CASE OF VETRENKO v. MOLDOVA
Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
5. The applicant was born in 1975 and lives in Chişinău. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. According to the prosecution, M. was invited to a bar on 19 May 1997 by several persons, including R. M. and U., her former neighbours, and the applicant, in whose apartment R. M. and U. rented a room. 8. In the bar they all consumed alcohol and then added a soporific to M.'s glass, after which she fell asleep. R. M. took M., U. and the applicant in his car to a remote area. R. M. and the applicant took M. out of the car and tried to strangle her with a cord. When this failed they tied her limbs and threw her into a well, where she drowned. 9. On 1 June 1997 S. P., a police officer, reported that he was trying to locate T., who could have information regarding M.'s whereabouts. Officer S. P. proposed indentifying the person(s) offering M.'s apartment for sale in order to find T. 10. On 3 June 1997 T., one of M.'s neighbours, made a written statement, giving details about M.'s murder as allegedly told to her by U. She named R. M., U. and S. as perpetrators of the crime. She also mentioned her intention to move to Tashkent, Uzbekistan, where her grandmother lived. On 4 June 1997 officer S. P. filed a report on a conversation with T. in which he reported that T. had stated that the applicant had also been involved in the crime. On 5 June 1997 T. was interviewed by investigator G. and confirmed the events as described in the officer's report. She declared that U. had told her about the details of the crime on 20 May 1997. She did not mention the applicant's name or that he had participated in any manner in the crime. 11. On 4 June 1997 the police found the applicant at his friends' address and told him that he owed them money. He was requested to follow them to the police station, where he was arrested. He was then informed that he, R. M. and U. were suspected of having murdered M. 12. According to the applicant, immediately after his arrest he told the investigator all the details about the murder of M. which he had found out from R. M., including the place where the body had been left. He had not reported the crime earlier for fear of R. M.'s retaliation. However, he was then ill-treated for six hours by the investigators to make him own up to the crime: he was allegedly nearly asphyxiated several times with a gas mask. He was also verbally abused and threatened with more serious forms of ill-treatment. 13. In the evening of 4 June 1997 the applicant made a self-incriminating statement in the presence of a State-appointed lawyer and two witnesses. That lawyer allegedly never participated in the proceedings after the confession had been made. In his statement the applicant described the manner of M.'s murder and the place where her body had been left. He stated that he and R. M. had attempted to strangle M. with a cord, and then tied her up and threw her into a well. No mention was made of hitting M. or causing other injuries to her. The confession was filmed. Before the filming of the confessions, a medical expert was requested to verify the presence of any signs of ill-treatment on the applicant's body. He found no such signs. The applicant expressly stated that he had not been ill-treated. He later declared in court that the filming of his confession had been rehearsed with the investigator, that it was a farce and that he had been warned about further ill-treatment if he were to deny his previous confessions. 14. The applicant was offered the opportunity to sign the minutes of the interview, first before making any statements in order to confirm that he had been read his rights and then at the end of the interview to confirm what he had stated. However, he refused to sign in both places. He later explained this refusal as a last attempt to resist unlawful pressure. 15. The second part of the confession made on the same day involved going to the well where the victim's body had been deposited and filming his confession there. He refused to sign this confession. 16. On 5 June 1997 the applicant made another statement, which was essentially the same as that made the day before. He was allegedly threatened with further ill-treatment if he were to deny his earlier confessions. 17. A forensic report was also drawn up on 5 June 1997, concluding that M. had died from drowning and that her body had a number of bruises on it, caused by repeated hitting, as well as marks on her hands and legs from the cord with which she had been tied. No sign of strangulation was found on her neck. The expert established that M. had died “several days before the report was filed”. 18. In the afternoon of 5 June 1997 the applicant was allowed to call his mother and on 6 June 1997 he declared, in her presence and in the presence of the investigator, that he was innocent. He also mentioned a person with whom he had been held in the same cell at the police station who could confirm that he had been returned to the cell in a poor general state after ill-treatment by the police. However, he was told by both the investigator and his lawyer that the courts would not believe such statements. He allegedly mentioned his ill-treatment and the possible testimony of his cellmate in his complaints to the courts and the prosecutors but these were not followed up. His former cellmate was apparently not questioned. In all his subsequent interviews the applicant maintained his innocence and explained that he had found out about some of the details of the murder, including the place where the body had been deposited, from R. M., who had taken him to the well after the murder. 