Communicated on 20 June 2018

FOURTH SECTION

Application no. 33006/07 Valeriy Ivanovich RYABININ and Yuliya Ignatyevna SHATALINA against Ukraine lodged on 12 July 2007

STATEMENT OF FACTS

The applicants, Mr Valeriy Ivanovich Ryabinin (the first applicant) and Ms Yuliya Ignatyevna Shatalina (the second applicant), are Ukrainian nationals. The first applicant was born in 1965 and is serving a life ‑ imprisonment sentence in Vinnytsya prison no. 1. The second applicant is his mother. She was born in 1936 and lives in Kryvyy Rig.

A. The circumstances of the case

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

On 13 November 2004 the first applicant was released from prison having served a twelve years ’ sentence for murder.

In May 2005 he became acquainted with S. and they started a relationship. At the end of that month S. sold her flat and moved to a rented one.

On 12 June 2005 she was seen alive for the last time.

On 17 and 23 June 2005 the police extracted several body parts from a local river. It was established that those were parts of S. ’ s corps.

1. Arrest and alleged ill-treatment of the first applicant

On 23 June 2005 at about 7 p.m. the investigator called the first applicant and invited him to the Inguletskyy district police station. According to the first applicant, he considered that to be part of the usual supervision linked to his recent release from prison. Once he came to the police station, he was questioned in respect of S. ’ s murder and confessed to it.

The first applicant alleged that he had been ill-treated by the police and provided the following account of events.

The police beat him up by plastic bottles filled with sand and liquid, with a view to extracting his confession to S. ’ s murder and the corpse dissection. As he refused, his ill-treatment continued until he fainted. When he regained his senses, he realised that his trousers and pants were lowered and that an electric cable was attached to his testicles. Another electric cable was attached to his lower lip. The police administered electric current to the first applicant which made him faint several times. The officers also threatened him with rape. Eventually, the first applicant succumbed and wrote a plea of surrender dictated to him. The police officer gave him some vodka, after which the first applicant vomited.

Thereafter the first applicant was placed in a cell where there was another inmate. The first applicant had nausea and vomited. He was taken to the toilet several times at his request. Following one such request, a police officer took him out and shackled him to a motorcycle on a lorry outside. The first applicant spent the night outside. There was a fire hose from which cold water was pouring on him all the time.

In the morning on 24 June 2005 the first applicant was made change into clean clothes brought by his mother at the investigator ’ s instruction. According to the first applicant, the clothes which he had been wearing during his arrest, were soiled with his blood following his ill-treatment. The investigator allegedly told the first applicant ’ s mother to destroy them which she did.

2. Investigation into the first applicant ’ s allegation of ill-treatment

It is not clear when and to which authority the first applicant complained for the first time of his alleged ill-treatment by the police.

On 25 June 2005 a judge of the Kryvyy Rig Inguletskyy District Court (“the Inguletskyy Court”) remanded him in custody. According to the first applicant, he was not given an opportunity to complain of his ill-treatment and the judge did not react to the visible injuries on his face.

On 1 July 2005 the first applicant was brought to the Kryvyy Rig Pre ‑ trial Detention Facility (SIZO) where he was examined by a doctor who allegedly refused to document his injuries (unspecified by the first applicant).

It appears that the first applicant complained of his alleged ill-treatment before the Dnipropetrovsk Regional Court of Appeal (“the Dnipropetrovsk Court”) during his trial (see below). As a result, on 1 February 2006 the Dnipropetrovsk Court instructed the Inguletskyy District Prosecutor ’ s Office (“the Inguletskyy Prosecutor ’ s Office”) to investigate the matter.

On 13 February 2006 the Inguletskyy Prosecutor ’ s Office issued a ruling refusing to institute criminal proceedings against the police officers concerned. It was based on the statements of those officers who denied having applied any coercion to the first applicant.

