CASE OF LOBAS v. UKRAINE
Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)
Aleš Pejchal;André Potocki;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens;Stanislav Shevchuk
6. The applicant was born in 1964 and is currently serving a prison sentence in Sokal Correctional Colony. 7. On 21 December 2002 three people were murdered in the village of Rosava in Kyiv Region (oblast). 8. According to the applicant, on 29 December 2002 he was arrested by the police on suspicion of having committed the murders. As he denied his responsibility for the murders during his questioning at the police station, ten police officers, including officer S., tortured him with the aim of forcing him to confess to having committed the crimes. In his application to the Court the applicant initially stated that his ill-treatment had included beatings, the administration of electric shocks, hanging over a horizontal crowbar while handcuffed with his head pointing downwards (the applicant called this ill-treatment “lom” (лом)) and suffocation using a gas mask. In his observations dated 7 February 2012, prepared with the assistance of his representative, the applicant stated that the police officers had suffocated him using a gas mask which had not left any visible traces on his body or face and thus during his medical examination on 30 December 2002 no injuries had been noted (see paragraph 19 below). As a result of his iltreatment, the applicant had lost consciousness several times and had eventually confessed to having committed the crimes. In particular, the applicant signed a confession which he claimed had been written by his wife and the investigator. 9. Subsequently, the police officers explained to the applicant how the murders had been committed. Under threat of torture the applicant repeated that version of the events during a crime scene reconstruction on 30 December 2002 which was recorded on video. 10. Some time later the applicant was questioned by the investigator. During the questioning session the applicant was given alcohol to drink and was forced to sign verbatim records which he did not read. 11. The applicant was not assisted by a lawyer during the crime scene reconstruction and the questioning session. 12. After questioning the applicant was taken to Myronivka police temporary detention centre (“the ITT”). 13. During his detention in the ITT from 30 December to 2 January 2002 the applicant was severely beaten up by unspecified police officers. They also administered electric shocks to him, suffocated him using a gas mask and subjected him to “lom” in order to force him to sign a number of other documents prepared by the police. As a result of the ill-treatment, the applicant suffered an injury to his arm which was discovered about seven months later (see paragraph 39 below). 14. The applicant argued that the police officers had had no qualms about torturing him, as they had already obtained a medical certificate stating that no injuries had been discovered on the applicant’s body. The applicant had not been medically examined in the ITT. 15. The applicant stated that during his detention in the ITT his complaints of ill-treatment and of the use of unlawful methods of investigating the case had been blocked by the investigator and the administration of the ITT, and that he had only been given an opportunity to raise those complaints at trial. 16. In support of his complaints of torture, the applicant submitted a letter which he claimed had been written by his father on 20 December 2007, stating that on 10 March 2003 his father had visited him in the ITT and had noted that he had suffered multiple injuries to his face and arms and that his arms had not been “functioning”. According to that letter, the applicant had informed his father that he had been tortured by the police. 17. The applicant also submitted a letter which he stated had been written on 11 March 2008 by a person who had seen him at the pre-trial detention centre in Kyiv (“the SIZO”) in September 2003. In the letter it was stated that the applicant had had an open wound of about 5 cm on his left arm and had said that he had been tortured by the police. 18. According to the Government, on 30 December 2002 the applicant confessed in writing to the police that he had murdered three people and indicated that the murder weapons were in his rented house. In the course of a search subsequently conducted in that house on the same day, he voluntarily handed over to police officers a knife, an axe and a grey jacket, which he said he had worn during the murders. The axe and the jacket had had blood stains on them and the jacket had smelt of smoke. Subsequently, the applicant expressed the wish to be questioned in the presence of a lawyer. Accordingly, the investigator appointed Mr K. to act as the applicant’s lawyer. During the applicant’s questioning in the lawyer’s presence, the applicant confirmed his confession. 19. Some time later on 30 December 2002 the applicant underwent a medical examination, which did not reveal any injuries on his body. The Government submitted that the applicant had not been tortured by the police. 20. Criminal proceedings against the applicant were instituted on 30 December 2002. On the same date the investigator ordered the applicant’s detention pursuant to Article 115 § 3 of the Code of Criminal Procedure of 1960. 21. Mr K., who had been appointed to represent the applicant earlier that day, continued assisting the applicant until the completion of the investigation. During the trial the applicant was represented by a different lawyer. According to the applicant, the lawyers did not visit him during his detention in the ITT and then, from September 2003 onwards, in the SIZO. 22. On 2 January 2003 the Myronivka Court remanded the applicant in custody in view of the pending criminal investigation against him. The applicant remained in detention for the entire duration of the criminal proceedings against him. 23. During the court hearing on 2 January 2003 the applicant confirmed that he had committed the murders. 24. On an unspecified date in January 2003 the applicant met with a prosecutor, whom the applicant claimed he told that he had not committed the crimes. The applicant did not complain to the prosecutor of ill-treatment by the police. As the applicant explained during the trial, he had not “wished” to complain to the prosecutor. 25. On several occasions in December 2002 and January 2003 police officers and the investigator questioned the applicant’s wife concerning the case. During questioning she stated that she had been with the applicant at the scene of the crimes on 21 and 22 December 2002 and had witnessed part of the events, including a fight between the applicant and the victims. During the trial the applicant’s wife stated that the victims had been murdered by the applicant in her presence because she had had an affair with one of the victims, a fact of which the applicant had become aware shortly before the murders. 