CASE OF VASILIY IVASHCHENKO v. UKRAINE
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Respondent State to take measures of a general character (Article 46-2 - Changes of regulations;Legislative amendments);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
André Potocki;Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
5. The applicant was born in 1961. He is currently serving a prison sentence in Izyaslav, the Khmelnytsk Region. 6. On 12 April 1998 a police officer was killed and another police officer was severely wounded by a group of people using fire arms. On the same day the police stopped a car, whose driver stated that he had dropped off three people, who had allegedly committed the above crime, in a field several hundred metres away. Thereupon four police officers went to search for the suspects. They saw three people, including the applicant, crossing the field. The police officers fired several shots into the air and ordered the people to lie down on the ground. 7. According to the applicant, they all obeyed the orders of the police. The officers then approached them and started beating the applicant and the two others. The applicant was hit and kicked in the head, chest, kidney and groin area, as a result of which he lost consciousness. The applicant stated that the officers had pierced his cheek with a needle and had used a cigarette lighter to burn his right hand and suggested that they had done so in order to make him regain consciousness. 8. According to the written statements of the police officers submitted by the Government, while the applicant and the other suspects threw aside their guns they refused to obey the orders of the police and “offered physical resistance to the arrest”. Because of this, the police officers employed “unarmed combat techniques”, forced the suspects to the ground and handcuffed them. 9. Several hours later the applicant was taken to the medical wing of the investigative detention unit (слідчий ізолятор – “the SIZO”) in Cherkasy where he regained consciousness. 10. He was examined by a doctor who noted a number of lesions and bruises on the applicant’s head and body, including a wound and a haematoma on his forehead, and haematomas on his left shoulder, chest and right thigh. The medical report, written by that doctor, also stated that the applicant had several blisters on his fingers which, according to the applicant, were the result of burns. The doctor stitched the wound on the applicant’s forehead, prescribed a pain killer and suggested that the applicant see a neurologist. According to the report, an X-ray examination of the applicant’s chest did not reveal fractures of his ribs. 11. According to the applicant, the doctor did not note down all of his injuries. For instance, fractures of the applicant’s ribs and two fingers on his right hand were not revealed as no X-ray examination was carried out. 12. The next day a medical expert examined the applicant and noted that his injuries were minor. 13. In the course of the criminal investigations against him, the applicant complained of ill-treatment by the police to various public authorities, including the prosecutors. 14. By decisions of 21 August 1998 and 25 January 1999, the prosecutors refused to bring criminal proceedings against the police officers, finding that they had acted lawfully during the arrest. The finding was based on the statements of the police officers and the applicant’s medical documents (see paragraphs 8, 10 and 11 above). The applicant did not challenge the prosecutors’ decisions before the courts. 15. He again raised complaints of ill-treatment in the course of his trial before the Cherkasy Regional Court of Appeal (“the Cherkasy Court”) and the Supreme Court, which rejected them as unsubstantiated (see paragraphs 30 and 39 below). 16. On 13 April 1998 the investigator came to see the applicant in the SIZO. The investigator wished to question the applicant. He informed the applicant that he was suspected of aggravated robbery and murder committed on 12 April 1998 and explained to the applicant his basic procedural rights and guarantees, including the right to legal assistance and to remain silent. The relevant records were signed by the applicant, the investigator and a lawyer, Mr B., who, according to the Government, was also present during the applicant’s questioning. The lawyer was appointed by the investigator to represent the applicant in the proceedings. 17. The records also contain a statement by the applicant expressing the wish to be represented by another lawyer, Mr T., but that if that lawyer refused to take part in the case he would agree to be represented by Mr B. In the records the applicant also noted that the statement was made in the presence of Mr B. Accordingly, the applicant refused to be questioned on that day. During his subsequent questioning, including at the trial stage, the applicant denied his responsibility for the crimes of which he was suspected. 18. In his application to the Court, the applicant stated that Mr B. had taken part in the proceedings at the request of the applicant’s wife, who had paid the lawyer’s fees. The applicant also contended that the lawyer had not been present at the SIZO on 13 April 1998 and that he had signed the records at a later date. The applicant submitted letters issued by the SIZO administration on 16 June 2004, according to which during the pre-trial investigations lawyers had not visited the applicant in the SIZO and the applicant had left the SIZO only once – to undergo a psychiatric examination on 12 August 1998. 