his testimony of 9 June 2009, stating in addition that he had also hit V. with a hammer. The interview record was signed by the applicant and lawyer F.

13 . On 28 August 2009 the applicant repeated his earlier statements during additional questioning by investigator O. He was represented by lawyer S. whose assistance he had requested before the interview started.

14 . On 6 October 2009 the applicant participated in a crime scene reconstruction conducted by investigator S h. He was represented by lawyer M.

15 . On 11 November 2009 the applicant was questioned as an accused. At the applicant ’ s request, he was represented by lawyer B. during the questioning. No record of this interview has been made available to the Court.

16 . On 24 November 2009 the investigation was completed and the applicant was indicted for having committed, as a member of a group, the premeditated murder of F. and V. and inflicted grievous bodily harm on B. which had led to his death.

17 . On 9 December 2009 the applicant and his alleged accomplices were committed for trial at the Kherson Regional Court of Appeal (“the trial court”). During the trial the applicant pleaded guilty to inflicting bodily harm but not murder, and admitted only to having hit victim V. but could not recall where he had hit him. The applicant was represented by lawyer B.

18 . On 11 January 2010, as transpires from an extract of a transcript of the relevant hearing, the applicant submitted to the trial court that all investigative actions conducted by investigator O. had been unlawful and “a lawyer had not been present at all investigative actions”.

19 . On 22 February 2010 the applicant complained to the trial court in writing that his testimony during the pre-trial investigation had been obtained by investigator O. by use of “threats, psychological and physical pressure, by denying his defence rights and in the absence of a lawyer”. In this connection he asked the trial court to disregard all his statements made during the pre-trial investigation and to take into account only his testimony during the trial.

20 . On 15 March 2010 the trial court directed the prosecutor of Kherson Region (“the Prosecutor ’ s Office”) to investigate the applicant ’ s complaint of ill-treatment.

21 . On 2 April 2010 the Prosecutor ’ s Office decided not to institute criminal proceedings against the police officers, finding that there had been no corpus delicti in their actions. The Prosecutor ’ s Office based this decision on the explanations of the police officers who had been in charge of the applicant ’ s case, who had stated that the applicant had not been ill ‑ treated, and on the applicant ’ s statements made during his arrest and to the forensic expert that he had not been ill-treated by the police. The prosecutor also noted that all investigative actions had been conducted in the presence of a lawyer and that neither the applicant nor his lawyers had raised any complaint until the trial.

22 . On 11 March 2011 the trial court convicted the applicant as charged and sentenced him to life imprisonment. The court relied, among other evidence, on the applicant ’ s testimony given at pre-trial stage and during the trial, as well as the testimony of his co-defendants.

23 . The trial court rejected the applicant ’ s allegation of ill-treatment in police custody as unsubstantiated relying on the outcome of the prosecutor ’ s investigation. It further found it established that all questionings of the defendants had been conducted at the investigation stage in the presence of their lawyers. The court noted, in particular, that signatures of the defendants and their lawyers appeared in records of all investigative actions, with no complaints made. It therefore found no grounds for declaring evidence given by the applicant at the investigation stage inadmissible.

24 . The applicant appealed. No copy of the appeal has been made available to the Court. It appears from a summary of the applicant ’ s complaints made by the Higher Specialised Civil and Criminal Court in its judgment (see below) that the applicant argued that evidence against him had been obtained unlawfully and the punishment handed down had been too severe. He insisted that he had not inflicted bodily injuries on B. and F. but had only hit V. upon threats from one of his co-defendants, and that investigative actions with his participation had been conducted in the absence of a lawyer.

25 . On 11 December 2012 the Higher Specialised Civil and Criminal Court upheld the judgment. In doing so, it rejected the applicant ’ s allegations of ill-treatment in police custody and a breach of his defence rights as unsubstantiated, having supported in substance the reasoning given by the trial court. In particular, it found it established on the basis of the case-file that all defendants had been informed of their procedural rights before each investigative step and that the presence of their lawyers during those actions and when signing the relevant records had excluded the possibility of any outside pressure on them.

COMPLAINTS

26 . The applicant complained under Article 3 of the Convention that he had been ill-treated in police custody and that his complaint in this respect had not been duly investigated.

27 . He further complained, under Article 6 §§ 1 and 3 (c) of the Convention, that his conviction had been exclusively based on self ‑ incriminating statements obtained from him on 9 June 2009 under duress and in the absence of a lawyer.

THE LAW

28 . In his reply to the Government ’ s observations, the applicant additionally complained, in rather general terms, that his overall representation by F. had been purely notional and that his legal aid lawyers had been changed too often, rendering his defence ineffective.