19. The applicant's new lawyer allegedly noted, on 12 October 1997, that there were no signatures on the minutes of the interview, contrary to the law. On 28 October 1997 signatures appeared on the minutes and the applicant was allegedly forced to sign. He refused and the last-minute intervention of his mother prevented the investigators from ill-treating him further. As a result of her intervention the investigators had to write in the minutes that the applicant had refused to sign. He was allegedly prevented from writing in the minutes the date of 28 October 1997 as the date when he had refused to sign, contrary to Article 124 CCP (see below). On 31 October 1997 the applicant complained about this fact to the prosecution, but to no avail. The minutes of the interview with the applicant of 4 June 1997 were signed by the investigator in charge of the case, G. The statement concerning the applicant's refusal to sign the minutes was countersigned by investigator D., who took charge of the case at a later date. 20. For several months in 1998 he was allegedly detained in inhuman conditions in the cellar of the police inspectorate. 21. In a statement to the police, T.'s sister mentioned Tashkent as a place where their relatives lived. 22. On 16 December 1998 the Chişinău Regional Court acquitted the applicant of the charge of murder and convicted R. M. The court found, inter alia, that it had not been established that the applicant had participated in the crime. It had been established, however, that he had failed to report it when he was told about it by R. M., which was a criminal offence. The court also found that the confessions made by the applicant in the first two days of his detention could not be used as a basis for convicting him because they contradicted other evidence in the case (his refusal to sign the confessions, which raised doubts about their truthfulness; the fact that as from 6 June 1997 and throughout the proceedings he had denied having killed M.; and his alibi, two persons, including I. M., who also lived in the applicant's apartment at the time of the events, having confirmed that he had returned home at about 11 p.m. on the night of the murder). The court convicted the applicant of failing to report the crime committed by R. M., but ordered his release on the basis of an amnesty applicable to lesser crimes. 23. On 4 November 1999 the Court of Appeal upheld the lower court's judgment. The court noted that another person, S., was also suspected of having helped R. M. to murder M. and that his case had been disjoined because he was in hiding. The court also noted that, apart from the self-incriminating statement made by the applicant on 4 and 5 June 1997, there was nothing in the file proving his involvement in the crime. 24. On 21 December 1999 the Supreme Court of Justice quashed those two judgments, finding that the courts had exceeded their competence and had accepted, without giving valid reasons, the applicant's claim that he had not participated in the crime. A re-hearing of the case was ordered. 25. On 21 September 2001 the Chişinău Regional Court convicted the applicant of participation in the murder of M. and sentenced him to 16 years' imprisonment. 26. The court referred to the evidence in the case: witnesses testified to having seen R. M., U., S. and the applicant with M. in a bar on the night of her disappearance. Witness T. testified about the intentions of R. M. and U., who had spoken to her about their plan, to kill M. and sell her apartment. Witness M.E. and I.A. testified about R. M. and U.'s actions to obtain the documents necessary for the sale of M.'s apartment. Witness M.N. stated that she had witnessed S. invite M. to a bar on the day of her disappearance. 27. During a search of the applicant's apartment some of the documents relating to the sale of M.'s apartment had been found. The record of the search did not specify whether the documents were found in the room rented by R. M. and U. or in another place. One relevant document was found during a personal search of R. M. 28. The court referred to the applicant's confession and the version of the prosecution, according to which the applicant and R. M. had attempted to strangle M., and, having failed to do so, had thrown her into a well. The court found that the evidence, in addition to his confessions, proved his guilt. It was established that R. M. and U. had fraudulently obtained various documents from M. with the intention of selling her apartment. Moreover, R. M. had never confessed and the applicant's confessions had been made before the authorities had known the details such as the place where the body was found and the manner of the killing. These circumstances were later confirmed when the applicant showed them that place and when the experts recovered the body in his presence. The forensic report confirmed the types of injuries inflicted as coinciding with the description of the murder given by the applicant. 29. Besides, there had been no evidence that the applicant had been ill-treated, as proved by the medical examination carried out before his first interview. Moreover, the applicant had declared, in the presence of a lawyer, that he had not been ill-treated. The court considered that his refusal to sign the confession was a means of avoiding criminal responsibility. All of the above proved the applicant's guilt. 