19. On 14 April 1998 the prosecutors invited Mr T. to defend the applicant. As that lawyer refused to take part in the proceedings, Mr B. continued to represent the applicant throughout the proceedings. 20. According to the records submitted by the Government, Mr B. took part in the investigative actions, including the applicant’s questioning which took place in the SIZO on 21 April 1998 and 10 January 1999, studied the materials of the case, attended the court hearings, made written and oral pleadings, and prepared an appeal in cassation contesting the applicant’s conviction. The court hearings which the lawyer did not attend were adjourned. 21. The applicant argued that during the entire period of the investigations he had not communicated with Mr B. and had not been allowed to correspond with anyone outside the SIZO. The investigators allegedly told him that it was not possible to see the lawyer before the trial. The applicant met the lawyer for the first time when the trial commenced. 22. On 21 April 1998 the applicant was charged with several counts of aggravated robbery, murder and inflicting bodily injuries. 23. In March 1999 the investigations were completed. The applicant and Mr B. were invited to familiarise themselves with the case file. The applicant expressed the wish to study it without the lawyer, allegedly at the request of the investigator, who promised the applicant that he would be allowed to meet with his brother. 24. In January 2000 the applicant finished studying the case file and in March 2000 the Cherkasy Court started examining the case as a court of first instance. 25. In the course of the court proceedings the applicant submitted several requests for the withdrawal of Mr B., stating that he did not need a lawyer at all. While the trial court made several requests to the local bar association inviting it to suggest another lawyer for the applicant, no replacement was found. The court also invited the applicant to hire a new lawyer himself, which the applicant did not do. By a letter dated 13 September 2000, the President of the Cherkasy Court informed the Deputy Minister of Justice that the applicant’s and his co-defendants’ refusal to be legally represented had resulted in a delay of three months to the court proceedings, which could not be pursued without the participation of a lawyer given the gravity of the charges. It was also noted that the defendants had submitted numerous procedural requests, including requests for their representation by the Minister of Justice and relinquishment of jurisdiction in favour of the Supreme Court, which evidenced that they were in fact trying to protract the proceedings. 26. Before the trial court the applicant contested the charges against him and alleged that the testimony of his co-defendants confirming his and their involvement in the impugned criminal acts had been obtained under physical and psychological pressure from the police. The applicant also lodged a request with the court for a video or audio-recording to be made of the proceedings, but this was rejected by the court. 27. The applicant’s co-defendants raised similar complaints before the court and denied their submissions made in the course of the pre-trial investigations. 28. On 28 January 2002 the Cherkasy Court found the applicant guilty of several counts of aggravated robbery, inflicting grievous bodily injuries and murder. It sentenced the applicant to life imprisonment. The court based its judgment on the testimony of about thirty witnesses and victims of the crimes, partly on the statements of the applicant’s co-defendants in the course of the investigations, and also on the conclusions of several forensic, ballistic and other expert examinations. The court further took into account the fact that in the course of the searches at the defendants’ places of residence the police had found a large number of objects belonging to the victims of the crimes. 29. The court also dealt with the defendants’ allegations that they had been tortured by the police in the course of the pre-trial investigations in order to obtain their confessions. It questioned the investigators and the police officers concerned and concluded that those allegations were unsubstantiated. The court also noted that the defendants, excluding the applicant, had made their statements to the investigators in the presence of their lawyers. The applicant’s co-defendants had not complained of illtreatment to the law-enforcement authorities. The court therefore found no ground which could prevent it from relying on these statements in its judgment. 30. As to the applicant, the court observed that he had not admitted his guilt at any stage of the proceedings, and there was no evidence that he had been forced to do so. Having questioned the police officers who had arrested the applicant on 12 April 1998 and one of the officers from the Cherkasy SIZO, the court noted that the applicant had been injured during the arrest but that there was no evidence that he had been ill-treated during his subsequent detention. 