CASE OF SOBKO v. UKRAINE
Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary
5. The applicant was born in 1981. He is currently serving a prison sentence. 6. On the morning of 3 October 2008, the applicant was digging potatoes together with his wife and G. (Ms), a neighbour, near his house. The applicant and G. had consumed some vodka at breakfast. 7. The applicant’s eleven-month old daughter was in the house, together with his four-year old stepson, V., who was watching cartoons on a DVD player. The house was locked, and the key was in the applicant’s pocket. 8. At about 11.15 a.m., when the applicant was carrying a sack of potatoes to the cellar, his wife asked him to have a look at the children. He was gone for about twenty minutes. When he returned, he said that he had had some beer. 9. At about 12.30 p.m., when the work was finished, the applicant went to the house. He came out and told his wife that her son was dead. When she entered the living room, she saw V. lying on the floor with a cable around his neck. The television set was overturned on the floor nearby. The applicant expressed a presumption that V. had tried to reach the remote control on top of the television, had overturned the television and, as a result, had accidentally been strangled by the cables. 10. Somebody called the police. By the time they arrived, V. had been put in his bed and the television had been placed on a bed in a different room. The applicant and his wife were questioned as witnesses. They admitted that they had relocated the body and the television, and explained that they had done so because they had felt stressed. 11. An autopsy of the child was carried out and in the evening of the same day the expert who had conducted it called the investigator and informed him that the boy had been strangled by somebody, and had not died as a result of an accident. 12. The investigator, together with the police officer on duty, returned to the applicant’s house and inspected the scene once again. The applicant maintained his account that there had been an accident. The police officers took him to the police station, without formally deciding on his procedural status. The applicant did not object. 13. The police officer on duty had a conversation with the applicant and suggested that he “tell the truth”. As a result, at 10.30 p.m. the applicant wrote a statement of “voluntary surrender to the police”, in which he explained that he had strangled V. having got angry about the mess in the room. The statement contained a note that the applicant had been familiarised with the content of Article 63 of the Constitution (see paragraph 37 below). 14. On the same day, 3 October 2008, a criminal case was opened against the applicant on suspicion of murder of a child. 15. The applicant spent the night in the police station. 16. At about 1 a.m. on 4 October 2008, the applicant was formally arrested as a suspect. He wrote in the arrest report that he waived his right to legal defence and regretted what he had done. 17. On the same day the applicant wrote another statement of “voluntary surrender to the police” with the same content as the previous one. 18. On 5 October 2008 the applicant was granted legal aid and a lawyer was appointed for him. During his questioning as an accused and during the reconstruction of the crime, in the presence of his lawyer, the applicant maintained his confession. 19. On 6 October 2008 the applicant underwent a forensic medical examination, apparently in the context of the judicial decision on his pre-trial detention. No injuries were found on him and he did not raise any complaints before the expert. 20. In October 2008 (the exact date is not legible in the available copy) a forensic medical expert confirmed the findings of the autopsy report that V. had died as a result of strangulation. 21. On an unspecified date the applicant signed an agreement on his legal representation by Mr R. 22. On 20 October 2008 the applicant’s father, acting on the applicant’s behalf, signed a legal assistance agreement with Mr Gavrylchenko (the lawyer who also represented the applicant in the proceedings before this Court). On the same date Mr Gavrylchenko joined the proceedings as the applicant’s lawyer. It appears that Mr R. too continued to represent the applicant. 23. On 13 November 2008 the applicant refused the services of Mr R. 24. On 3 December 2008 the investigator ordered the applicant’s forensic psychiatric examination with a view to establishing whether he could be held liable for the criminal offence with which he was charged. 25. On 10 December 2008 experts completed the aforementioned examination. They concluded that the applicant, although showing an indication of “slight intellectual retardation on the verge of a slight mental disability” (легка інтелектуальна недостатність на межі легкої дебільності), was aware of his actions and could control them. 26. On 10 February 2009, during his questioning as an accused, the applicant retracted his confession and claimed his innocence. He submitted that he “had incriminated himself under the physical and psychological coercion of the police”. 27. On 11 February 2009 the investigator decided that the applicant’s allegation warranted a separate investigation. He therefore severed from the case file certain materials which could be of relevance (such as the applicant’s confession, the transcript of his various questioning sessions and the report of his forensic medical examination). 28. On 23 February 2009 an additional forensic medical expert evaluation, which had been carried out at the request of the applicant’s lawyer, was completed. The expert excluded the possibility that V. had been accidentally strangled by the television cables when the television set had fallen on him, as had been suggested by the applicant, and confirmed that that could not be the origin of his bruises either. 29. On 5 March 2009 the Chornobay Town Prosecutor’s Office refused to open a criminal case in respect of the applicant’s allegation that he had been coerced by the police, having found that there was no indication of a criminal offence. 30. On 30 March 2009 the applicant was indicted. 31. On 18 May 2009 the Cherkasy Regional Court of Appeal, sitting as a court of first instance, found the applicant guilty of murder of a child and sentenced him to twelve years’ imprisonment. It relied, in particular, on the applicant’s statement of “voluntary surrender to the police” of 3 October 2008 and the confessions he had made on 5 October 2008 and maintained thereafter until 10 February 2009. The court decided, however, not to take into account his statement of 4 October 2008 on the grounds that it could no longer be regarded as a “voluntary surrender to the police” and the applicant should have been questioned as a suspect and legally represented. Furthermore, the court relied on the material and expert evidence. The applicant’s allegation of police coercion was dismissed as unsubstantiated. The trial court took into account the fact that the applicant had decided to write a “voluntary surrender to the police” as a mitigating factor in fixing his sentence. 32. On 28 May 2009 a copy of the judgment was served on the applicant. 33. On 10 June 2009 the applicant appealed on points of law. He complained, in particular, of the lack of access to a lawyer during his initial questioning at the police station on 3 October 2008. He submitted that he had been coerced into confessing by “physical violence and psychological pressure”. The applicant also challenged the accuracy of the expert findings and disagreed with the assessment of the facts by the trial court. The first page of the applicant’s cassation appeal was stamped by the Cherkasy Pre-Trial Detention Centre (SIZO), in which he was detained at the time, confirming that the appeal was sent out on 10 June 2009. 34. On 24 June 2009 the applicant’s lawyer also submitted an appeal on points of law with similar arguments. The stamp of the trial court on the first page of the appeal shows that it was received on 25 June 2009. 35. According to the Government, neither the applicant nor his lawyer applied to the Supreme Court to participate in the cassation hearing. However, the case file contains a copy of such a request signed by both the applicant and his lawyer and dated 24 June 2009. It has not, however, been stamped by the Supreme Court and there is no other acknowledgment of its receipt. 36. On 15 September 2009, in a hearing with the participation of the prosecutor, but in the absence of the applicant or his lawyer, the Supreme Court upheld the judgment of the first-instance court. It considered that the applicant’s right to legal defence had not been violated, as his confession of 4 October 2008 had been excluded from the evidence.