FIFTH SECTION

Application no. 34015/07 Artyom Leonidovich ZHERDEV against Ukraine lodged on 30 June 2007

STATEMENT OF FACTS

The applicant, Mr Artyom Leonidovich Zherdev, is a Ukrainian national, who was born in 1988 and has a permanent address in Dzerzhinsk.

A. The circumstances of the case

Early in the morning of 16 February 2005 Mrs D., a night guard at a trade centre in Dzerzhink, was found dead in her office, with injuries on her head and genitals. It was further established that a grinder had disappeared from the site.

At about 10 a.m. on 20 February 2005 two police officers came to the applicant ’ s home and invited him to the police station. As at the material time the applicant was a sixteen-year old minor, his father was also invited and followed him to the police station.

According to the applicant, once in the police station, he was separated from his father and questioned whether he had any information about the grinder, which had disappeared from the trade centre. The applicant confessed that early in the morning on 16 February 2005, when returning home from a party, he had found a grinder on the street and had brought it home. That grinder was in his household at the moment of the questioning.

According to the applicant, once the police learned that he had found the grinder, they started urging him to plead guilty of the murder and theft. As the applicant kept denying these allegations, three officers allegedly beat him on various parts of his body.

At about 3 p.m. on the same date the applicant was taken to the Dzerzhinsk Prosecutor ’ s Office, while his father remained in the police station. When in the prosecutor ’ s office, the applicant was introduced to investigator K. and lawyer L., who proposed his services as the applicant ’ s defence counsel. The applicant, who mistakenly understood that L. had been invited by his parents, consented to engage him and repeated his previous testimony in his presence.

At 3:55 p.m. on the same date the applicant was examined by a forensic expert, who concluded that he had several light bodily injuries (a burn, a surface injury and a bruise) inflicted two to seven days before the assessment.

At 4 p.m. on the same date investigator K. drew up an arrest report, whereby the applicant was arrested on suspicion of D. ’ s murder. According to the report, the applicant was arrested on the ground that “ witnesses indicate[d] him as a person who had committed the crime ”.

Subsequently the applicant, unaccompanied by L., was escorted back to the police station, where his clothes (except underwear) were seized for a forensic assessment.

The applicant ’ s father, who was still unable to join the applicant, was taken home to accompany the police officers during search and seizure in their house.

At about 7:30 p.m. the search was finished, the grinder was seized and the police officers, who conducted it, brought replacement clothes to the applicant.

According to the applicant, during the entire period from the seizure of his clothes until the end of the search (from about 4:30 p.m. until about 7:30 p.m.) he remained in his underwear handcuffed to a radiator in the premises of the police station, feeling very cold. During this time two police officers continued proposing to the applicant to confess to the murder and beat him with plastic water bottles.

On the evening of 20 February 2005 the applicant was placed in the police temporary detention centre (ITU) in a cell with two adult detainees.

According to the applicant, subsequently he found out that these detainees were drug addicts, tuberculosis sufferers and secret police informants. They questioned the applicant about the murder and advised him that only by pleasing the police he could hope to be released from custody. They also suggested that, as he was a minor, should he choose to cooperate, the investigative authorities would prosecute him on minimal charges and he would not receive a prison sentence.

In the morning of 21 February 2005 the police officers S. and B. checked the applicant out of his cell off record and threatened to ensure his long-term prison sentence, his rape by prisoners, and problems for his family, unless he confessed. Not being able to withstand lasting pressure, the applicant agreed to re-write a statement, prepared for him by the police officers, according to which he was guilty of the murder in self-defence and theft of the grinder from the trade centre.

In his statement, the applicant noted that early in the morning on 16 February 2005 he, being under alcohol intoxication, had decided to burglarise the trade centre. Having suddenly run into the night guard, who had tried to attack him with a grinder, he, defending himself, had hit her with a brick. When she had fallen unconscious, the applicant, scared of what had happened, had carried her to a coach and undressed her to imitate rape. Then he had collected the grinder and brought it home.

On the same date the applicant repeated the above confessions before the investigator K. in presence of the advocate L. It is not clear whether the applicant ’ s parents were present during this questioning.

