Communicated on 19 April 2018

FIFTH SECTION

Application no. 2053/09 Oleg Ivanovych GOLOVKO against Ukraine lodged on 26 December 2008

STATEMENT OF FACTS

The applicant, Mr Oleg Ivanovych Golovko , is a Ukrainian national, who was born in 1967 and lives in Gorishni Plavni (named Komsomolsk at the material time).

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

At the time of the events the applicant owned a small scrap metal company.

On 16 September 2000 K., a private entrepreneur, who, like the applicant, was involved in local-level scrap metal business, was shot several times near his home in Komsomolsk, but survived.

On 4 February 2003, at about 7 p.m., the applicant was arrested. According to the police report, he was arrested in Kremenchuk for swearing while drunk in public, which was qualified as an administrative (minor) offence of petty hooliganism. According to the applicant, he was arrested in Komsomolsk, after which he was brought to Kremenchuk for questioning in respect of the incident involving K.

During the night from 4 to 5 February 2003 the applicant was held in the Kremenchuk police station, where he claims he was tortured by the administration of electric current with a view to making him confess to having ordered K. ’ s murder.

It appears that at about the same time the police arrested the acquaintance of the applicant, P.

On 5 February 2003 P. wrote a statement of surrender to police, in which he submitted that the applicant had asked him to murder K. for money.

On the same day the applicant also wrote a statement of surrender to police, in which he stated that he had asked P. to intimidate K. in exchange for pecuniary remuneration. Thereafter, the investigator appointed the lawyer D. to defend the applicant. According to the applicant, D. acted as his lawyer on 5 and 6 February 2003.

On 5 February 2003 a judge of the Kremenchuk Kryukivskyy District Court (“the Kryukivskyy Court”) found the applicant guilty of petty hooliganism on account of his actions as reported by the police and sentenced him to ten days ’ administrative detention.

Also on 5 February 2003 the applicant ’ s wife signed a legal assistance contract with a lawyer, U., for the applicant ’ s defence . Although U. received a judicial permit to see the applicant on 6 February 2003, officials of the Kremenchuk police station impeded him in various ways (either referring to the necessity of additional permits, or because of a weekend, or under a pretext of a busy schedule). According to the applicant, U. tried to arrange a meeting with him for about a week, but without success. It is not known whether they eventually met. As suggested by the facts of the case and the available documents, U. never defended the applicant.

Eventually the applicant contracted a different lawyer, Po., who assisted him throughout the proceedings. It is not clear, however, when Po. started defending him.

On 6 February 2003 the applicant underwent a medical examination, with no visible bodily injuries having been reported.

On 13 February 2003, once the term of the applicant ’ s administrative detention expired, the investigator of the Komsomolsk Town Prosecutor ’ s Office arrested him on suspicion of attempted murder of K.

On 21 March 2003 the Regional Court quashed the decision of the Kryukivskyy Court of 5 February 2003 on petty hooliganism as superficial and unreasoned. The case concerning the administrative offence charge against the applicant was remitted to the first-instance court for fresh examination. Its outcome is unknown.

On 10 June 2003 formal charges of attempted aggravated murder and illegal arms handling were brought against the applicant.

On 10 February 2004 the Regional Court ordered that an additional pre-trial investigation be carried out by the prosecution authorities. As noted in the ruling, the applicant had complained on many occasions that electric shocks had been administered to him. P. had raised similar complaints. The court stated that the accused persons ’ forensic medical examination was required with a view to verifying their allegations. The court went on to specify that the possible impact of electric current on the applicant ’ s health was to be verified: in particular, the applicant had complained that it had caused him loss of some teeth and tooth crowns. The Regional Court also noted that the applicant had been treated as a criminal suspect while being under administrative detention. The applicant was released subject to an undertaking not to abscond.

On 15 April 2004 the Supreme Court quashed the ruling of the appellate court in the part concerning the remittal of the case for additional investigation. It upheld it, however, in the part pertaining to the applicable preventive measure.

According to the applicant, on 29 May 2004, an independent forensic medical expert examined him and his medical file and found it probable that electric shocks might have been administered to him. The case file as it presently stands does not contain a copy of the report in question.

