Communicated on 3 February 2014

FIFTH SECTION

Application no. 15102/10 Oleksandr Fedorovych SOBKO against Ukraine lodged on 3 March 2010

STATEMENT OF FACTS

The applicant, Mr Oleksandr Fedorovych Sobko , is a Ukrainian national, who was born in 1981 and is serving a sentence of imprisonment in an unspecified penitentiary. He is represented before the Court by Mr I.M. Gavrylchenko , a lawyer practising in Cherkasy .

A. The circumstances of the case

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

On 3 October 2008, during the first half of the day, the applicant, together with his wife and G. (Ms), a neighbour, were digging potatoes near their house. The applicant and G. had had some vodka at breakfast.

The applicant ' s eleven-month old daughter was in the house, together with his four-year old stepson, V ., who was watching cartoons at the DVD-player . The house was locked, and the applicant kept the key in his pocket.

At about 11.15 a.m., when the applicant was carrying a sack with potatoes to the cellar, his wife asked him to have a look at the children. He did not come back for about twenty minutes. When returned, he said that he had had some beer.

At about 12.30 p.m., when the work was over, the applicant went to the house. He came out and told his wife that her son was dead. When she entered the living room, she saw V. lying on the floor with a cable around his neck. The TV-set was overturned on the floor nearby. The applicant expressed a presumption that V. might have tried to reach the remote control on top of the TV-set, had overturned the TV-set and, as a result, had accidentally been strangled by the cables.

Somebody called the police. By the time they arrived, V. had been put in his bed and the TV-set had been put on a bed in a different room. The applicant and his wife explained this by their stress.

In the evening on the same day the expert, who had conducted the autopsy, called the investigator and informed him that the boy had been strangled by somebody and not as a result of an accident.

The investigator, together with the police officer on duty, returned to the applicant ' s house and inspected the scene once again. The applicant maintained his account that there had been an accident. The police officers took him to the police station, without formally deciding on his procedural status. The applicant did not object.

The police officer on duty had a conversation with the applicant in the police station and suggested him “to tell the truth”. As a result, the applicant wrote a statement of “voluntary surrender to the police”, in which he explained that he had strangled V. having got angry about the mess in the room.

On the same day, 3 October 2008, a criminal case was opened against the applicant on suspicion of murder of a child.

On 4 October 2008, at about 1 a.m., the applicant was formally arrested as a suspect. He wrote in the arrest report that he waived his right to legal defence and regretted what he had done.

On the same day he wrote another statement of “voluntary surrender to the police” of the same contents as before.

On 4 October 2008 a lawyer was appointed for the applicant. During his questioning as an accused and during the reconstruction of the crime, in the presence of his lawyer, the applicant maintained his confession.

On 23 February 2009 the forensic medical expert evaluation regarding V. ' s death was completed. The expert excluded the possibility of V. ' s accidental strangling by the TV cables resulting from the falling of the TV-set on him. Nor could that be the origin of his bruises.

On an unspecified date during the judicial proceedings the applicant retracted his confessing statements as allegedly obtained under duress.

On 18 May 2009 the Cherkasy Regional Court of Appeal, sitting as a court of first instance, found the applicant guilty of murder of a child and sentenced him to twelve years ' imprisonment. The court relied, in particular, on the applicant ' s statement of “voluntary surrender to the police” of 3 October 2008. It decided not to take into account such repeated statement of 4 October 2008 on the ground that the applicant ' s right to legal defence had been violated (he had been questioned as a suspect and should have been legally represented at that stage). Furthermore, the court relied on the material and expert evidence.

On 28 May 2009 a copy of the judgment was served on the applicant.

On 24 June 2009 the applicant, being legally represented, appealed in cassation. He complained, in particular, about the lack of access to a lawyer during his initial questioning at the police station on 3 October 2008. He submitted that he had been coerced into confessing by “physical violence and psychological pressure”. The applicant also challenged the accuracy of the expert findings and disagreed with the assessment of the facts by the trial court.

On the same day the applicant also submitted a request for participation in the cassation hearing, together with his lawyer.

On 15 September 2009, in a hearing with the participation of the prosecutor, but in the absence of the applicant or his lawyer, the Supreme Court upheld the judgment of the first-instance court. It considered that the applicant ' s right to legal defence had not been violated, as his confession of 4 October 2008 had been excluded from the evidence. The ruling of the Supreme Court did not mention the applicant ' s request for participation in the hearing. The case file as it stands does not contain any decision of the Supreme Court in that regard, and it is not known whether such decision was taken at all.

