Communicated on 16 May 2018

FOURTH SECTION

Application no. 52571/11 Mykola Fedorovych SIYANKO against Ukraine lodged on 27 July 2011

STATEMENT OF FACTS

The applicant, Mr Mykola Fedorovych Siyanko , is a Ukrainian national who was born in 1959 and is currently detained in Cherkasy. He is represented before the Court by Ms N.G. Okhotnikova , a lawyer practising in Kharkiv .

A. The circumstances of the case

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

In October 2004, November and December 2007, and May 2009 Tso., S., Z. and Ye. respectively were found dead in their houses in the village where the applicant was living. The case file suggests that no criminal proceedings were instituted at the time in connection with their deaths.

In March 2008 criminal proceedings were instituted in connection with robbery of K. The applicant and his wife were questioned as witnesses ’ in those proceedings. The proceedings were suspended on an unspecified date in 2008 as no perpetrator had been identified. They were resumed on 21 August 2009 following the applicant ’ s confession to the criminal offence (see below).

On 6 July 2009 Kl., the applicant ’ s acquaintance, was murdered.

On 7 July 2009 criminal proceedings were instituted against the applicant on suspicion of having murdered Kl.

At 10 a.m. on that day the applicant was arrested. The arrest record refers to unspecified statements of eye-witnesses as grounds for the arrest without a court decision. It further suggests that, being apprised of his rights as a suspect, the applicant waived his right to a lawyer. According to the applicant, he requested the assistance of a legal-aid lawyer or a meeting with a person who could assist him in hiring a private one but his requests were rejected by the investigator and he was forced to waive his right to legal assistance.

At 1.45 p.m. on the same day the applicant voluntarily surrendered to the police ( явка з повинною ) , and confessed to Kl. ’ s murder. According to the applicant, on the same day he was further forced to waive his right to a lawyer and to give evidence regarding the murder. In particular, the investigators threatened to charge his wife with the robbery of K. in the event that he refused to comply with the investigator ’ s demands.

On 8 July 2009 a reconstruction of the crime was organised at Kl. ’ s house in the absence of a lawyer. As he was under pressure from the investigator, the applicant gave evidence as instructed by the former.

On 10 July 2009 the applicant was charged with the premeditated murder of Kl. Between 9.30 and 10.30 a.m. on 10 July 2009 he was questioned as an accused in the absence of a lawyer and he provided details related to the murder.

On the same date, from 11 until 11.20 a.m. the applicant wrote his voluntary surrender to the police in which he confessed to the robbery of K.; from midday until 12.20 p.m. – to the murder of Z.; from 1 until 1.20 p.m. – to the murder of Tso.; from 2 until 2.20 p.m. – to the murder and robbery of Ye.; and from 3 to 3.20 p.m. to the murder of a woman from his village named Maria whose last name he did not remember but who was later identified as S. Each confession was set out on a separate application form provided by the investigator. According to the applicant, his request for a lawyer had been rejected before he confessed, and he was forced to waive his right to legal assistance and make self-incriminating statements to crimes as dictated by the investigator.

On 11 July 2009 the police searched the applicant ’ s house and found seventy-six bullets for different weapons. Criminal proceedings were instituted against the applicant in this connection on 20 July 2009.

On 13 July 2009 the applicant was additionally questioned in the framework of criminal proceedings related to Kl. ’ s murder. The case file suggests that before this questioning, the applicant was apprised of his procedural rights and he requested the assistance of lawyer Ts . The lawyer was admitted to the proceedings and the interview took place in his presence. During the questioning, the applicant made statements in which he confirmed his guilt in the murders of Z., Tso., S., and Ye. and provided relevant details.

According to the applicant, before being questioned he was apprised of his rights orally and did not understand a word. He further stated that Ts . had been a legal-aid lawyer provided to him by the investigator and that he had had no possibility to talk to the lawyer in private before or during the interview.

