Communicated on 29 May 2015

FIFTH SECTION

Application no. 39708/13 Oleg Yevgeniyovych SHCHERBAKOV against Ukraine lodged on 11 June 2013

STATEMENT OF FACTS

The applicant, Mr Oleg Yevgeniyovych Shcherbakov , is a Ukrainian national, who was born in 1964 and is detained in Gorodyshche .

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

On 11 July 2010 the applicant broke a window in the home of Mr and Mrs Ma. (“ the victims”) and threw a jar of petrol with a burning fuse into the room where Mrs Ma. slept . As a result, Mrs Ma. ’ s head caught fire and she was disfigured.

On 19 July 2010 the applicant was arrested. According to him, following his arrest from 19 to 22 July 2010 the police officers ill-treated him in order to force him to confess to attempted murder of the victims . In particular, he alleges that the police officers hit him, put a plastic bag over his head cutting off his air supply, and subjected him to electric shocks. He also alleges that du r ing that period he was kept without food and water, tightly handcuffed and not allowed to use the toilet.

On 21 July 2010 the applicant gave a statement to the police. It appears that the statement contained admissions which the trial court subsequently interpreted to mean that the applicant had thrown the ignited petrol jar with the intention of murdering the victims .

On 22 July 2010 an arrest report was drawn up documenting the applicant ’ s arrest on suspicion of attempted murder.

A report of a forensic medical expert dated 29 July 2010 documented that the applicant had bruises on his wrists, a hematoma on his forehead, and pink spots on the back of his thighs. The expert took the opinion that the spots were the result of the healing of bruises which could have been inflicted either by blunt objects or by electric shocks and that all documented injuries could have been inflicted at the time indicated by the applicant.

On 3 November 2010 an investigator of the Slovyansk Prosecutor ’ s Office refused to institute criminal proceedings against police officers in connection with the applicant ’ s allegations of ill-treatment for lack of corpus delicti in their actions.

On an unspecified date in the course of pre-trial investigation witness Mi. was questioned. He testified that on the night of the crime he had brought the applicant to the vicinity of the victims ’ house in his car. The applicant had had in his bag a jar of petrol, which he had equipped with a fuse in Mi. ’ s presence, then had gone in the direction of the victims ’ house and had quickly returned.

At the trial, witness Mr Mi. also testified that on the night of the crime he had brought the applicant to the victims ’ house in his car. The applicant had had a bag with him but, contrary to his statement made during the pre-trial investigation, Mi. testified at trial that he had not seen the bag ’ s contents. The applicant had gone in the direction of the victims ’ house and had quickly returned. When asked about the contradiction in his statements made during the pre-trial investigation and during the trial, Mi. said that he had been subjected to “psychological and physical influence” by the police officers during the pre-trial investigation.

At his trial, the applicant testified that he had intended to set on fire what he thought to be an empty summer cottage without endangering the victims ’ life.

On 23 February 2012 the Slovyansk Court convicted the applicant of attempted murder, infliction of grievous bodily harm and arson. It sentenced him to fifteen years ’ imprisonment. In convicting the applicant the court relied, in particular, on the applicant ’ s statements made during the pre-trial investigation which the trial court interpreted to mean that the applicant had realised that the house set on fire had been the victims ’ home and that they might have been inside at the time. The trial court also relied on Mi. ’ s statements made during the pre-trial investigation finding them more credible than his testimony during the trial and stating that Mi. ’ s allegations of ill-treatment had been examined by authorities who had refused to institute criminal proceedings in that regard.

The applicant appealed arguing, primarily, that he had not intended to murder the victims and had set their house on fire only after attempting to verify that there had been nobody inside.

On 29 May 2012 the Court of Appeal requested the Slovyansk prosecutor to investigate the applicant ’ s ill-treatment allegations.

On 5 June 2012 the Slovyansk prosecutor quashed the investigator ’ s decision of 3 November 2010 and conducted a new round of pre-investigation enquiries. In the course of the enquiries the prosecutor ’ s office took statements from the applicant, the police officers and the medical expert, examined the premises of the police station where the alleged ill-treatment took place and its entry records.

On 15 July 2012 the Slovyansk prosecutor refused to institute criminal proceedings against the police officers for lack of corpus delicti in their actions. By way of reasoning the prosecutor stated, in particular, that the records of the police station where the applicant had allegedly been ill-treated did not show that he had entered the station during the relevant period. The prosecutor also relied on the statements of the police officers according to which the applicant had been arrested and handcuffed on 19 July 2012 but then had been released and invited back for a new interview on 21 July 2010.

On 12 July 2012 the Donetsk Regional Court of Appeal upheld the applicant ’ s conviction. It also noted that according to the findings of the prosecutor ’ s office of 15 July 2012 the applicant had been handcuffed on 19 July 2010 and there was no evidence that the applicant had been released afterwards. In view of these findings, the Court of Appeal concluded that the applicant ’ s allegations that he had been kept in unlawful detention where he had been ill-treated from 19 to 22 July 2010 were not without basis and ruled that this period of det ention was to be deducted from his sentence. The Court of Appeal also held that the trial court had not erred in admitting the applicant ’ s testimony given during the pre-trial investigation.

The applicant appealed on points of law raising the same arguments as those raised before the Court of Appeal and also arguing that the discrepancies between his and Mi. ’ s statements made during the pre-trial investigation and the testimony given during the trial were due to the ill-treatment to which he had been subjected.

On 19 March 2013 the Higher Specialised Civil and Criminal Court upheld the judgment of the trial court and the ruling of the Court of Appeal.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to torture by police officers and that there was no effective investigation in this respect. He also complains under Article 6 that the domestic courts admitted in evidence his and Mr Mi. ’ s incriminating statements obtained under duress in the course of pre-trial investigation.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to torture, inhuman or degrading treatment, in breach of Article 3 of the Convention?

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. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 o f 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 Mr M i . 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)?

The Government are invited to provide the following material:

(a) copies of the documents concerning the domestic proceedings in respect of the applicant ’ s and Mr Mi. ’ s allegation of ill-treatment, including decisions by which the authorities refused to open an investigation and the decisions of the supervising authorities quashing or upholding those decisions;

(b) copies of all the documents containing the applicant ’ s and Mi. ’ s statements which they made to the authorities during the pre-trial investigation.