BONDARENKO v. UKRAINE
Inadmissible
Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
1. The applicant, Mr Mykhaylo Valentynovych Bondarenko, is a Ukrainian national, who was born in 1978 and lives in Kyiv. He is represented before the Court by Mr K. Buzadzhy, a lawyer practising in Kyiv. 2. The Ukrainian Government (“the Government”) were most recently represented by their Agent, Mr Nazar Kulchytskyy. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On the morning of 29 August 2002 Ms D. was found dead not far from her home. Experts concluded that she had been strangled at about 1 a.m. the previous night. 5. On 6 September 2002 the applicant was arrested by the police on suspicion of Ms D.’s murder. According to the applicant, at the time of the arrest he was with his brother, who was also taken to the police station. 6. The applicant alleged that several police officers, under the leadership of officer D., had subjected him to physical ill-treatment and psychological pressure with a view to extracting a confession from him. They had allegedly handcuffed him to a table leg and beat him with rubber truncheons, punching him and kicking him in various parts of his body. The applicant also alleged that the beating had worsened when he had requested a meeting with a lawyer, so he signed a waiver refusing his right to legal assistance “for the time being”. He agreed to plead guilty, allegedly under the threat that if he did not, his brother would be tortured. The applicant referred to the fact that the police had lost the black shirt and black trousers in which he had been arrested (see paragraphs 34-35 and 40 below). According to him, the clothes in question had been left torn and bloodstained, and their loss was to be viewed as evidence in support of his allegation of ill-treatment. He also submitted that a request he had made to be examined by a doctor had been refused. 7. According to the investigation authorities, the applicant had confessed to the murder of his own free will. As to the issue regarding his clothes, it transpired that during his arrest he had been wearing the same clothes as had been worn during the night of the murder (a black shirt and black trousers). As a result, the police brought him some sportswear to change into which they had retrieved from his home, so that the clothes in which he had been arrested could be sent away for forensic expert examination with a view to establishing whether they contained any evidence linking him to the crime. 8. On 6 September 2002 the applicant confessed to the incriminated murder. According to him, he did so when he saw that his brother had been released. His confession stated that he had been having an affair with Ms D. since 25 August 2002. On 28 August 2002 he went to see her at her home. Having talked to the applicant briefly, Ms D. left under the pretext that she needed to buy some bread and asked him to wait for her. She returned an hour and a half later, which made the applicant angry. In the course of the argument that followed, Ms D. admitted that she had been having a relationship with another man and verbally insulted the applicant. A fight ensued and the applicant ended up strangling Ms D. with the strap of her handbag. 9. The case file contains a waiver by the applicant of his right to legal assistance dated 6 September 2002, with a handwritten and signed statement as follows: “I refuse legal representation for the time being. I have been informed of my rights and I understand them.” 10. The applicant repeated his confession when he was questioned as a suspect the same day. 11. On 7 September 2002 a forensic medical expert examined the applicant. The examination report, which was also signed by the applicant, reported that there were no injuries to the applicant’s body and none complained of. 12. The applicant did not mention the expert report in his submissions to the Court. According to him, following his arrest the police had unsuccessfully attempted to transfer him to Lukyanivskyy District Pre-Trial Detention Centre no. 13 (“SIZO no. 13”), the administration of which had allegedly refused to accept him on the grounds that he had serious injuries. 13. On 7 September 2002 a reconstruction of events took place, during which the applicant repeated his confession and explained how he had killed Ms D. The reconstruction took place in the presence of two attesting witnesses and was video-recorded. 14. On 10 September 2002 the applicant signed another waiver of legal assistance, similar to that of 6 September 2002. He also confirmed his earlier statements in full, adding that it had not been his intention to kill Ms D. and that she had provoked him. The applicant alleged in his submissions to the Court that he had done so having been promised a meeting with his parents. 