Communicated on 3 February 2014

FIFTH SECTION

Application no. 35405/10 Mykola Mykolayovych ONISHCHUK against Ukraine lodged on 6 June 2010

STATEMENT OF FACTS

The applicant, Mr Mykola Mykolayovych Onishchuk , is a Ukrainian national, who was born in 1986 and is currently serving his sentence in prison . He is represented before the Court by Mr S. Zatynnyy , a lawyer practising in Rivne .

A. The circumstances of the case

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

On 25 July 2008 R., an elderly woman, was found murdered at the place of her residence in the village of Hrabiv , Rivne District.

On 26 July 2008 the investigator of the Rivne District Police Department instituted criminal proceedings against the applicant for the alleged murder.

On the same date the applicant was brought to the police department where his rights, including the right to legal assistance , were explained to him . At the end of the explanatory note the applicant wrote that he voluntarily refused to have any lawyer and that he wished to defend his interests on his own. The investigator passed a ruling accepting the applicant ' s refusal.

In the evening of the same day the investigator questioned the applicant as a suspect. In reply to the investigator ' s proposal to speak about the circumstances of R. ' s death, the applicant denied any involvement in the incident. He noted , in particular, that he had relations with R. ' s granddaughter, but he had known R. very little.

Later on the same evening, the investigator decided to arrest the applicant up to three days considering that there had been grounds for such a measure.

Allegedly, after the arrest, the applicant was beaten up and otherwise ill- treated by the police officers with the purpose of extracting his confession.

On 28 July 2008 the applicant requested to be provided with a lawyer. On the same day the investigator admitted the lawyer to the proceedings.

Between 28 July and 18 August 2008 an expert conducted a forensic medical examination of the applicant. In the report no. 1574 the expert noted that in the course of the assessment of the applicant, t he latter displayed a bruise of 7x5.5 cm on his right eye and circular linear bruises on both forearms. The expert opined that those injuries could have been sustained by the applicant between one and three days before his assessment. The expert classified those injuries as light.

On 29 July 2008 the applicant submitted to a police office a written confession of having murdered R.

On the same day the applicant was questioned by the investigator in the presence of the lawyer. He gave detailed answers as to how he had committed the murder. The lawyer asked the applicant whether he was remorseful and whether his statements were genuine. The applicant answered affirmatively.

At a certain point the applicant participated in the reconstruction of the events where he explained and showed how he had committed the violent actions against the victim. The applicant was assisted by the lawyer.

On 14 October 2008 the applicant complained to the investigator that he had incriminated himself as a result of ill-treatment on the part of the police officers. The applicant argued that there had been witnesses, including the investigator himself, who could confirm that before the arrest he had not ha d any injuries.

On 16 October 2008 the investigator directed the applicant ' s complaint to the Rivne District Prosecutor ' s Office for examination.

On 17 October 2008 the investigator questioned the applicant in the presence of his lawyer. The applicant denied any involvement in the crime and insisted that he had incriminated himself because the police officers had beaten him up with that purpose.

On 1 November 2008 the Rivne District Prosecutor ' s Office, having conducted “pre-investigation enquiries” on account of the allegations of ill-treatment , refused to open criminal proceedings against the police officers for lack of corpus delicti . It was noted in the decision that the applicant could not explain the origin of his injuries; the time of sustaining the injuries remained unclear; nothing suggested that the self-incriminating statements had been made involuntarily.

In the letter of 22 December 2008 the Deputy Prosecutor of Rivne Region informed the applicant that the decision of 1 November 2008 had been quashed as unsubstantiated and further “pre-investigation enquiries” had been ordered.

On 23 December 2008 the investigator ordered an additional forensic medical examination in respect of the applicant ' s injuries. The expert was requested to opine, among other issues, whether the applicant ' s injuries could have resulted from his own falling and whether they could have been inflicted by the applicant himself.

