FIFTH SECTION

Application no. 23040/07 Vasyl Vasylyovych GELETEY against Ukraine lodged on 7 May 2007

STATEMENT OF FACTS

The applicant, Mr Vasyl Vasylyovych Geletey , is a Ukrainian national who was born in 1984 and prior to his conviction lived in Beregovo .

A. The circumstances of the case

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

On 22 August 2004 the applicant was arrested by the police and brought to a police station. In the detention report submitted by the applicant it is stated that the arrest took place at 6.30 p. m. on that day.

In the police station unspecified police officers allegedly tortured the applicant with the aim of extracting a confession of his having committed robbery and murder of Mr M. at about 3.00 a.m. on 22 August 2004, The applicant, being no longer able to stand the torture, confessed that he had committed the crimes and put self-incriminating statements in writing according to the instructions of the police officers. It is unclear whether the applicant ’ s statements were used in the ensuing criminal proceedings against him. No copy of that document was provided to the Court.

Subsequently, the police searched the applicant and took him for questioning to Mr T., a prosecutor investigating the murder of Mr M.

Before the questioning started, Mr T. informed the applicant of his right to defence. According to the applicant, he expressed the wish to be represented by his lawyer, Mr Y. S., and gave the lawyer ’ s address to the prosecutor. However, for unspecified reasons, Mr T. did not contact the applicant ’ s lawyer. The applicant was not allowed to contact his relatives or the lawyer.

According to the verbatim record of the applicant ’ s questioning, Mr T. appointed Mr B. as the applicant ’ s lawyer and questioned the applicant in his presence. The applicant states that Mr B. was not present during the questioning. According to the same document, the questioning took place between 9 and 10 a. m. on 22 August 2004. The document also mentions that between 6.30 and 6.45 p.m. the applicant was informed about his right to defence. As it was later noted during the applicant ’ s trial, the time was indicated incorrectly (see below).

The verbatim record also provide that the applicant wished to be represented by Mr B., that the applicant stated that he had taken part in the robbery on 22 August 2004 and that he had hit Mr M. with a bat. The applicant signed the document making no objections as to its contents.

Several hours later on 22 August 2004 (at about 8:30 p.m.) the applicant took part in a videotaped crime scene reconstruction in the presence of a forensic expert and an investigator from the local police, two attesting witnesses, and Mr T. The applicant was not assisted by a lawyer. There is no information whether Mr B. or any other lawyer on the applicant ’ s behalf requested or was invited to attend the reconstruction.

The verbatim record provides that during the reconstruction the applicant was informed that he would not be held criminally liable if he refused to testify; that he voluntarily agreed to testify; that he was not subjected to either psychological or physical violence; that he stated that he had participated in the robbery and had hit Mr M. with a bat; and that he showed the place where he and Mr I. K., the applicant ’ s co-defendant (see below), had hidden the bat. The verbatim record was signed by the applicant and contains no objections as to its contents. However, it contains a handwritten “no” before a typed “agree to testify”.

According to the applicant, during the reconstruction he initially wished to remain silent though later he had to show the bat as “the prosecutor became angry at him and there were police officers present”. The applicant states that he did not say that he had killed Mr M. He provides no explanation concerning the handwritten changes in the copy of the record he submitted to the Court.

The applicant further states that during 22-23 August 2004 he was not given an opportunity to contact Mr Y. S. or any other person who could have contacted the lawyer on his behalf.

In the meantime, on 22 August 2004 two other people, Mr A. K. and Mr S., were arrested and questioned on suspicion of their having committed the crimes together with the applicant. In particular, Mr S. was questioned by a prosecutor in the presence of the same lawyer, Mr B., who had been allegedly present during the applicant ’ s first questioning by Mr T.

On 23 August 2004 the prosecutor instituted criminal proceedings against the applicant, Mr A.K. and Mr S. on suspicion of robbery and murder. The prosecutor appointed Mr B. to act as the applicant ’ s lawyer and also as the lawyer of Mr S. The applicant did not object. During the questioning in the presence of that lawyer the applicant gave further details of the robbery. In particular, the applicant stated that he had hit the victim on the head with a bat and that subsequently he and Mr I. K. had hidden the bat. The applicant also informed the prosecutor about the course of events during and after the crime.

On 26 August 2004 the applicant concluded a contract with Mr Y.S. on legal assistance. On the same day the prosecutor gave permission to Mr Y.S. to represent the applicant in the proceedings instead of Mr B.

On an unspecified date the applicant complained to the prosecutors that on 22 August 2004 he had been beaten by unidentified police officers. On 8 October 2004 medical experts examined the applicant and found no injuries on him.

On 14 October 2004, during the demonstration of the video recording of the reconstruction of 22 August 2004, the applicant assisted by Mr Y. S. denied his earlier statements that he had hidden the bat and explained that during the reconstruction he had given self-incriminating statements because he had been threatened and beaten up by the police officers.

On 19 January 2005 the prosecutors refused to institute criminal investigation into the applicant ’ s alleged beating by police officers on 22 August 2004, no corpus delicti having been found in the actions of the police officers.

On 18 February 2005 the pre-trial investigation was completed and the applicant was charged with having committed robbery and murder together with Mr S. and Mr A.K. It was established that Mr I.K. had also participated in the robbery, but as he absconded, the criminal proceedings against him were disjoined into a separate criminal case.

