Communicated on 31 May 2018

FOURTH SECTION

Application no. 58662/11 Sergey Valentinovich SKOMOROKHOV against Ukraine lodged on 12 September 2011

STATEMENT OF FACTS

The applicant, Mr Sergey Valentinovich Skomorokhov , is a Ukrainian national, who was born in 1972 and is serving his life sentence.

The circumstances of the case

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

1. The background to the case

On unspecified date criminal proceedings were instituted in connection with a premediated murder of Ch. by an organised gang in Ivano-Frankivsk in 1995.

Between 1996 and 1999 a number of criminal proceedings were instituted in connection with premediated murders in Odesa and its region.

On unspecified date criminal proceedings were instituted in connection with murders of G. and other persons in Mariupil .

2. The alleged ill-treatment of the applicant by the police and the investigation into the matter

According to the applicant, on 29 March 2002 he was abducted from his apartment in Kharkiv by a group of masked men and brought, handcuffed and with a black cap over his head, to an abandoned police station in Mariupil , where he remained handcuffed in a cold concrete cell until the morning of the next day.

Between 30 March and 6 April 2002 the applicant was taken on a daily basis to the Main Police Department in Mariupil (“the Department”). In the evenings he was returned back to the cell at the police station. The handcuffs had never been taken off from him and no food and medical assistance was provided.

Between 30 March and 3 April 2002, at the Department, the applicant was tortured by the police with a view to extracting a confession to his membership in a gang and to a number of crimes committed as the gang member in Odesa and its region (see above). In particular, the police officers handcuffed his hands behind his back and made him to lie down on the floor with his feet being tied up and fixed under a chair. Then they fixed electric wires to his hands and administered electric shocks. This had been repeated on a daily basis, with the exception of 1 April 2002. Each time electric shocks were being administrated to different parts of his body, including his genitals. The officers also placed a plastic bag and then a gasmask on his head, causing him to suffocate. He was constantly beaten. Once a portable telephone set, which produced electric shocks with which the applicant had been tortured, came out of order, the officers handcuffed his hands behind his back, put a polyethylene bag on his head and strained his legs completely with robes. Each time they released the robes, the applicant fell down with his face on the floor. When the telephone became operative again, the torture with electric shocks resumed. The applicant lost consciousness on a number of occasions.

On 1 April 2002 the applicant was not tortured as days before as he started losing consciousness very quickly. Instead, he was kicked, punched and beaten.

On 3 April 2002, being unable to bear the torture the applicant agreed to confess. Then, he was provided with a list of unsolved crimes which had been committed in Odesa and its region and was forced to choose those in which he would confess later on, according to the police ’ s instructions. The relevant plan had been invented by the officers.

On 4 April 2002 he was again brought to the Department and signed an “explanation” - typed by the police in advance - in which he confessed to participation in the gang and to a number of murders in Odesa and its regions, having named other persons as his accomplices. Then, following the police ’ s instructions, he drafted six voluntary surrenders to the police in respect of each murder, using information from the “explanation” but not reproducing it word for word.

On 6 April 2002 the applicant was arrested. The arrest record provided that on the latter date the applicant had been arrested by the investigator in connection with banditism , premediated murder for profit and illegal possession of weapons.

On the same day the applicant was detained at the Mariupil temporary detention centre where he remained, in solitary confinement and without medical assistance for the injuries sustained, until 20 April 2002.

On 9 April 2002 the applicant was brought before an investigator who inquired if the applicant had any information related to murders committed in Mariupil . Once the applicant replied negatively, the investigator provided the applicant with a paper which appeared to be a prepared handwritten record of the applicant ’ s questioning as a witness and requested the applicant ’ s signature. The record started with the applicant ’ s statements confirming his participation in the gang and murders in Odesa region and proceeded with the investigator ’ s questions about the Mariupil murders and the applicant ’ s denial of his involvement into those crimes. According to the applicant, once he refused to confirm the content of the record, the officer proposed him to put his objections in writing at the end of the document, and the applicant did so.

Shortly after the above-mentioned event, the applicant was beaten by the same officers who had tortured him before. They offered him to think over his behaviour.

On 21 April 2002 the applicant was transferred to the Ivano-Frankivsk temporary detention facility in connection with the criminal proceedings related to Ch. ’ s murder. Given the applicant ’ s poor state of health, he was not admitted to the facility but sent to the town traumatology unit. The applicant was diagnosed with granulating wounds of his arm wrists and received the relevant medical aid.