On 22 March 2005 the Regional Court found the applicant guilty of the infliction of grievous bodily injuries on K. As noted in the judgment, the complaints of the applicant and P. of ill-treatment had been verified and had been found unsubstantiated: in that regard on 5 March 2003, 8 June 2003 and on 24 October 2004 there had been rulings on refusal to open criminal proceedings against the police officers concerned. The trial court also referred to the medical reports concerning the applicant and P. of 6 February 2003, as well as the report of their forensic medical examinations of 15 April 2003, according to which there was no indication that they had sustained any bodily injuries. Furthermore, a report of the applicant ’ s forensic medical examination by a panel of experts (the date of which was not indicated in the judgment) had not established that electrical shocks had been administered to him. The applicant was sentenced to four years ’ deprivation of liberty. He was amnestied and absolved from serving the sentence. He remained under the undertaking not to abscond as a preventive measure before the judgment became final.

Following the applicant ’ s appeal, on 7 July 2005, the Supreme Court quashed the judgment and remitted the case to the first-instance court for fresh examination. It criticised the trial court for not verifying whether all the evidence had been collected lawfully. The applicant ’ s complaint that the administrative offence proceedings against him had been falsified had not been verified. As regards the investigation into his complaint of ill-treatment, it was found incomplete and superficial. The Supreme Court noted that the applicant himself had never been questioned in that regard and the statements of the police had been taken at face value. It also observed that the applicant ’ s medical examination of 6 February 2003, which “had not revealed any visible bodily injuries”, had been carried out in the presence of the police officers concerned. The other forensic medical examination reports relied upon could not be considered entirely credible given that they either had been based on the analysis of the medical file only or had involved incomplete or incorrectly posed questions to the experts.

As submitted by the applicant, on 3 April 2007 another forensic medical report was issued at the request of his lawyer. It allegedly stated that the applicant ’ s ill-health might have been caused by the administration of electric shocks to him during the period between 4 February and 5 April 2003. The applicant has not provided the Court with a copy of the expert report referred to.

On 14 December 2007 the Regional Court delivered a new judgment, by which it found the applicant guilty of attempted aggravated murder and illegal arms handling and sentenced him to nine years ’ imprisonment with confiscation of half of his personal property. The trial court questioned in the hearing most of the forensic medical experts, on whose findings it relied in dismissing the applicant ’ s ill-treatment allegation as unfounded. As regards the expert conclusion provided by the applicant, according to which there had been an indication of the administration of electric shocks to him, it was concluded that it had been based on incomplete medical documentation provided by the applicant to that expert. Apparently, the expert was not summoned in the hearing, in spite of the applicant ’ s requests to that effect.

On 10 July 2008 the Supreme Court overall upheld the judgment and its reasoning.

COMPLAINTS

The applicant complains under Article 3 of the Convention that the police administered electric shocks to him with a view to coercing him into self-incrimination and that there was no effective domestic investigation of the matter.

The applicant further complains under Article 6 §§ 1 and 3 (c) of the Convention that his conviction was based on his self-incriminating statements obtained under duress and in the absence of legal assistance. He additionally complains under Article 6 § 3 (c) that the lawyer of his choice, U., was not admitted in the proceedings, whereas the investigator-appointed lawyer D. was imposed on him. Lastly, the applicant complains under the same provision that he had no legal assistance starting from 6 February 2003 and, in particular, during the crime reconstruction event of 11 February 2003.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to torture, inhuman or degrading treatment, in breach of Article 3 of the Convention while he was in police custody?

2. Having regard to the procedural limb of Article 3 (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in conformity with the requirements of that article as interpreted by the Court?

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? In particular, was there a violation of his right not to incriminate himself?

4. 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 light of the procedural guarantees afforded by Article 6 § 3 (c) of this provision? In particular,

- From what point in time did the applicant have access to a lawyer? Supporting documents should be provided (see further below).

- Was the applicant prevented from meeting lawyer U. who had been contracted by his wife? If so, when and why?

- Did the applicant have access to legal assistance from 6 February 2003 onwards and, in particular, during the crime reconstruction which took place on 11 February 2003?

The Government are requested to submit copies of all the documents regarding the domestic investigation of the alleged ill-treatment of the applicant, including but not confined to all the relevant expert reports and prosecutor ’ s decisions.

Furthermore, the Government are requested to submit copies of all the documents concerning the availability of legal assistance to the applicant at various stages of the criminal proceedings against him.