Communicated on 2 January 2017

FIFTH SECTION

Application no. 14486/07 Aleksey Alekseyevich MALYY against Ukraine lodged on 14 March 2007

STATEMENT OF FACTS

The applicant, Mr Aleksey Alekseyevich Malyy , is a Ukrainian national, who was born in 1972 and is serving a life-imprisonment sentence in the Mariupol Pre-Trial Detention Centre.

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

1. Background events

In the evening on 12 October 2004 a retired couple, Mr and Ms S., were robbed and murdered in their house in the Dnipropetrovsk region. Their 15 ‑ year-old son A. informed his neighbours, the family of K. (the applicant ’ s acquaintance), about that tragic event. According to A., the perpetrator was a man wearing a mask and being equipped with a knife and a hammer.

On the same day the police apprehended A. on suspicion of the murder. He was detained for over three months and confessed to having killed his parents.

2. Criminal proceedings against the applicant and his alleged ill ‑ treatment

On 15 January 2005 the police apprehended the applicant and his acquaintance K. (see above) on suspicion of their involvement in several armed robbery assaults on jewellery stores and banks committed in Dnipropetrovsk at various dates in 2004. They both confessed.

According to the applicant, during the period from 15 to 18 January 2005 he was held in the Kirovskyy police station, where he was allegedly subjected to various forms of ill-treatment, such as continuous handcuffing in an extremely tight manner, slaps on his ears, deprivation of sleep, and verbal assaults. He was coerced into signing a waiver of legal assistance (the exact date is unknown).

On 17 January 2005 there was a confrontation between the applicant and K., during which they found out that the applicant had not referred to K. in his statements, whereas K. had incriminated the applicant, as well as several other persons. As a result, their relations became hostile and the applicant refused from any further confrontations with K. thereafter.

On 18 January 2005 the Dnipropetrovsk Kirovskyy District Court (“the Kirovskyy Court”) remanded the applicant in custody pending trial. On the same day he was transferred to the Dnipropetrovsk Temporary Detention Facility (“the Dnipropetrovsk ITT”).

On 25 January 2005 a lawyer was appointed for the applicant. On the same day they had their first meeting in the presence of the investigator.

On 28 January 2005 the applicant was taken to the Dnipropetrovsk Regional Criminal Investigation Department, where he was told to confess to the robbery and murder of the family of S. As the applicant refused, the police officers became violent. According to the applicant, they put a black cap on his head covering his eyes and hit him many times in the head with a pile of books. His hands remained handcuffed behind his back. They also hit him several times with a rubber truncheon in the kidneys. Furthermore, the police allegedly threatened the applicant with a sexual assault. The applicant ’ s ill-treatment continued from 10.30 a.m. to 6.30 p.m. As a result, he wrote “a plea of surrender” confessing to the murder, having reproduced the text given to him by the police. It stated that the applicant had found out from K. that the latter ’ s neighbours, the family of S., had sold some real estate and had a significant amount of money. The applicant and K. had agreed that the former would rob S., but the applicant had overstepped that agreement and had killed the couple.

On the same day, 28 January 2005, K. also wrote “a plea of surrender” in respect of the robbery and murder of S. to the same investigator, in which he confirmed the applicant ’ s account of the events. As K. would later submit during the hearing before the trial court and in his appeal on points of law (in the part challenging his conviction for abetting the robbery assault on the family of S.), his statement of 28 January 2005 incriminating the applicant was untruthful and resulted from his beating by the police. According to K., the investigator gave him the text of the “plea of surrender” in question.

In the morning on 29 January 2005 the applicant told the ITT doctor that he had been beaten and that he was suffering from a headache, but his complaints were disregarded.

On 31 January 2005 the applicant was transferred to the Dnipropetrovsk Pre-Trial Detention Centre (“the Dnipropetrovsk SIZO”). According to him, his initial medical examination there was superficial and his complaints about a headache did not receive any attention.

On 1 February 2005 the applicant signed an “explanation to the plea of surrender of 28 January 2005” under psychological pressure of the police and without his lawyer being present. He gave further details regarding the murder as instructed by the police.

On 12 May 2005 an identification parade took place in the absence of the applicant ’ s lawyer. A. identified the applicant “by his voice and stature” as the person who had murdered his parents. As submitted by the applicant, he was the only person wearing winter clothes, which were also dirty. Furthermore, instead of masks the three participants of the identification parade were wearing black plastic bags on their heads.

On an unspecified date the case was referred to the Dnipropetrovsk Regional Court of Appeal (“the Dnipropetrovsk Court”) for trial. All the defendants complained to the court of having been ill-treated during the pre ‑ trial investigation. As a result, on 8 November 2005 the Dnipropetrovsk Court issued a ruling instructing the prosecution authorities to investigate the matter. The case file as it presently stands does not contain a copy of that ruling.