B. Relevant domestic law and practice

1. Constitution of Ukraine (1996)

The relevant provisions of the Constitution read as follows:

Article 59

“Everyone has the right to legal assistance. Such assistance is provided free of charge in the cases provided for by law. Everyone is free to choose the defender of his or her rights. ...”

Article 63

“A person shall not bear responsibility for refusing to testify or to explain anything about himself or herself, members of his or her family or close relatives in the degree determined by law.

A suspect, an accused, or a defendant shall have the right to mount a defence .

A convicted person shall enjoy all human and citizens ' rights, except for the restrictions determined by law and established in court judgments.”

2 . Criminal Code (2001)

Under paragraph 1 of Article 115, premeditated murder is punishable by imprisonment for a term of seven to fifteen years. Under paragraph 2 of Article 115 , premeditated murder in the aggravating circumstances listed in that paragraph (including murder of a child) is punishable by imprisonment for a term of ten to fifteen years, or life imprisonment.

3 . Code of Criminal Procedure (1960, repealed with effect from 19 November 2012 )

Article 45 provided that legal representation during the inquiry, pre-trial investigation and trial before the first-instance court was mandatory if, inter alia , the possible penalty was a life sentence. It further specified that in such a case legal representation should be provided from the moment of the arrest or the bringing of charges against the person.

The provisions governing the cassation review of criminal cases, as in force at the material time and in so far as relevant, read as follows:

Article 383. Court decisions which may be reviewed in cassation proceedings

“ Cassation proceedings may be instituted in respect of:

1) judgments, decisions and rulings taken by an appeal court acting as a first-instance court; ... ”

Article 386. Time-limits for lodging cassation appeals and introduction of cassation pleadings

“Cassation appeals and pleadings with respect to the court decisions listed in paragraph 1 of Article 383 of the present Code may be lodged within one month of the date of delivery of the judgment or pronouncement of the decision or ruling which is being appealed against; a convicted defendant who is held in custody [may lodge an appeal] – within the same time-limit from the date of receipt of a cop y of the judgment or decision. ...”

Article 391. Persons participating in the cassation review of a case

“ ... A request by a convicted defendant who is held in custody to be summoned to submit observations in the course of the cassation review of a court decision listed in paragraph 1 of Article 383 of the present Code shall be binding on the cassation court , if submitted within the time-limit for lodging a cassation appeal .

Participants in the court proceedings who appear at the court hearing shall have the right to make oral submissions.”

Article 395. Scope of review of the case by the cassation court

“The cassation court shall review the lawfulness and reasonableness of the court judgment in the light of the materials on file and additionally submitted materials, within the limits of the appeal. ... ”

Article 396. Results of the case review by the cassation court

“ Following cassation review of the case the court shall take one of the following decisions:

1) to uphold the judgment, decision or ruling and dismiss the cassation appeal or pleadings;

2) to quash the judgment, decision or ruling and remit the case for a new investigation or trial or an appellate review;

3) to quash the judgment, decision or ruling and discontinue the proceedings;

4) to amend the judgment, decision or ruling ; ... ”

Article 398. Grounds for quashing or amending the judgment, decision or ruling

Grounds for quashing or amending the judgment, decision or ruling shall be as follows:

1) a substantial breach of the law of criminal procedure;

2) incorrect application of the criminal law;

3) incompatibility of the punishment imposed with the gravity of the offence or the character of the convicted defendant.

A judgment given by an appeal court acting as a first-instance court may be quashed or amended on account of bias, an incomplete inquiry, pre-trial or judicial investigation, or where the conclusions of the court stated in the judgment are incompatible with the factual circumstances of the case. ... ”

COMPLAINTS

The applicant complains under Article 6 §§ 1 and 3 (c) of the Convention about the lack of his access to a lawyer during his initial police questioning and about the fact that the cassation hearing took place in his and his lawyer ' s absence, but with the participation of the prosecutor.

QUESTIONS TO THE PARTIES

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 and in the light of the procedural guarantees afforded by paragraph 3 (c) of this provision? In particular:

a. Were the applicant ' s rights not to incriminate himself and to legal representation respected, regard being had to his initial q uestioning without a lawyer and the use of his self-incriminating statements in the body of inculpating evidence ?

b. Did the interests of justice require that the applicant be present at the hearing of the Supreme Court?

c. Was the principle of equality of arms respected as regards the proceedings before the Supreme Court, regard being had to the applicant ' s and his lawyer ' s absence from the hearing, in which the prosecutor took part?