26. On 9 January 2003 the investigator carried out a confrontation between the applicant and his wife. According to the verbatim record of the confrontation, the applicant confirmed his wife’s statements concerning his responsibility for the murders and also confirmed his confession. According to the applicant, the investigator forced him to sign the verbatim record and his lawyer was not present during the confrontation. 27. During questioning later on 9 January 2003 the applicant retracted his confession. 28. On 1 July 2003 the applicant was informed of the completion of the investigation. On the same date the prosecutors drew up an indictment, accusing the applicant of murdering three people. 29. On 11 July 2003 the case was referred to the Kyiv Region Court of Appeal for trial. 30. On 17 July 2003 the court held a hearing in which the applicant and his lawyer took part. 31. During the hearing the applicant denied having committed the murders. 32. In particular, the applicant submitted that between 21 and 22 December 2002 he had stayed in his rented house, which was in the vicinity of where the murders had been committed, as he had had flu. On 23 December 2002 he had gone to work in Kyiv. However, he had decided to return home on the same day, having lied to his colleagues that his aunt had died. He had lied “in order to return home”. At about 6 p.m. on 29 December 2002, he had been taken from home to the police station together with his wife. At the police station his wife had been questioned separately from him, though he had heard that she had been beaten up and intimidated by police officers. He had been taken to a gym in the police station where ten police officers, including officer S., whom he knew personally, “had hanged [him], punched [him] in the torso and put a gas mask [on his face]”. Police officers and the investigator had forced him to sign a confession and they had explained to him how the murder had been committed. He had then been taken to the crime scene, where he had repeated the version of the events he had been told by the police officers. The police officers and the investigator had also forced him to sign fabricated verbatim records containing self-incriminating statements. He had complained about the ill-treatment to his lawyer and the investigator, but to no avail. According to the applicant, the investigator dealing with the case had been personally biased as he had had a dispute with the applicant in January 2002. 33. The applicant also argued that his confession had been obtained without a lawyer being present and that the search in his rented house, during which the physical evidence had been found, had also been carried out without a lawyer having been present. 34. When replying to questions put to him by his lawyer, the applicant stated that he had “broken” his arms when he had served in the Army in 1983-1985. 35. During hearings on 18 and 21 July 2003 the applicant and his lawyer asked the court to call a number of witnesses, the applicant’s colleagues from work, who had been questioned at the pre-trial stage of the proceedings. The applicant argued that they could confirm that he had bought the jacket seized in his rented house on 23 December 2002, namely after the date on which the murders had been committed. 36. The court decided to summon those witnesses and ordered the police to bring them to court. The court also ordered the prosecutors to carry out an inquiry into the applicant’s allegations of police torture and bias on the part of the investigator. 37. During a hearing on 28 July 2003 the court noted that, according to the police, the witnesses’ whereabouts were unknown and that it had been impossible to bring them to the hearing (the witnesses were absent from their registered places of residence, as they had left to work elsewhere – two people having gone to Chernobyl, Ukraine, and one to Moscow, Russia). Hence, the court decided to review the witnesses’ statements obtained at the pre-trial stage instead of hearing them in person. Neither the applicant nor his lawyer objected to this or challenged the trustworthiness of the witnesses’ statements, except that the applicant claimed that, contrary to the statements of two of the witnesses, when leaving his place of work on 23 December 2002 he had taken a jacket and not his work tools with him. 38. During the hearing on 28 July 2003 the court questioned the investigator, the lawyer who had represented the applicant during the investigation, and the applicant concerning the applicant’s complaints of illtreatment by the police and the investigator’s bias. The investigator denied the alleged ill-treatment or that he had been personally biased towards the applicant; the lawyer and the applicant confirmed that they had not raised such allegations before the authorities at the pre-trial stage. The lawyer also stated that the applicant had not complained to him of illtreatment. 39. On the same date the prosecutors issued a decision refusing to institute a criminal investigation into the applicant’s complaints. The prosecutors found no fault on the part of the police or the investigator. In particular, they noted that the applicant had not complained of police torture during the investigation; that, according to police officer S., although the applicant had initially denied responsibility for the murders, after having been confronted with witness statements to the contrary the applicant had voluntarily agreed to confess; and that police officers from the Myronivka police station had stated that the applicant had not been ill-treated. The prosecutors also noted that, according to an X-ray examination which the applicant had undergone earlier on 28 July 2003, his lower left wrist had become deformed as a result of a fracture of the left arm not healing properly. According to the prosecutors, the applicant had informed them that he had injured both of his arms during his service in the Army. 40. As to the applicant’s allegation of bias on the part of the investigator, the prosecutors noted that, according to the investigator, the applicant had been his neighbour and the investigator had not had a dispute with the applicant. The prosecutors further noted that no objection had been raised concerning the investigator’s dealing with the case during the pre-trial proceedings. 