On 18 November 2005 the Dnipropetrovsk Regional Prosecutor ’ s Office refused to institute criminal proceedings in respect of the above allegations. The above decision was based on the statements of the police officers concerned, who denied having ill-treated the applicant and the other co ‑ defendants. As the investigator had explained, all the co-defendants had confessed of their free will to the offences incriminated to them and had reiterated those confessions during the reconstructions of the crimes “in the presence of attested witnesses and specialists”. Furthermore, none of them had raised any complaints of ill-treatment. In sum, their allegations were dismissed as being without basis. It was stated in the prosecutor ’ s decision that its copy was to be sent to the Dnipropetrovsk Court.

On 19 January 2006 the Dnipropetrovsk Court, sitting as a court of first instance, found the applicant guilty of double murder committed with particular cruelty (in front of the victims ’ child) and for profit, several accounts of robbery assaults, illegal arms ’ handling, and creating a gangster group ( banditism ). The most severe penalty, life imprisonment, was for the aggravated murder, and absorbed those in respect of the other charges. During both the pre-trial investigation and the trial the applicant consistently confessed to almost all the robbery assaults (except for one episode). In the hearing he retracted his confession to the aggravated murder of the S. family as obtained under duress and without legal assistance. K. also retracted his earlier statement on that charge incriminating the applicant as obtained under duress. Furthermore, the applicant maintained that he had an alibi, as in the evening on 12 October 2004 he had been at his sister ’ s place in Berdyansk (about 300 km from Dnipropetrovsk). He specified that he had gone there to celebrate his sister ’ s birthday, which was on 13 October. The applicant ’ s sister and two other persons confirmed that.

In reaching its conclusion about the applicant ’ s guilt, the court relied on his and K. ’ s “pleas of surrender” made during the pre-trial investigation. It noted that their ill-treatment complaints had been duly investigated and dismissed by the prosecution authorities. Accordingly, the court considered that their initial confessions had been made of their free will and observed that they were concordant with each other in all the details. At the same time, given the fact that the defendants retracted them during the trial, the court refused to consider them as a mitigating circumstance in setting the sentence. The court further relied on the results of the identification parade of 12 May 2005, during which A. had recognised the applicant as the offender. As regards the applicant ’ s submission about his alibi, the court noted that the witnesses ’ statements in his favour could not be considered credible given a considerable lapse of time.

The applicant appealed. He maintained his confessions to the robbery assaults, but denied his involvement in the creation of a gangster group. He also insisted that he had no relation to the aggravated murder of the S. family. The applicant submitted that the trial court had relied on the confessions obtained under duress and without a lawyer. He noted that, even when he had been legally represented, all the investigative measures had taken place in the absence of his lawyer. That concerned, in particular, the identification parade of 12 May 2005. The applicant considered it to be flawed also given the considerable difference between him and the other participants, as well as the fact that A., who had himself been under suspicion, had his own interests to pursue. Lastly, the applicant complained that the trial court had not duly verified his alibi.

K. also lodged an appeal challenging, in particular, his conviction for abetting the robbery assault on the family of S. He submitted that he had been coerced into incriminating the applicant.

On 3 October 2006 the Supreme Court upheld the applicant ’ s conviction (as well as that of the other co-defendants), having found that the first-instance court had duly examined his arguments and complaints.

The applicant continued to complain to various authorities about his alleged ill-treatment by the police during the pre-trial investigation and about the alleged unfairness of his conviction.

On 19 April 2007 the applicant, following his numerous requests, received a copy of the decision the Dnipropetrovsk Regional Prosecutor ’ s Office of 18 November 2005 refusing to institute criminal proceedings against the police officers in respect of the allegations of ill-treatment.

On 20 April 2007 the applicant challenged the above refusal to the Dnipropetrovsk Babushkinskyy District Court (“the Babushkinskyy Court”). He complained, in particular, that the prosecutor had relied exclusively on the police officers ’ statements and had never questioned the applicant or the other co-defendants who had raised the ill-treatment complaint.

On 18 May and 3 September 2007 the Babushkinskyy Court returned the above complaint to the applicant without examination. It stated that it had no territorial jurisdiction to deal with it, and, if the applicant wished, he had to resubmit it to the Zhovtnevyy District Court (“the Zhovtnevyy Court”), by the place of prosecutor ’ s office.

On 9 October 2007 the applicant lodged his complaint with the Zhovtnevyy Court, which dismissed it on 22 October 2007 without examination as belated. The judge observed that the applicant had had seven days after the receipt of the impugned decision (to be calculated from 19 April 2007) for challenging it, which he had missed without any valid reasons. On 12 November 2007 and 8 April 2008 the Dnipropetrovsk Regional Court of Appeal and the Supreme Court, respectively, upheld that ruling.

