CASE OF SHABELNIK v. UKRAINE (No. 2)
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev
5. The applicant was born in 1979 and is currently in detention in Zhytomyr, Ukraine. 6. In October 2001 Ms K. was found murdered in her flat. In December 2001 Ms S., a minor, was kidnapped and murdered. 7. On 10 December 2001 the applicant was arrested on suspicion of kidnapping S. in order to extort money from her parents and of S.’s murder. On 17 December 2001 the applicant was provided with a lawyer in connection with those charges. 8. On 25 December 2001 Mr K., the deceased Ms K.’s son, was questioned as a witness and confessed to the murder of his mother. The next day he retracted his confession. 9. On 15 February 2002, purportedly at his own request, the applicant, was questioned as a witness about the circumstances of K.’s death. During the questioning, which took place without a lawyer, the applicant confessed to K.’s murder. The applicant said that he had read an advertisement in a local newspaper that K. wanted to buy a flat in Zhytomyr. He had decided to rob her, on the assumption that she had savings at home for the purchase of a flat. The victim had allowed him to enter her flat. During their conversation, the victim had told the applicant that she had a conflict with a neighbour about a sausage business the neighbour was running from the building. She also had tense relations with her daughter-in-law. When the applicant had threatened her and demanded money she had told him that she had none because she had placed the advertisement at the request of a friend who lived in another town and wanted to buy a flat in Zhytomyr. To conceal his attempted robbery the applicant had then murdered the victim. 10. The transcript of the applicant’s questioning recorded that he was told about his duty to state everything he knew about the case, that he could face criminal liability for refusal to testify and for giving false statements and about the constitutional provision guaranteeing the privilege against self-incrimination. 11. On 16 February 2002 the applicant, still acting as a witness, participated without a lawyer in an on-site reconstruction of the attack on K. On 18 and 22 February 2002 he was again questioned, without a lawyer, about the attack. 12. On 22 February 2002 the investigator in the case requested an opinion from psychiatrists on a number of questions, namely: (i) whether the applicant was suffering from a psychiatric condition; (ii) whether the applicant was sane at the time of the commission of the acts he was accused of and at the time of the assessment; (iii) if the experts established that the applicant had been suffering from a psychiatric condition or a temporary disruption of his mental capacities at the time of commission of the act, whether he had been conscious of the meaning of his actions and whether he could control them; and (iv) whether the applicant was in need of compulsory psychiatric treatment. 13. On 25 February 2002 the investigating prosecutor instituted criminal proceedings against the applicant for the murder of K. and joined them with the criminal case concerning the kidnapping and murder of S. It appears from the applicant’s submissions that on the same day he was given the procedural status of an accused and was allowed for the first time to consult a lawyer in connection with the charges related to the attack on K. Article 142 of the Code of Criminal Procedure required that procedural rights had to be explained to a person who acquired the status of an accused, including the right to remain silent and to have a lawyer. 14. On 5 March 2002 a panel of psychiatric experts examined the applicant and produced a report on his mental state, concluding that he had been sane at the time of the alleged crimes and was sane at the time of the assessment. According to the report, in the course of the interview with the experts the applicant gave a description of K.’s murder that was identical to the one he had given to the investigator (“обстоятельства его подготовки и убийства... излагает так, как излагал в ходе следствия”). The experts added that in doing so the applicant had been speaking as if reciting a text memorised by heart and had remained silent when interrupted and asked for details or clarifications. The experts concluded that the applicant was sane. 15. The applicant stood trial at the Zhytomyr Regional Court of Appeal, which was competent to act as a trial court (“the trial court”) because the applicant was accused of aggravated murder, a crime carrying a potential life sentence. In the course of the trial the applicant stated that he was innocent of both murders but pleaded guilty to kidnapping S. He stated that on the day of K.’s murder he had met an old childhood acquaintance, M., in the street. M. had told him that he had killed K. To check M.’s story the applicant had gone to K.’s flat and had seen her dead body there. He had had nothing to do with the robbery and murder. 16. On 11 July 2002 the trial court convicted the applicant of kidnapping, extortion and the murder of S. He was also convicted of the robbery and murder of K. The court sentenced him to life imprisonment. In convicting the applicant of K.’s robbery and murder the trial court relied in particular on: (i) the applicant’s initial confessions; (ii) the crime scene report, which showed that the layout of the victim’s flat, the placement of furniture and the position of her body matched the applicant’s confessions; (iii) medical evidence that the victim’s clothing and injuries matched the applicant’s confessions; (iv) the statement of Ms O.K., the victim’s friend, who said she had asked the victim to place an advertisement for the purchase of a flat on her behalf; (v) the testimony of Ms V.S., the victim’s neighbour, who stated at the trial that she had run a sausage business from the victim’s block of flats and that she had had a conflict with the victim over that matter; (vi) the testimony of the victim’s son and daughter-in-law that relations between the victim and the daughter-in-law had been tense; (vii) evidence from an expert to the effect that it could not be ruled out that the victim’s injuries had been caused by a knife found at the applicant’s home. 17. On 10 October 2002 the Supreme Court, sitting as a court of cassation, upheld the applicant’s conviction. 