During the trial the applicant denied his involvement in the robbery and murder. However, he did not challenge the trustworthiness of the records of his submissions made on 22 August 2004. The applicant also raised complaints about a violation of his right to defence during the investigation, the details of which he does not specify.

The applicant also argued that the bat which had been included into the case-file and had been examined by experts during the investigation was not the one which he had shown during the reconstruction on 22 August 2004. To support that allegation the applicant referred to the fact that in the verbatim record Mr T. had described the bat as blue, while the experts who had subsequently examined the bat had noted that it had been grey.

Mr S., Mr A.K. and Mr I.K., the latter had been arrested by the police in April 2005, all pleaded guilty of having committed robbery and denied having committed murder. According to the applicant, during the final stage of the trial the prosecutor changed the charges against him and his co-defendants and argued that the applicant had committed the murder alone. According to the material in the case-file, the charges were not changed.

On 29 August 2006 the Zakarpattya Regional Court of Appeal, acting as a court of first instance, convicted the applicant of murder and robbery and sentenced him to fifteen years ’ imprisonment. The court also found Mr S., Mr A.K. and Mr I.K. guilty of robbery and acquitted them of murder. The hearing was held in the presence of the applicant ’ s new lawyer, Mr D., who replaced Mr Y. S. on an unspecified date.

The court based the applicant ’ s conviction on his self-incriminating statements contained in the verbatim record of questioning by the prosecutor and of the crime scene reconstruction on 22 August 2004, statements of a number of witnesses, and other evidence, including experts ’ report that the blood found on the bat could have belonged to Mr M.

By the same judgment, the court rejected as unsubstantiated the applicant ’ s submissions that he had made self-incriminating statements under duress. The court referred to the results of the applicant ’ s medical examination on 8 October 2004 and the prosecutors ’ decision of 19 January 2005.

The court also held that on 22 August 2004 the investigator ’ s decision to appoint Mr B. as the applicant ’ s lawyer had been lawful because at the material time no contract had been concluded between the applicant and Mr Y.S. The court found no procedural violations during the applicant ’ s questioning on 22 August 2004, noting that the applicant had been questioned in the presence of a lawyer and had raised no complaints.

The court refuted the applicant ’ s allegation that the bat included into the case-file was fake noting that the disparity in the bat ’ s descriptions by Mr T. and by experts could be explained by the former ’ s colour blindness.

The applicant appealed in cassation arguing, among other things, that Mr B. had not been the lawyer of his own choosing, that Mr Y. S. had not been allowed to represent him in due time, and that during the reconstruction on 22 August 2004 the applicant had not been provided with legal assistance.

The applicant did not request the Supreme Court to allow his lawyer to be present at its hearing or to appoint him a new lawyer.

The prosecutors did not appeal against the judgment of 29 August 2006.

On 12 April 2007 the Supreme Court, having heard the case in the applicant ’ s presence, upheld his conviction and sentence. The court in particular noted that during the questioning and reconstruction on 22 August 2004 the applicant had confessed of having committed the robbery and having hit Mr. M with a bat. The Supreme Court also rejected as unsubstantiated, without providing further details, the applicant ’ s complaints about a violation of his right to defence during the pre-trial investigation. The applicant was not represented by a lawyer during that hearing. The applicant does not provide any further details in this regard.

The applicant alleges that the proceedings were flawed by a number of shortcomings. In particular, he states that ( i ) some pieces of material evidence was not examined by the courts; (ii) the evidence was not properly stored; (iii) there were discrepancies in medical reports on which the courts relied; (iv) the timing was incorrectly noted in the documents concerning the applicant ’ s detention; and (v) the investigators and police officers were not authorised to deal with the applicant ’ s case in compliance with relevant procedural regulations.

COMPLAINTS

The applicant complains that on 22 August 2004 unidentified police officers tortured him to extract his confessions of robbery and murder.

The applicant alleges under Article 5 § 1 of the Convention that his detention records contained no reference to any lawful grounds for his detention. He further complains that, contrary to Article 6 § 2 of the Convention, the records contained a statement that he had “committed murder”.

The applicant further complains under Article 6 §§ 1 and 3 (a)-(c) of the Convention about the unfairness and outcome of his criminal prosecution. In particular, the applicant alleges that ( i ) the qualification of his actions and the factual findings by the investigator and the courts were wrong and the courts were biased; (ii) the lawyer B. was not of his choosing and that he also represented one of the applicant ’ s co-defendant in the case; (iii) the applicant was not assisted by a lawyer during the crime scene reconstruction and during the cassation hearing; (iv) the prosecutor who took part in the applicant ’ s trial unlawfully changed the charges against the applicant which hindered the applicant ’ s preparation of defence; and (v) the expert report concerning one of the principle evidence (the bat) was flawed and that the object itself was fake. The applicant also complains that there were a number of other shortcomings in the criminal proceedings against him, including ( i ) the investigators ’ failure to store the evidence in the way to preserve its authenticity; (ii) the courts ’ failure to examine some pieces of material evidence; (iii) the courts ’ reliance on medical reports which had discrepancies; and (iv) incorrect timing in the documents concerning the applicant ’ s detention. The applicant states that the investigators and police officers were not authorised to deal with his case in compliance with relevant procedural regulations.

QUESTION TO THE PARTIES

Did the applicant have a fair trial in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 (c) of the Convention? In particular, was the applicant able to defend himself through legal assistance of his own choosing during the questioning by Mr T. on 22 August 2004 and the crime scene reconstruction on the same date?