Communicated on 28 November 2017

FOURTH SECTION

Application no. 45494/10 Irina Viktorivna TOKAR against Ukraine lodged on 30 July 2010

STATEMENT OF FACTS

The applicant, Ms Irina Viktorivna Tokar , is a Ukrainian national who was born in 1968 and is detained in Uman . She is represented before the Court by Mr A.P. Bushchenko and Ms Y.V. Zayikina , lawyers practising in Kyiv and Kharkiv respectively.

A. The circumstances of the case

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

On 26 March 2009 a search was carried out of the applicant ’ s house in the context of criminal proceedings instituted upon charges of burglary and theft of 480,000 United States dollars and 40,000 euros from P., the applicant ’ s ex-partner.

On the same day the applicant was questioned as a witness and had a face-to-face confrontation with P.

On Friday 27 March 2009 the applicant was arrested on suspicion of having stolen a safe with money in it from P ’ s house. On the same date, in the afternoon, a lawyer engaged by the applicant ’ s mother came to the police station where the applicant was being held and requested an interview with her. He was told that she had waived her right to counsel. At 6 pm. the applicant was questioned as a suspect in the absence of a lawyer. She alleges before the Court to have been forced to sign a waiver of her right to counsel before the questioning, as she was told that the lawyer would be available on Monday only. The applicant denied her guilt in the crime during the questioning.

On 30 March 2009, in the absence of a lawyer, the applicant was questioned as a suspect and confessed to the crime. Following that, according to the applicant, the police officers ordered her to set out her testimony in the form of a “voluntary surrender to the police” ( явки з каяттям ). She obeyed the officers ’ demand, as they had threated members of her family.

On 31 March 2009 a reconstruction of the crime was carried out in the absence of a lawyer. Again under threats from police officers, the applicant agreed to participate in the reconstruction and in her testimony followed the instructions given by the investigator in advance.

On the same day the applicant was taken to the bank and ordered to withdraw USD 200,000 from her bank account. As soon as it was noted that the police officers did not have a seizure order, they were not allowed to enter the bank. The applicant, now in the presence of the bank manager and two witnesses and not being observed by the police, drafted a statement that she had been forced to confess to the crime and that P. and the police officers had extorted money from her. Later, the applicant was taken to the police station where a record of the seizure of the money was drawn up.

On 3 April 2009 the applicant was questioned as an accused in the absence of a lawyer. She confirmed her confession made on 30 March 2009.

On the same day the applicant was questioned by a prosecutor following her complaint of ill-treatment and extortion by the police. No lawyer was present as, allegedly, the applicant had decided to give evidence in his absence. The applicant informed the prosecutor that her confession and other statements during the investigation had been made of her own free will and that since her arrest she had not wished to be legally represented. The applicant alleges before the Court that she was afraid of testifying against the police officers while in detention.

On 4 April 2009 the applicant was released from custody.

According to the applicant on 6 April 2009 she hired a lawyer to represent her in the criminal proceedings.

On 22 April 2009 the lawyer was admitted to the proceedings.

On 28 July 2009 criminal proceedings were instituted against the applicant in respect of another incident of theft from P.

On 17 August 2009, in the presence of her lawyer, the applicant retracted her self-incriminating statements given earlier, stating that they had been made under police duress.

On 14 April 2010 the Kyivo-Svyatoshynskiy District Court of Kyiv convicted the applicant on both counts of theft and sentenced her to nine years ’ imprisonment. The court referred, along with other evidence, to the applicant ’ s confession.

On 23 June 2010 the Kyiv Regional Court of Appeal upheld the judgment. The court dismissed the applicant ’ s allegations that her defence rights had been breach, stating that the applicant had waived her right to a lawyer each time she had given evidence and also referring to her statement to the prosecutor on 3 April 2009.

On 9 December 2010 the Supreme Court of Ukraine amended the judgment, excluding the second count of theft from the applicant ’ s charges and reducing her sentence to five years ’ imprisonment.

COMPLAINT

The applicant complains under Article 6 §§ 1 and 3(c) of the Convention that her privilege against self-incrimination and right of access to counsel were breached.

QUESTIONS TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charges against her, in accordance with Article 6 § 1 of the Convention and in the light of the procedural guarantees afforded by Article 6 § 3 (c) of this provision? In particular, was the applicant ’ s right to legal representation respected, regard being had to the fact that no lawyer was present during the initial stage of the pre-trial investigation and that the self-incriminating statements made by the applicant in the absence of a lawyer were used for convicting her?

The Government are requested to submit copies of all relevant documents pertaining to the criminal proceedings brought against the applicant.