Communicated on 7 January 2015

FIFTH SECTION

Application no. 70579/12 Vasyl Myroslavovych SHUMANSKYY against Ukraine lodged on 22 October 2012

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Vasyl Myroslavovych Shumanskyy , is a Ukrainian national, who was born in 1971 and is currently serving a prison sentence in Gorodyshche Prison no. 67.

The circumstances of the case

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

Late at night on 20 August 2008 three unidentified persons assaulted and robbed Mr and Ms L. in the couple ’ s house. The victims received multiple blows with sticks, as a result of which Mr L. died.

On the same date the police opened a criminal investigation into the matter.

On 5 September 2008 the applicant was apprehended and taken to the Kitsman police station. The reasons for his apprehension were not explained to him. According to the applicant, he was severely ill-treated by the police during three days. His ill-treatment included strangling with a plastic bag and hits with a truncheon to various parts of his body. The applicant ’ s detention from 5 to 8 September 2008 was documented as an administrative arrest for being drunk and swearing in public. During this period he was questioned in respect of the robbery and murder, but denied his involvement. He also replied in the negative to the question whether he knew T. and M., who had been apprehended on an unspecified date meanwhile. As alleged by the applicant, the police showed him to T. and instructed the latter to recognise the applicant later as an accomplice.

The case file contains “explanations” by the applicant dated 6 September 2008. According to them, the applicant had found out from his acquaintance D. that the family of L. had money. Subsequently, the applicant had spoken of his financial hardships to a stranger (M.) at a bus station and they had decided to rob L. together. Another person (T.) had also joined them. It was noted in the explanations that the applicant had not entered the house of L.

It is not clear when M. and T. were arrested. On 8 September 2008 they wrote statements of “voluntary surrender to the police”, in which they confessed to having assaulted and robbed the family of L. According to M., a person known to him as Sergiy had also been involved. He submitted, in particular, that Sergiy had beaten the victims together with him and T. As to the statements of T. of that date, he wrote that Sergiy, a friend of M., had waited for them near the car and had not entered the house of L.

On the same date the police documented a similar statement of “voluntary surrender to the police” of the applicant. It repeated, in substance, his earlier “explanations” (see above).

On 8 September 2008 a criminal case was opened against the applicant, as well as M. and T., on suspicion of the robbery and murder.

On an unspecified date thereafter T. and M. recognised the applicant as the person allegedly known to them as “Sergiy”.

Also on 8 September 2008 the investigator examined the applicant in the presence of two attested witnesses. According to the examination report, the applicant had no injuries and made no complaints.

However, as confirmed by two letters of the chief doctor of the Chernivtsi regional ambulance station to the applicant ’ s lawyer, in the evening on 8 September 2008 the applicant was taken to that ambulance station “in respect of his trauma of 5 September 200 8 ”. He was diagnosed with bruises and abrasions of the buttocks and received recommendations regarding the treatment.

On 9 September 2008 the applicant, following his request, started to be represented by lawyer B.

On the same day the lawyer requested an immediate forensic medical examination of the applicant, referring to his visible bodily injuries.

On 16 September 2008 such an examination was carried out. The applicant submitted to the expert that he had been beaten up by the police following his arrest on 5 September 2008. Pursuant to the examination report, the applicant had three bruises on the right hip measuring 5x3cm, 5.5x1.5cm and 5x1.5cm, an 8x8cm bruise on the left hip, and bruises on the buttocks measuring 7x6cm and 6x2.5cm. The report specified that the injuries were minor and had been inflicted by blunt objects. The expert ’ s conclusion was that the injuries in question could have been inflicted at the time and in the circumstances indicated by the applicant.

On an unspecified date the applicant complained of his ill-treatment by the police to the prosecution authorities.

On 18 September 2008 the applicant was charged with an aggravated robbery and questioned as an accused. He denied any involvement. He also submitted that he did not even know his supposed accomplices. The applicant retracted his initial confession as given under duress and refused from making further statements.

On 3 November 2008 T. was questioned in the presence of a lawyer. He also retracted his earlier confessing statements, including those concerning Sergiy, as obtained under duress. At the same time, T. confessed to an unrelated count of theft committed together with M.

On 19 November 2008 M. did the same.

On 15 December 2008 the investigator decided to sever the materials concerning the applicant ’ s injuries “for additional investigation”.

Apparently, T. and M. also complained to the prosecution authorities about their ill-treatment by the police.

On 19 December 2008 the Chernivtsi City Prosecutor ’ s Office refused to open a criminal investigation against the police officers in respect of the alleged ill-treatment of T.

On 22 December 2008 the victim, Ms L., was questioned. She submitted that she could not remember exactly whether two or three persons had attacked her and her husband. At the same time, she was confident about the involvement of M. and T., whom she had recognised earlier.

