FIFTH SECTION

Application no. 55749/08 Yevgeniy Vitaliyovych PETRENKO against Ukraine lodged on 3 November 2008

STATEMENT OF FACTS

The applicant, Mr Yevgeniy Vitaliyovych Petrenko , is a Ukrainian national, who was born in 1988 and is currently serving his sentence in prison.

A. The circumstances of the case

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

On 28 February 2004 R., an adolescent, was found dead in the garden areas of Cherkasy city. The corpse displayed stab wounds to the neck and the chest.

According to the applicant, in the evening on 18 March 2004 the police arrested him and brought to the police station. There he was psychologically pressured and physically ill-treated with the purpose of extracting his confession to the murder.

At 6.20 p.m. on 19 March 2004 the investigator formally arrested the applicant on suspicion of having stolen a cell phone from an acquaintance.

At 6.40 p.m. on the same day the applicant was questioned as a witness in connection with the murder. The questioning was carried out without a lawyer. Before being questioned the applicant had been warned that refusing to give evidence and giving false evidence were criminal offences. At the same time he was informed that he had the right to refuse to give evidence regarding himself and his or her relatives.

At 11.15 p.m. on the same day the investigator arrested D. on suspicion of having been involved in the murder.

At 11.30 p.m. on the same day the applicant confessed that he had killed R. by cutting his neck with a knife and causing other injuries. He added that D. assisted him. Nearly the same time D. made a statement that he helped the applicant to beat R. and that at a certain moment during the fight the applicant cut R. ’ s neck.

On 20 March 2004 the applicant was questioned in the presence of lawyer. The applicant admitted that he had murdered R. On the same day the applicant participated in the reconstruction of the crime where he showed how he murdered R.

At 6.20 p.m. on the same day the applicant was moved to the Temporary Detention Centre of Prydniprovskyy District Police Department of Cherkasy (“the ITT”).

On 21 March 2004 a forensic medical expert issued a report stating that the applicant suffered from no bodily injuries. The expert specified that the medical examination of the applicant was held in the Cherkasy Pre-Trial Detention Centre (“the SIZO”).

On 22 March 2004 a court ordered the applicant ’ s pre-trial detention.

On 26 March 2004 the applicant was transferred from the ITT to the SIZO.

On 3 June 2004 a forensic medial expert issued a report stating that the applicant sustained no bodily injuries during the preliminary detention. It appears that in reaching that conclusion the expert relied on the report of 21 March 2004.

On 10 August 2004 the investigation was completed and the case was referred to the Cherkasy Regional Court of Appeal (“the Court of Appeal”) for the applicant and D. to be tried.

On 21 September 2004 the Court of Appeal remitted the case for additional investigation noting that the actions of the defendants had not been properly classified under the criminal law.

On 14 December 2004 the Supreme Court quashed the decision of 21 September 2004 as unfounded and remitted the case to the Court of Appeal for trial.

On 26 August 2005 the applicant was examined by a doctor who noted, inter alia , that the applicant suffered from fractures of three ribs.

On 29 August 2005 the Cherkasy Regional Prosecutor ’ s Office (“the Regional Prosecutor ’ s Office”) directed the applicant ’ s complaint concerning the violation of his rights during the investigation to the Court of Appeal.

On 7 November 2005 the Court of Appeal found the applicant guilty of murder and fraudulent theft of a cell phone and convicted him to fourteen years ’ imprisonment. The court also found D. guilty of concealment of murder and imposed a conditional sentence.

The applicant appealed against the judgment claiming that his confession was obtained by way of ill-treatment and in breach of his rights of defence. The prosecutor ’ s and the victim ’ s relatives also appealed claiming, inter alia , that the sentences were unduly mild.

On 8 November 2005, in reply to the applicant ’ s complaint of ill-treatment and violation of his procedural rights during the investigation, the Regional Prosecutor ’ s Office informed the applicant that those issues had been examined during the pre-trial investigation and the trial and had been rejected as unfounded. On 25 November 2005 the Regional Prosecutor ’ s Office additionally informed the applicant that his complaints would be examined by the Supreme Court in the course of review of the criminal case.

By the letter of 21 November 2005 the governor of the ITT provided the applicant ’ s lawyer with a list of the procedural measures undertaken in respect of the applicant during his detention in the ITT between 20 and 26 March 2004. According to that list, on 21 March 2004 the applicant was not escorted from the ITT in any direction and he did not take part in any procedural measures on that day.

On 14 February 2006 the Regional Prosecutor ’ s Office ordered the Sosnivskyy District Prosecutor ’ s Office of Cherkasy (“the District Prosecutor ’ s Office”) to carry out pre-investigation enquiries in respect of the applicant ’ s allegations of ill-treatment.

On 5 March 2006 the District Prosecutor ’ s Office refused to open investigation in connection with the applicant ’ s allegations of ill-treatment. The applicant challenged that decision before the Prydniprovskyy District Court of Cherkasy (“the District Court”).

On 16 May 2006 the Supreme Court quashed the judgment of 7 November 2005 and remitted the case to the Court of Appeal for a fresh consideration. It noted that the case had not been properly considered by the Court of Appeal as regards the role of D. in the incident. It further ordered that the applicant ’ s allegations of violations of his rights had to be scrutinised carefully.

On 2 August 2006 the District Court quashed the District Prosecutor ’ s Office ’ s decision of 5 March 2006 and ordered further pre-investigation enquiries. It noted that the medical report of 21 March 2004 was not reliable since the other evidence suggested that the applicant had not been escorted to the SIZO for the medical examination on that day. Moreover, the prosecutor ’ s office did not properly examine whether the applicant really sustained rib fractures as documented by the report of 26 August 2005.