18. On 2 April 2003 the applicant lodged an application with the Court (no. 16404/03), alleging that his conviction for the murder of K. had been based on incriminating evidence that had been obtained in violation of his right to remain silent and the privilege against self-incrimination and that he had been hindered in the effective exercise of his right to defence when questioned at the pre-trial stage of the proceedings. 19. On 19 February 2009 the Court declared the application partly admissible and found a violation of Article 6 §§ 1 and 3 of the Convention. The Court found in particular that: “58. The Court reiterates that in particular where a deprivation of liberty is at stake, the interests of justice in principle call for legal representation (see Benham v. the United Kingdom, no. 19380/92, § 61, 10 June 1996). Furthermore, the Court notes that Ukrainian legislation provides for obligatory legal representation of persons who could expect life imprisonment if convicted. This was the applicant’s situation, in that he was already charged with a murder and being accused of the second murder made a sentence of life imprisonment a possibility... The Court considers that the legal representation of the applicant during the period in question was required in the interests of justice. 59. Furthermore, ...t, if not solely, on these selfincriminating statements. The statements did not in fact contain any information which was not already known to the investigators (in contrast to the case of the kidnapping and murder of S., in which the applicant showed the police where the corpse had been hidden) and had been received in unclear circumstances and in clear violation of the applicant’s right to defence.” (Shabelnik, cited above) 20. The Shabelnik judgment (cited above) became final on 19 May 2009. 21. The applicant’s lawyer (Mr Bushchenko), lodged an application with the Supreme Court for a review of the applicant’s criminal case in view of the first Shabelnik judgment (cited above). He asked the Supreme Court to quash the trial court’s judgment and its own 2002 decision upholding the original conviction. He asked that he and the applicant be present during the examination of the request. 22. The prosecutor’s office also applied to the Supreme Court for a review. They asked the court to amend the trial court’s judgment and the Supreme Court’s 2002 decision by striking out references to the records of the questioning of the applicant as a witness about K.’s murder and the result of the on-site reconstruction of that murder. 23. On 30 April 2010 the Supreme Court, sitting in a formation composed of all the judges of the criminal and military chambers of the court, allowed the above applications in part, quashed its own 2002 decision and remitted the case for fresh examination in cassation proceedings by a panel of three judges of the Supreme Court. 24. Hearings before the Supreme Court panel were scheduled and rescheduled several times and the applicant was informed of this accordingly. The case was finally scheduled for hearing on 9 September 2010 and the applicant and Mr Bushchenko were informed of this by letter on 30 July 2010. Neither the applicant nor Mr Bushchenko requested that the applicant be escorted from his prison to the hearing before the Supreme Court panel. 25. On 9 September 2010 the Supreme Court examined the case in the absence of the applicant but in the presence of his lawyer and a prosecutor. The lawyer made submissions to the court and a written summary of his remarks was submitted to the Supreme Court. 26. According to the summary, after reiterating that the applicant’s confessions and the reconstruction reports should be ruled inadmissible, the lawyer presented his analysis of the remaining evidence in the file. He dealt with the question of the evidence of the applicant’s involvement in the attack on K., seeking to show that it was either inadmissible or unreliable. In particular, he made the following arguments: (i) the psychiatric report, in so far as it provided a record of the applicant’s alleged statements about K.’s murder, was unspecific and constituted a judgment by the experts about the applicant’s statements which the experts had been unqualified to make, as opposed to an accurate record of those statements. In any case, it was improper to use that report since the psychiatrists had never been examined by the defence. Moreover, the applicant’s supposed statements to the experts were inadmissible because they were marred by the same problems as the confessions that had been obtained in breach of his Convention rights; (ii) as to the other evidence, in particular the crime scene examination report and the witness evidence, it only had evidentiary value as corroboration for the applicant’s statements, but as those statements had to be ruled inadmissible to give effect to the first Shabelnik judgment (cited above), the other witness evidence could also not be used to support a finding of the applicant’s guilt; (iii) certain circumstances, such as the fact that no traces of the applicant’s presence had been found in K.’s flat, pointed to the applicant being innocent of the murder. 27. On the same day the Supreme Court delivered its decision. It excluded the applicant’s original confessions from the body of evidence. However, it found that the rest of the evidence in the case file was sufficient to support the trial court’s finding that the applicant had murdered K. while trying to cover up an attempted robbery. 28. In particular, the Supreme Court approved of the trial court’s reliance on: (i) evidence from the expert that it could not be ruled out that the victim’s injuries had been caused by the knife found at the applicant’s home, and (ii) the statements of the witnesses O.K., V.S. and “others” concerning the applicant’s supposed motive for the murder (see paragraph 16 above). 29. In support of its findings the Supreme Court also referred to material and circumstances on which the trial court had not explicitly relied: (i) the fact that “in the course of psychiatric assessment [the applicant], told the experts about [K.’s murder] under the circumstances established by the [trial] court”; (ii) the applicant’s admission in court that he had visited the victim’s flat; and (iii) the testimony of Ms G., the victim’s neighbour, that she had seen the applicant in the victim’s block of flats. The Supreme Court concluded that, other than the breaches which led to the exclusion of the applicant’s original confessions’s conclusions were based on admissible and sufficient evidence.