Communicated on 19 April 2018

FOURTH SECTION

Applications nos. 59332/11 and 59550/11 Volodymyr Bogdanovych BODNARUK against Ukraine and Andriy Igorevych MAZUR against Ukraine lodged on 15 September 2011 and 12 September 2011 respectively

STATEMENT OF FACTS

The applicant in the first case (“the first applicant”), Mr Volodymyr Bogdanovych Bodnaruk , was born in 1983 and the applicant in the second case (“the second applicant”), Mr Andriy Igorevych Mazur, was born in 1982. They are Ukrainian nationals and reside in Tlumach . The applicants lodged their applications before t he Court on 15 and 12 September 2011 respectively.

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

1. The background to the cases

In November 2002 P., the applicants ’ acquaintance, was found dead at a construction site in Tlumach . No information was provided to the Court as to the criminal proceedings instituted at the time following her death and, in particular, about investigative measures taken before the applicants ’ arrest.

2. The first ’ s applicant administrative detention from 31 August to 8 September 2007, his alleged ill-treatment and corresponding investigation

On 31 August 2007 at about 9.45 a.m. a police officer Pa. took the first applicant out of his home and brought him to a police car, where there were three other officers waiting: Got., Gon . and another one. The first applicant was not allowed to make a call to his mother as his mobile phone was taken away from him. During the day, they were driving from one place to another. The first applicant was allowed to leave the car only to go to the toilet.

At 4.40 p.m. on the same date the first applicant was taken to the Tlumach Court which ordered his 7 days ’ administrative detention for an alleged resistance to the police at about 10 a.m. on that day near to the police station. The applicant denied any presence at the police station and the fact of resistance.

Later on the same date, the first applicant was taken to the Main Police Department in Ivano-Frankivsk (“the Department”) where the police officers Got., Gon . and others tortured him in order to extract his confession to the murder of P. In particular, they kicked him with their feet to different parts of his body, including the head. They further suffocated him with a polyethylene bag. Thereafter, at about 8 p.m. he was taken to a temporary detention facility.

On 1 September 2007, at 10 a.m., several police officers visited the first applicant at the detention facility and told him that his alleged accomplices had already given evidence against him. Thereafter, they started beating him again, in the same places as before, with a view to extract his confession. He was also given the names he should mention in his voluntary surrender to the police. During the day, the police officers visited the first applicant on four occasions. Each time he was beaten: twice in visitors ’ room and twice in investigators ’ room. In the evening, he was taken to the Department where he was further tortured by Got., Gon . and two other police officers. They covered his wrists with sleeves of an old pullover, handcuffed him and ordered him to squat with his arms around his knees. Thereafter, they passed a metal bar from a wardrobe under his knees and hanged him over with his head down between two desks. In doing so, the police officers were drinking alcohol and making bets as to how long the first applicant would resist. They also stood up on his head and placed their shoes in his mouth and beat him with rubber truncheons on his bare feet, kidney and head. When the first applicant started losing consciousness, the officers stopped the beating and gave him time to recover. Being unable to bear the torture, the first applicant agreed to confess. Once he stated that he did not know what to put in his draft confession, they handed him over again and started beating more severely, until the first applicant repeated everything they had told him about the circumstances of the crime. He was no longer able to move, and the officer Got. wrote for him a voluntary surrender to the police and forced him to sign it.

On 2 September 2007, on the way to the investigator ’ s office, escorting officers threatened the first applicant with torture in case he would not confirm his confession. Thereafter, the first applicant was questioned as witness to P. ’ murder. He was informed by the investigator that he did not have a right to a lawyer. During the questioning, he confirmed his earlier confession. He also did so during his confrontation with D., another suspect in the case, which took place later on the same day.

On 3 September 2007 the first applicant was taken by the police to visitors ’ room and requested to modify his confession, by testifying that not only had he witnessed the murder and helped hiding the body but also that he had had sex with the victim. When the first applicant refused to comply with the demand he was beaten until he agreed.

On 4 September 2007, during another questioning as witness, the first applicant confirmed his confession, being under the threats of ill-treatment. Then he was taken, as a witness, to participate in the reconstruction of the event of crime. The investigator had shown him the photos of the crime scenes in advance and instructed him what to say and where to go. The first applicant confirmed everything as instructed. Officers Got. and Gon . were present during the investigative action.

On the same date the first applicant ’ s mother complained to the prosecutor ’ s office about her son ’ s torture and the police ’ s failure to grant him access to a lawyer she had hired.