31. On 12 and 27 February 2002 respectively the applicant and Mr B. lodged separate cassation appeals, contesting the factual findings of the first-instance court. The applicant also complained that the trial court had failed to give due consideration to the defendants’ arguments that “they had been denied the opportunity to have and meet with a lawyer before their first questioning” and that the trial court had not allowed the defendants’ lawyers to visit them in detention. The applicant further made reference to his ill-treatment on 12 April 1998 and alleged that the statements of his codefendants had been obtained under physical and psychological pressure from the police. 32. Meanwhile, on 7 February 2002 the applicant and one of his codefendants concluded an agreement with Mr Br., pursuant to which Mr Br. undertook to defend them in the proceedings. 33. On 10 February 2002 the applicant asked the Cherkasy Court to allow Mr Br. to participate in the proceedings as his defence counsel. 34. On 20 February 2002 the Cherkasy Court informed the applicant that it had no jurisdiction to decide on the matter. 35. On 11 March 2002 Mr Br. complained to the President of the Supreme Court about the Cherkasy Court’s refusal to allow him to act as the applicant’s and his co-defendant’s counsel. Mr Br. also requested access to the criminal case file so that he could prepare a cassation appeal on behalf of the applicant and his co-defendant and to be granted leave to visit them in the SIZO. No reply was given by the Supreme Court to Mr Br.’s requests. 36. On 21 May 2002 the applicant sent an amended cassation appeal to the Supreme Court in which he complained about the Cherkasy Court’s refusal to allow Mr Br. to act as his defence counsel. 37. By a letter of 4 June 2002, the Cherkasy Courtdefendant submitted that the applicant had been there. 38. The court also noted that Mr Br. did not have an advocate’s licence and that he had not proved that, under domestic law, he could participate as defence counsel in criminal proceedings. The court further reiterated that Mr Br. should have asked the Supreme Court to grant him leave to participate in the cassation proceedings, since the first-instance court, which had already delivered a judgment in the case, was not competent to decide on that matter. 39. On 9 July 2002 the Supreme Court held a hearing on the cassation appeals. According to the applicant, Mr Br. was allowed to take part in the hearing on the applicant’s behalf. The applicant, his co-defendants and their lawyers were also present. The Supreme Court rejected the cassation appeals submitted by the applicant and Mr B. The Supreme Court further upheld the conclusions of the Cherkasy Court concerning the defendants’ allegations of their ill-treatment at the pre-trial stage of the investigation. 40. According to the applicant, Mr Br. was not given an opportunity to study the case file or to meet with the applicant prior to the Supreme Court hearing. 41. On 23 November 2002 the applicant lodged his present application with the Court. 42. On 22 April 2004 the applicant asked the Cherkasy Court to provide him with copies of the medical reports drawn up after his examination in the SIZO and of the procedural decision concerning his request for a video or audio-recording of the proceedings before that court, which he intended to submit to the Court in substantiation of his application. 43. By a letter of 28 May 2004, the Deputy President of the Cherkasy Court informed the applicant that his request had been refused, as it was not the function of that court to copy documents for the applicant. The court also noted that there were no funds in the court’s budget allocated for such purposes. 44. On 21 June 2004 the applicant lodged a complaint with the Prydniprovskyy District Court of Cherkasy (the “Prydniprovskyy Court”) against the Deputy President of the Cherkasy Court for failure to provide him with copies of the documents from his case file. In his complaint, the applicant stated that he needed copies of these documents in order to submit them to the Court. He also sought compensation for the damage allegedly caused by the refusal to provide him with the documents. 45. On 25 June 2004 the Prydniprovskyy Court declined jurisdiction to consider the applicant’s complaint. The court held that under Ukrainian law judges acting in their official capacity enjoyed immunity from court proceedings against them. 46. On 8 July 2004 the applicant appealed against the decision of 25 June 2004. 47. On 15 July 2004 the same court granted the applicant time to rectify certain shortcomings in his appeal. The court held that the applicant’s appeal should have been typewritten and should have contained information concerning the parties to the proceedings, in particular, their names and addresses. 48. On 26 July 2004 the applicant submitted a new version of his appeal. The applicant also attached a note, issued by the administration of the SIZO, stating that, in accordance with the law, detainees were not provided with the opportunity to type their documents. 49. On the same day the Prydniprovskyy Court refused to accept the applicant’s appeal for failure to comply with the decision of 15 July 2004. According to the applicant, he appealed against the decision of 26 July 2004. There is no information concerning the outcome of his appeal. 50. By a letter of 28 June 2004, the Court asked the applicant to submit copies of his appeal in cassation against the judgment of 28 January 2002 and of his requests for legal assistance. 