The first applicant challenged the above refusal before the Inguletskyy Court. He submitted that on 23 June 2005 he had been subjected to “physical and psychological violence”. The first applicant noted that the clothes, in which he had been arrested, had been soiled with his blood and that the investigator had therefore instructed the first applicant ’ s mother to bring him similar clean clothes and to destroy the dirty ones. The first applicant further complained that the law-enforcement officials had trespassed the law having withdrawn his money (300 Ukrainian hryvnias) and a mobile phone (which the first applicant claimed to have borrowed from his mother).

On 16 March 2006 the Inguletskyy Court dismissed the first applicant ’ s complaint as unfounded. As noted in that decision, apart from the vaguely ‑ couched allegation of “physical and psychological violence”, the first applicant had not specified the circumstances of his alleged ill ‑ treatment. At the same time, the judge observed that in his complaint against the prosecutor ’ s refusal the first applicant had raised some new allegations, which had not been earlier verified. Thus, the first applicant additionally alleged that there had been various violations of the procedural rules in respect of the seizure of certain valuables. Accordingly, in so far as his complaint concerned other issues than his alleged ill-treatment, the Inguletskyy Court forwarded it to the local prosecutor for further investigation.

On 14 April 2006 the Inguletskyy Prosecutor ’ s Office issued another ruling refusing to institute criminal proceedings against the police officers involved in the first applicant ’ s arrest and questionings, for the lack of constituent elements of a crime in their actions. The officers had been questioned and had denied any wrongdoings. It appears that the issue of the first applicant ’ s alleged ill-treatment was covered in that decision too. Thus, the prosecutor referred to the statements by the officers who had submitted that the first applicant had not resisted his arrest and that immediately thereafter, in a conversation with the investigator, which had lasted no longer than five to ten minutes, he had confessed to having murdered S. and to having fragmented her body. The investigator had also denied having threatened the first applicant with rape.

On 6 July 2006 the Inguletskyy Court upheld the above refusal.

On 6 September 2006 the Dnipropetrovsk Court upheld the decision of the Inguletskyy Court of 16 March 2006.

On 13 September 2006 it also upheld the decision of the Inguletskyy Court of 6 July 2006.

3. Criminal proceedings against the first applicant

In the evening on 23 June 2005 the first applicant wrote a plea of surrender to the police having confessed to S. ’ s murder. The case file before the Court does not contain its copy. It does, however, contain “a report on the familiarisation of the suspect with his defence rights” with extensive pertinent quotations from the Constitution and the Code of Criminal Procedure, which the first applicant signed in the same evening. He also wrote that he wished to be represented by a lawyer starting from his first questioning as a suspect.

On 24 June 2005 a lawyer was appointed for the first applicant.

Later on that day a reconstruction of the events was carried out in the lawyer ’ s presence. The first applicant repeated his confession.

On 20 February 2006 the Dnipropetrovsk Court found the first applicant guilty of S. ’ s murder and theft of her property and sentenced him to life imprisonment. The court established that on 12 June 2005, following a dispute, the first applicant had hit the victim several times on the head with an axe back and had strangled her with a pillow. On 13 and 14 June 2005 he disjointed the body and placed its parts in the refrigerator in the flat rented by S. Subsequently, he drowned them in the river nearby. It was established that money had been withdrawn from S. ’ s bank card on 12, 13 and 15 June 2005. Furthermore, her jewelleries and a number of furniture items had disappeared from the flat. The first applicant pleaded innocent in the court hearing. He retracted his confession made during the pre-trial investigation and alleged that it had been a result of his torture. At the same time, the first applicant submitted that he had seen S. for the last time on 12 June 2005. While he admitted having used her bank card thereafter, he insisted that she had earlier entrusted it to him. The first applicant also admitted having taken some appliances and furniture from S. ’ s flat as she “had not been showing up”. He further observed that, given the neighbours ’ complaints about bad smell, he had cleaned the flat and had sprayed several containers of air deodorant there.