On 30 December 2008 a forensic medical expert issued a report noting that it was unlikely that the injuries had been sustained as a result of the applicant ' s fall ing . As to the bruise on the right eye, that area was accessible for self-injury; as to the injuries on the forearms, the y had been caused by the solid blunt objects and could have been sustained as a result of applying handcuffs. The expert further concluded that the injuries had been caused by at least three applications of a traumatic instrument.

On the same date the Rivne District Prosecutor ' s Office again refused to open criminal proceedings against the police officers for lack of corpus delicti . The investigator found that the allegations of ill-treatment had not been supported by the material of the file. He noted, in particular, that the police officers denied the allegations of ill-treatment; the self-incriminating evidence was given by the applicant voluntarily in the presence of his lawyer; the medical evidence suggested that the bruise on the eye could have been self-inflicted; the injuries on the forearms might have been inflicted by the handcuffs.

On 14 January 2009 the investigator additionally instituted criminal proceedings against the applicant considering that on the date of the murder the applicant had also raped R., gratified his sexual desires in an unnatural and violent manner and robbed the victim.

During the trial the applicant denied any involvement in the crimes and insisted that the police had forced him to make self-incriminating statements.

On 10 December 2009 the Rivne Regional Court of Appeal found that the applicant had raped, murdered and robbed R. It acquitted the applicant from the charges that he had grati fied his sexual desires in an unnatural and violent manner . The court sentenced the applicant to fifteen years ' imprisonment and ordered the confiscation of his property. The court based its conclusions, inter alia , on the applicant ' s self-incriminating statements given during the pre-trial investigation.

The court also examined the applicant ' s allegations of ill-treatment and dismissed them as unsubstantiated. It had regard to the statements of one of the police officers denying the applicant ' s allegations, the medical evidence in that respect and the decisions of the Rivne District Prosecutor ' s Office refusing to institute criminal investigations against the police officers .

The applicant appealed, claiming, inter alia , that he had confessed to the crimes under duress and as a result of ill-treatment by the police officers and that he had not been provided with a lawyer immediately after his arrest.

On 22 April 2010 the Supreme Court upheld the judgment of 10 December 2009, having amended its reasoning part as regards the classification of the rape under the domestic law. The Supreme Court found that the applicant ' s guilt had been well established by various pieces of evidence including his self-incriminating statements made with the assistance of his lawyer at the pre-trial investigation. The allegations of ill-treatment had been rejected as unsubstantiated.

B. Relevant domestic law

The relevant domestic law can be found in the judgment in the case of Davydov and Others v. Ukraine (nos. 17674/02 and 39081/02, § 112, 1 July 2010).

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that at the initial stage of investigation he was ill-treated by the police and that no attempt was made to effectively investigate his allegations of ill-treatment.

2 . The applicant complains under Article 6 § 1 of the Convention that the court unfairly convicted him relying on his self-incriminating statements which had been obtained by means of ill-treatment.

3. The applicant complains under Articles 6 § 1 and 13 of the Convention that he had not been provided with access to a lawyer as from the first questioning of him by the police.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to ill-treatment, in breach of Article 3 of the Convention? Did the authorities provide sufficient explanation and justification for the applicant ' s injuries documented during his detention?

As regards the reference of the medical expert to the applicant ' s assessment in the report no. 1575, the Government are invited to provide the evidence indicating the time when that assessment took place. The Government are also invited to provide other evidence regarding the state of the applicant ' s health between 25 and 30 July 2008.

2. Having regard to the procedural protection from ill-treatment, was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

3. Was the applicant provided with access to a lawyer 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?

4. Were the principles of fair trial under Article 6 § 1 of the Convention respected in the present case given that the courts convicted the applicant using the evidence which was obtained allegedly in breach of his privilege against self-incrimination and by means of ill-treatment?

The Government are invited to provide the following material:

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

(b) copies of all the documents containing the applicant ' s statements which he made to the authorities dur ing the pre-trial investigation.