15. Some of the documents in the case file (namely a letter from the Svyatoshynskyy District Police Department to the applicant’s mother dated 29 December 2005 and an information note of the head of the SIZO medical unit of 16 December 2011) suggest that the applicant was transferred from the police detention facility to SIZO no. 13 on 13 September 2002. However, an information note by the SIZO governor of 27 December 2005 addressed “to whom it may concern” suggests that the applicant was held in SIZO no. 13 from 23 September 2002 to 2 October 2004. The applicant also submitted that he had been transferred to the SIZO on 23 September 2002, and that before that, the SIZO had twice refused to accept him as a detainee on account of his unspecified injuries. 16. The aforementioned information note of the head of the SIZO medical unit stated that the applicant underwent clinical, laboratory and Xray examinations upon his arrival to the SIZO on 13 September 2002, with no injuries or other health-related concerns having been discovered. It also stated that the applicant never applied for medical assistance during his detention in SIZO no. 13. 17. On 20 September 2002 a lawyer, M., entered into a legal services agreement with the applicant’s parents. 18. On 23 September 2002 the investigator rejected M.’s request for a meeting with the applicant, on the grounds that the latter had waived his right to legal assistance. The investigator informed the lawyer that he would ask the applicant whether he had changed his mind about having legal representation. 19. On 24 September 2002 the applicant once again waived his right to legal assistance, stating that he refused the services of lawyers, including those of M. The investigator passed this on to M., who complained to the Kyiv City Prosecutor’s Office and to the Prosecutor General’s Office that the investigator had overstepped his competence and that the applicant’s right to legal assistance had been violated. 20. As alleged by the applicant, on an unspecified date the investigator suggested a lawyer for him who had unsuccessfully solicited a bribe from the applicant’s parents in exchange for having their son declared insane. 21. On 24 September 2002 the applicant had a meeting with his parents and complained to them that he had been ill-treated by the police. 22. On 26 September 2002 he underwent a forensic psychiatric examination, with a view to establishing whether he could be held criminally liable for his actions. He stated to the experts that he did not remember the murder, but did recall that Ms D. had been rude to him and that they had had a fight. He claimed that he could not remember any further details. 23. On 27 September 2002 the applicant stated that he wished to be represented by M., who was admitted in the proceedings the following day. 24. On 20 October 2002 the applicant retracted his earlier confessions as having been given under duress, and changed his plea to not guilty. According to his new account of the events of 28 August 2002, he had not seen Ms D. after she had left under the pretext of the need to buy some bread. Having waited for her in vain for about an hour, he had returned home at about 11 p.m. 25. On 7 November 2002 the Kyiv City Prosecutor’s Office wrote a letter to Mr M. in response to his complaint about the alleged violation of the applicant’s right to legal assistance. The letter stated that on 6 and 10 September 2002 the investigator had informed the applicant of his right to have legal representation; however, the applicant had voluntarily waived that right and had signed forms to that effect. As soon as he changed his mind, his request for legal representation was allowed. 26. On 14 November 2002 the applicant was indicted on a charge of premeditated murder and committed for trial. 27. On 7 July 2003 the Kyiv Svyatoshynskyy District Court (“the Svyatoshynskyy Court”) found the applicant guilty of premeditated murder and sentenced him to thirteen years’ imprisonment. The court mainly based its verdict on the applicant’s confession statements made during his initial police questioning. Among the witnesses examined by the court was Sh., who had known the victim for about three months before her death. In giving evidence, Sh. stated that he had met up with her on 28 August 2002 and they had had sexual intercourse after she had left the applicant under the pretext that she was going to buy some bread. As to the applicant’s allegation of ill-treatment, the court heard evidence from several police officers who denied any coercion. It also referred to the forensic medical examination report of 7 September 2002, which stated that no injuries to the applicant’s body had been discovered or complained of. Lastly, the court noted that the applicant had not raised that complaint even after he had started to be legally represented. 