CASE OF BOROTYUK v. UKRAINE
Violation of Art. 5-3;Violation of Art. 6-1;Violation of Art. 6-3-c
Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
5. The applicant was born in 1970 and is currently serving a sentence in Polytska no. 76 Prison in the Rivne region. 6. The applicant had had a relationship with his neighbour, Ms M. He received from her a duplicate of the key to her house, which he never returned. The relationship was terminated in December 2002 at the instigation of Ms M., whose husband had returned home from a long business trip. 7. During the night of 18-19 April 2003 Mr M., the husband of Ms M., was sleeping in his house, which was locked from the inside, while his wife was at work, and was attacked by a man wearing a mask. The victim's son, ten years old, who was sleeping in the same room, was woken by the noise and saw the intruder leaving the room with an object which looked like a stick. After the incident the entrance door to Mr M.'s house remained locked. Mr M. died without regaining consciousness. 8. On 19 April 2003, at 11:20 p.m., the applicant was arrested on police premises on suspicion of infliction of grievous bodily harm on Mr M. causing his death (see also paragraph 18 below). 9. On 22 April 2003 the Sarny Town Court (“the Sarny Court”) remanded the applicant in custody in Rivne no. 24 Detention Centre (“the SIZO”) at the investigator's request. The court based its decision on the seriousness of the charges against the applicant, as well as the fact that he had no family of his own and might therefore abscond. 10. On 19 June 2003 the Sarny Court extended the applicant's pre-trial detention to four months. It justified this decision with the necessity to undertake a number of investigative measures, the seriousness of the charges against the applicant and the inherent risk of his absconding or hindering the investigation if at liberty. The court examined the applicant's argument about his frail health and noted, referring to a medical report, that his condition was not incompatible with detention. 11. During both the pre-trial investigation and the judicial proceedings the applicant's lawyer introduced numerous requests for the applicant's release on bail, referring to his illness and specific medical needs which could not be accommodated by the SIZO administration and placed an excessive financial burden on his parents (for more details see paragraphs 45-47 below). It was also noted in the requests that the applicant did not have a criminal record and had a permanent place of residence and elderly parents to care for. By way of bail the applicant's father offered his minibus, whose value was estimated at 24,732 Ukrainian hryvnias (UAH), which at the time was equal to about 3,700 euros (EUR). 12. By rulings of 15 and 26 March, 26 April, 27 May, 23 June, 13 and 22 July, 12 August and 2 September 2004, the Sarny Court rejected the aforementioned requests for the applicant's release. The reasoning of all those nine rulings was identical and read as follows: “[The applicant] is accused of a serious crime punishable by imprisonment of over seven years. Therefore, to prevent [him] from attempting to abscond or hindering the establishment of the truth, the preventive measure – detention – should remain unchanged.” 13. Seven of the rulings contained an additional phrase following the first sentence in the above quotation: “There are considerable discrepancies in the witnesses' 14. All the rulings, with the exception of that of 15 March 2004, also noted that the applicant was “free to address requests to the [SIZO] administration for medical assistance under the [legislation on pre-trial detention].” 15. On 8 November 2005 the Rivne Regional Court of Appeal (“the Court of Appeal”), in its ruling ordering an additional investigation in the case, noted that “the preventive measure in respect of [the applicant was to] be unchanged – pre-trial detention” (see also paragraph 33 below). 16. On 26 May 2006 the Sarny Court, following a preparatory hearing prior to the applicant's retrial (see also paragraph 38 below), rejected his request for release on bail or subject to an undertaking not to abscond. The court noted that the applicant was suspected of a dangerous crime and there was a risk of his absconding given his young age, single status and the fact that he had no children. The court examined the applicant's argument about his health and noted, referring to some medical findings, that it was not incompatible with detention. 17. On 19 April 2003 the police searched the applicant's house and seized the key to Ms M.'s house. The applicant was delivered to the police station, where he was questioned from 8:45 p.m. to 10 p.m. as a witness. He denied involvement in the crime being investigated. 18. Later that evening, at 11:20 p.m., the applicant was arrested on police premises on suspicion of infliction of grievous bodily harm on Mr M. causing his death. The arrest report listed all the possible reasons for an arrest contained in the report template, without giving any details. As noted there, the applicant refused to sign it, for unspecified reasons. 19. At an unspecified time on 20 April 2003 the applicant wrote a statement of surrender to the authorities (“явка з повинною”), in which he confessed to beating Mr M. to death with a car axle (kept in the applicant's garage). The investigator accepted that statement, relying on Article 96 of the Code of Criminal Procedure (see paragraph 54 below). 20. On the same date – according to the applicant, at 4:10 p.m. – the investigator delivered an “Act of explanation to the suspect of his rights”. It contained the applicant's handwritten note as follows: “For this questioning, I waive legal assistance. I will be testifying of my own will.” The applicant also signed a formal legal assistance waiver “for the period of questioning”, and the investigator accepted it. 21. Later on 20 April 2003 the applicant was questioned as a suspect and repeated his confession. 22. In the evening of 20 April 2003 the applicant was questioned again, during which he drew the car axle in question and stated that he would be able to recognise it. 23. At some point during the day on 20 April 2003 the applicant's parents signed a contract for legal representation by lawyer O. The lawyer tried to get access to the applicant, but was refused it on the pretext that he was being questioned as a witness and therefore his status did not warrant legal representation. 