Between 14 and 22 July 2009 a number of investigative measures were taken following the applicant ’ s confessions, which included questioning of witnesses, and exhumation and examination of the victims ’ corpses.

On 24 July 2009 the applicant was questioned on account of unlawful possession of ammunition and pleaded guilty. According to the applicant, he did so in exchange for a promise by the investigator to grant him a meeting with his wife to discuss the issue of hiring a private lawyer.

On 29 July 2009, in order to verify statements given by the applicant during his questioning of 13 July 2009, a reconstruction of the crime was conducted in the presence of his lawyer, Ts . The applicant provided a detailed account of the crimes, confirming his earlier statements. As alleged by the applicant, he did so in exchange for a new promise of the investigator to allow him to meet with his wife. The relevant record suggests that during the crime reconstruction, when asked for the reasons for which he had confessed to the crimes on 10 July 2009, the applicant stated that he could not bear such a burden anymore. The applicant refused to watch the video ‑ recording of the reconstruction.

On 31 July 2009 the applicant was questioned as a suspect on account of the robbery of K. and confirmed his guilt in the crime. No lawyer was present during the questioning. On the same day criminal proceedings regarding the robbery were resumed. According to the applicant, he was forced to waive his right to legal assistance before the questioning.

On 3 August 2009 criminal proceedings were instituted against the applicant in connection with the aggravated murder of Tso., S., Z. and Ye.

On the same date the proceedings concerning all the above-mentioned crimes were joined in a single case against the applicant and the applicant was charged with the premediated murder of Kl., four counts of murder for profit, a robbery and illegal storage of ammunition.

On 25 March 2010 criminal proceedings were instituted against the applicant on account of the robbery of Kl. and further joined to the main proceedings against the applicant.

On 26 April 2010 the investigation was completed and the applicant and his lawyer were granted access to the case file. Following the lawyer ’ s advice, the applicant signed the relevant record, having raised no complaints or requests as regards the pre-trial investigation.

During the trial the applicant retracted all his confessions, stating that they had been obtained by the investigator while under duress, in breach of his defence rights. He further partly admitted to the robbery and the murder of Kl., stating that he had killed her by accident.

The applicant was represented in the court proceedings by F., a lawyer, who on unspecified date had replaced Ts . as his counsel. In July 2010 the applicant lodged a complaint with the trial court, alleging ineffective legal representation by F. and asking for another lawyer to be appointed. No information has been provided to the Strasbourg Court as to whether this complaint was ever considered by the court.

On 19 October 2010 the Court of Appeal of Cherkasy Region found the applicant guilty as charged and sentenced him to life imprisonment. His conviction was based, among other evidence, on his voluntary surrender and his self-incriminating statements given between 7 and 31 July 2009, including those made in the absence of a lawyer.

Having questioned the investigating officers in the case and having examined video-recordings of the reconstructions of the crime scene, the court found no evidence in support of the applicant ’ s allegations of psychological pressure on the part of the investigator. The court noted that no complaints had been made by the applicant or his lawyer at the investigation stage. Lastly, the court stated that the factual circumstances provided by the applicant during the investigative measures had not been known and could not have been known to anyone else, including the police, and therefore could not have been given at the instigation of the investigator. The fact that the applicant had retracted his confessions during the trial was seen by the court as the applicant ’ s attempt to avoid punishment for the crimes he had committed.

Likewise, the court found no breach of the applicant ’ s defence rights. It noted in this connection that when the applicant had made his confessions, between 7 and 10 July 2009, he had been suspected only of having murdered Kl. – a crime which had not required compulsory legal representation under domestic law. It noted that within those proceedings the applicant had waived, of his own free will, his right to a lawyer and the waiver had been lawfully accepted by the investigator. The court further noted that the applicant had been represented by a professional lawyer during the reconstructions of the crime scene, where he had provided details of the crimes.