The trial court considered it appropriate, however, to rely on the first applicant ’ s initial confession statements. It also relied on the following material evidence: traces of S. ’ s blood on a pillow in the flat where she had lived with the first applicant, as well as an axe and gloves with her blood and the first applicant ’ s fingerprints in that flat. Furthermore, the handcart on which the body parts had been transported had been found at the household of the first applicant ’ s mother. The police had also found there the hacksaw used for the corpse dissection. The court also heard a number of witnesses. One of them (B.) submitted that she had seen S. allow the first applicant use her bank card. Several neighbours of the victim stated that there had been a rotting flesh smell from S. ’ s flat about which they had complained to the first applicant. According to them, the latter had appeared nervous.

It was noted in the judgment that the first applicant ’ s complaints of ill ‑ treatment by the police had been investigated and had been declared ill ‑ founded. The court questioned in the hearing the investigator in charge who had apprehended the first applicant.

Lastly, in reasoning the first applicant ’ s conviction, the trial court observed a number of similarities between the murder, in respect of which the first applicant had already served his sentence, and that of S. Thus, the first applicant had drowned the first victim ’ s body in the same river and not far from the place where he had drowned the parts of S. ’ s corpse.

The first applicant, who was no longer represented, lodged a cassation appeal. The case file before the Court does not contain its copy. According to the summary of that cassation appeal as provided in the Supreme Court ’ s ruling (see below), the first applicant complained that he had been convicted in respect of the crimes that he had not committed, that his conviction was mainly based on his confession extracted under duress, and that his right to legal defence had not been respected.

The first applicant further submitted that he had requested to be present at the hearing before the Supreme Court.

On 15 August 2006, following a hearing with the prosecutor ’ s participation, but without the first applicant or any representative from his side, the Supreme Court upheld the judgment of 20 February 2006. It held that the trial court had duly verified the first applicant ’ s allegations and had rightly dismissed them as unfounded.

The first applicant has not specified when the Supreme Court ’ s ruling was served on him. It appears from the case-file materials that he was informed of it on 5 December 2006 at the latest.

4. The first applicant ’ s access to documents required for substantiation of his application before the Court

According to the first applicant, on numerous occasions after the criminal proceedings against him were completed, in particular in 2007-2014, he requested the trial court to provide him with copies of documents from his case file required for substantiating his application before the Court. His requests were refused on the ground that, firstly, he had already studied the case file in full and, secondly, there was no legal basis for providing him with copies of documents from his case file. It was observed that the first applicant had already received copies of documents required by law (namely, the bill of indictment and the verdict).

It appears that the first applicant brought an administrative claim against the deputy president of the trial court in respect of the above-mentioned refusals. The case file contains some contradictory documents as regards the outcome of those claims.

On the one hand, there is a copy of the Vinnytsya Circuit Administrative Court ’ s decision of 21 May 2010, by which it allowed the first applicant ’ s claim in part. It concluded that the official ’ s refusals to provide the first applicant with the required copies of documents ran counter to the State ’ s obligations stemming from Article 34 of the Convention. Accordingly, the deputy president of the trial court was obliged to provide the first applicant with those copies. On 28 April 2011 the Kyiv Administrative Court of Appeal quashed that ruling and rejected the first applicant ’ s claim. However, on 18 April 2013 the Higher Administrative Court quashed the appellate court ’ s ruling and upheld that of the first-instance court of 21 May 2010.

On the other hand, the case file before the Court contains a copy of the ruling of the Vinnytsya Circuit Administrative Court of 26 December 2007, by which it refused to institute proceedings following the first applicant ’ s administrative claim against the acting deputy president of the trial court in respect of the latter ’ s failure to provide the first applicant with copies of certain documents from the criminal file. It was concluded that the claim did not fall under the jurisdiction of administrative courts. On 16 February 2012 the Vinnytsya Administrative Court of Appeal upheld that ruling. It held that lodging a claim against a judge undermined the principle of the judiciary ’ s independence.

5. Seizure of the second applicant ’ s mobile telephone and its retention by the investigator

On 23 June 2005, following the first applicant ’ s arrest, the investigator seized, in particular, a mobile telephone from him. As it was eventually established, that telephone belonged to the second applicant, and her son had taken it on that day because his own telephone had not been charged. It was also later established that the investigator had requested the second applicant to bring the charger which she did. The investigator explained to her that he needed to keep the telephone for some time.