51. On 19 July 2004 the applicant asked the President of the Cherkasy Court to provide him with a copy of his appeal in cassation as well as with copies of the documents which he had already requested in his letter of 22 April 2004. The applicant referred to the Court’s letter, but did not enclose a copy. 52. On 4 August 2004 the acting president of the Cherkasy Court rejected the applicant’s request on the same grounds as in the letter of 28 May 2004. The acting president of the court also stated that, if necessary, the Court could ask the State authorities to provide it with copies of these documents. 53. The applicant’s further requests for copies of the documents from his case file were also rejected by the Cherkasy Court. 54. In April 2007 the Government submitted, at the Court’s request, copies of various documents from the applicant’s criminal case, including his appeal in cassation and documents concerning legal assistance in the course of the domestic proceedings. 55. In July and October 2007 the Court received several letters sent from the applicant’s brother’s address. In these letters the applicant alleged that the Government had blocked his correspondence with the Court. In particular, the applicant stated that on 10, 14, 17 and 23 May, and on 9 and 15 July 2007 he had submitted his observations on the admissibility and merits of the application, claims for just satisfaction, a friendly settlement proposal, and some additional information to the staff of the Colony, to which the applicant had been transferred from the SIZO in 2005, for them to send to the Court. The applicant provided a copy of the document dated 4 October 2007 in which the authorities confirmed that they had dispatched the applicant’s correspondence addressed to the Court on the above dates. However, the Court never received the applicant’s submissions. 56. According to the Government, the impugned letters were sent promptly to the Court. The staff of the Colony was not responsible for the fact that they did not reach the Court. 57. In December 2007 the applicant complained to the Prosecutor General and the Izyaslav Court alleging interference with his correspondence. The complaints were dealt with by the prosecutors and the postal service. The prosecutors replied to the applicant that his letters had been duly dispatched by the staff of the Colony. The prosecutors also noted that it was not possible to check whether the postal service had received and dispatched the applicant’s letters, which were unregistered mail. That was confirmed by the postal service. 58. By a letter dated 1 July 2009, the Vice-President of the Cherkasy Court rejected another request from the applicant for copies of documents from his case file. In the letter it was also noted that the applicant had the right to hire a lawyer, pursuant to paragraph 2 of Article 8 of the Code on the Execution of Sentences, or to appoint a representative among one of his close relatives. The applicant was informed that such a representative would be given an opportunity to study the case file and to make notes. 59. The relevant provisions of domestic legislation and the relevant provisions of the Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules were summarised and quoted in the judgment in the case of Naydyon v. Ukraine (no. 16474/03, §§ 35-38 and 41-42, 14 October 2010), which mainly concerned the failure of the authorities to provide the applicant with the opportunity to obtain copies of documents needed for his application before the Court. 60. In the context of the execution of the Court’s judgment in Naydyon, in September 2011 the Ukrainian Government submitted to the Committee of Ministers an action plan on measures to comply with that judgment. An extract from the action plan concerning general measures reads as follows: “1. Publication and dissemination of the judgment The summary of the judgment was published in the Government’s Gazette [Uriadovyi Kurier], no. 28 of 15 [February] 2011. By letters of 22 March 2011, explanatory notes on the conclusions of the Court in the above-mentioned judgment were sent to the Supreme Court of Ukraine, the High Specialised Court of Ukraine for civil and criminal cases, the Donetsk Court of Appeal, the General Prosecutor’s Office and the State Prison Service. Moreover, the Court’s conclusions in the above judgment were included in the submission to the Cabinet of Ministers of Ukraine concerning the execution of ECHR judgments (as of March 2011). The Cabinet of Ministers of Ukraine instructed the relevant authorities to take measures to remedy the violation found, to avoid similar violations and bring their practices in accordance with the requirements of the Convention. 2. Legislative measures In order to determine whether any legislative amendments are required the authorities are currently holding multilateral discussions. As soon as this issue is determined at the national [level] the Committee of Ministers will be informed thereof.” 61. At its 1120th meeting on 13-14 September 2011 the Committee of Ministers took note of the action plan and invited Ukraine to keep it informed of the progress made in its implementation. So far, the Committee of Ministers has not yet concluded the supervision of the execution of the judgment under Article 46 § 2 of the Convention.