30. In his appeal, the applicant declared that he had found out the details about the murder from R. M., who had taken him to the crime scene on the day after the murder. He claimed that he had been ill-treated by the police in order to own up to the crime. The judgment did not specify the date of the murder and there was evidence confirming that M. had died later than the prosecution maintained. The applicant also submitted that, before being questioned as an accused, he had told the police all the details about the murder which he had found out from R. M. This contradicted the court's finding that the police had not had any details about the murder before the applicant's interview as a suspect. He refused to sign both confessions but could not offer further resistance due to fear of ill-treatment. He referred to evidence in his criminal file that on the morning of 4 June 1997 his relatives had concluded a contract with a lawyer for his representation but that the investigator had refused to allow that lawyer to represent him. He was then provided with another lawyer whom he did not trust and who did not protect his rights, but was in agreement with the investigator. In addition, the presence of a medical expert and witnesses at the first interview was not a common practice and the expert had not been warned, according to the law, of his criminal responsibility for making false statements. The unusual presence of so many persons at the very first interview only confirmed that the investigator had known that the applicant's will had been broken as a result of ill-treatment and he had agreed to “confess”. The investigator needed to create a very strong appearance of lack of ill-treatment which would be difficult to rebut. The court had failed to even mention the statement of I. M., which constituted an alibi for the applicant because it confirmed that he had returned home much earlier than R. M. and U. 31. On 5 February 2002 the Court of Appeal upheld the first-instance court's judgment. The court found that the guilt of R. M. and of the applicant had been fully proved by the witness statements of T., the police officer who reported on T.'s statements and the results of the forensic report. The court referred to the applicant's confession and the version of the prosecution, according to which the applicant and R. M. had attempted to strangle M. and after they failed to do so had thrown her into a well. The applicant's withdrawal of his earlier statements was considered a means of avoiding criminal responsibility. 32. In his appeal in cassation the applicant reiterated his arguments made earlier and added that U. had testified that he had been back home at 11 p.m., as confirmed by I. M., thus providing him with an unchallenged alibi. Witness T. did not mention his name in her statement. The illtreatment applied to him (making him wear a gas mask and blocking the access of air until he lost consciousness from suffocation) could not have left marks on his body. He referred to the findings of the forensic report, which contradicted his statements and the version of the prosecution, according to which he and R. M. had attempted to strangle M. That report did not find any marks of strangulation but found multiple injuries, which confirmed that M. had been hit repeatedly. The date of the murder had not been established: the residual quantity of the soporific in M.'s blood was small, confirming that she had taken it a long time before her death. In addition, the expert declared that she had died several days before the report was drawn up (on 5 June 1997), which excluded the date of 19 May 1997 as the date of the murder. Another expert submitted in 1998 that M. had died a week before the report of 5 June 1997, which also challenged the prosecution's version that M. had been murdered on 19 May 1997. The applicant drew the court's attention to his refusal to sign the confessions, which cast doubt on their genuine character. He invoked Articles 3, 5 and 6 of the Convention. 33. On 16 April 2002 the Supreme Court of Justice upheld the judgment of 21 September 2001. The court found that the guilt of the accused had been fully proved. It referred to the prosecution's version of events, according to which the applicant and R. M. had attempted to strangle M. It also referred to the confession made by the applicant on 4 June 1997 in the presence of a lawyer, according to which he and R. M. had taken M. to a well and hit her repeatedly but because she had not died, they had thrown her into the well, where she drowned. The forensic report confirmed the manner of M.'s killing and the injuries on her body corresponded to the applicant's statements. In addition, witnesses confirmed the accused's intentions to sell M.'s apartment and the relevant documents were found in the apartment in which all the accused lived. 34. The court found that there was no evidence of ill-treatment, the applicant having made his confessions in the presence of his lawyer and a number of other persons. 35. The relevant provisions of the Code of Criminal Procedure (in force at the time of the events) read as follows: “Article 55 ... Evidence obtained in violation of the present Code or not properly examined during the court hearing cannot constitute the basis of a court conviction or of other procedural documents. Article 62 ... The initial interview of an accused in custody shall be made only in the presence of a defence counsel, chosen or appointed ex-officio. Article 115 The minutes of an investigation procedure shall be filed during that procedure or immediately thereafter. ... After the end of the interview the audio or video recording shall be reproduced in full for the interviewee. ... The audio or video recording shall end with a declaration by the interviewee confirming the correctness of the recording. Article 124 If the accused ... refuses to sign the minutes of the investigation procedure, a note on that shall be made in the minutes, signed by the author of the minutes. Anyone who refuses to sign the minutes shall be given the possibility to explain the reasons for the refusal, which shall be noted in the minutes”.