On 22 April 2002 the applicant was examined by a forensic medical expert following the Ivano-Frankivsk investigator ’ s order. It was established that the applicant had been suffering from under- conjunctival haemorrhages of both eyes, numerous hematomas on different part of his upper and lower limbs which, according to the expert, had been caused by a blunt hard objects one or two weeks before the examination. Some skin flush was further recorded as an evidence of either skin abrasions or surface skin burns inflicted one or two weeks before the examination. Those injuries were classified by the expert as light. No injuries on the applicant ’ s genitals had been established. The applicant stated during the examination that the injuries resulted from his torture by the police between 29 March and 3 April 2002 and provided a detailed account of the latter.

As from 21 May 2002 and until the end of the pre-trial investigation the applicant complained on a number of occasions to the prosecutor ’ s office about his torture by the police, having provided detailed account of the latter and having referred, inter alia, to the results of the above-mentioned forensic medical examination. In reply, he received letters stating that there had been no evidence of his detention and/or torture by the police between 29 March and 4 April 2002 and that thus there was no need to institute any inquiry in this respect.

His ill-treatment complaints were further dismissed by the trial courts (see below).

3. Criminal proceedings against the applicant

Between 8 June 2002 and 19 June 2003 criminal proceedings were instituted against the applicant and other persons for participation in a gang and committing murders in Odesa and its region. They were joined into single proceedings.

On 13 June 2002 the applicant was questioned as a suspect to a premediated murder of V. He denied his involvement to the crime and stated that all his earlier self-incriminating statements had been given following his torture by the police.

On unspecified date the applicant and three other persons were charged with participating to a gang and murdering Ch. in Ivano-Frankivsk . The criminal proceedings related to that episode were sent for trial. During the trial, the applicant partly admitted his guilt and stated that the police tortured him in order to extract his testimonies.

On 25 October 2002 the Ivano-Frankivsk Court of Appeal, sitting as a first-instance court, found the applicant guilty as charged. The court excluded the applicant ’ s statements made at the investigation stage from the body of evidence, having noted that the applicant had proven before the court that those statements had been obtained by the police by means of physical and psychological ill-treatment.

On 31 March 2003, following the applicant ’ s request, the Court of Appeal established that the applicant was de facto arrested on 29 March 2002 and ruled that the latter date should be considered as a starting point for calculating his sentence under the above-mentioned judgement of 25 October 2002.

On 27 March and 2 April 2003 the applicant was questioned in the absence of a lawyer. He was threatened with torture if he refused to give necessary evidences. The applicant unsuccessfully complained about the threats to different state authorities, having referred to the torture he had been subjected before.

On 9 April 2003 the applicant was charged with having committed a premediated murder in Odesa .

Between May 2003 and January 2004 no investigative actions were carried out with the applicant ’ s participation.

On 1 April 2004 the charges against the applicant were amended. He was additionally charged with participation to a gang, illegal possession of weapons, eight counts of premediated murders , an attempted murder and with preparation to a murder, all committed in Odesa and its region.

On the same day the applicant was questioned as an accused. He denied his involvement into the crimes and retracted his self-incriminating statements given earlier in this regard, having stated that they had been made under physical torture by the police.

On 16 April 2004 the pre-trial investigation was completed.

On 14 May 2004 a forensic medical examination of the applicant was carried out. It was established that the applicant had signs of a number of old injuries. During the examination, the applicant stated that the injuries had resulted from his torture by the police in 2002 but his statement was not reflected in the expert ’ s report.

Between 26 April and 25 December 2004 the applicant was studying the case-file. Having signed the relevant record, he made written statements that the charges against him were based on evidence obtained by means of torture and in violation of his defence rights.

On unspecified date the case was referred to a court for trial.

During the trial the applicant submitted a number of complaints about his ill-treatment by the police and the prosecutor ’ s failure to investigate this fact. He retracted again all his self-incriminating statements given at the investigation stage and opposed to their use as evidence at the court. Likewise, he claimed that the statements of his co-defendants about his involvement into the crimes should also not be admitted as evidence as they also had been made under the police ’ s duress and retracted during the trial.

On 14 June 2007 the Odesa Regional Court of Appeal, sitting as a first-instance court, convicted the applicant as charged and sentenced him to life imprisonment. The conviction was based, to a large extent, on the applicant ’ s voluntary surrenders to the police, the record of his questioning as witness of 9 April 2002, and on confessions of the applicant ’ s alleged accomplices, which they had made at the pre-trial stage allegedly under the police ’ s duress. The court gave preference to those statements vis -a- vis the ones given at trial, having found that the former corresponded to the real circumstances of the case, were truthful, consistent and corroborated by other evidence and therefore reliable. The change of the applicant ’ s testimonies at trial and his denial of guilt was seen by the court as a part of the applicant ’ s defence strategy with a view to escape criminal responsibility.