On 5 September 2007, following the above complaint, the first applicant was visited by prosecutor S. An ambulance arrived at the prosecutor ’ s call and recorded that the applicant had an abrasion and a hematoma on the left part of his back. In the doctor ’ s presence, the first applicant complained that he had been tortured by the police. After the prosecutor ’ s visit, he was no longer beaten but only threatened with ill-treatment.

On 7 September 2007, the last day of the first applicant ’ s administrative detention, a confrontation was held between the applicant and a witness. Being under the threats of ill-treatment, the applicant repeated his statements as requested by the police.

Later on the same day, the investigator, in the presence of two police officers, requested the first applicant to withdraw his complaint to the prosecutor in exchange of immediate release form the police custody. He agreed, being afraid of further torture. At about midnight he was released from police custody and summoned to a questioning for the next morning.

In the morning of 8 September 2007 the first applicant, accompanied with a lawyer hired by his mother, addressed to the Ivano-Frankivsk hospital in order to fix the bodily injuries. Thereafter, he complained to the regional prosecutor ’ s office about his torture and violation of his defense rights, having described in details the events between 31 August and 7 September 2007. He also retracted all the statements he had made during that period.

On the same date, the first applicant was hospitalized to the Ivano-Frankivsk regional hospital on account of a number of bodily injuries. At the admission, he stated that he had fallen dawn. Later, once he stated during his examination by a commission of the hospital medical specialists that he had been tortured by the police, he was immediately discharged from the hospital.

Between 12 and 20 September 2007 the first applicant was undergoing in-patient treatment at the neurology department of the Tlumach hospital.

On 27 September 2007 the first applicant was examined by a forensic medical expert and was diagnosed with a hemorrhage in the pelvis region, abrasions on both upper limbs and on spine area, and a bruise on his right eye. According to the expert, the injuries could have resulted from kicks by blunt hard objects in the applicant ’ s face, body and upper limbs and corresponded to the period of time indicated by the first applicant.

On 28 September 2007 the Ivano-Frankivsk prosecutor ’ s office refused to institute criminal proceedings against the police officers involved into the alleged ill-treatment, having found no evidence that they had committed a criminal offence.

On 23 January 2008 the Ivano-Frankivsk Court quashed the above ‑ mentioned prosecutor ’ s decision and ordered additional investigation.

On 14 February 2008 the prosecutor again refused to institute criminal proceedings against the police officers, having noted that no evidence of the alleged ill-treatment had been found in the course of additional inquiry. The decision was mainly based on the statements of the police officers involved and the fact that the first applicant did not raise any complaint while being detained in the temporary detention facility. The results of the forensic medical examination of the first applicant were mentioned by the prosecutors but not commented in any way.

The first applicant ’ s allegation of ill-treatment lodged during the trial was rejected by the domestic courts as unsubstantiated (see below).

3. The second applicant ’ s detention from 4 to 7 September 2007, his alleged ill-treatment and corresponding investigation

On 4 September 2007 the second applicant, in the presence of his colleagues, was arrested by the police at his working place in Yalta and taken to Ivano-Frankivsk. During the arrest, he was threatened with a gun and was handcuffed. The arrest was not recorded, no access to a lawyer was granted to him and his relatives were not informed of his whereabouts.

In the evening of 5 September 2007, when arrived to the Tlumach police station, the officer Gon . accused the second applicant of P. ’ s sexual assault and murder and demanded his confession to the crime. Once the second applicant refused to do so, police officers started beating him in his head, kidneys and ears. During the beating they were providing him with the circumstances of the crime which he was supposed to state in his confession. He was further suffocated with a polyethylene bag. Then they handcuffed him to a radiator and went out. Upon the return, the officer Gon . instructed a young officer to “practice on the applicant”. The second applicant was beaten in his head with a plastic bottle filled with water until he lost consciousness. When he gained consciousness, he was again demanded to confess. He refused and was beaten again. He spent the following night handcuffed to a radiator at the police station with no food provided and no possibility to go to the toilet.

On 6 September 2007 Gon . informed the second applicant that the first applicant and others had already implicated him in the crime. In order to avoid life sentence, Gon . advised the second applicant to state that he had witnessed but not participated in the crime. He disagreed and was then taken to the Department, where Gon . continued beating him. Being unable to bear the beating, the second applicant agreed to confess. His eye was seriously damaged by the beating and he was no longer able to see. A police officer drafted the confession and the second applicant signed it. Then he was taken to the investigator to whom he repeated all statements as instructed by the police. When asked about the origin of his eye injury, the second applicant stated that it had been caused at work. He spent the following night at the Department, handcuffed to a radiator.