41. During a hearing on 29 July 2003 the court examined the prosecutors’ decision of 28 July 2003. Neither the applicant nor his lawyer raised objections against it. 42. During that hearing the applicant and his lawyer agreed that the examination of evidence could be completed. At that time they did not suggest that it was incomplete because of defence witnesses not having been questioned in court. 43. On 5 August 2003 the Kyiv Region Court of Appeal found the applicant guilty of aggravated murder and wilful destruction of property and sentenced him to life imprisonment. In particular, the court found that on 21 December 2002 the applicant had murdered three people with the knife and the axe in the presence of his wife at the house of one of the victims. The applicant had committed the murder because he had been jealous of the relationship between one of the victims and his wife. On 22 December 2002 the applicant and his wife had returned to the scene of the crime and the applicant had poured gasoline which he had taken from his rented house over the bodies and had set them on fire. 44. The applicant’s conviction was mainly based on the statements of his wife made during the court hearings. The court noted that the inconsistencies in her statements during the investigation and trial could be explained by the fact that she had been concerned for the applicant’s future because he was the father of their child. The court also noted that the applicant’s wife had denied having been forced to make those statements and that the applicant’s submissions to the contrary were baseless. Her version of events had been partly confirmed by several forensic examinations concerning the way in which the victims had been murdered. 45. The court also relied on the self-incriminating statements obtained from the applicant during the investigation, having noted that the reliability of the verbatim records of the applicant’s questioning at the pre-trial stage had been confirmed by the investigator and the lawyer who had represented the applicant at that stage, that the material evidence had been collected in accordance with procedure and that the crime scene reconstruction had been carried out in the presence of the applicant’s lawyer and two attesting witnesses. As the applicant had been arrested after the search, it had not been unlawful for him to have not been assisted by a lawyer during the search. 46. The court rejected as groundless the applicant’s objections concerning the physical evidence, including the knife, his shoes and jacket – which had been stained by blood that, according to experts, could have belonged to the victims. As regards the applicant’s statement that he had brought the jacket home from work on 23 December 2002, the court noted that this had been disproved by the testimony of the applicant’s wife and also by the statements of the applicant’s work colleagues, which had been examined during the trial. 47. As to the applicant’s complaints of police torture and the investigator’s bias, the court noted that neither the applicant nor his lawyer had raised such complaints at the pre-trial stage and held that they had been disproved by the results of the prosecutors’ inquiry. 48. The court also noted that during the proceedings the applicant had made inconsistent and contradictory statements concerning the events. 49. The court further relied on the statements of a number of other witnesses questioned during the trial, including the owner of the applicant’s rented house who had stated that a gasoline can had been missing from the house and the father of one of the victims, who had stated that his late son had had an affair with the applicant’s wife. 50. The court rejected as lacking credibility the applicant’s daughter’s statements to the effect that the applicant had not left the house between 21 and 22 December 2002, having noted that during the trial she had acknowledged having difficulties recollecting the events of December 2002 clearly. 51. On 20 August 2003 the applicant lodged an appeal in cassation with the Supreme Court. Subsequently, the applicant amended it on several occasions. In his appeal the applicant focused his arguments on his disagreement with the factual findings of the first-instance court and stated that his wife had given false statements against him. The applicant also stated that that his colleagues could have confirmed that he had brought the jacket with him from work in Kyiv on 23 December 2002 and that his other clothes had also smelt of smoke. According to the applicant, this would have demonstrated that the blood-stained jacket should not have been used as evidence of his guilt. The applicant noted that those witnesses had not been questioned during the trial. 52. The applicant further complained that during the pre-trial proceedings he had not been allowed to choose his lawyer and that the lawyer appointed to represent him by the investigator had had a “preconceived” attitude towards his duties and had not been “interested in defending” him. The applicant stated that no lawyer had been present during the search of his rented house on 30 December 2002 and that his lawyer had not attended a number of unspecified investigative actions. 53. The applicant also complained that his self-incriminating statements made at the pre-trial stage had been obtained under torture and that he had not signed verbatim records of his questioning because his arms had been injured as a result of the “lom” ill-treatment. According to the applicant, the investigator had attached a pen to one of his arms with adhesive tape and had manipulated the arm in order to reproduce the applicant’s signatures on the documents. 54. On 27 November 2003 the Supreme Court upheld the conviction, having found, inter alia, that the applicant’s allegations of breaches of criminal procedure were unfounded. 55. A prosecutor was present at that hearing. According to the applicant, the authorities had failed to escort him to the Supreme Court, although he had asked to attend the hearing. The applicant did not provide any documents or further details in that regard. 56. On 14 March 2007 the applicant was transferred to Sokal Correctional Colony to serve the remainder of his sentence. 57. According to an undated letter from the Governor of the Sokal Correctional Colony, during his detention in the Colony the applicant had not met with his relatives, though he had received parcels and packages from his father. 58. After the applicant lodged his application with the Court, he was invited to submit copies of various documents from the domestic case file, including a copy of his appeal in cassation and copies of documents pertinent to his allegations of ill-treatment. According to the applicant, he made several requests for such documents. The requests were refused by the Supreme Court as having no legal basis.