Communicated on 7 December 2016

FIFTH SECTION

Application no. 55912/09 Valentyna Oleksandrivna DUDKA against Ukraine lodged on 8 October 2009

STATEMENT OF FACTS

The applicant, Ms Valentyna Oleksandrivna Dudka , is a Ukrainian national who was born in 1966 and lives in Chevelcha .

A. The circumstances of the case

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

On 14 November 2004 the applicant was detained on suspicion of having stolen, as a part of a group of people, farm animals from different farms. On the same date she confessed to the crimes in question . So did her alleged accomplices. According to the applicant, she did so under duress and without having been given legal assistance. P olice officers beat and threatened her with further ill-treatment in order to obtain the confessions. They hit her in her face, twisted her arms back, put her on the floor with her face dawn and stamped on her legs.

On 16 November 2004 the applicant ’ s mother hired a lawyer, V., to represent the applicant in the criminal proceedings.

Between 16 November and 24 November 2004 V. unsuccessfully attempted to hold a meeting with the applicant. He lodged a number of complaints in this respect with the prosecutor ’ s office, namely on 17, 18, 19 and 23 November 2004, claiming that the police had unlawfully obstructed him from meeting with the applicant, in violation of the applicant ’ s defence rights.

On 17 and 23 November 2004 reconstructions of the event of crimes were conducted in the absence of the applicant ’ s lawyer. The applicant acknowledged her guilt in respect of the crimes.

From 17 to 18 November 2004 the applicant was detained in the Lubny temporary detention facility. According to the admissions register of the facility a number of bruises and scratches were found on the applicant ’ s body at the time of her admission.

On 18 November 2004 the applicant ’ s mother, and on 19 November 2004 the applicant ’ s lawyer, complained to the prosecutor ’ s office of the applicant ’ s ill-treatment by the police and requested that she be given a medical examination.

On 22 November 2004 the applicant was examined by a forensic medical expert, who noted no bodily injuries. According to the applicant, being afraid for her life, she made no statements to the expert about her ill ‑ treatment by the police.

On 25 November 2004, after meeting her lawyer for the first time, the applicant complained to the prosecutor ’ s office about her ill-treatment by the police and requested that she be given a medical examination.

On the same day the applicant underwent a medical examination by a surgeon from the local civil hospital who discovered a number of “active yellow marks” ( квітучі жовті пятна ) on the applicant ’ s body. The applicant stated that she had been beaten by the police officers who had “worked with her” ( працювали з нею ) the night before.

On 26 November 2004, after being given the results of the aforesaid medical examination, the applicant ’ s lawyer complained to the prosecutor ’ s office about the applicant ’ s ill-treatment by the police and requested that she be given a medical examination, but to no avail.

On 29 November 2004 the applicant was transferred to the Poltava SIZO. As can be seen from a certificate issued by the SIZO governor, upon her arrival the applicant underwent a medical examination which uncovered a bruise on her left hip measuring 5 cm by 3 cm and an inflammation on her left shoulder.

On 10 December 2004 the applicant complained to the prosecutor ’ s office that her state of health was worsening and that the requests she had made for medical treatment had been refused.

On 17 December 2004 the applicant ’ s lawyer complained to the prosecutor ’ s office that no response had been given to the applicant ’ s complaints of ill-treatment.

On 21 December 2004 the applicant ’ s lawyer complained to the regional prosecutor ’ s office about the lack of any response to the complaints about the applicant ’ s ill-treatment, the failure to conduct her medical examination in the absence of the police officers and in the presence of her lawyer, and violations of her defence rights.

On 23 December 2004, during a court hearing on the application of the preventive measure, the applicant complained, inter alia , that the police had ill-treated her in order to obtain her confessions to committing the crimes in question and that she had been prevented from meeting with her lawyer.

During the trial in her criminal case the applicant pleaded not guilty and claimed, inter alia , that her confessions had been obtained by the police by means of ill-treatment and in the absence of a lawyer. Similar statements were made by the applicant ’ s co-defendants.