On 7 September 2007 the second applicant confirmed his confession during his questioning as a witness, the reconstruction of the event of crime and a confrontation with K, then another suspect in the case. Near midnight on that date the second applicant was released.

In the morning of 8 September 2007 he was admitted to a hospital with a brain concussion and abrasions on his face.

On 10 September 2007 the second applicant complained to the regional prosecutor ’ s office about his ill-treatment by the police and withdrew all statements he had made in police custody.

On 17 September 2007 the second applicant was examined by a forensic medical expert and was diagnosed with a head injury, accompanied by brain concussion, and bruises on his right eye. According to the expert, the injuries could result from kicks by blunt hard objects in the second applicant ’ s head in the period indicated by him.

On 15 October 2007 the Tlumach prosecutor ’ s office refused to institute criminal proceedings against the police officers. The decision was based on the officers ’ denial of the fact of ill-treatment. The second applicant appealed against the decision.

On 1 August 2008 the regional prosecutor ’ s office informed the second applicant in a letter that there had been no evidence of his ill-treatment by the police.

On 26 August 2009 the regional prosecutor ’ s office again refused to institute criminal proceedings against the police officers, having found no evidence of the alleged ill-treatment.

The second applicant ’ s allegation of ill-treatment lodged during the trial was rejected by the domestic courts as unsubstantiated (see below).

4. Criminal proceedings against the applicants

On 17 October 2007 criminal proceedings were instituted against both applicants in connection with P. ’ s death.

On 23 October 2007 the first applicant was invited by the investigator to provide explanations with respect to his confession. When he refused to confirm his earlier statements and declared that he had made them under the police duress, he was arrested for 72 hours.

On the same date the second applicant was arrested by the investigator as a suspect to P. ’ s sexual assault and covering the fact of her murder. According to the arrest record, earlier on that date the second applicant had been informed of his procedural rights, including the right to a lawyer, but refused to sign the relevant record. The arrest record further suggests that the applicant refused to give evidence in respect to his arrest.

On 22 February 2008 the criminal case against the applicants and two other persons was sent for trial.

On 3 February 2009 the Kalush Court sent the case back to the prosecutor ’ s office and ordered additional investigation, having pointed out to inconsistencies in evidence, including in the testimonies of defendants, and to a number of other procedural and factual deficiencies. The court found, inter alia , that there had been no other evidence in the case than the statements given by the defendants in police custody. It went on noting that those statements had been inconsistent with each other and had been changed on a number of occasions. The court further instructed the prosecutor to verify the nature and cause of the applicants ’ bodily injuries. As regards the second applicant, the court noted in particular, having watched a video ‑ recording of the reconstruction of the event of crime, that the latter had a visible hematoma on his face and that he had had no injuries when arrested. It also referred to statements of witnesses of the second applicant ’ s arrest that the police officers had threatened him with a gun and instructed the prosecutor ’ s office to establish the reason for which firearms were used. In addition, it also questioned the lawfulness of the second applicant ’ s detention between 4 and 7 September 2002.

On 7 May 2009 the Ivano-Frankivsk Court of Appeal upheld the above ‑ mentioned ruling of the Kalush Court.

On 27 August 2009 the additional investigation was completed and on unspecified date the case was sent for trial. During the trial the applicants and their co-defendants pleaded not guilty and again retracted all their self ‑ incriminating statements made at the investigation stage, having stated that they had been obtained by the police by means of torture and in the absence of a lawyer.

On 4 August 2010 the Ivano-Frankivsk Court of Appeal, sitting as a first ‑ instance court, found the applicants guilty in the attempted rape, committed as members of a group, and in covering P. ’ s murder. They were sentenced to 7 years ’ imprisonment. The conviction was mainly based on the applicants ’ self-incriminatory statements and those of their co ‑ defendants, made during their administrative or unrecorded detention, in the absence of a lawyer and under the alleged ill-treatment. The court found those statements to be corroborated by other evidence in the case such as statements of the applicants ’ cellmates in police custody, whose identity was not revealed at trial, that the applicants had told them about their participation to the crimes; the statements of attesting witnesses and police officers, that the applicants were giving testimonies on their own free will during investigative actions; and to indirect evidence given by other witnesses. When admitting the applicants ’ self-incriminating statements as evidence, the court further noted that the details of the crime provided by the defendants, such as the place of the murder, would only be known to them if they were the perpetrators. It also found that it was not prohibited by the law to question defendants on the murder during their administrative detention. The inconsistencies in the applicants ’ and other defendants ’ testimonies were declared insignificant and explained by the time that had elapsed after the crime and the defendants ’ affection by alcohol when they committed it. In the court ’ s opinion, the existence of the inconsistencies was evidencing against the applicants ’ allegations that their confessions had been extracted by the police by means of ill-treatment.