The verdict delivered by the Dnipropetrovsk Court in respect of the first applicant on 20 February 2006 contained a detailed list of the material evidence together with the instructions as to what should be done with it. It did not mention, however, the mobile telephone in question. According to the second applicant, no procedural decision was ever taken in respect of that telephone.

On 2 August 2007 the prosecutor returned to the second applicant her mobile telephone and its charger, and she wrote a receipt in that regard.

The second applicant brought a civil claim against the investigator in respect of the delay with returning her mobile phone.

On 5 August 2008 the Inguletskyy Court refused to open proceedings following her claim having concluded that it fell within the jurisdiction of administrative, rather that civil, courts.

On 5 June 2009 the second applicant re-introduced her claim, this time before the administrative courts.

On 8 June 2009 the Dnipropetrovsk Circuit Administrative Court refused to open proceedings having concluded that the claim fell to be examined under the criminal, rather that administrative, procedure. It was noted in the ruling that the Code of Criminal Procedure provided for the possibility to raise complaints against the investigator either to the higher-level prosecutor ’ s office or to the trial court. The latter could deal with any such complaint either during the preparatory hearing or during the examination of the case on merits.

The second applicant complained about the matter to the prosecution authorities, but their constant reply was that there had been no violations of law in her case.

6. Introduction by the applicants of their application forms before the Court

On 20 July 2007 the Court received the first letter from the first applicant dated 12 July 2007, with a summary of his complaints. He noted that he had already sent a similar letter to the Court on 20 December 2006. The first applicant raised the following complaints in that letter:

- that he had been seriously ill-treated by the police and that his complaints in that regard had not been duly investigated;

- that he had incriminated himself under duress and in the absence of legal assistance;

- that he had no sufficient command of the Ukrainian language to understand all the material in his criminal file;

- that the appointed lawyers had not performed their duties in a diligent manner;

- that the case-file material had been falsified and that he had been convicted for a crime that he had not committed;

- that he had been punished twice for the same criminal offence (referring to his past criminal conviction for murder); and

- that he had not been present at the hearing before the Supreme Court.

The first applicant enclosed the following information note issued by the administration of the Ladyzhynska prison in which he was detained at the material time:

“According to the case-file materials, [the first applicant] indeed applied to the European Court of Human Rights during his detention in the Dnipropetrovsk SIZO. That application was registered under no. P-714 of 20 December 2006.”

Furthermore, according to the first applicant, on 16 February 2007 he had re-submitted his application to the Court from the Khmelnytskyy SIZO. It did not, however, reach the Court.

On 24 December 2007 the first applicant sent a completed application form to the Court.

On 4 June 2008 the first applicant wrote to the Court that he considered his mother ’ s rights to have been violated in numerous aspects. He therefore requested the Registry to send a blank application form to her address so that she would introduce her application. Such a blank was sent to Ms Shatalina on 26 August 2008.

On 5 November 2009 the second applicant sent to the Registry a completed and signed application form. It was her first communication with the Court.

B. Relevant domestic law and practice

1. Criminal Code (2001)

Under Article 115 § 2 (13), premeditated murder committed repeatedly (with some exceptions not applicable to the circumstances of the instant case) is punishable by imprisonment for a term of ten to fifteen years, or life imprisonment.

2. Code of Criminal Procedure (1960, in force at the material time)

Article 45 § 1 provided that legal representation during an inquiry, a pre-trial investigation and a trial before a court of first instance was obligatory if, inter alia , a life sentence was a possible penalty. Under Article 45 § 2, the legal representation envisaged by Article 45 § 1 was obligatory in the proceedings before the appellate court if the appeal could potentially worsen the situation of the convicted (or acquitted) person.

According to Article 383 § 1, verdicts of appellate courts delivered at first instance could be reviewed under the cassation appeal procedure.