24. During the night of 20 to 21 April 2003, between 1.20 a.m. and 2 a.m., a videotaped reconstruction of the crime was conducted, during which the applicant again repeated his confession. 25. On 21 April 2003 the classification of the investigated crime was changed from infliction of grievous bodily harm causing the victim's death to premeditated murder. 26. On 24 April 2003 the applicant's parents signed a contract with lawyer R. for legal representation of the applicant, and on 30 April 2003 they informed lawyer O. that her services were not needed any longer. 27. On 30 April 2003 lawyer R. requested to be involved in the investigations as the applicant's legal representative. The investigator granted the request, and he received permission to have meetings with the applicant “without any time restrictions”. 28. On the same date, 30 April 2003, the investigator delivered another “Act of the explanation to the suspect of his rights”, in which the applicant noted that he wished to be represented by lawyer R. 29. As soon as the applicant was legally represented he retracted all his earlier confession statements. 30. On 3 July 2003 the pre-trial investigation was declared complete and the applicant was committed for trial. 31. On 17 November 2004 the Sarny Court found the applicant guilty of premeditated murder and sentenced him to twelve years' imprisonment. It dismissed his not-guilty plea made at the hearing as untruthful and found his guilt proved by the confessions he had made on 20 April 2003 and repeated in the course of the reconstruction of the crime on 21 April 2003, as well as the corroborating material evidence (the duplicate key and the car axle). The court noted that the applicant had had explained to him his right not to incriminate himself before he had confessed and that he had voluntarily waived his right to legal representation. Having heard lawyer O., who stated that she had been refused a meeting with the applicant on 20 April 2003, the court found her allegation unsubstantiated, with a reference to “a thorough investigation into the matter”. The court also found no evidence that the applicant had admitted guilt under duress, given the fact that he had raised no complaints in that regard before any authorities. 32. The applicant appealed, alleging that the sole evidence of his guilt had been his confession extracted by the police under duress and in the absence of a lawyer. He submitted in particular that during the initial questioning and investigative activities he had been deprived of his medicines, and that he had not been receiving proper nutrition, water and sleep. Moreover, according to the applicant, he had been threatened with deprivation of legal assistance unless he confessed, and the police officers from time to time hit him on the back of the head with their hands or files. The applicant also insisted that he could not be regarded as having surrendered to the police under Article 96 of the CCP, as presented by the investigator, given the fact that prior to his statement in that regard he had already been arrested as a suspect. Furthermore, lawyer O. had not been allowed to see him on 20 April 2003, that is after his arrest, on the ground that he was being questioned as a witness, but not because he had waived his right to legal assistance. 33. On 8 November 2005 the Court of Appeal quashed the first-instance judgment and remitted the case for additional investigation, having allowed the applicant's appeal in part. It found in particular that an additional investigation and a retrial were required in order to rectify certain shortcomings. The Court of Appeal noted that the applicant's conviction had largely been based on mere presumptions, namely that the Sarny Court had relied on the confession he had made during the pre-trial investigation in the absence of a lawyer; this confession was not corroborated by any strong evidence against him. It further criticised the first-instance court for its failure to address the applicant's complaint that he had had no access to a lawyer following his arrest as a suspect. Although it disregarded the lawyer's statements made under oath as untruthful, the Sarny Court did not initiate criminal proceedings against her for perjury. According to the Court of Appeal, the first-instance court had selectively admitted and interpreted evidence (thus, according to the report of the first questioning of the victim's son, he had replied in the negative to a quite suggestive question from the investigator as to whether the intruder looked like the applicant to him, while it was noted in the verdict that he had stated the contrary). Lastly, the Court of Appeal pointed out some issues, which, although pertinent, remained uninvestigated: for example, that the victim was visited by unidentified persons on the eve of his murder, and the disorder in his house, which was not mentioned in the applicant's confession. 34. Following the additional investigation, on 27 January 2006 the applicant was again charged with premeditated murder. 35. On 30 January 2006 the Sarny Town Prosecutor delivered a ruling, refusing to institute criminal proceedings against the investigator who had allegedly refused the applicant's lawyer permission to represent him on 20 April 2003. The prosecutor noted firstly that on 20 April 2003 the applicant was questioned as a witness and therefore did not require legal representation, and secondly that even when he was recognised as a suspect he had voluntarily waived his right to legal assistance. 36. On 30 January 2006 the prosecutor delivered another ruling refusing to institute criminal proceedings in respect of the applicant's allegation of unlawful arrest and ill-treatment. The prosecutor referred in particular to the statements by the police officers involved, who denied any coercion. He also took into account the fact that the applicant had not raised any complaints about his health. 37. On 30 March 2006 the applicant was indicted as charged, and on the following day the case was sent to the court for trial. 38. On 26 May 2006 the Sarny Court held a preparatory hearing. 39. On 2 March 2007 it issued a new judgment which in its operative part, was identical to that of 17 November 2004. 