On 24 December 2008 a forensic examination report was issued in respect of the fingerprints from the crime scene, which had earlier been identified as not belonging to the family members of L. The expert ’ s conclusion was that none of those fingerprints belonged to the applicant, M. or T. On 27 January 2009 a forensic examination report was issued in respect of the hairs found at the crime scene. The expert concluded that none of those hairs belonged to the applicant or M.

On 16 January 2009 the Kitsman Town Prosecutor ’ s Office refused to open a criminal investigation against the police officers in respect of the applicant ’ s allegation of ill-treatment. It mainly relied on those officers ’ statements.

On 28 January 2009 the applicant, T. and M. were questioned again in the presence of their lawyers. They stated that their initial confessions had been extracted by ill-treatment. T. and M. maintained, however, their confessions to the unrelated theft from a shop.

On 23 March 2009, during a hearing before the Chernivtsi Regional Court of Appeal (“the Chernivtsi Court”) , sitting as a court of first instance, the victim Ms L. submitted that she recognised T. and M., but not the applicant, because she had not seen the third intruder well.

On 17 July 2009 the Chernivtsi Court found the applicant guilty of robbery, but acquitted him of murder. He was sentenced to thirteen years ’ imprisonment and confiscation of all his personal property. The court relied, in particular, on the applicant ’ s explanations of 6 September 2008, as well as the defendants ’ confessions of 8 September 2008.

The applicant appeled against his conviction submitting that it was based on inconclusive evidence collected with gross violations of the law on criminal procedure. He complained that initially he had been detained on an artificial pretext and that during that period he had been ill-treated by the police. The applicant also pointed out inconsistencies in the statements of the other co-defendants given during the pre-trial investigation. He insisted that he had never met them before.

On 8 December 2009 the Supreme Court quashed the judgment of 17 July 2009 and remitted the case to the same first-instance court for a fresh examination by a different panel.

On 6 December 2010 the Chernivtsi Court found all the defendants guilty of murder and robbery. It sentenced the applicant to fifteen years ’ imprisonment and confiscation of all his property. It was noted in the judgment that Ms L. recognised M. and T. without hesitation and considered that the applicant “looked similar” to one of the attackers. The court also relied on the initial confessions made by defendants. It dismissed their allegations of ill-treatment as unsubstantiated on the ground that the Kitsman Town Prosecutor ’ s Office had refused to institute criminal investigations into that matter on four occasions (on 20 November and 19 December 2008, 16 January 2009 and 5 July 2010).

The applicant appealed. He submitted, in particular, that he had been ill-treated by the police and that there was no other evidence against him than the confessions obtained under duress. The applicant also pointed out the inconsistency in the statements of Ms L. regarding his possible involvement.

On 24 April 2012 the Higher Specialised Court for Civil and Criminal Matters upheld the judgment. It noted, in general terms, that the defendants had confessed to the crimes imputed to them during the pre-trial investigation in the presence of their lawyers and that their later retraction of those confessions could be regarded as a mere attempt to escape criminal liability. The court also dismissed as unfounded the defendants ’ allegations of ill-treatment. Lastly, it considered their guilt to be established by the totality of the evidence, including the statements of Ms L.

COMPLAINTS

The applicant complains under Article 3 of the Convention about his ill- treatment by the police. Relying on Article 13, he also complains that there was no effective investigation into the matter.

The applicant next complains under Article 5 § 1 about the unlawfulness of his detention from 5 to 8 September 2008. Furthermore, relying on Article 5 § 3, he complains that he was not promptly brought before a judge.

The applicant also complains under Article 6 that his conviction was mainly based on his self-incriminating statements, as well as the other co-defendants ’ statements, obtained under duress. He further complains under Article 6 § 3 (c) that he had no legal assistance at the initial stage of the investigation. Furthermore, the applicant complains under Article 6 that the judicial decisions in his case were poorly reasoned, in particular, because they failed to address his specific and pertinent arguments regarding the way the evidence, on which his conviction was based, had been obtained and regarding the inexplicable change of the victim ’ s position on his possible involvement in the criminal offences in question.

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 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. Was the applicant deprived of his liberty from 5 to 8 September 2008 in breach of Article 5 § 1 of the Convention?

4. Was the applicant brought promptly before a judge or other officer authorised by law to exercise judicial power, following his arrest on 5 September 2008, as required by Article 5 § 3 of the Convention?

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?

- Did the courts give adequate reasons for their decisions, in particular, as regards their response to the applicant ’ s arguments in his defence?

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

6. Did the applicant benefit from the assistance of a lawyer during his time in police custody, pursuant to Article 6 § 3 (c) of the Convention?

Your Government are also invited to submit all the documents concerning:

- the applicant ’ s detention from 5 to 8 September 2008 and thereafter;

- the applicant ’ s (as well as the other co-defendants ’ ) complaints of ill-treatment in police custody and their investigation; and

- the trial, including all the claims, appeals and appeals on points of law, which are presently not in the case file.