Communicated on 22 April 2014

FIFTH SECTION

Application no . 47340/06 Oleksandr Ivanovych LYSENKO against Ukraine lodged on 10 November 2006

STATEMENT OF FACTS

The applicant, Mr Oleksandr Ivanovych Lysenko , is an Ukrainian national, who was born in 1971 and lives in Poltava . The facts of the case, as submitted by the applicant, may be summarised as follows.

A. The circumstances of the case

1. Criminal proceedings against the applicant

On 17 January 2001 criminal proceedings were instituted in connection with the murder of Mrs M.

According to the applicant, on 14 February 2001 he was questio ned as a witness and his finger and shoeprints were taken by the police in the course of this questioning. He left the police station afterwards.

On 15 February 2001 the police apprehended the applicant in the street and took him to the police station , purportedly because he had been seen “swearing in public, swinging his arms, and fighting for no reason”.

On t he same day, the Okt y abrskiy District Court of Poltava (“the Oktyabrskiy Court”) ordered the applicant ’ s “administrative detention” for seven days for hooliganism, and the applicant was placed in the Poltava Temporary Detention Centre (“the ITT ”) .

O n 19 February 2001, whilst still in administrative detention and without the assistance of a lawyer, the applicant confessed to the murder and robbery of Mrs M. On t he same day, according to the authorities, he was re-arrested within the framework of the criminal investigation into the murder of Mrs M.

On 22 February 2001 the prosecutor ordered the applicant ’ s detention on remand as a preventive measure. On t he next day, he was transferred to the Poltava Pre-trial Detention Centre no. 23 (“the SIZO”) .

On 27 February 2001 the applicant was charged with murder ing and robbing Mrs M.

On 22 March 2001 the President of the Okt y abrsk i y Court quashed the decision ordering the applicant ’ s administrative detention , and on 12 October 2001 the Poltava Regional Court (“the Poltava Court of Appeal”) terminated the administrative offence proceedings against the applicant as no crime had been committed.

On 4 April 2001 the prosecutor changed the preventive measure for the applicant to an obligation not to abscond. The applicant was released on the same day.

On 29 November 2001 the Okt y abrskiy Court changed the preventive measure , ordering the applicant ’ s detention on remand. The applicant was taken into custody in the courtroom. On 10 December 2001 the Poltava Court of Appeal quashed this resolution as ill-founded and ordered the applicant ’ s immediate release. The applicant was released.

In a judgment of 27 July 2005 the Okt y abrskiy Court found the applicant guilty as charged and sentenced him to 13 years ’ imprisonment. The court included all periods of the applicant ’ s detention, including the administrative detention, in the term of his imprisonment.

The court based its findings on the applicant ’ s confession and other self-incriminating statements given throughout the pre-trial investigation , the results of a number of forensic examinations in the case , the evidence provided by the police officers, the applicant ’ s cell mates in the ITT and the SIZO, as well as on the testimonies provided by the aggrieved party and others during the pre-trial investigation and the trial. The court also referred to the forensic experts ’ opinions.

The applicant and his lawyer appealed, claiming that the investigative authorities had fabricated evidence , that the confessions had been given during his unlawful administrative detention and under duress , that his alibi had not been checked , that the first-instance court had misinterpreted the facts, had wrongly assessed the evidence and had fully based his conviction on mere assumptions. The applicant also questioned the accura cy and comprehensiveness of the forensic examinations. He further stated that the court had failed to examine properly his ill-treatment complaint.

On 7 December 2005 the Poltava Court of Appeal upheld the judgment of the first-instance court having reduced the sentence to nine years ’ imprisonment. The court noted that the facts given in the applicant ’ s confession were corroborated by other evidence, including by his own statements given in the presence of his lawyer, by the results of the forensic examinations and statements of witnesses. The court found no valid reasons to doubt the quality and outcome of the forensic examinations. It further considered and dismissed the remainder of the applicant ’ s arguments, having found that they did not refute the conclusions as to h is guilt. T he court pointed out to the inconsistencies in the applicant ’ s statements given at different stages of proceedings.

