FIFTH SECTION

Application no. 57980/11 Valentyn Tsezarovych ZHYZITSKYY against Ukraine lodged on 8 September 2011

STATEMENT OF FACTS

The applicant, Mr Valentyn Tsezarovych Zhyzitskyy , is a Ukrainian national, who was born in 1971 and is currently serving his prison sentence in Kopychyntsi Penitentiary no. 112.

A. The circumstances of the case

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

On 1 May 2007, at about 1 a.m., the dead body of Ms Kh ., the applicant ’ s wife (from whom he was separated), was discovered near the shop in which she had been working as a sales assistant. She had sustained multiple knife stabs to her chest and neck. Also, the victim ’ s hand had knife cuts, which suggested to the police that she had been fighting with the murderer. There were considerable blood stains on the scene. The knife with traces of blood was discovered nearby.

Later on 1 May 2007, at about 3 a.m., the applicant was detained on suspicion of the murder of Ms Kh . He was taken to the Gorodok Town Police Station where the police threatened him with a view to extorting his confession. As the applicant refused, they handcuffed him with his hands behind the back, put a black cap on his head covering his eyes and took him somewhere downstairs. Then the applicant was made sit on a chair and his feet were tied to the chair ’ s legs. The applicant felt being touched behind his ears. He felt some items being pressed against his temples and then he realised that electric shocks were being administered to him, as his body started to shake and jerk. This was repeated several times. The applicant fell down with the chair. Thereafter a police officer unzipped the applicant ’ s trousers and attached electric wires to his genitals. After several electric shocks had been administered to his genitals, the applicant agreed to confess to the incriminated murder. He was taken to the conference room where he was questioned. After the applicant submitted that he could not remember certain details, he was taken back downstairs where electric shocks were administered to him again.

On 1 May 2007 the investigator assigned the Yarmolyntsi Town Forensic Expert Examination Bureau to examine the applicant with a view to establishing whether he had any injuries, what their localisation and nature were, and whether those injuries could have originated from his fight with the victim. As noted in the documents submitted to the expert, the applicant had confessed to the murder.

On 3 May 2007 the examination was completed. It reported a bruise on the applicant ’ s left shoulder blade, a bruise in the left side of the torso, a bruise beneath the right shoulder blade, a bruise on the left shoulder and another bruise in the upper part of the left forearm, a bruise on the left wrist, a bruise on the back of the right hand and on the right wrist, as well as a sore and a bruise on the left ear. The injuries in questions were evaluated as having originated, within one or two days prior to the examination, from blows with blunt limited-surface objects and falling against a blunt surface. They were assessed as insignificant. In addition, the expert reported two sores behind the applicant ’ s right ear, which could have originated from blunt hard objects with a limited surface with a slightly pointed edge (such as nails). The age of these sores was evaluated as one day before the examination. Some older bruises (three to five days) were also discovered.

According to the case-file materials, on 2 May 2007 the applicant started to be represented by lawyer B. contracted by his sister. He confessed once again to the murder. According to the applicant, however, he had access to a lawyer for the first time on 4 May 2007.

On 4 May 2007 the Gorodok Town Court remanded the applicant in custody pending trial. During the hearing he repeated his confession and did not raise any complaints.

On the same date the applicant ’ s sister complained to the Gorodok Town Prosecutor ’ s Office (“the Gorodok Prosecutor”) about his ill-treatment and sought his forensic medical examination.

On 8 May 2007 the applicant started to be represented by lawyer T., instead of B. He immediately retracted his confession and complained of his ill-treatment to the Gorodok Prosecutor. He submitted that he had incriminated himself under coercion and that he had not committed the crime in question. The applicant alleged that he had sustained electric shocks in the hands of the police and specified that no other ill-treatment had been used to him. As to his bruises, they could have been caused by his falling when tied to a chair. He noted that even when he had already been represented by lawyer B., he had been afraid to tell the truth and had repeated his confession as the lawyer had recommended. The applicant also stated that his rights to legal assistance and privilege against self-incrimination had not been explained to him after his arrest on 1 May 2007.

On 7 June 2007 an additional forensic medical examination report was delivered in respect of the applicant. The question before the expert was whether the applicant had any injuries indicating that electric shocks had been administered to him on 1 May 2007. According to the report, the applicant had three superficial wounds to his genitals, which had been inflicted at least two weeks before the examination. The expert found it impossible to establish whether those wounds had originated from electric shocks. He however stated that it was equally impossible to exclude that possibility.

The prosecution authorities refused to institute criminal proceedings against the police officers involved in the alleged ill-treatment of the applicant at least five times. Four of those rulings were quashed for the incompleteness and superficiality of the investigation. As to the fifth ruling, of 29 January 2008, it is not clear whether it was eventually quashed. None of the mentioned rulings referred to forensic medical examination report of 7 June 2007.