The court found the applicant ’ s allegations of torture and his statement that he had drafted his surrenders on the basis of the printed descriptions of unsolved crimes to be false and in contradiction with other evidence in the case. In particular, the court noted that information set out in the applicant ’ s voluntary surrenders to the police was not known to the authorities and could only be known to the applicant if he was directly involved to the crimes. It also referred to the discrepancies in details between the applicant ’ s statements and the real circumstances of crimes as established by the investigation, such as time of crimes and vehicles used. The court further noted that when the applicant gave his confessions he did not complain about any ill-treatment and that once the complaint was lodged no evidence of the alleged ill-treatment was established by the prosecutor. Having questioned in trial the respective police officers, who denied any fact of the ill-treatment, the court found that no evidence of the alleged ill ‑ treatment existed. As regards the bodily injuries referred to by the applicant, the court stated that the mere existence of those injuries was not evidencing that they had been inflicted by the police as alleged by the applicant.

The applicant lodged an appeal with the Supreme Court, reiterating his complaints. He further stated that his confessions and other self ‑ incriminating statements had been obtained in breach of his defence rights as no lawyer was present when he had made them.

On 21 June 2011 the Supreme Court, acting as the second-instance court, upheld the applicant ’ s conviction and the sentence in his presence. The applicant was not represented by a lawyer during the hearing, but he did not provide any information in this regard to the Court.

Having supported the findings of the Court of Appeal, the Supreme Court found the applicant ’ s objection on the admissibility of his self ‑ incriminating statements manifestly ill-founded. It noted in this respect that the applicant was initially arrested on suspicion of the murder of Ch. Once he confessed to other murders committed as a member of a gang in Odesa region, his statements were united by a police officer in a single document – “the explanation” - and sent to the prosecutor ’ s office for verification of information set out therein as at the time neither the police nor the prosecutors had been aware of particular circumstances of the crimes, the persons involved and their motives. It was only after the applicant ’ s statements had been confirmed by his alleged accomplices that the criminal proceedings were launched against the applicant and those concerned. In this view, given that at the time the applicant had not been a suspect to the crimes to which he confessed, the Supreme Court found no obstacles for using his confessions as evidence.

As regards the applicant ’ s questioning as witness on 9 April 2009, the Supreme Court noted that the applicant was informed of his constitutional right not to incriminate himself and that the presence of a lawyer during the questioning was not provided for by the legislation in force.

The Supreme Court further found that the applicant ’ s allegations of torture were not supported by evidence in the case. Having referred to the reasoning of the lower court, it noted that from the moment of the applicant ’ s arrest and until 21 April 2002 the applicant had not applied for medical assistance and had not complained of any ill-treatment. It further stated, having referred to findings made by the Ivano-Frankivsk Court of Appeal in its judgment of 25 October 2002, that the applicant ’ s injuries discovered by the forensic medical examination of 25 May 2002 had been inflicted by the police when extorting evidence in other proceedings, related to the murder of Ch. It concluded in this respect that the existence of those injuries could not serve as an evidence of unlawful extraction of evidence with respect to the present criminal proceedings.

COMPLAINTS

The applicant complains under Article 3 of the Convention about his torture by the police with a view to extract his confessions and the lack of effective investigation in this respect. He further complains under Article 6 §§ 1 and 3 (c) of the Convention that his right to legal assistance had not been respected at the initial stage of the investigation and that the confessions he had made in the absence of a lawyer and following torture by the police were used by the trial courts to secure his conviction.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to torture or inhuman or degrading treatment or punishment in police custody between 29 March and 4 April 2002, in breach of Article 3 of the Convention?

2. Having regard to the procedural limb of Article 3 of the Convention (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation into the applicant ’ s allegation of ill-treatment in breach of this provision?

3. Did the 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) Did the applicant benefit from the assistance of a lawyer as from 29 March 2002?

(b) Was the fairness of the trial undermined by the admission as evidence of the applicant ’ s statements allegedly obtained in breach of his rights under Article 3 of the Convention (see, for example, Ushakov and Ushakova v. Ukraine , no. 10705/12, 18 June 2015)?

(c) Was the fairness of the trial undermined by the admission as evidence of the statements of the applicant ’ s co-defendants allegedly obtained in breach of their rights under Article 3 of the Convention (see, mutatis mutandis , Kaçiu and Kotorri v. Albania , nos. 33192/07 and 33194/07 , 25 June 2013 )?

The Government are invited to submit to the Court all relevant documents concerning the above issues, including copies of the records of the applicant ’ s interviews and the results of his and his co-defendants ’ forensic medical examinations; prosecutor ’ s decisions taken following the applicant ’ s and his co-defendants ’ complaints of ill-treatment by the police, etc.

The Government are further invited to submit a chronological information note with respect to criminal proceedings relevant to the present application, which should indicate the date of institution of the proceedings and their joining; dates of appointment of a lawyer (if any) within each of the proceedings; and the main procedural steps taken within the proceedings with the applicant ’ s participation.