The applicant and his lawyer F. drafted separate appeals on points of law . The applicant ’ s lawyer mainly challenged the court ’ s findings that the murders had been committed for profit. She also stated, without drawing any conclusions, that no assessment had been given by the first-instance court in respect of the fact that before the reconstruction of 29 July 2009 had been conducted, the exhumation of the victims ’ bodies had already taken place and that therefore the bodily injuries, their location and the way they had been inflicted had already been known to the investigating officers.

The applicant, for his own part, complained , inter alia , that since the beginning of the investigation his requests for legal aid or a meeting with his wife on this subject had been rejected by the investigator as allegedly no lawyers had been immediately available. He had been forced to waive his right to legal assistance. He further reiterated that his self-incriminating statements had been dictated by the investigator; that no lawyer had been present during the reconstruction of the crime on 8 July 2009 and that he had never signed the record of that reconstruction. He further stated that he had been deprived of effective legal assistance as both his lawyers had been inactive. In particular, Ts . had been working for the investigation and, despite being aware of the violations of the applicant ’ s rights, had failed to lodge any complaints; F. had also been “silent”, had not reacted to his requests for assistance and had not held private meetings with him to discuss his legal defence strategy, visiting him in detention only once during the seven months of the trial.

On 15 February 2011 the Higher Specialised Court on Civil and Criminal Matters, acting as the second-instance court, upheld the applicant ’ s conviction and sentence in his presence. The applicant was not represented by a lawyer during the hearing.

In its judgment, the court mostly relied on the applicant ’ s self-incriminating statements, stating that they were detailed and had been confirmed by the applicant on a number of occasions, including in the presence of a lawyer. The court found no violation of the applicant ’ s defence rights, giving the same reasoning as the first-instance court. Likewise, the court supported the lower court ’ s conclusion as to the lack of any evidence of psychological pressure applied to the applicant on the part of the investigator.

According to the applicant, the hearing lasted about thirty minutes. He was allowed to attend the hearing only when the operative part of the judgment had been read out.

B. Relevant domestic law

1. Constitution of Ukraine of 1996

The relevant provisions of the Constitution read as follows :

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, lawyers act 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 him 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. Criminal Code of 5 April 2001

Under paragraph 1 of Article 115, premeditated murder is punishable by imprisonment for a term of seven to fifteen years. Under paragraph 2 of Article 115, premeditated murder in aggravating circumstances listed in that paragraph is punishable by imprisonment for a term of ten to fifteen years, or life imprisonment.

3. Code of Criminal Procedure, 28 December 1960 (“the CCP”), as worded at the relevant time

The relevant provisions of the CCP read as follows:

Article 44 Defence counsel

“... Powers of defence counsel to participate in a case should be confirmed with regard to: (1) a lawyer – by authorisation of the respective bar association; (2) a lawyer who is not member of a bar association – by agreement;

...

Defence counsel shall be admitted to the proceedings by ... a ruling of the investigator ...”

Article 45. Compulsory participation of defence counsel

“The participation of defence counsel in the investigation, pre-trial investigation and trial by the first-instance court is compulsory:

...

(4) from the time of the person ’ s arrest or when he or she is charged with a criminal offence carrying a penalty of life imprisonment ...”

Article 47. Procedure for the engagement and appointment of defence counsel

“Defence counsel is hired by the suspect, accused, defendant or convicted person, his or her legal representatives, or by other persons upon the request or consent of the suspect, accused, defendant or convicted person. The investigator ... must help the arrested person or detainee to contact [his or her] defence counsel or individuals who can hire defence counsel. ...

The ... investigator ... may appoint defence counsel, under the procedure provided by law, through a bar association. A request by the ... investigator ... for defence counsel to be appointed [must be complied with by] the head of the bar association.

Defence counsel shall be appointed [by the authorities] in the following cases:

(1) when , under Article 45 §§ 1 and 2, the participation of defence counsel is compulsory but the suspect, accused or defendant does not wish to or cannot appoint defence counsel;

(2) when a suspect, an accused or a defendant wishes to appoint defence counsel but cannot do so for lack of means or another objective reason.