As regards the latter complaint, the court rejected the defendants ’ allegations of ill-treatment as unsubstantiated, having seen them as a part of defense strategy. It relied in this respect on the police officers ’ denial of any ill-treatment and the results of the prosecutor ’ s investigations upon the applicants ’ complaints. It went on noting that at some point during the investigation the applicants withdrew their complaints against the police. Without providing details, the court found that the applicants ’ statements were further disproven by testimonies of doctors M., F., and Pl. and some medical evidence. Finally, the court referred to the results of a technical criminalistics examination of the first applicant ’ s surrender to the police, according to which he had written the confession on his own free will, without being affected by unusual circumstances. At the same time, the court found no evidence to confirm the first applicant ’ s statement, set in his confession, that he had had sexual relations with P.

The applicants ’ lawyers appealed in cassation against the conviction.

The first applicant ’ s lawyer challenged the court ’ s assessment of evidence and objected to the admissibility of the first applicant ’ s self ‑ incriminating statements, and those of his co-defendants, as they had been made under the police duress during their administrative arrest and in the absence a lawyer. He noted in this context that the existence of bodily injuries on the first applicant had been confirmed by a number of medical evidence which had been disregarded by the prosecutors and the first ‑ instance court. He also pointed out to an unexplained presence of the police officers, who had tortured the first applicant and his co-defendants, during investigative actions conducted with the defendants ’ participation. It was further noted that, apart from the above-mentioned self-incriminating statements, there had been no evidence confirming the circumstances of the crime, not even those concerning the place where the alleged crime had been committed. It continued noting that, while the alleged cellmates of defendants had given detailed and identical testimonies regarding what the applicants and other defendants had told them at the time, they had no recollection of other events happening around that time. The lawyer further pointed out to the fact that those alleged witnesses were at the police ’ s hands which raised further doubts as to reliability of their testimonies.

In his appeal, the second applicant ’ s lawyer raised similar arguments. He challenged the admissibility and assessment of evidence and stated, inter alia , that the second applicant ’ s detention, during which he had made the self ‑ incriminating statements, was unrecorded and unlawful, and that no access to a lawyer had been granted to him during that period. He further pointed out to the trial court ’ s failure to properly address the issue of existence of the applicants ’ bodily injuries confirmed by the results of the forensic medical examinations. He eventually noted the trial court ’ s failure to assess other evidence in the applicants ’ favour.

On 22 March 2011 the Supreme Court of Ukraine, sitting as the second-instance court, upheld, in substance, the judgment of the lower court and the sentence given. At the same time, it acknowledged that, when questioned as witnesses, the applicants had not been provided with a lawyer but had been warned about their criminal liability for a failure to testify. It therefore ruled to exclude the reference to the applicants ’ statements given as witnesses from the operative part of the judgment given. It further absolved the applicants from serving their sentences under the charge of covering the murder. The Supreme Court rejected the applicants ’ argument about their ill-treatment by the police, having referred to the results of the prosecutor ’ s investigations in this respect.

COMPLAINTS

The applicants complain under Article 3 of the Convention about their ill-treatment in police custody. They further complain under Article 6 §§ 1 and 3 (c) that their right to a fair trial was violated because their conviction in criminal proceedings was based on confessions obtained from them and their co-defendants under coercion and in the absence of a lawyer.

QUESTIONS

1. Have the applicants been subjected to torture or inhuman or degrading treatment or punishment by the police, in breach of Article 3 of the Convention?

2. Did the applicants have a fair hearing in the determination of the criminal charges against them, 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 applicants benefit from the assistance of a lawyer as from 31 August 2007 (the first applicant) and 4 September 2007 (the second applicant)?

b) Was the applicants ’ right not to incriminate themselves respected, given that the domestic courts convicted them, inter alia , on the basis of their confessions allegedly obtained by means of ill-treatment?

c) Considering that the applicants revoked their confessions was their conviction based on any reliable evidence against them?

The Government are invited to submit to the Court all relevant documents concerning the above issues, including copies of the applicants ’ self-incriminating statements; records of the applicants ’ questionings and other procedural actions with their participation; results of the forensic medical examinations of the applicants; prosecutors ’ decisions taken in reply to the applicants ’ complaints of ill-treatment by the police, etc.