In the evening of 21 February 2005 the applicant, unaccompanied by L. or his parents, was brought to the identification parade, where Y., a shop assistant, who had worked a night shift at the trade centre ’ s night kiosk on the day of the killing, recognised him as a person she had seen by her kiosk shortly before D. had been killed.

On 22 February 2005 the applicant was indicted of having murdered D. and having stolen the grinder.

On 23 February 2005 the applicant represented by L. was brought before a judge of the Dzerzhinsk Court to decide on his placement in custody. At the hearing the applicant pleaded guilty of the murder and theft. The court ordered the applicant ’ s detention for two months pending the investigation. It noted that although the applicant was a minor with a permanent residence address, positive character references and no prior criminal record, the risk of him absconding, if left at liberty, was high, since he had been charged of having committed grave offences. Moreover, he had an acquaintance in Russia, with whom he had already once visited for two months during a school year. This decision was not appealed against and became final.

Following the order to remand him in custody, the applicant was transferred to the Artemivsk pre-trial detention centre (SIZO), where he was consulted and monitored by the staff psychiatrist for several months on account of a “situational depressive syndrome” and night urinary incontinence.

On or around 23 February 2005 the applicant ’ s parents engaged advocate B. to replace advocate L. appointed by the investigation.

On 10 March 2005 further criminal proceedings were instituted against the applicant on suspicion of having stolen his acquaintance ’ s portable telephone and joined to the previous set of criminal proceedings against him. On the same date the applicant ’ s mother was admitted in the proceedings as his defender.

On 13 April 2005 the Dzerzhinsk Court extended the applicant ’ s detention until 20 May 2005 referring, primarily, to the need to carry out further investigative activities.

On 24 May 2005 the applicant was committed to stand trial before the Dzerzhinsk Court on charges of D. ’ s murder, theft of the grinder and fraudulent appropriation of the portable telephone. At trial the applicant pleaded guilty of having killed D. in self-defence and stolen the grinder. He denied the charges with respect to the telephone.

On 21 July 2005 the Dzerzhinsk Court convicted the applicant as charged and sentenced him to seven and a half years ’ imprisonment.

The applicant, represented by his parents and a new lawyer, Y., appealed against this judgment. In his appeal the applicant retracted his confessional statements as false and taken in breach of his privilege against self ‑ incrimination. He further alleged that these statements had been extracted from him under physical and psychological duress of the police officers. He also noted that he had hold on to his initial confessions until his conviction, because lawyer B., hired by the applicant ’ s parents, had convinced the family that it was too late to retract them. He had advised that should the applicant plead innocent, the police would become aggravated and the authorities would engage in lengthy ineffective investigations of the ill-treatment complaints, resulting in the applicant ’ s protracted detention. On the other hand, should the applicant choose to cooperate with the police, B. promised that the charges against him would be minimal and he would be released from custody right after his trial.

On 4 October 2005 the Donetsk Regional Court of Appeal (“the Regional Court”) quashed the judgment of 21 July 2005 and remitted the case for an additional investigation. The court noted that the judgment had been poorly reasoned and heavily based on the applicant ’ s confessional statements insufficiently corroborated by other evidence. It also noted that the applicant ’ s procedural rights had been breached, in particular, as some investigative activities, such as the identification parade, had been carried out without the applicant ’ s lawyer. The court found that there was no reason to release the applicant pending further investigation of his case and extended his detention for another two months to run from the date when the investigation would be resumed.

On various dates after the applicant ’ s conviction, his parents and himself lodged a number of complaints with the law-enforcement, judicial and other authorities, demanding investigations into the purported breaches of the applicant ’ s rights. They alleged, in particular, that the applicant had been arbitrarily arrested; that the police officers had subjected him to physical and mental pressure to obtain false confessions; that a number of procedural actions had been taken in breach of applicable procedural rules, including right to defence; and that lawyers L. and B. had been guilty of malpractice.

On several occasions, including on 21 December 2005 and 26 January 2006, the Dzerzhinsk Prosecutor ’ s Office refused to institute criminal proceedings into the applicant ’ s complaints for want of evidence of any breaches of his rights.

On 17 January 2006 the Donetsk Regional Prosecutor ’ s Office (“Regional Prosecutor ’ s Office”) refused to validate the re-submission of the applicant ’ s case for trial, having found that the instructions of the Regional Court had not been complied with in good faith and that further measures were necessary.