On 25 December 2006 the District Prosecutor ’ s Office refused to open an investigation in connection with the applicant ’ s allegations of ill-treatment. On 26 January 2006 the District Court quashed that decision as unfounded after finding that the contradictions identified by the court earlier, had not been removed.

On 28 February 2007 the District Prosecutor ’ s Office adopted another decision refusing to open an investigation in connection with the applicant ’ s allegations of ill-treatment. On 25 April 2007 the Regional Prosecutor ’ s Office quashed that decision and ordered further pre-investigation enquiries.

On 10 August 2007 the District Prosecutor ’ s Office again refused to open an investigation in connection with the applicant ’ s allegations of ill-treatment.

On 19 November 2007 the District Court quashed that decision as unfounded noting that the file contained serious contradictions which had not been removed. The District Prosecutor ’ s Office appealed against that decision to the Court of Appeal.

On 28 November 2007 the Court of Appeal found the applicant guilty of murder and fraudulent theft of a cell phone and convicted him to fourteen years ’ imprisonment. The court further found that D. was an accomplice to the murder and convicted him to six years ’ imprisonment. The court noted that while the applicant had not admitted his guilt during the trial, the evidence in the file was sufficient to establish that he had committed the crimes. The court referred to the applicant ’ s self-incriminating statements made at the pre-trial investigation and noted that they were consistent with the other evidence. The court further dismissed the applicant ’ s allegations of ill-treatment, noting that during the trial the police officers denied the alleged facts and the medical reports of 21 March and 3 June 2004 did not support those allegations.

The applicant appealed against the judgment claiming, inter alia , that his defence rights had not been respected at the initial stage of the investigation, that he had not been given access to a lawyer immediately after the arrest and that his self-incriminating statements had been obtained as a result of ill-treatment. The applicant also claimed that the court failed to question all the law-enforcement officers and other people, who had been dealing with the applicant ’ s case in various capacities (the former applicant ’ s lawyers and experts in particular), and therefore failed to disclose the facts of falsification of certain documents in the case file. On 18 December 2007 the Court of Appeal partly allowed the prosecutor ’ s appeal against the District Court ’ s decision of 19 November 2007. It noted that the applicant ’ s allegations of ill-treatment concerned the admissibility and veracity of evidence in his criminal case. Therefore those issues had to be examined by the Court of Appeal in the course of the applicant ’ s trial and not by way of separate proceedings. The court further found that the judgment adopted in the applicant ’ s criminal case addressed the relevant issues. Accordingly, the proceedings on this matter had to be terminated. The applicant appealed in cassation.

On 6 May 2008 the Supreme Court upheld the judgment of 28 November 2007 noting that the applicant ’ s guilt was well established by various pieces of evidence in the case file, including the applicant ’ s self-incriminating statements made during the pre-trial investigation. It dismissed the applicant ’ s allegations of ill-treatment and violations of his procedural rights as groundless.

On 10 June 2008 the Supreme Court upheld the Court of Appeal ’ s decision of 18 December 2007 noting that the relevant issues could not be examined in parallel with the ongoing trial in the applicant ’ s criminal case.

B. Relevant domestic law

The relevant provisions of the Code of Criminal Procedure of 28 December 1960 are quoted in Kaverzin v. Ukraine (no. 23893/03 , § 45, 15 May 2012).

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that following his arrest the police officers ill-treated him with the purpose of making him confess to a crime. He further complains that the domestic authorities failed to carry out an effective investigation of these allegations.

2. The applicant complains under Article 5 § 1 that his arrest and preliminary detention were unlawful.

3. The applicant complains under Article 6 § 1 of the Convention that the courts misinterpreted the facts, failed to properly assess the evidence in the case and correctly apply the law. In particular, the applicant alleges that the courts unfairly convicted him relying on the evidence obtained by ill-treatment.

4. The applicant further complains that the length of the proceedings in his case was in breach of Article 6 § 1 of the Convention.

5. The applicant also complains under Article 6 §§ 1 and 3 (c) of the Convention that his defence rights were not respected at the initial stage of the proceedings. In particular he was not provided with access to a lawyer in due course.

6. The applicant complains under Article 6 §§ 1 and 3 (d) of the Convention that the courts failed to properly examine witnesses.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to ill-treatment, in breach of Article 3 of the Convention? Did the authorities provide sufficient explanation for the applicant ’ s injuries documented during his detention?

2. Having regard to the procedural protection from ill-treatment, was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

3. Were the principles of fair trial under Article 6 § 1 of the Convention respected in the present case given that the courts convicted the applicant using the evidence which was obtained allegedly in breach of his privilege against self-incrimination and by means of ill-treatment?

4. Was the applicant provided with access to a lawyer 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 invited to provide the following material:

(a) copies of all the medical evidence concerning the applicant ’ s health between 18 and 27 March 2004;

(b) a copy of the medical report of 3 June 2004 referred to by the Court of Appeal in its judgment of 28 November 2007;

(c) copies of the documents concerning the domestic proceedings in respect of the applicant ’ s allegation of ill-treatment, including the decisions by which the authorities refused to open an investigation and the decisions of the supervising authorities quashing those decisions.

(d) copies of the records of the investigatory and other procedural measures carried out in respect of the applicant between 18 and 27 March 2004;

(e) copies of all the documents containing the applicant ’ s statements which he made to the authorities during the pre-trial investigation;

(f) copies of the materials of the case file concerning the appointment or dismissal of the applicant ’ s defence counsel.