CASE OF SHABELNIK v. UKRAINE
Remainder inadmissible;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;Required by interests of justice);Non-pecuniary damage - finding of violation sufficient
Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva
5. The applicant was born in 1979 and is currently in prison in the city of Zhytomyr, Ukraine. 6. On 10 December 2001 the applicant was arrested on suspicion of kidnapping and murdering a minor, S. During the arrest the applicant sustained light bodily injuries, which were recorded by a forensic medical expert. 7. On 13 December 2001 the Bogunsky District Court of Zhytomyr ordered the applicant’s detention. 8. On 17 December 2001 the applicant was provided with a lawyer. 9. On 19 December 2001 the applicant was charged with the above-mentioned crime, following an investigation during which the applicant had shown the police the places in which S.’s corpse and some of her belongings had been hidden. 10. On 15 February 2002 the applicant, allegedly under pressure by the investigator, wrote a letter requesting that he be questioned “about events that took place at the end of October 2001 at the address 5, maidan Rad, in Zhytomyr”. In his letter he mentioned that he did not require the assistance of a lawyer during the interview. According to the stamp on the letter it was received by the Zhytomyr Prosecutor’s Office on 18 February 2002. 11. On 15 February 2002, allegedly upon the above request, he was questioned by the investigating prosecutor, Sh., as a witness about the circumstances of the death of Mrs K. During this questioning, without a lawyer, the applicant confessed to the murder of Mrs K. (The criminal investigation into the murder of Mrs K. had been initiated on 29 October 2001. On 25 December 2001 Mr K., son of the late Mrs K., was questioned by the investigating prosecutor, Sh., as a witness and confessed to the murder of his mother. The next day he retracted his confession. On 27 December 2001 the criminal case against Mr K. was closed for lack of corpus delicti.) In his testimony the applicant submitted that he had needed money and having read in a newspaper about the intention of Mrs K. to buy an apartment had decided to rob her. Having gone to her home and having found that she had no money, he killed her. The applicant gave numerous details about the apartment, the victim and the way he killed her. The minutes of the applicant’s questioning stated that he had been told about his duty to state everything he knew about the case and the criminal liability for refusal to give testimony and for giving false testimony under Articles 385 and 386 of the Criminal Code. It was also indicated in the minutes that the provisions of Article 63 of the Constitution had been explained to the applicant. 12. On 16 February 2002 the applicant, still as a witness, participated without a lawyer in an on-site reconstruction of the events of the murder of Mrs K. 13. On the same day the applicant was examined by a forensic expert who did not report any signs of ill-treatment on his body. According to the applicant this report was falsified, given that a previous medical examination conducted on 22 January 2002 had revealed several injuries on his body, the traces of which could not have disappeared in less than a month. 14. On 18 February 2002 the applicant was additionally questioned, without a lawyer, by the prosecutor concerning the circumstances of purchasing the knife which the applicant had used to kill Mrs K. 15. On 22 February 2002 the applicant was repeatedly questioned without a lawyer about the knife because it had been established that the shop in which he had allegedly bought it did not sell knives. The applicant changed his testimony and said that he had killed Mrs K. with another knife taken from his father. 16. On 25 February 2002 the investigating prosecutor Sh. instituted criminal proceedings against the applicant for the murder of Mrs K. and joined them with the criminal case concerning the kidnapping and murder of S. 17. On 3 April 2002 the applicant was charged with both the kidnapping and murder of S. and the murder of K. 18. On 22 May 2002 the criminal case was referred to the Zhytomyr Regional Court of Appeal, acting as a first-instance court. According to the applicant, at this stage he requested the court to allow his mother to act as his non-legal representative but this request was refused. 19. During the court hearings the applicant claimed his innocence with respect to the murder of Mrs K. He maintained that he was forced to confess. At the same time, he admitted his guilt in kidnapping S., but claimed that she was killed by some other person whom he knew only by name. 20. On 11 July 2002 the Zhytomyr Regional Court of Appeal found the applicant guilty of the kidnapping and two murders and sentenced him to life imprisonment. The applicant’s conviction for murdering Mrs K. was based on his confessions, which corresponded to the information available to the investigating authorities. 