On 20 January 2006 the Dzerzhinsk Court extended the applicant ’ s detention until 17 February 2006 referring to the need to carry out further investigative activities.

On 27 January 2006 the Regional Court quashed the above decision, having found that the matter had to be examined by the Regional Court in first instance, regard being had to the length of the detention already served by the applicant.

On 17 February 2006 the Regional Court ordered the applicant ’ s release from custody, having found that further extension of his detention would be in breach of the applicable procedural time-limits.

Between 22 February and 10 March 2006 the applicant underwent in-patient treatment in the cardiology department of the municipal hospital on account of vascular dystonia.

On 10 May 2006 the Dzerzhinsk Court remanded the applicant back in custody and he returned to the Artemivsk SIZO. The applicant did not provide a copy of the relevant decision and did not state the reasons adduced by the court for his new detention.

On an unspecified date the applicant ’ s case was submitted to the Dzerzhinsk Court for a re-trial.

On 14 June 2006 the applicant reiterated his ill-treatment complaints at the court hearing.

On 15 June 2006 the Dzerzhinsk Court instructed the Dzerzhinsk Prosecutor ’ s Office to investigate the applicant ’ s allegations.

On 29 June and 4 July 2006 the Dzerzhinsk Prosecutor ’ s Office refused to institute criminal proceedings upon the judge ’ s inquiry, having found no evidence of any ill-treatment. It referred, in particular, to the lack of medical evidence of any injuries suffered by the applicant at the time of the alleged ill-treatment and lack of any complaints from him before his first conviction.

On 16 October 2006 the prosecutor ’ s office quashed the previous decision not to institute criminal proceedings into the applicant ’ s ill-treatment allegations and ordered further inquiry into the matter.

On 3 November 2006 the prosecutor ’ s office took a fresh decision not to institute criminal proceedings into the allegations of ill-treatment, referring to essentially the same grounds as above. It also noted that, as followed from the expert assessment of 20 February 2005, the minor injuries found on the applicant had been inflicted before his arrest.

On 30 November 2006 and 21 May 2007 the Dzerzhinsk Court twice again returned the applicant ’ s case for additional investigation and extended his detention referring to the gravity of the charges.

On 25 June 2007 the prosecutor ’ s office quashed the decision not to institute criminal proceedings into the allegations of the applicant ’ s ill-treatment as insufficiently substantiated and remitted the matter for further inquiry.

On 10 July 2007 a fresh decision not to institute criminal proceedings into the allegations of ill-treatment was taken with reference to essentially the same arguments as in the previous decisions.

On an unspecified date the applicant ’ s case was submitted to the Regional Court to act as a trial court.

On 25 January 2008 the Regional Court convicted the applicant of having robbed the trade centre and having murdered D., but acquitted him of the charges related to the portable telephone. The court further sentenced the applicant to thirteen years ’ imprisonment.

On 24 July 2008 the Supreme Court of Ukraine upheld the judgment insofar as it related to the applicant ’ s acquittal and quashed the conviction, remitting the relevant aspect of the case for a fresh investigation. It noted, in particular, that the investigation into the applicant ’ s allegations of ill-treatment had been superficial; a number of procedural rules had been breached in the collection of evidence in the case and that the existing evidence was insufficiently coherent and comprehensive to justify the applicant ’ s conviction of murder and theft. The Supreme Court found that there were no reasons to release the applicant from custody pending the new investigation and extended his detention for another two months from the date on which the investigation would resume.

On 4 September 2008 the prosecutor ’ s office quashed the previous decision not to institute criminal proceedings into the ill-treatment allegations.

On 20 October and 31 December 2008 the prosecutor ’ s office took fresh decisions not to institute criminal proceedings into allegations of the applicant ’ s ill-treatment.