29 . The Court notes that these new, belated complaints do not constitute an elaboration of the applicant ’ s original complaint, on which the parties have commented. The Court considers, therefore, that it is not appropriate now to take up these matters in the context of the present case (see, for example, Kapustyak v. Ukraine , no. 26230/11, § 52, 3 March 2016).

30 . The applicant complained that he had been subjected to ill-treatment in police custody on 9 June 2009 and that no effective investigation had been conducted upon his complaint in this respect. He relied on Article 3 of the Convention, which reads as follows:

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

31 . The Court notes that the applicant provided the Court with quite a detailed account of his alleged ill-treatment on 9 June 2009 which, he submitted, had lasted for hours (see paragraph 6 above) .

32 . However, according to the report of the applicant ’ s forensic medical examination of 10 June 2009, whose credibility had not been questioned by the applicant and which had been relied on by the applicant in substantiation of his allegation of ill-treatment, his injuries were limited to a bruise on his back (see paragraph 11 above). That injury can hardly be regarded as matching the applicant ’ s description of his alleged ill-treatment (see and compare with Vitruk v. Ukraine , no. 26127/03, § 54, 16 September 2010).

33 . There is also no conclusive evidence that the injury had in fact been sustained by the applicant while in police hands. Thus, the above-mentioned forensic medical report suggested that the applicant had sustained his injury less than 24 hours prior to the examination. The time of the examination is not indicated in the report. It therefore cannot be ruled out – even assuming that the applicant was de facto arrested at noo n on that date, as he suggested – that the 24-hour period indicated in the report had commenced prior to the applicant ’ s arrest: all the more so, if the examination took place straight after the applicant ’ s first questioning, as he suggested.

34 . It does not escape the Court ’ s attention in this respect that during his arrest, and when interviewed by the forensic expert on 10 July 2009, the applicant expressly submitted that he had not been ill-treated by the police (see paragraphs 7 and 11 above). As far as can be seen from the applicant ’ s submissions, he first raised the ill-treatment complaint at the domestic level during his trial, more than eight months after the alleged event. He provides no explanation for this delay. It shall not be overlooked in this respect that the applicant was legally represented by different lawyers throughout the investigation.

35 . Moreover, his complaint to the domestic authorities, unlike his complaint to the Court, was couched in very general terms, with no details given as regards the circumstances in which the alleged ill-treatment took place, including the date and nature of the treatment and the injuries sustained (see paragraph 19 above). Furthermore, in that complaint the applicant submitted that he had been ill-treated by investigator O. in the course of the investigation and asked the trial court to disregard all his statements made at pre-trial stage. However, in his application to the Court he stated that he had been beaten by “police officers” on 9 June 2009 (see paragraph 6 above). In addition, the available documents suggest that it had been investigator K. who had recorded the applicant ’ s arrest, informed him of his procedural rights and conducted his questioning on 9 June 2009 (see paragraphs 7 and 8 above).

36 . Having regard to the foregoing, the Court finds that the applicant has failed to lay the basis of an arguable complaint that he was ill-treated as alleged in his application to the Court. Furthermore, it is not open to him to contest the effectiveness of the domestic investigation, since the information he provided to the domestic authorities about his ill-treatment cannot be regarded as serious and reasonably credible (see and compare with Igars v. Latvia (dec.), no. 11682/03, § 72, 5 February 2013; Gavula v. Ukraine , no. 52652/07, §§ 61-62, 16 May 2013).

37 . Accordingly, the Court rejects the applicant ’ s complaint under both the substantive and procedural limbs of Article 3 of the Convention as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

38 . The applicant complained that he had been convicted on the basis of self-incriminating statements extracted from him by ill-treatment and in the absence of a lawyer on 9 June 2009. He relied on Article 6 §§ 1 and 3 (c) of the Convention, which reads as follows in the relevant part:

“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 ...”

39 . The Government submitted that the application was inadmissible as being manifestly ill-founded. In particular, materials of the case-file suggested that all procedural actions with the applicant ’ s participation, including his first questioning, had taken place in the presence of a lawyer, which thus ruled out the possibility of any pressure on the applicant. No complaints had been raised by the applicant or his new lawyers in respect of lawyer F. after she had been replaced at the pre-trial investigation stage: the complaint about her absence from the first questioning had been raised by the applicant, together with the allegation of his ill ‑ treatment, during the trial only. That complaint had been carefully examined by the domestic authorities and had been dismissed as unsubstantiated. The Government also referred to extensive evidence, including the statements of eyewitnesses to the crimes (the applicant ’ s co ‑ defendants), which had been relied on by the courts to prove the applicant ’ s guilt.