3. Conditions of the applicant ’ s detention in the Dnipropetrovsk SIZO

From 31 January 2005 to 26 July 2007 the applicant was detained in the Dnipropetrovsk SIZO: before his conviction (19 January 2006) – in an ordinary cell, and thereafter – in the high-security sector located in semi-basement. According to the applicant, during the entire period the conditions of his detention there were unacceptable. There were tight metal shields on the windows preventing access to the natural light. The artificial light was poor too. The toilet was not separated from the living area and was exposed to the video surveillance camera. The sanitary conditions were very poor, with malfunctioning sewage, recurrent floods and permanent smell of excrements.

4. The applicant ’ s correspondence with the Court

According to the applicant, on 11 December 2006 he submitted to the SIZO administration his first letter to be dispatched to the Court, in which he outlined his complaints and requested that the proceedings be opened. In the absence of any reply, on 23 February 2007 the applicant submitted another similar letter to the administration. In his further correspondence with the Court he indicated the reference numbers assigned by the administration to those first two letters. However, the Court did not receive them from the SIZO. The first letter from the applicant which reached the Court was his letter dated 11 December 2006, which had been sent to the Court by his mother on 14 March 2007 (the date on the post stamp).

As indicated in a letter sent to the applicant by an official of the State Department for the Enforcement of Sentences on 11 October 2007, the administration of the Dnipropetrovsk SIZO duly registered and sent his letters to the Court, the earliest of which being dated 23 February 2007.

In November 2007 the applicant ’ s mother requested the governor of the Yanakiyeve prison (in which the applicant was serving his sentence) to provide her with documentary evidence proving that her son ’ s letter of 11 December 2006 had indeed been sent to the Court. The prison ’ s official replied that there was a copy of the cover letter by the SIZO administration accompanying the applicant ’ s letter in question in the file. Its copy, however, could not be sent to the applicant ’ s mother as that was not provided by law.

5. The applicant ’ s access to documents in the criminal file in the context of his application to the Court

Starting from October 2006 the applicant sent numerous requests to the trial court seeking access to his case file and copies of certain documents, which he intended to submit in substantiation of his application to the Court. All those requests were rejected on the ground that the actions requested were not envisaged by the legislation.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was ill-treated in police custody and that there was no effective domestic investigation into the matter.

He further complains under the same provision that the physical conditions of his detention in the Dnipropetrovsk SIZO were deplorable.

The applicant also complains under Article 3 that keeping him in a metal cage coupled with his permanent handcuffing in the courtroom during the hearing at the Supreme Court amounted to his degrading treatment.

The applicant next complains under Article 6 §§ 1 and 3 (c) of the Convention :

- that he was deprived of legal assistance at the initial stage of the pre-trial investigation;

- that the investigator was present at the applicant ’ s first meeting with his lawyer;

- that he was convicted of the aggravated murder on the basis of his self-incriminating statements obtained under duress and without a lawyer, as well as on the basis of the statement of his co-defendant K., which the latter claimed to have resulted from his ill-treatment too;

- that his lawyer was not informed of and was absent from the major investigative measures, including but not only, the identification parade of 12 May 2005.

The applicant also complains relying, in particular, on Article 34 of the Convention that the SIZO administration failed to send to the Court his letters of 11 December 2006 and 23 February 2007.

Lastly, he complains under Article 34 that he has no access to the documents in his case file for proper preparation of his application to the Court.

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 protection from torture, inhuman or degrading treatment (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 breach of Article 3 of the Convention?

3. Were the physical conditions of the applicant ’ s detention in the Dnipropetrovsk SIZO compatible with the requirements of Article 3 of the Convention?

4. Was the applicant subjected to degrading treatment, in breach of Article 3 of the Convention, on account of his confinement in a metal cage and handcuffing during the hearing before the Supreme Court (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, §§ 113-39, ECHR 2014 (extracts))?

5. 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?

- Was the fairness of the trial undermined by the admission as evidence of the statements of K. allegedly obtained in breach of his rights under Article 3 of the Convention (see, mutatis mutandis , Othman (Abu Qatada) v. the United Kingdom (no. 8139/09, ECHR 2012)?

6. Was there a violation of the applicant ’ s right to legal defence under Article 6 § 3 (c) of the Convention on account of:

- the lack of his legal representation at the initial stage of the pre-trial investigation?

- the investigator ’ s presence during the applicant ’ s meeting with his lawyer on 25 January 2006 (and, possibly, on other dates)?

- the absence of the applicant ’ s lawyer during most, if not all, investigative measures (including his questioning on 28 January 2006 having resulted in his “plea of surrender” in respect of the aggravated murder and the identification parade of 12 May 2006)?

7. Was there any hindrance by the State in the present case with the effective exercise of the applicant ’ s right of application, as guaranteed by Article 34 of the Convention? In particular, did the applicant have a possibility to obtain copies of the documents from his case file and to send them to the Court in order to pursue his present application?

8. Did the State comply with its obligations under Article 34 of the Convention as regards the applicant ’ s allegation about the failure of the administration of the Dnipropetrovsk SIZO to send to the Court his letters of 11 December 2006 and 23 February 2007?