On 11 November 2009 the Regional Court convicted the applicant of robbery and D. ’ s murder and sentenced him to thirteen years ’ imprisonment. It also ordered him to pay damages to D. ’ s son. In finding the applicant guilty, the court referred to various sources of evidence, including forensic assessments, witness statements and the applicant ’ s initial confessions given by him during the first round of proceedings. The court rejected the applicant ’ s argument that these confessions had been inadmissible as obtained under duress. It noted that there was no evidence that the applicant suffered any physical injuries in the hands of the police. Moreover, the applicant had consistently held on to his confessional statements and had lodged no complaints about ill-treatment until the end of his first trial, notwithstanding that his mother had been admitted in the case as his defender and that he had been represented by a lawyer chosen by his parents. Finally, the applicant ’ s confessional statements had only partially reflected the truth. In particular, according to the forensic and other evidence, D. had been brutally and intentionally raped with a vodka bottle, which was not consonant with the applicant ’ s initial allegations that he had accidentally killed her in self-defence and then had run away almost immediately. The court further rejected the applicant ’ s complaint about the arbitrariness of his arrest. It noted that while a reference in the investigator ’ s arrest report to him being identified as a perpetrator by witnesses had been incorrect, this mistake alone could not render the arrest as such unlawful, since it had been effected on the basis of a probable cause that the applicant had engaged in criminal acts. Finally, the court found that there was no reason to believe that either L. or B. had engaged in malpractice or that the applicant ’ s right to defence had been prejudiced in another important way.

On 3 June 2010 the Supreme Court of Ukraine upheld the above judgment and it became final.

B. Relevant domestic law

1. Constitution of Ukraine

The relevant provisions of the Constitution can found in the judgments in the cases of Shabelnik v. Ukraine (no. 16404/03, § 25, 19 February 2009) and Osypenko v. Ukraine (no. 4634/04, § 32, 9 November 2010).

2. Code of Criminal Procedure of Ukraine of 1960 (repealed with the effect of 20 November 2012)

Article 45. Mandatory participation of a defence counsel

“The participation of a defence counsel during the inquiry, pre-trial investigation and examination of a criminal case in the first-instance court shall be mandatory:

1) in the cases concerning a person who is suspected of or charged with a crime committed at the age of less than eighteen years, – from the moment when such a person is considered a suspect or when such a person has been charged with the crime; ...”

Article 434. Detention and placement in custody of a minor

“Detention and placement in custody as a preventive measure may be applied to a minor only in exceptional circumstances, where this is warranted by the gravity of the crime imputed to him [her] ... ”

Other relevant provisions of the Code of Criminal Procedure are quoted in the Court ’ s judgments in the cases of Osypenko v. Ukraine (cited above, § 33), Smolik v. Ukraine (no. 11778/05, § 32, 19 January 2012) and Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012).

2. Criminal Procedural Code of Ukraine of 2012

Article 44. Statutory representative of a suspect [or] an accused

“1. Where a suspect [or] an accused is a minor ... his [her] statutory representative shall be engaged together with him [her] to participate in a procedural act.

2. As statutory representatives may be engaged the parents (adoptive parents), and, where they are absent – legal guardians or caretakers ... ”

Article 226. Peculiarities of questioning of a minor child or an adolescent, who has not come of age

“1. Questioning of a minor child or an adolescent, who has not come of age, shall be carried out in the presence of a statutory representative, a pedagogue or a psychologist, and in the event of necessity – a doctor.

2. Questioning of a minor child or an adolescent, who has not come of age may not exceed one hour without a break and in general – two hours per day.

...

4. Before the commencement of the questioning, persons listed in paragraph one of this Article, shall be explained their duty to be present at the questioning, as well as their right to object against questions and to put [their own] questions.”

Article 484. Rules of taking criminal proceedings against minors

...

2. ... During the criminal proceedings against a minor ... the investigator, the prosecutor, the investigative judge, the court and all other persons, who take part in them, shall be obliged to carry out procedural activities in a manner that is least disturbing the habitual lifestyle of the minor and is compatible with his [her] age-related and psychological peculiarities, [and shall] ... take all other measures to avoid negative impact on a minor.”

C. Relevant International Materials

1. United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules") adopted by General Assembly resolution 40/33 of 29 November 1985

“5. 1. The juvenile justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence.

...

7.1. Basic procedural safeguards such as the presumption of innocence, the right to be notified of the charges, the right to remain silent, the right to counsel, the right to the presence of a parent or guardian, the right to confront and cross-examine witnesses and the right to appeal to a higher authority shall be guaranteed at all stages of proceedings.

