FIFTH SECTION

Application no. 65032/09 A.V. against Ukraine lodged on 30 November 2009

STATEMENT OF FACTS

The applicant is a Ukrainian national, who was born in 1982 and lives in K yi v. The President granted the applicant ’ s request for his identity not to be disclosed to the public (Rule 47 § 3).

A. The circumstances of the case

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

At about 8.30 p.m. on 29 December 2006 several police officers wearing civilian clothes approached the applicant in a street of Kyiv. They struck him down, shackled his hands and brought him to the car. The incident was observed by people walking nearby. In the car, the police officers allegedly planted drugs (little bags of cocaine) on him and continued to beat him up. The beating was accompanied by threats of sexual abuse. The treatment continued as the applicant arrived at the police station.

At a certain moment, the police officers brought two men and demanded that the applicant empty his pockets in their presence. The applicant produced the drugs.

At 10 p.m. the police formally arrested the applicant under Article 263 of the Administrative Offences Code for a violation of the drugs circulation rules which constituted an administrative offence laid down in Article 44 of that Code. The applicant was then forced to write down a confession that he unlawfully bought drugs for his personal use. Allegedly, the confession was dictated to him by one of the police officers.

After the confession the applicant was locked in the police cell for the next few days where he was not given enough food and water.

On the evening of 1 January 2007 the applicant was taken from the cell and moved to another police station. During the trip the police officers told the applicant that they could settle his case if he agreed to cooperate with them in the role of an agent selling drugs to various people. The applicant refused. When they arrived at the police station, the officers locked him in the toilet and noted that he had time till the morning to think over the possible deal. The applicant was not given food or water and he could not sleep. He set down on the tiled floor leaning against the cold wall and waited till the morning.

At 9 a.m. on 2 January 2007 the applicant was released from the toilet and required to wait in the corridor. He felt bad and had acute low-back pain.

On the same day the investigator of the Shevchenkivskyy District Police Department of Kyiv opened criminal proceedings against him for the purchase of narcotic drugs in large quantities (Article 309 § 2 of the Criminal Code) and questioned him without a lawyer.

At 5 p.m. the applicant was questioned in the presence of a lawyer.

At 5.25 p.m. the investigator, relying on Articles 106 and 115 of the Code of Criminal Procedure, formally arrested the applicant on suspicion of having committed the crime. That decision authorised the applicant ’ s preliminary detention for another seventy-two hours.

On 5 January 2007 the prosecutor did not endorse the investigator ’ s application to the court for placing the applicant in pre-trial detention. The investigator therefore released the applicant under a written undertaking not to abscond.

On the same day the applicant was examined by doctors, who noted that he suffered from lumbosacral radiculitis and acute pyelonephritis .

Between 9 and 19 January 2007 the applicant was provided with inpatient treatment at the neurological department of the Kyiv hospital no.1.

On 16 January 2007 the applicant was examined by a psychiatrist, who noted that the applicant showed the signs of post-traumatic stress-induced disorder.

On 22 January 2007 the Shevchenkivskyy District Court of Kyiv (“the District Court”) considered the applicant ’ s complaint under Article 106 of the Code of Criminal Procedure, concerning the unlawfulness of his arrest and detention. The court found that the decision of 2 January 2007 to arrest the applicant as a suspect of the crime had been unlawful in so far as the grounds for his arrest in such capacity had existed as from 29 December 2006 .

On 6 February 2007 the applicant, assisted by a lawyer, refused to answer any questions in connection with the case insisting that his arrest and detention had been unlawful.

On 9 February 2007 the Shevchenkivskyy District Prosecutor ’ s Office refused to open criminal proceedings against the police officers in connection with the applicant ’ s allegations of violation of his rights during his arrest and detention.

On 15 February 2007 the investigator sent a letter to the university, where the applicant studied, informing them about the criminal case. The investigator further visited the applicant ’ s place of work and talked to the applicant ’ s colleagues about the criminal proceedings against the applicant.

On 1 March 2007 the applicant ’ s father complained to the investigator that there had been numerous violations of the applicant ’ s rights including the extraction of his confession by ill-treatment and the unlawful arrest and detention.

On 7 March 2007 the applicant, assisted by the lawyer, refused to answer any questions in connection with the charges levelled against him.

On 16 March 2007 the applicant complained to the prosecutor about the failure of the investigative authorities to carry out appropriate examination of the circumstances in which the applicant was arrested and questioned after the arrest.

On 4 April 2007 the prosecutor replied that the criminal case against the applicant had been referred to the District Court and the applicant could raise the relevant issues during the trial.

In reply to the applicant ’ s request, on 15 June 2007 a linguistic expert issued a report stating that the confession of 29 December 2007 had been written by the applicant with the assistance of another person who dictated the text.