On 15 September 2005 the Chornukhinskiy District Court, Poltava Region (“the District Court”), found the applicant guilty on several counts of theft and sentenced her to five years ’ imprisonment. In doing so, it relied mainly on the self-incriminatory statements made by the applicant on 14, 17 and 23 November 2004 and the confessions given by her accomplices during the pre-trial investigation. When dismissing the defendants ’ allegations of ill-treatment by the police, the District Court relied on statements of witnesses present at the crime reconstructions of 17 and 23 November 2004; according to those witnesses the applicant and other defendants gave evidence at those crime reconstructions of their own free will. It further referred to evidence given by the police officers concerned, all of whom had denied all allegations of ill-treatment, and to the fact that no injuries had been found on the applicant ’ s body during her medical examinations on 22 and 25 November 2004. The court also stated that during the whole pre-trial investigation the defendants had acknowledged their guilt and had never complained about any ill-treatment, and they had retracted their statements only during the trial (which the court considered them to have done simply as part of their defence strategy).

On 15 March 2006 the Poltava Regional Court of Appeal (“the Court of Appeal”) quashed the above judgment and remitted the case for fresh examination. It noted, inter alia , that the applicant ’ s allegations of ill ‑ treatment by the police, as well as of the violation of her defence rights, had not been properly examined by the District Court.

On 18 April 2007 the District Court found the applicant guilty as charged and sentenced her to four years ’ imprisonment. By the same judgment that sentence was suspended. The Court relied on the same evidence and gave similar reasoning to that which it gave in respect of its judgment of 15 September 2005.

The applicant appealed. She stated, inter alia , that there had been evidence of her having suffered bodily injuries but that that evidence had been ignored by the District Court. She referred, inter alia , to the results of her medical examination at the Orzhytskiy temporary detention facility, the relevant data from the admissions register of the Lubny temporary detention facility, the certificate issued by the Poltava SIZO ’ s governor, and the testimony of a prosecutor who saw the applicant ’ s injuries. The applicant further contested the credibility of the statements given by the police officers given that they had been the direct perpetrators of the injuries in question. She further submitted that the District Court had falsified the statement made by the medical expert during the trial the applicant ’ s examination of 25 November 2004. She noted in this respect that the expert, in fact, had stated that there had indeed been bodily injuries, which he had recorded in the applicant ’ s medical file. Lastly, the applicant stated that she had been unlawfully deprived of legal assistance between 14 and 24 November 2004 and that all evidence for the prosecution, in particular her confessions, had been obtained during that period.

On 2 July 2008 the Court of Appeal upheld the judgement of the District Court. In doing so, the court referred to the self-incriminatory statements made by the applicant in November 2004, which had been corroborated by those made by her alleged accomplices. It further stated that the applicant ’ s allegations of ill-treatment had been correctly dismissed by the first-instance court as unsubstantiated given that the police officers had denied any ill ‑ treatment and no injuries had been uncovered in the course of the applicant ’ s medical examinations of 22 and 25 November 2004.

On 26 March 2009 the Supreme Court dismissed an appeal by the applicant on points of law, having found that the applicant ’ s allegation of ill-treatment and of the violation of her defence rights had been carefully examined by lower courts and lawfully dismissed as unsubstantiated. This decision was sent to the applicant by the Supreme Court on 8 April 2008.

QUESTIONS TO THE PARTIES

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

2. Having regard to the procedural protection from torture, inhuman or degrading treatment or punishment (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. Did the applicant have a fair hearing in the determination of the criminal charge against her, in accordance with Article 6 § 1 of the Convention? In particular:

(a) Was there a breach of her right to a fair trial under Article 6 § 1 on account of the use by the domestic courts of the evidence obtained in alleged contravention of Article 3 of the Convention? Was there a violation of her right not to incriminate herself?

(b) Was the applicant provided with timely access to a lawyer following her arrest on 14 November 2004, in accordance with the requirements of Article 6 §§ 1 and 3 (c) of the Convention? Has the principle of fairness of the proceedings been impaired in this regard?

The Government are requested to submit a chronologically ordered information note on their investigation of the alleged ill-treatment of the applicant, as well as copies of all related documents, including but not limited to:

- the documents related to the applicant ’ s arrest and her acquaintance with her rights as a suspect, including the right to legal assistance;

- the applicant ’ s confessions;

- the applicant ’ s waivers of legal representation, if any;

- the complaints regarding the applicant ’ s ill-treatment by the police and the relevant decisions taken by the authorities upon those complaints;

- all relevant medical reports;

- the applicant ’ s cassation appeal.