28. The applicant’s lawyer appealed, submitting that the verdict had been based solely on the applicant’s confessions given under duress and in the absence of a lawyer. The appeal also stated that the trial court had failed to give any consideration to the fact that the witness Sh. had been detained for about two weeks and had also been questioned as a suspect. 29. On 3 March 2004 the Kyiv City Court of Appeal (“the Court of Appeal”) quashed the above judgment and remitted the case to the same first-instance court for a fresh examination on the basis that one of the judges had started a hearing in a different case while the panel had been supposed to be in the deliberations room preparing its verdict in respect of the applicant. Accordingly, the secrecy of the deliberations had been breached. The appellate court also held that the applicant’s allegation of ill-treatment had not been duly investigated. 30. On 6 April 2004 the Svyatoshynskyy Court instructed the Svyatoshynskyy District Prosecutor’s Office (“the Svyatoshynskyy Prosecutor’s Office”) to investigate the applicant’s allegation of illtreatment. 31. On 16 April 2004 the Svyatoshynskyy Prosecutor’s Office delivered a ruling refusing to open a criminal case against the investigator and the two police officers involved in the applicant’s detention and questioning for lack of corpus delicti in their actions. The prosecutor relied, in particular, on the statements of the officers in question and on the applicant’s forensic medical examination of 7 September 2002. The ruling also stated that the applicant’s initial statements had contained such factual details that could only be known to him and could not have possibly been dictated to him by the investigator. Lastly, the prosecutor noted that the applicant had not raised any complaints of ill-treatment even after having been legally represented. Accordingly, his later complaints in that regard were considered as being a part of his attempts to escape liability. 32. On 21 May 2004 the applicant’s mother requested the Svyatoshynskyy Prosecutor’s Office to return the applicant’s clothes seized on the day of his arrest. 33. On 24 May 2004 the Svyatoshynskyy Court delivered another judgment in which it again found the applicant guilty of premeditated murder, but reduced the sentence to twelve years. It relied on the applicant’s confession, having found that it had been given in full freedom because, firstly, there were written waivers by the applicant of his right to legal assistance, and, secondly, because his allegation of ill-treatment was considered to be unsubstantiated. The court noted that the applicant had not complained of any ill-treatment by the police during the pre-trial investigation. It dismissed as untruthful the statement of the applicant’s acquaintance, who when questioned as a witness alleged having seen the applicant at the police station in the evening on 6 September 2002 wearing torn and blood-stained sportswear. The court also relied on the statements of other witnesses who, in particular, had seen the applicant waiting for Ms D. on the evening on 28 August 2002. Furthermore, the court relied on the findings of a forensic cytological expert examination, which suggested that the antigens found under his nails could have belonged to the victim. The Svyatoshynskyy Court referred to the following circumstances warranting a reduction of the applicant’s sentence: the fact that he had pleaded guilty, was remorseful and had actively assisted the police in the initial stages of the investigation, and the fact that he had a minor child and had been in gainful employment before his detention. 34. The applicant appealed against the above judgment, reiterating his earlier arguments and also contending that criminal procedure law provided that legal representation should have been afforded to him as from his very first questioning by the police, as he was Russian-speaking and did not have a good command of Ukrainian. In support of the allegation of police illtreatment, he pointed out that SIZO no. 13 had refused to accept him as a detainee several times on account of his injuries. The applicant also alleged that the police had concealed the fact that they had withheld the clothes in which he had been arrested and questioned and which bore traces of his ill-treatment. 35. On 3 June 2004 the Svyatoshynskyy Prosecutor’s Office informed the applicant’s mother, in reply to her request of 21 May 2004 (see paragraph 32 above), that there was no information in the investigation file about any clothes having being seized and that no such clothes were among the material evidence in the case. 36. On 15 September 2004 the Court of Appeal further mitigated the applicant’s sentence to ten years’ imprisonment, having taken into account the provocative behaviour of the victim and the fact that the applicant had a minor child to take care of. The appellate court ruled so in partially allowing the applicant’s appeal. At the same time, it regarded his allegations of ill-treatment in police custody and of coercion into self-incrimination as unsubstantiated. It held that no facts in support of that allegation had been established and that there was no documentary evidence to prove that the applicant had sustained any injuries. Lastly, the court noted that the applicant had never raised the issue of his insufficient command of Ukrainian during the pre-trial investigation. 