During the court hearing of 18 June 2007 the applicant requested that the expert ’ s report of 15 June 2007 be admitted to the case file. The applicant further requested that the statements he made on 29 December 2006 and 2 January 2007 be excluded from the file as they had been obtained in breach of his rights. The court rejected those requests.

During the trial the applicant denied the charges. He insisted that the drugs had been planted on him and that he had been ill-treated by the police officers. The court then questioned the police officers and investigators who denied the applicant ’ s allegations. The court also questioned two witnesses who had been present when the applicant produced the drugs from his pocket. Those witnesses confirmed that when the applicant produced little bags in their presence he stated that the bags contained cocaine.

On 8 July 2008 the District Court found the applicant guilty of the crime provided by Article 309 § 2 (purchase of narcotic drugs in large quantities) and convicted him to three years ’ imprisonment suspended for two years pending probation. In reaching its conclusions the court had regard to the witness statements, material, documentary and expert evidence. The court also paid attention to the applicant ’ s initial statements after noting that there was no indication of the applicant ’ s ill-treatment or violation of his procedural rights at the time of making those statements.

The applicant appealed claiming, inter alia, that the key evidence had been obtained during his unlawful detention and ill-treatment and that he had not been given access to a lawyer after the arrest.

On 7 November 2008 the Kyiv Court of Appeal upheld the judgment of the first-instance court. It noted that in his confession of 29 December 2006 the applicant explained in detail how he had committed the crime. The Court of Appeal further noted that the applicant admitted his guilt on 2 June 2007.

On 22 May 2009 the Supreme Court dismissed the applicant ’ s cassation appeal considering that the applicant ’ s guilt was well established by the evidence in the file, including the primary self-incriminating statements of the applicant. On 2 June 2006 a copy of that decision was received by the applicant ’ s lawyer.

B. Relevant domestic law

1 . Criminal Code of 5 April 2001 as worded at the relevant time

Article 309 of the Code provides:

“1. Unlawful production, fabrication, purchase, storage, transport, or dispatch of narcotic drugs, psychotropic substances or their analogues without the purpose of trafficking – shall be punishable by restriction of liberty for up to three years .

2. The same actions, if ... they concern narcotic drugs ... in large quantities – shall be punishable by imprisonment for a period from two to five years. ...”

2 . Code of Criminal Procedure of 28 December 1960

Relevant provisions of the Code can be found in the judgment in the case of Osypenko v. Ukraine (no. 4634/04 , § 33, 9 November 2010).

3 . Code of Administrative Offences of 7 December 1984 as worded at the relevant time

Article 44 of the Code prohibits the fabrication, purchase, storage, transport, or dispatch of narcotic drugs or psychotropic substances in small quantities without the purpose of trafficking. A breach of this provision is punishable by a fine of up to forty-three tax-free monthly incomes or by administrative detention up to fifteen days.

Article 263 of the Code provides, inter alia , that anyone who violates drug-circulation rules may be arrested for up to three hours for the purpose of drawing up a report on an administrative offence. However, in order to identify the perpetrator of the offence, subject him to a medical examination, clarify the circumstances of purchase of the drugs or psychotropic substances and examine them, the arrest may be extended up to three days. In such cases the prosecutor shall be informed of the extension in writing within twenty-four hours. If the arrested person does not have identity documents, the arrest may be extended up to ten days pursuant to an order of the prosecutor .

COMPLAINTS

1 . The applicant complains that during his arrest and detention he was subjected to ill-treatment prohibited by Article 3 of the Convention.

2 . The applicant complains under Article 5 § 1 (c) of the Convention that his arrest and detention were unlawful.

3 . The applicant complains under Article 6 § 1 of the Convention that the courts failed to properly examine evidence in the file and to correctly apply the law. In particular, the applicant alleges that the court unfairly convicted him relying on the evidence obtained in breach of his privilege against self-incrimination and by means of ill-treatment.

4 . He complains under Article 6 §§ 1 and 3 (c) of the Convention that he had no access to a lawyer at the initial stage of the proceedings.

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

6 . The applicant complains that the trial was held in a manner which contradicted Article 6 § 2 of the Convention.

7 . The applicant complains under Article 8 of the Convention that the investigator spread the information about his arrest and the criminal proceedings to undermine his reputation in the university and at his place of work.

8 . The applicant also complains that there have been violations of Article 13 and 17 of the Convention.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to ill-treatment, in breach of Article 3 of the Convention?

2. 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?

3. 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 documents:

(a) copies of all the medical evidence concerning the applicant ’ s health between 29 December 2006 and 5 January 2007;

(b) copies of all the documents containing the applicant ’ s statements which he made to the domestic authorities between 29 December 2006 and 5 January 2007;

(c) copies of the records of the investigatory and other procedural measures carried out in respect of the applicant between 29 December 2006 and 5 January 2007;

(d) copies of the materials of the case file concerning the appointment or dismissal of the applicant ’ s defence counsel, the applicant ’ s waiver of his right to legal assistance, and the acceptance of such waiver.