FIFTH SECTION

Application no. 18041/08 Sergiy Oleksandrovych TRUTEN against Ukraine lodged on 2 April 2008

STATEMENT OF FACTS

The applicant, Mr Sergiy Oleksandrovych Truten , is a Ukrainian national, who was born in 1988 and is serving a sentence of imprisonment in an unspecified penitentiary.

A. The circumstances of the case

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

On 28 June 2006 a nineteen-year old Ms K. did not come home from a party. She had left the party with her cousin, Mr R., and the applicant who was Mr R. ’ s acquaintance. At about 6 a.m. Ms K., Mr R. and the applicant had been seen drinking beer in a café. Mr R. had left for work. Shortly thereafter a villager had seen the applicant walking with his arms around a girl later to be recognised as Ms K.

In the morning the relatives of Ms K. started looking for her. In reply to their enquiries, the applicant submitted that he had left her in the company of two unknown men.

In the evening on 10 July 2006 the applicant was apprehended by the police who suspected his involvement in the disappearance of Ms K. The applicant confessed to having raped and strangled Ms K. and showed the location of her body, by then half-decomposed, in the bushes near a road.

On the same day the police opened a criminal case against him on suspicion of murder compounded with rape. They also conducted a reconstruction of the events of the crime, during which the applicant maintained his confession.

On 11 July 2006 a lawyer, Mr V., was appointed for the applicant.

During his questioning as a suspect in the lawyer ’ s presence on the same day the applicant maintained his confessing statements.

On 13 July 2006 the Novi Sanzhary Town Court (“the Novi Sanzhary Court”) extended the applicant ’ s initial detention to ten days as further information was required in order to decide on the preventive measure.

On 14 July 2006 the applicant started to be represented, following his request, by a new lawyer, Mr S. He maintained his confession thereafter.

On 18 July 2006 the applicant was examined by a forensic medical expert who discovered no injuries and reported no complaints.

On 19 July 2006 the Novi Sanzhary Court remanded the applicant in custody pending trial.

The applicant was detained in the Poltava Pre-Trial Detention Centre (SIZO). The exact period of his detention there is not clear. According to the applicant ’ s letter of 26 August 2009, he was still detained in that SIZO at the time. The applicant shared a cell measuring 5 x 3m with three other inmates. The cell lacked proper ventilation and lighting. In particular, the window was covered by a plastic shield not allowing the natural light to penetrate. The temperature inside often reached 45 degrees Celsius in summer time.

On an unspecified date the applicant was committed for trial.

On 25 December 2006, during a court hearing, he retracted his earlier confessing statements as allegedly “extracted under physical and psychological pressure”. He submitted that Ms K. had kicked him in the groin when he had tried to hug her and that he had then spontaneously hit her to the neck. He denied having raped or strangled Ms K.

The Novi Sanzhary Court directed the prosecution authorities to investigate the applicant ’ s allegation of ill-treatment.

On 5 February 2007 the Novi Sanzhary Town Prosecutor ’ s Office refused to institute criminal proceedings against the police officers in respect of the applicant ’ s complaint, having found it to be unsubstantiated.

On 23 October 2007 the Poltava Regional Court of Appeal (“the Poltava Regional Court”), sitting as a court of first instance in the applicant ’ s trial, rejected his request for the remittal of the case for additional investigation. The court noted that, although the applicant ’ s right to legal assistance, about a breach of which complained, had been restricted initially, the situation had been remedied once the applicant had become legally represented.

On 20 November 2007 the Poltava Regional Court found the applicant guilty as charged and sentenced him to fourteen years and six months ’ imprisonment. It relied on the applicant ’ s initial confessing statements, as well as the statements of numerous witnesses who had seen him first with Mr R. and Ms K. and later with Ms K. alone on 28 June 2006. The court also questioned the police officers who had apprehended the applicant, and the attesting witnesses present during the reconstruction of the crime. They all denied that any coercion had been applied to the applicant. The same was the statement of a forensic psychiatric expert who had examined the video tape with the applicant ’ s participation in the investigative measures. No indication of any psychological pressure on him was discovered. Furthermore, the trial court relied on the findings of the forensic medical examinations of the body of Ms K. The experts, who had additionally been questioned in the court, refuted the applicant ’ s version that he had hit the victim once in the neck. The conclusion that Ms K. had been raped was made, in particular, having regard to the position of her body and its nakedness. As to the applicant ’ s allegation of ill-treatment, the court dismissed it as unsubstantiated.

The applicant appealed in cassation. He complained, in particular, that the trial court had relied on his confessing statements allegedly extracted under duress and without a lawyer.

On 27 March 2008 the Supreme Court upheld the judgment of 20 November 2007. As regards the reliance of the trial court on the applicant ’ s confessing statements, the Supreme Court noted that the first-instance court had mainly relied on his statements given in the presence of his lawyer Mr S.

B. Relevant domestic law

Under paragraph 2 of Article 115 of the Criminal Code, murder compounded with rape is punishable by imprisonment for a term of ten to fifteen years, or life imprisonment.

Article 45 of the Code of Criminal Procedure (CCP) provides that legal representation during the inquiry, the pre-trial investigation and the trial before the first-instance court is obligatory if, inter alia , the possible penalty is a life sentence. It further specifies that in this case the legal representation must be provided from the moment of the arrest or brin ging charges against the person .

COMPLAINTS

The applicant complains under Article 3 of the Convention about the conditions of his detention in the Poltava SIZO.

He also complains under Article 6 that he was not legally represented at the initial stages of the investigation.

QUESTIONS TO THE PARTIES

1 . Were the conditions of the applicant ’ s detention in the Poltava SIZO compatible with the requirements of Article 3 of the Convention?

2 . Was the fact that the applicant was not legally represented during the initial stage of the pre-trial investigation compatible with his right to be able to defend himself through legal assistance, as required by Article 6 § 3 (c) of the Convention (see Salduz v. Turkey [ GC], no. 36391/02, §§ 54-55, 27 November 2008)?