FIFTH SECTION

Application no. 29644/10 Maksym Anatoliyevych OGORODNIK against Ukraine lodged on 5 May 2010

STATEMENT OF FACTS

The applicant, Mr Maksym Anatoliyevych Ogorodnik , is a Ukrainian national, who was born in 1983 and is presently serving his prison sentence in Berdychiv Penitentiary no. 70.

A. The circumstances of the case

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

On 16 July 2008 the applicant was detained on suspicion of robbery with assault. On the same date he confessed to the incriminated crime.

In July and August 2008 a number of criminal cases were opened against him and several other persons on suspicion of banditry, numerous counts of theft and armed robbery, money laundering, hooliganism, as well as illegal arms ’ possession and handling.

The applicant wrote numerous confessions (including on 16, 17, 18, 19, 22 and 26 July, as well as on 3 and 12 August 2008). According to him, he did so under duress and without legal assistance.

He was allegedly ill-treated in the police custody on many occasions between 16 July and 5 November 2008.

According to the bill of indictment, the date of the applicant ’ s official detention as a criminal suspect was 25 July 2008.

In September and October 2008 he complained about his alleged ill-treatment in police custody to various authorities, including the General Prosecutor ’ s Office. His complaints contained detailed description of the events in question. He alleged, in particular, that he had been detained and ill-treated by the Vinnytsia Police Department for Combating Organised Crime from 16 to 26 July 2008, by the Vyshgorod Town Police Department from 26 July to 7 August 2008, and by the Brovary Town Police Department in the Kyiv region from 7 August to 11 September 2008.

His complaints were forwarded to the respective local prosecution authorities.

On 7 November 2008 the applicant underwent a medical examination which discovered bruises on his butt ocks measuring 7 x 10 cm and 15 x 10 cm respectively. The doctors also documented sores on his wrists caused by handcuffs. The examination certificate referred to another sore having been discovered, but the notes are illegible.

On 7 and 19 November and 4 December 2008 the Kyiv Regional Prosecutor ’ s Office, as well as the Vinnytsia and Vyshgorod Town Prosecutor ’ s Offices, respectively, delivered rulings refusing to institute criminal proceedings against the police officers allegedly involved in the applicant ’ s ill-treatment for the lack of evidence of their guilt. The case file, as it presently stands, does not contain copies of these documents.

On 6 May 2009 the Staromiskyy District Court of Vinnytsia found the applicant guilty of numerous counts of aggravated theft and robbery and sentenced him to eleven and a half years ’ imprisonment, as well as confiscation of all his personal property. The confiscated property included a house and a car which had been acquired by the applicant ’ s parents, but which the court considered to have been bought from the revenues from his criminal activities. The applicant was acquitted of the charges of banditry, money laundering, hooliganism and illegal arms handling.

He appealed, submitting that he had voluntarily confessed to the criminal offences in question and had shown remorse. Referring to his cooperation with the investigation, as well as the fact that he had a minor child, the applicant sought mitigation of his sentence.

On 16 July 2009 the Vinnytsia Regional Court of Appeal rejected his appeal.

The applicant further appealed on points of law. He submitted, in particular, that his conviction had been based on his self-incriminating statements obtained under duress and with substantial violations of the criminal procedural legal provisions (the case file does not contain a copy of his cassation appeal and its summary is taken from the ruling of the Supreme Court – see below).

On 26 February 2010 the Supreme Court rejected the applicant ’ s request for leave to appeal on points of law. As to his allegation of ill-treatment, it noted that the applicant had not raised this issue in his appeal and that he had maintained his confessions, having deciding to retract them only at the stage of the appeal on points of law.

B. Relevant domestic and practice

The relevant provisions of the Code of Criminal Procedure can be found in the judgment on the case of Sergey Afanasyev v. Ukraine (no. 48057/06 , §§ 31-32, 15 November 2012).

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to torture in police custody. He also complains of the “negligent attitude of the prosecution authorities to unfounded statements by the investigating bodies and the organised crime combating police”.

He further complains, without referring to any provision of the Convention, that his pre-trial detention was unlawful.

The applicant next complains under Article 6: that he was deprived of legal assistance at the early stages of the investigation; that the lawyers, whom he contracted later, did not duly perform their duties; that the courts dealing with his case were biased and the appellate court judges took a bribe from him; and that his conviction was generally unfair. He complains under the same provision about the length of the proceedings.

The applicant further complains that the confiscation ordered by the courts along with his conviction concerned property which did not in fact belong to him and to which he had no relation.

Lastly, he complains of some problems with the dispatching of his outgoing correspondence from the Pre-Trial Detention Centre.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to torture, inhuman or degrading treatment or punishment in police custody in breach of Article 3 of the Convention?

2. Having regard to the procedural protection from torture, inhuman or degrading treatment or punishment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

3. Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular:

(a) Has there been a breach of his right to a fair trial under Article 6 § 1 on account of the use by the domestic courts of the evidence obtained in alleged contravention of Article 3 of the Convention? Was there a violation of his right not to incriminate himself?

(b) Was the applicant provided with timely access to a lawyer following his arrest on 16 July 2008, 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?

The Government are requested to submit a chronologically ordered information note on their investigation of the alleged ill-treatment of the applicant, as well as copies of all related documents, including but not limited to:

- the applicant ’ s complaints regarding his alleged ill-treatment by the police;

- all relevant medical reports;

- the relevant decisions of the authorities (including the prosecutor ’ s rulings of 7 and 19 November and 4 December 2008);

- the applicant ’ s waivers of legal representation if any;

- the applicant ’ s confessions;

- the verdict of the Staromiskyy Distr ict Court of Vinnytsia of 6 May 2009 ; and

- the applicant ’ s cassation appeal.