...

10.1. Upon the apprehension of a juvenile, her or his parents or guardian shall be immediately notified of such apprehension, and, where such immediate notification is not possible, the parents or guardian shall be notified within the shortest possible time thereafter.

10.2. A judge or other competent official or body shall, without delay, consider the issue of release.

10.3. Contacts between the law enforcement agencies and a juvenile offender shall be managed in such a way as to respect the legal status of the juvenile, promote the well-being of the juvenile and avoid harm to her or him, with due regard to the circumstances of the case.

...

13.1 Detention pending trial shall be used only as a measure of last resort and for the shortest possible period of time.

13.2. Whenever possible, detention pending trial shall be replaced by alternative measures ...

...

13.4. Juveniles under detention pending trial shall be kept separate from adults and shall be detained in a separate institution or in a separate part of an institution also holding adults.

13.5. While in custody, juveniles shall receive care, protection and all necessary individual assistance - social, educational, vocational, psychological, medical and physical - that they may require in view of their age, sex and personality.

...

15.1. Throughout the proceedings the juvenile shall have the right to be represented by a legal adviser or to apply for free legal aid where there is provision for such aid in the country.

15.2. The parents or the guardian shall be entitled to participate in the proceedings and may be required by the competent authority to attend them in the interest of the juvenile. ...

20.1. Each case shall from the outset be handled expeditiously, without any unnecessary delay.”

2. The recommendation of the Committee of Ministers to Member States of the Council of Europe on social reactions to juvenile delinquency (no. R (87)20), adopted on 17 September 1987 at the 410th meeting of the Ministers ’ Deputies

“... recommends the Governments of Member States to review, if necessary, their legislation and practice with a view: ...

7. to exclude the remand in custody of minors, apart from exceptional cases of very serious offences committed by older minors; in these cases, restricting the length of remand in custody and keeping minors apart from adults; arranging for decisions of this type to be, in principle, ordered after consultation with a welfare department on alternative proposals ...”

3. The recommendation of the Committee of Ministers to Member States of the Council of Europe concerning new ways of dealing with juvenile delinquency and the role of juvenile justice (Rec (2003)20), adopted on 24 September 2003 at the 853 rd meeting of the Ministers ’ Deputies

“15. Where juveniles are detained in police custody, account should be taken of their status as a minor, their age and their vulnerability and level of maturity. They should be promptly informed of their rights and safeguards in a manner that ensures their full understanding. While being questioned by the police they should, in principle, be accompanied by their parent/legal guardian or other appropriate adult. They should also have the right of access to a lawyer and a doctor. They should not be detained in police custody for longer than forty-eight hours in total and for younger offenders every effort should be made to reduce this time further. The detention of juveniles in police custody should be supervised by the competent authorities.

...

17. Where possible, alternatives to remand in custody should be used for juvenile suspects, such as placements with relatives, foster families or other forms of supported accommodation . ...”

4. Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice (a dopted by the Committee of Ministers on 17 November 2010 at the 1098th meeting of the Ministers ’ Deputies)

“30. A child who has been taken into custody should not be questioned in respect of criminal behaviour, or asked to make or sign a statement concerning such involvement, except in the presence of a lawyer or one of the child ’ s parents or, if no parent is available, another person whom the child trusts. ...

31. Police should ensure that, as far as possible, no child in their custody is detained together with adults.

32. Authorities should ensure that children in police custody are kept in conditions that are safe and appropriate to their needs.

33. In member states where this falls under their mandate, prosecutors should ensure that child-friendly approaches are used throughout the investigation process.

...

41. Lawyers should provide the child with all necessary information and explanations concerning the possible consequences of the child ’ s views and/or opinions.

...

50. In all proceedings involving children, the urgency principle should be applied to provide a speedy response and protect the best interests of the child, while respecting the rule of law.

...

58. Children should be allowed to be accompanied by their parents or, where appropriate, an adult of their choice, unless a reasoned decision has been made to the contrary in respect of that person.

...

64. Interviews of and the gathering of statements from children should, as far as possible, be carried out by trained professionals. Every effort should be made for children to give evidence in the most favourable settings and under the most suitable conditions, having regard to their age, maturity and level of understanding and any communication difficulties they may have.”