37. On 13 January 2005 the Supreme Court rejected the applicant’s cassation appeal as unsubstantiated, having found that the grievances submitted therein had already been duly examined by the lower-level courts. 38. On 22 April 2005 the applicant’s mother complained to the Kyiv City Prosecutor’s Office that her son had been ill-treated. She also maintained that he had been convicted of a crime which he had not committed. 39. On 13 May 2005 the Donetsk Scientific Research Institute of Forensic Expert Examinations, on the instruction of the prosecutor, analysed the video-recording of the applicant’s police questioning and the reconstruction of events of 6 and 7 September 2002 respectively, with a view to establishing whether the applicant could be regarded as having been subjected to psychological pressure. The forensic psychologist concluded that no such pressure had been put on the applicant, who had been making his statements freely. The applicant’s behaviour and way of speaking suggested that his self-incriminating statements had been voluntary and truthful. 40. On 1 June 2005 the Kyiv City Prosecutor’s Office issued a decision refusing to open a criminal case in respect of the loss of the applicant’s clothes. It was established that the police had indeed withheld the clothes in which he had been arrested, as they had been required for a forensic examination. The loss of the clothes, although having caused some pecuniary damage to the applicant, could not be regarded as proof that he had been ill-treated. Furthermore, the pecuniary damage was not so considerable as to warrant a criminal investigation. 41. On the same date the Deputy Kyiv City Prosecutor delivered a report summarising the findings of the investigation into the applicant’s allegations of ill-treatment and the loss of his clothes, which had been verified and dismissed as inaccurate. The prosecutor referred, in particular, to the forensic medical examination of 7 September 2002 which found no injuries to the applicant’s body, and the forensic psychological examination of 13 May 2005 which gave no indication that any psychological pressure had been put on him. The applicant’s submissions that he had been refused admission to the SIZO on two occasions had been verified and dismissed as untrue. The prosecutor consulted the relevant documentation of the SIZO and questioned its medical staff, who reported that the applicant had arrived there on 13 September 2002 and had undergone extensive medical examinations the same day (see paragraphs 11, 15-16 and 39 above). 42. On 3 February 2006 the Kyiv Pecherskyy District Court upheld the prosecutor’s decision of 1 June 2005 stating that the loss of the applicant’s clothes by the police was not proof that a criminal offence had been committed. 43. On 15 June 2006 the Court of Appeal quashed the decisions of the prosecutor and first-instance court and remitted the case for additional investigation. As noted in its ruling, the applicant alleged that the loss of the clothes in question had caused damage to him far more serious than the money they cost. Namely, he argued that, because of this loss, he was not able to prove that he had suffered ill-treatment in the hands of the police. This argument had not however been duly examined. 44. On 9 August 2006 the Kyiv City Prosecutor’s Office issued another decision refusing to institute a criminal investigation into the applicant’s complaints, having found them unsubstantiated. 45. The prosecutor informed the applicant and his relatives, on several occasions, in reply to their repeated complaints about his alleged ill-treatment, that they could challenge the decision of 9 August 2006 before the higher-level prosecution authorities or the courts. It appears that no further complaints were lodged. 46. Articles 59 and 63 of the Constitution concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment on the case of Shabelnik v. Ukraine (no. 16404/03, § 25, 19 February 2009). 47. The provisions concerning the obligation to institute criminal proceedings and investigate a crime can be found in the judgment in the case of Spinov v. Ukraine (no. 34331/03, § 33, 27 November 2008). 48. A summary of relevant documents of the Council of Europe can be found in the judgment of Salduz v. Turkey ([GC] no. 36391/02, §§ 37-38, 27 November 2008).