If there is a need to urgently conduct investigative actions or other procedural actions with the involvement of defence counsel and the suspect or the accused has not had time to employ defence counsel or the latter is unable to appear, the ... investigator by a ruling shall appoint defence counsel on a provisional basis before the hired defence counsel appears.

If there is no need to urgently conduct investigative actions or other procedural actions with the defence counsel ’ s involvement and if it is impossible to obtain the presence of the defence counsel selected by the suspect within twenty-four hours ..., the investigator ... may propose that the suspect appoint other defence counsel. If this defence counsel is unable to appear in the case within twenty-four hours and in the event that the suspect... has not engaged other defence counsel within this timeframe ... the investigator ... by [issuing] a ruling ... shall appoint defence counsel.”

Article 46. Waiver and replacement of counsel

“Any suspect, accused or defendant may at any stage of the proceedings waive his or her right to counsel. Such a waiver is permissible only on the suspect ’ s, accused ’ s or defendant ’ s initiative and shall not deprive him or her of the right to seek the services of the same or other counsel at a later stage of the proceedings.”

Article 107. Questioning of a suspect

“... If the suspect has been arrested or placed in custody ... he or she shall be questioned immediately, or, if immediate questioning is not possible, within twenty-four hours of his arrest. The presence of defence counsel is compulsory during such questioning, except when the suspect has waived the right to defence counsel and his or her waiver has been accepted. Before questioning, the suspect should be advised of his or her rights, as set forth in Article 43 § 1 of [this] Code, and informed as to what crime he or she is suspected of. The respective entry shall be made in the interview record.”

COMPLAINTS

Relying on Article 3 of the Convention, the applicant complains that he had been subjected to psychological ill-treatment in police custody with a view to extracting his confession. He further complains, under Articles 6 §§ 1 and 3 (c) and 13 of the Convention, that he had been denied access to legal assistance at the initial stage of the proceedings and had been forced to waive his right to a lawyer; that his lawyers had not represented him properly; that he had not been represented before the appeal court; and that the confession he had made in the absence of a lawyer and under police duress had been used for 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 7 and 11 July 2009, in breach of Article 3 of the Convention?

2. Were the principle of the fairness of p roceedings enshrined in Article 6 §§ 1 and 3 (c) of the Convention respected in the present case (see Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, § 274, ECHR 2016 )?

In particular:

- Was the fact that the applicant was not legally represented during the initial stage of the pre-trial investigation and before the Higher Specialised Court on Criminal and Civil Matters compatible with his right to be able to defend himself with the use of legal assista nce, as required by Article 6 § 3 (c) of the Convention? Given the fact that the applicant waived his right to legal assistance on a number of occasions, can those waivers be considered clear and unequivocal within the meaning of the Court ’s case ‑ law (see, mutatis mutandis , Simeonovi v. Bulgaria [GC], no. 21980/04, § 115, CEDH 2017 (extracts), with further references)?

- Was the applicant afforded effective legal representation, within the meaning of Article 6 § 3 (c) of the Convention?

- Was the fact that the domestic courts convicted the applicant on the basis of his self-incriminating statements allegedly obtained under duress and in breach of his right to legal assistance compatible with the principle of a fair trial set forth in Article 6 § 1 of the Convention?

The Government are requested to provide copies of all procedural documents relevant to the issues raised above, including copies of records of the applicant ’ s interviews; evidence of the applicant ’ s waivers of his right to legal assistance; and complete records of the hearings before the Court of Appeal of Cherkasy Region and of the hearing of the Higher Specialised Court on Criminal and Civil Matters of 15 February 2011. They are also asked to provide extracts from detention-facility registration logs on the dates of the lawyers ’ visits to the applicant, if such visits took place.

The Government are also requested to inform the Court whether the lawyers who represented the applicant in the proceedings were appointed by the State and to produce a detailed account of the number and duration of the applicant ’ s meetings with his lawyers.