21. The applicant’s lawyer, D., appealed against that decision. In his cassation appeal, he complained, inter alia, of a violation of the applicant’s right to defence and of the use of unlawfully obtained evidence by the court. He submitted that the accusation that the applicant had murdered Mrs K. had been based exclusively on the statements he had made as a witness and had not been supported by any corroborating evidence. Furthermore, he complained that some contradictions in the body of evidence had been ignored by the court, namely that the forensic examination established that Mrs K. died not earlier than 24 October 2001 while the applicant had allegedly killed her on 23 October 2001; that the newspaper from which the applicant had allegedly learned about the intention of Mrs K. to buy an apartment was published only on 25 October 2001, after the death of Mrs K.; that, according to testimonies of witnesses, Mrs K. was not the kind of person who would let a stranger into her apartment and talk to him frankly about her personal relationships. 22. The applicant raised similar issues in his cassation appeal. He further complained that the investigation had failed to locate M., who had been his accomplice in the kidnapping case and the murderer of S. 23. On 10 October 2002 the Supreme Court of Ukraine upheld the decision of the appellate court. In reply to the complaints of the applicant and his lawyer of a violation of the right to defence, the court stated: “The arguments of the appeals as to the violation of the right to defence of D. Shabelnik during his questioning as a witness of a crime against K. are groundless. Having been arrested on suspicion of committing another crime, on 15 February 2002 Shabelnik D. wrote a letter stating his wish to give testimony voluntarily about the events that took place at the end of October 2001 at the address Zhytomyr, 5, maidan Rad. Since in his letter he did not indicate what information he wanted to provide, the investigating authorities rightly questioned him as a witness. The provisions of Article 63 of the Constitution were explained to him.” 24. The court further repeated the reasoning of the Zhytomyr Court of Appeal and concluded that the applicant could only have known about the circumstances of the murder of Mrs K. if he had been the offender himself. Article 59 Everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose the defender of his or her rights. In Ukraine, the advocacy acts to ensure the right to a defence against accusation and to provide legal assistance in deciding cases in courts and other state bodies. Article 63 A person shall not bear responsibility for refusing to testify or to explain anything about himself or herself, members of his or her family or close relatives in the degree determined by law. A suspect, an accused, or a defendant has the right to a defence... 26. Article 45 of the CCP stipulates that the legal representation of a suspect, accused or defendant is obligatory, inter alia, if the possible penalty is a life sentence. 27. Article 69 of the CCP provides that a person is entitled to refuse to give testimony as a witness about himself or herself. 28. Article 70 of the CCP provides that a person who has been called as a witness shall 29. Article 71 of the CCP provides that a witness shall bear criminal responsibility for giving knowingly false testimony. 30. Article 4004 of the CCP provides for the extraordinary review of final judgments, in particular, in the event of serious violations of the procedural law. 31. Under paragraph 2 of Article 115 of the Code, murder committed by a person who has previously committed a murder shall be punishable by imprisonment for a term of ten to fifteen years, or life imprisonment. 32. Under paragraph 1 of Article 384 of the Code any knowingly false testimony by a witness during the inquiry or pre-trial investigation shall be punishable by correctional labour for a term of up to two years, or detention for a term of up to six months, or restriction of liberty for a term of up to two years. 33. Under Article 385 of the Code a groundless refusal by a witness to testify in court or during a pre-trial investigation shall be punishable by a fine or detention for a term of up to six months. At the same time it provides that refusal to testify against himself or herself during an inquiry, pre-trial investigation or in court shall not be criminally liable. 34. Article 10 of the Law provides for additional individual measures with a view to execution of judgments of the Court, including review of the case by a court and reopening of the judicial proceedings.