On 1 August 2006 the Supreme Court of Ukraine found no reasons to summon the parties and dismissed the applicant ’ s cassation appeal as unsubstantiated. It referred to the available evidence, including the applicant ’ s confession, and found that the applicant ’ s guilt had been well established. It noted , inter alia , that it f ollowed from the video recording of the reconstruction of the event of crime that the applicant had given the confessions on his own free will and in the presence of a lawyer. It further noted that the applicant ’ s guilt was established by the aggregate of evidence.

The applicant sought extraordinary review of these decisions but to no avail.

2 . Compensation proceedings for the unlawful a dministrative detention from 15 to 19 February 2001

In October 2001 the applicant instituted civil proceedings before the Poltava District Court claiming damage for his unlawful administrative detention. He s ubsequently amended his claim on a number of occasions . In particular, he claimed damage caused by his unlawful detention on remand , ill-treatment a nd unlawful conviction as well as damage caused to his property. The applicant further sought to quash the prosecutors ’ resolutions of 20 March 2001 and 5 December 20 05 refusing to institute criminal proceedings. He finally contested his g uilt, requested a review of the case under newly-discovered circumstances, and sought immediate release.

On 20 October 2008 the Poltava District Court partly allowed the applicant ’ s claim and awarded the applicant UAH 100 (EUR 13.9) as non-pecuniary damage for his unlawful administrative detention between 15 and 18 February 2001 . It dismissed the remainder of the applicant ’ s complaint as ill-founded. In particular, as regards the applicant ’ s complaint concerning his unlawful detention, the court noted that th is complaint had already been considered and dismissed by a final decision in separate proceedings instituted by the applicant. As to the refusal to institute criminal proceedings against police officers, the court noted that this matter could not be resolved in a civil trial and closed that part of the proceedings.

On 8 December 2008 the Poltava Court of Appeal upheld this decision but increased the amount of compensation to UAH 1 , 500 (EUR 153.6) . This decision became final, as on 13 March 2009 the Supreme Court of Ukraine refused leave for appeal in cassation.

On several occasions, the bailiff refused to institute enforcement proceedings under the judgment of 8 December 2008 as the writ of execution issued by the court failed to meet the requirements of the law as it did not specify the State ’ s account from which money should be withdrawn in the applicant ’ s favour.

In March 2009 the applicant instituted proceedings before the Poltava District Court seeking, inter alia , amendments to the execution writ. On 14 June 2011 the court allowed his claim and ordered the relevant account to be mentioned in the execution writ. On 7 September 2011 the Poltava Regional Court of Appeal upheld this decision which then became final.

It is not clear whether the amount awarded on 8 December 2008 has been paid .

B. Relevant domestic law

The provisions of the Code of Criminal Procedure (CCP) regarding the obligation to investigate a crime are quoted in the judgment on the case of Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012).

Articles 59 and 63 of the Constitution concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of 19 February 2009 in the case of Shabelnik v. Ukraine (no. 16404/03, § 25).

The provisions of the Law of Ukraine “On the Procedure for the Compensation of Damage caused to Citizens by the Unlawful Actions of Bodies in charge of Operational Enquiries, Pre-trial Investigation Authorities, Prosecutors or Courts” (“the Compensation Act”)” can be found in the case of Nechiporuk and Yonkalo ( no. 42310/04, §§ 140-141 , 21 April 2011).

COMPLAINTS

1. The applicant comp l ains under Article 5 about alleged unlawfulness of his administrative detention between 15 and 19 February 2001 .

2. The applicant further complains under Article 6 of the Convention that he did not have a fair trial on account of his self-incrimination under duress and in the absence of legal assistance.

QUESTIONS TO THE PARTIES

1 . D id the applicant have an enforceable right to compensation for his unlawful deprivation of liberty between 15 and 19 February 2001 , as required by Article 5 § 5 of the Convention ? In particular, does either (a) the amount of damages awarded to the applicant on 8 December 2008 by the Poltava Regional Court of Appeal or (b) initial non-payment of the damages render the right to compensation ineffective in practice?

2 . 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?

3. Was the fact that the applicant was not legally represented during his questioning by the police on 19 February 2001 compatible with his rights under Article s 6 §§ 1, 3 (c) of the Convention (see Salduz v. Turkey [GC], no. 36391/02, §§ 54-55, 27 November 2008)?