Pursuant to Article 398 § 2, a verdict delivered by an appellate court as a court of first instance could be quashed or modified on the grounds of partiality or incompleteness of the inquiry, pre-trial investigation or trial, or because the court ’ s conclusions in its verdict were not consistent with the circumstances of the case.

3. Code on the Enforcement of Sentences and other legal provisions on monitoring of prisoners ’ correspondence

The relevant provisions are summarised in the Court ’ s judgment on the case of Vintman v. Ukraine (no. 28403/05 , §§ 45-49, 2 3 October 2014).

COMPLAINTS

A. The first applicant ’ s complaints

The first applicant complains under Article 3 of the Convention that the police subjected him to serious ill-treatment following his arrest and that there was no effective domestic investigation into the matter.

He further complains under Article 6 §§ 1 and 3 (c) of the Convention that he did not have a fair trial on account of his self-incrimination under duress and in the absence of legal assistance. He also complains under the same provision that the Supreme Court conducted its hearing with the prosecutor ’ s participation, but in the absence of the first applicant.

The first applicant next complains under Article 8 of the Convention that his correspondence has been subjected to routine censorship in detention.

He also complains that he was not able to get access to documents required for him to substantiate his application before the Court, which undermined his right to individual application under Article 34 of the Convention.

B. The second applicant ’ s complaints

The second applicant complains under Article 1 of Protocol No. 1 about the seizure of her mobile telephone by the investigator on 23 June 2005 and its retention till 2 August 2007.

She further complains under Article 13 of the Convention that she did not have an effective domestic remedy in respect of her above complaint.

QUESTIONS TO THE PARTIES

1. Has the first applicant complied with the six-month time-limit in respect of his complaints summarised in his letter to the Court of 12 July 2007, given that he had allegedly already raised them in his earlier correspondence to the Court on 20 December 2006 and 16 February 2007?

2. Was the first applicant, following his arrest on 23 June 2005, subjected to torture, inhuman or degrading treatment, in breach of Article 3 of the Convention?

3. Having regard to the procedural protection from torture, inhuman or degrading treatment or punishment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the domestic investigation in the first applicant ’ s allegation of ill-treatment in compliance with Article 3 of the Convention?

4. Did the first applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention and in the light of the procedural guarantees afforded by paragraph 3 (c) of this provision? In particular:

(a) Were the first applicant ’ s rights not to incriminate himself and to legal representation respected, regard being had to his initial questioning without a lawyer and the use of his self-incriminating statements in the body of inculpating evidence?

(b ) Was the principle of equality of arms respected as regards the proceedings before the Supreme Court, regard being had to the first applicant ’ s absence from the hearing, in which the prosecutor took part?

5. Has there been an interference with the first applicant ’ s right to respect for correspondence within the meaning of Article 8 § 1 of the Convention, as regards the alleged censorship of his correspondence by the prison administration? If so: (a) was the interference in accordance with the law? and (b) was it necessary in terms of Article 8 § 2 of the Convention?

6. Has there been any hindrance on the part of the State of the effective exercise of the first applicant ’ s right of application, as guaranteed by Article 34 of the Convention? In particular, did the first applicant have any opportunity to obtain copies of the documents from his case file and send them to the Court in order to pursue his present application (see, for example, Naydyon v. Ukraine , no. 16474/03, §§ 64-69, 14 October 2010, and Vasiliy Ivashchenko v. Ukraine , no. 760/03, §§ 103-109, 26 July 2012)?

7. Was there an interference with the second applicant ’ s peaceful enjoyment of possessions on account of the seizure by the police of her mobile telephone on 23 June 2005 and its retention till 2 August 2007? If so, was that interference necessary to control the use of property in accordance with the general interest? Did that interference impose an excessive individual burden on the second applicant (see Immobiliare Saffi v. Italy , [GC], no. 22774/93, § 59, ECHR 1999-V)?

Having regard to Article 35 § 3 (b) of the Convention, did the second applicant suffer a significant disadvantage?

8. Did the second applicant have at her disposal an effective domestic remedy for her above complaint, as required by Article 13 of the Convention?