40. The court examined the applicant's complaint that he had had no access to a lawyer and dismissed it as unsubstantiated: on one hand, the court referred to the investigator's statements, according to which the lawyer had not submitted any documents to him authorising her to represent the applicant; and, on the other hand, it noted that the contract for legal representation submitted to it by the defence had indicated the applicant (but not his parents) as a party, while he was in detention at that time and could not have signed it. Furthermore, it was mentioned in the judgment that the prosecutor had examined the applicant's allegation that the investigator had refused to allow the lawyer to see him, and refused to institute criminal proceedings against the investigator for lack of corpus delicti in his actions, which the applicant had failed to challenge. The court also noted that on 20 April 2003 the applicant had waived his right to legal assistance. It dismissed his allegation of duress, because the applicant had not complained to anybody about it apart from his father. In any event, the prosecuting authorities had already examined that allegation and rejected it, and the applicant had not appealed against that decision (see paragraph 35 above). The court therefore concluded that the applicant “had not been refused access to a lawyer”. 41. The judgment further referred to the statements of the victim's son, who had not recognised the murderer, although he noted that he was the same height as the applicant. The court further noted that although several witnesses had seen two unidentified persons looking for Mr M. on the eve of his murder, this fact did not negate the finding of the applicant's guilt. The court made a similar observation concerning the disorder in the victim's house not mentioned in the applicant's confession. It also relied on the material evidence obtained on the basis of the applicant's confession, namely the car axle found in his garage, having explained the lack of any traces of the crime on it with the fact that the applicant had wrapped it in cloth and plastic, which he had later burnt. 42. The applicant appealed against the judgment as based on unlawfully obtained confession statements and lacking a solid evidential basis. He reiterated his earlier grievances, namely that his right to defence during the early stages of the investigation had been restricted, and argued that the Sarny Court had failed to address a number of specific issues raised in the Rivne Regional Court of Appeal ruling of 8 November 2005. 43. On 19 June 2007 the Court of Appeal upheld the applicant's conviction, finding that the first-instance court had rightly relied on his confession statements as they had been given in compliance with the legislation on criminal procedure and were corroborated by other evidence. 44. On 21 January 2008 the Supreme Court rejected the applicant's request for leave to appeal in cassation as unsubstantiated. 45. The applicant has been suffering for many years from diabetes insipidus (нецукровий діабет). In 1990 he was recognised as falling into the third category of disability (the mildest) on account of that condition. Apart from the diagnosis and the aforementioned fact about his disability, the applicant did not provide the Court with any details about his medical condition. 46. According to a note issued on 3 February 2004 by the local clinic at the request of the applicant's lawyer, the applicant had been being monitored by an endocrinologist, who had prescribed him certain antidiuretic hormones, which cost about UAH 420 a package. The clinic provided the applicant with one package a month free of charge, while the required intake was three packages. 47. On 10 December 2003 the applicant's lawyer wrote a letter to the SIZO administration in which he referred to the applicant's medical needs as outlined above and enquired whether the SIZO was able to provide him with the medication he required. The reply was that the SIZO was providing the applicant with some symptomatic treatment. As to the “expensive medications of narrow specification”, such as the antidiuretic hormone referred to, the administration was ready to accept those from the applicant's relatives. It was also noted in the letter that for the time being the applicant had an adequate supply of that medication. 48. On 16 May 2008 the applicant authorised his father to represent him in the proceedings before the Court. The prison administration countersigned the authority form. 49. On 5 June 2008 the Court received a letter from the applicant's father dated 29 May 2008, in which he complained in particular that his son had been deprived of legal assistance for several days after his arrest and that a lawyer had been admitted to him only after he had made confession statements while he was in a state of physical and emotional exhaustion. 50. 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 of 19 February 2009 in the case of Shabelnik v. Ukraine (no. 16404/03, § 25). 51. The Criminal Code envisages imprisonment of seven to fifteen years for deliberate murder without aggravating circumstances (Article 115 § 1) and seven to ten years for deliberate infliction of grievous bodily injuries causing death (Article 121 § 2). 52. The relevant provisions of the Code of Criminal Procedure (“the CCP”) concerning preventive measures pending trial are quoted in the judgment in the case of Yeloyev v. Ukraine, no. 17283/02, § 35, 6 November 2008. 53. Article 154-1 of the CCP, as well as the relevant extracts from Resolution No. 6 of the Plenary Supreme Court of 26 March 1999 “on the practice of applying bail as a preventive measure”, can be found in the judgment in the case of Koval v. Ukraine, no. 65550/01, §§ 60-61, 19 October 2006. 54. As regards admissions of guilt, Article 73 of the CCP requires verification of a suspect's statements. His or her admission of guilt may provide a basis for the accusation only if corroborated by the totality of the evidence. Article 96 of the CCP defines a statement of surrender to the authorities as follows: “a personal voluntary written or verbal statement made by a person, before the institution of criminal proceedings against him or her, to an enquiry authority, a police officer, an investigator, a prosecutor, a judge or a court, about a crime committed or planned for by him or her”. Where criminal proceedings have already been instituted, such a statement must be made before formal charges are brought against the person.