On 27 February 2008 the Dunayivtsi Town Court found the applicant guilty of premeditated murder of Ms Kh . and sentenced him to thirteen years ’ imprisonment. It relied, in particular, on the applicant ’ s self-incriminating statements of 1 and 2 May 2007. As to his allegations of ill-treatment by the police, they were dismissed as unsubstantiated.

On 14 May 2008 the Khmelnytskyy Regional Court of Appeal (“the Khmelnytskyy Regional Court ”) upheld this judgment.

On 14 April 2009 the Supreme Court quashed the ruling of 14 May 2008 and remitted the case for fresh examination by the appellate court. It stated that the Khmelnytskyy Regional Court had not addressed any of the key arguments raised in the applicant ’ s appeal, including the following: the lack of motives for him to murder Ms Kh . given that they had been separated and he did not care about her life; the chronology of the events as outlined by a number of witnesses indicating his inability to be at the crime scene at the time of the murder; the absence of any blood having been discovered on his clothes and under his nails whereas the blood stains at the scene were extensive; the earlier visit by the police to his place of residence which might have explained the police dog having found a scent there; the discovery of a number of cigarette ends near the crime scene none of which bore traces of the applicant ’ s saliva; as well as some other contradictions in the evidence. The Supreme Court also criticised the lower courts for formalistic examination of the applicant ’ s allegations of his ill-treatment. It stated that no assessment had been given to the medical evidence in the case file, according to which it could not be excluded that his injuries had been sustained in the circumstances as described by him.

On 27 July 2009 the Khmelnytskyy Regional Court quashed the judgment of 27 February 2008 and remitted the case to the Gorodok Prosecutor for additional investigation. It referred to the issues pointed out by the Supreme Court.

On 17 March 2010 the Dunayivtsi Court pronounced a new verdict, the operative part of which was identical to that of 27 February 2008. The court dismissed all the arguments of the defence considering them to be nothing more than the applicant ’ s attempts to avoid the responsibility. As to his motives for the murder, the court considered that those had been his jealousy and intention to reunite with Ms Kh . His aggressive behaviour towards the victim in the past had been confirmed by several witnesses. A forensic expert questioned in the hearing stated that the absence of any blood stains on the applicant ’ s clothes had been possible in the circumstances, as the victim had mostly suffered internal bleeding and had been dressed in a rain jacket. Lastly, the applicant ’ s allegation about having suffered electric shocks was rejected as unsubstantiated, without any reference having been made to the examination report of 7 June 2007.

On 26 May 2010 and 24 March 2011 the Khmelnytskyy Regional Court and the Supreme Court, respectively, upheld this judgment.

B. Relevant domestic law and practice

Relevant provisions of the Constitution of Ukraine, the Criminal Code and the Code of Criminal Procedure can be found, in particular, in the Court ’ s judgment on the case of Nechiporuk and Yonkalo v. Ukraine (no. 42310/04 , §§ 121-123, 131, 134 and 138, with further references, 21 April 2011).

COMPLAINTS

The applicant complains under Article 3 of the Convention about his ill-treatment by the police following his arrest on 1 May 2007 and the ineffectiveness of the domestic investigation into the matter.

He further complains under Article 6 § 1 about the alleged unfairness of his trial. More specifically, the applicant complains about a breach of his right to the privilege against self-incrimination. He also alleges that the directions given by the Supreme Court in its ruling of 14 April 2009 and repeated in the appellate court ’ s ruling of 27 July 2009 remained ignored. According to him, his conviction was devoid of solid evidential basis.

The applicant also complains under the same provision about the length of the criminal proceedings against him, which he considers unreasonable.

Relying on Article 6 § 2, he next complains that in securing his conviction the court relied on unlawfully obtained evidence, namely his self-incriminating statements obtained under duress.

The applicant further complains, with reference to Article 6 § 3 (b), that his initial questionings took place while he was drunk and could not realise his actions, as well as without any legal assistance having been provided to him.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to torture, inhuman or degrading treatment or punishment in breach of Article 3 of the Convention following his arrest on 1 May 2007? In particular, were electric shocks administered to him by the police?

2. Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation undertaken by the domestic authorities into the applicant ’ s allegation of ill-treatment by the police in breach of Article 3 of the Convention?

3. 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? In particular, was there a violation of his right not to incriminate himself?

4. Did the applicant benefit from the assistance of a lawyer at the early stages of the criminal investigation, pursuant to Article 6 § 3 (c) of the Convention? When did the applicant have access to a lawyer for the first time?