40 . The applicant argued that the statements he had made during his questioning on 9 June 2009 had resulted from his ill-treatment by the police and had been made in the absence of a lawyer as lawyer F., whom he had been forced to designate as his lawyer, had not de facto been present at his interview but had been assisting another suspect at that time. His complaint in this respect had not been addressed by the domestic courts and his testimony, obtained by means of ill-treatment and in breach of his defence rights, had been declared admissible evidence and his conviction had been solely based on his statements made during the pre-trial investigation.

41 . The Court has found unsubstantiated the applicant ’ s complaint under Article 3 of the Convention of coercion by the police following his apprehension on 9 June 2009 (see paragraph 37 above). Given that his complaint of self-incrimination under duress under Article 6 § 1 of the Convention stems from the same allegations and relies on the same line of argumentation, the Court considers it also to be without basis (see, for example, Kravchenko v. Ukraine (dec.), no. 23275/06 , § 57, 24 June 2014).

42 . As regards the remaining complaint about unfairness of the proceedings against the applicant on account of the alleged absence of legal assistance during his first questioning on 9 June 2009, the Court notes that in the judgment of 11 March 2011 it was held that the applicant had been assisted by a lawyer during all investigative steps in his respect (see paragraph 23 above). This finding was ultimately upheld by the Higher Specialised Civil and Criminal Court (see paragraph 25 above).

43 . It reiterates that is not for the Court to take the role of a first-instance court and to establish the facts of the case itself, in particular where it was not demonstrated that the finding in question could be regarded as arbitrary or manifestly unreasonable (see, for instance, Sadkov v. Ukraine , no. 21987/05, § 135, 6 July 2017).

44 . The Court observes that the record of the applicant ’ s questioning of 9 June 2009 available in the case-file is signed by both the applicant and lawyer F., suggesting that she was present at the questioning. No written complaints, including regarding the lawyer ’ s absence, had been made by the applicant when signing the records or shortly after, not even after lawyer F. had been replaced by a new lawyer. The Court cannot but reiterate in this respect that the applicant was successively represented by at least three lawyers during the pre-trial investigation and none of them appear to have complained about lawyer ’ s F. ’ s absence from the applicant ’ s first questioning. The applicant has provided no explanation as to why, being represented by different lawyers, he had complained of a breach of his defence rights only during the trial, about seven months after his first questioning by the police.

45 . Furthermore, it is not clear from the available documents what was the exact scope of the applicant ’ s complaint about a breach of his defence rights before the domestic courts and, in particular, whether he had raised at all the argument concerning lawyer ’ s F. signature on two questioning records of 9 June 2009. His complaints before the first-instance court had not referred to this particular aspect but had been confined to a general statement that “a lawyer had not been present at all investigative actions” (see paragraph 18). It must be noted in this respect that it has not been disputed by the applicant before this Court that, after 9 June 2009, investigative actions in his respect were conducted in the presence of a lawyer.

46 . No copy of his appeal to the Higher Specialised Civil and Criminal Court has been provided to the Court and the available material contains no evidence, direct or indirect, to support the applicant ’ s allegation that he had raised before the appeal court the argument about the absence of a lawyer during his first questioning by investigator K. on 9 June 2009 because of the lawyer ’ s F. presence at D. ’ s questioning.

47 . It is not for this Court to speculate about lawyer ’ s availability or not to participate in two questionings on 9 June 2009. In view of the above, the Court finds that there is no sufficient basis to put into doubt the domestic courts ’ finding that all investigative actions with the applicant ’ s participation had taken place in the presence of a lawyer.

48 . In addition, the Court notes that the applicant did not retract the statements of 9 June 2009 when questioned later, in the presence of different lawyers, maintaining them for some time during the proceedings and, for the major part, during the trial. Furthermore it does not transpire from the judgment of 11 March 2011 that the statements in question were the sole basis for the applicant ’ s conviction (see paragraph 22 above).

49 . Regard being had to the above considerations, the Court finds no evidence in support of the applicant ’ s allegation under Article 6 §§ 1 and 3 (c) of the Convention that his trial had been unfair in view of a breach of his defence rights during his first questioning by the police and use of evidence obtained as a result of his ill-treatment by the police to secure his conviction. This complaint is therefore manifestly ill-founded and should be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 December 2019 .

Milan Blaško André Potocki Deputy Registrar President