COMPLAINTS

The applicant complains that the investigative authorities ill-treated him physically and psychologically to obtain false self-incriminating statements and that an investigation into the relevant complaint was ineffective. The applicant invokes Article 3 of the Convention in respect of the above complaints.

He also complains that he was arrested and detained arbitrarily and that his detention pending criminal proceedings was excessively lengthy. The applicant invokes Article 5 of the Convention in respect of the above complaints.

Finally, the applicant complains that the criminal proceedings against him were unfair. In particular:

- his right to defend himself and to participate in the proceedings effectively was breached in that his parents were excluded from representing his interests in the beginning of the proceedings including his first questionings and choosing a lawyer; in that no legal representation was available to him during some of the investigative actions, such as the first questioning, the identification parade and the seizure of his clothes; and in that lawyers L. and B. had engaged in malpractice; and

- the domestic judicial authorities unfairly referred to his confessions given under duress as a basis for his conviction.

QUESTIONS TO THE PARTIES

1. Having regard to all of the applicant ’ s complaints concerning the events that occurred from the time of his arrival at the police station on the morning of 20 February 2005 until the obtaining of his confession statements on 21 February 2005, was the applicant subject to treatment in violation of Article 3? In particular:

(a) Was the applicant subjected to physical ill-treatment?

(b) Was he subjected to psychological ill-treatment? In particular, in view of the applicant ’ s allegations that he was separated from his father, questioned for extensive periods of time, placed in a cell with adult drug addicts and police informants and threatened by the police with rape and ‘ difficulties for his family ’ , was the overall context and environment of the applicant ’ s detention and interrogation during the said period appropriate to his situation of particular vulnerability as a minor?

The Government are requested to provide all procedural and medical documents relating to the applicant and pertaining to the period in question together with an up to date independent psychiatric assessment of the impact, which the authorities ’ treatment of the applicant during the above dates had upon his physical and mental health.

2. Having regard to the procedural protection from inhuman or degrading treatment, was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention (see, in particular, Kaverzin v. Ukraine ( no. 23893/03 , §§ 172-182, 15 May 2012 )?

The Government are invited, in particular, to comment as to whether the applicant ’ s allegations concerning the psychological pressure imposed on him with a view to obtain confessional statements were duly taken into account by the authorities in investigating his complaint.

3. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular:

(a) Was the arrest report of 20 February 2005 sufficiently detailed and specific to satisfy an independent observer that there had been a reasonable suspicion that the applicant had committed a crime (see Grinenko v. Ukraine, no. 33627/06 , §§ 82-84, 15 November 2012)?

(b) Regard being had to the applicant ’ s minor age, was this arrest also necessary in the circusmtances (see Korneykova v. Ukraine , no. 39884/05 , §§ 43-44, 19 January 2012)?

(c) Wa s the applicant ’ s deprivation of liberty during the periods of 10 May 2006 - 25 January 2008 and 24 July 2008 - 11 November 2009 lawful for the purposes of Article 5 § 1 (c) of the Convention (see Kharchenko v. Ukraine , no. 40107/02 , §§ 98 and 101, 10 February 2011)?

The Government is requested to provide copies of all relevant decisions on the basis of which the applicant was detained during the periods at issue and copies of his respective appeals and/or requests for release, if any.

4. Was the length of the applicant ’ s detention under Article 5 § 1 (c) compatible with the requirements of Article 5 § 3 of the Convention?

5. Were the principles of a fair trial within the meaning of Article 6 §§ 1 and 3 (c) respected in the present case (see e.g. Panovits v. Cyprus , no. 4268/04, §§ 70, 74-77 and 84-86, 11 December 2008) ? In particular:

(a) Were the applicant ’ s rights to effective participation in the proceedings and to defence observed regard being had

(i ) absence of the applicant ’ s parents and/or a lawyer during some investigative activities, including questionings, identification parade, seizure of clothes on 20 and 21 February 2005; and

(ii ) to the appointment of the applicant ’ s first lawyer without consultation with his parents?

(b) Was the use of the applicant ’ s confessional statements initially given by him allegedly as a result of his physical and psychological ill-treatment compatible with the fair trial guarantees?