KRAVCHENKO v. UKRAINE
Inadmissible
Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Myroslava Antonovych
1. The applicant, Mr Anatoliy Alekseyevich Kravchenko, is a Ukrainian national, born in 1956 and living in Zhytomyr. He was represented before the Court by Mr S.O. Dubas, a lawyer practising in Kyiv. 2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Ms Nataly Sevostianova. 3. The applicant alleged, in particular, that he had been convicted in violation of Article 6 §§ 1 and 3 (c) of the Convention, on the basis of a confession extracted from him against his will and in the absence of a lawyer. 4. On 23 March 2011 the above complaints were communicated to the Government. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. In 1982 the applicant was deprived of his legal capacity as he suffered from schizophrenia. He was also registered as “category 2” disabled (on a four-category scale) for that reason. 7. In 1984 the applicant was convicted for theft and attempted rape of a minor. He was, however, relieved of criminal liability by reason of his mental condition. The courts ordered his compulsory medical treatment in a psychiatric hospital. The applicant underwent such treatment on several occasions, most recently in August 2003. 8. On 23 March 2004, at approximately 4.30 p.m., a group of teenagers from the Zhytomyr orphanage, as well as their two teachers, saw the applicant aggressing a young girl in a nearby forest. The girl, who was partly undressed and covered in blood, was crying for help. The applicant tried to flee, but without success. A fight broke out, and he was apprehended and handed over to the police, who someone had called in the meantime. 9. On the same day the applicant waived his right to legal assistance and confessed to attempting to rape a minor (the girl in question, P., was eleven years old). His handwritten confession statement mentioned his past criminal convictions, but did not contain any reference to his mental condition or legal incapacity. The applicant also wrote that his confession had not been made under duress. 10. According to the applicant’s submissions to the Court, he was coerced into both signing the waiver and confessing. He further alleged that he had immediately informed the police that he was legally incapable on account of his schizophrenia, but that information had remained ignored. 11. Also on 23 March 2004 the police questioned the eyewitnesses, who gave a detailed account of the incident and the circumstances of the applicant’s apprehension. 12. On 24 March 2004 the applicant was formally detained as a suspect, having been caught in flagrante delicto. He signed a statement as confirmation that his procedural rights, including his right to a lawyer, had been explained to him. He again waived his right to legal assistance. 13. During his questioning on 24 March 2004 and a reconstruction of the crime on 25 March 2004, the applicant reiterated his initial confession, specifically stating that he had realised the victim’s age. 14. On 25 March 2004 an identity parade took place, at which the witnesses recognised the applicant as the attacker. 15. On 26 March 2004 the investigator appointed a lawyer for the applicant, having been notified by the Information Bureau of the Ministry of the Interior that he had a history of compulsory psychiatric treatment. 16. On the same day the Zhytomyr City Court (“the Zhytomyr Court”), in a hearing which the applicant and his lawyer attended, remanded the applicant in custody pending trial. He again repeated his confession statements, and agreed that the preventive measure chosen was appropriate. 17. On 31 March 2004 the applicant was charged with attempted rape of a minor. He was questioned as an accused in the presence of his lawyer. The applicant repeated his confession. He stated that he had been apprehended by a group of six to eight teenagers, who he had tried to fight off with a stick and who had hit him several times. 18. On 1 April 2004 the applicant underwent a forensic medical examination, which revealed three bruises on his face and two bruises on his back, possibly inflicted in the ten days leading up to the examination. 19. On 21 April 2004 the applicant complained to the Zhytomyr Regional Prosecutor’s Office (“the Zhytomyr Prosecutor”) that he had been coerced into incriminating himself through “physical and psychological pressure by the police”, without giving further details. 20. On 27 April 2004 the applicant underwent a psychiatric examination, which found him to be of limited criminal capacity (обмежено осудний). It was concluded that he required regular psychiatric monitoring, although there was no need for compulsory medical treatment for the time being. 21. In April 2004 (the exact date is illegible) the management of the applicant’s local neighbourhood housing department, drew up a written character reference, describing the applicant as a quiet person about whom there had been no complaints. 22. On 11 May 2004 the applicant’s employer, a company for whom the applicant worked as a technician at the time of the events, issued a similar character reference, describing him as a responsible employee complying entirely with his job requirements. 23. On 15 May 2004 the Zhytomyr Prosecutor, having examined the applicant’s allegation of ill-treatment, decided not to institute criminal proceedings against the police officers for lack of corpus delicti in their actions. 24. On 18 May 2004 the forensic medical examination of P. was completed. Her injuries – multiple facial bruises and post-asphyxia syndrome – were found to fit with the applicant’s description of events. 25. On the same day the victim’s neighbour, a sixteen-year-old girl, Sh., was questioned as a witness. She submitted that on 23 March 2004, at approximately 4 p.m., near to where the incident with P. had taken place, she had also been attacked by a man, whose description corresponded with the applicant’s appearance. Sh. had however managed to escape. She stated that she was unable to recognise her attacker. 26. On 19 May 2004 the Zhytomyr Prosecutor refused to institute criminal proceedings against the individuals for injuring the applicant while apprehending him. It was held that under the circumstances there had been nothing criminal in their actions. 27. On the same day the prosecutor refused to institute criminal proceedings against the applicant in respect of the attempted rape of Sh., having found that there was no case to be examined. 28. Later that day the applicant’s colleague, who had been working with him on 23 March 2004, was questioned. He submitted that the applicant had left at approximately 3.40 p.m. under the pretext that he needed to go to the toilet, and had not returned thereafter. 29. On 24 May 2004 the applicant was indicted, and the case was sent for trial in the Zhytomyr Court. 30. On 27 May 2004 the applicant complained to the Zhytomyr Court that, following his apprehension on 23 March 2004, he had been ill-treated by the police. He alleged that he had been suspended from a bar between two tables while handcuffed, punched in the face, and thrown onto the floor with his hands handcuffed. He also complained that four officers had kicked him all over, put a gas mask on him and blocked the nose vent, twisted his arms, and struck him with a truncheon on his legs and knees. The applicant submitted that he had signed his waiver of legal assistance, and had had his confession extracted under duress. He stated that his injuries had been documented in the report of his forensic medical examination. 31. On 16 June 2004 the applicant asked to be represented by a different lawyer. His request was granted. 32. On 21 June 2004 the Zhytomyr Prosecutor wrote to the trial court, it appears in response to a request for information, stating that there was no reason to review the decision of 15 May 2004 (in which it refused to institute criminal proceedings in respect of the applicant’s allegation of ill-treatment – see paragraph 23 above). 33. On 16 September 2004 the applicant’s lawyer was replaced again, upon a request by him to that effect. 34. On 27 October 2004 the charge against the applicant was amended to include, in addition to attempted rape of a minor, grievous bodily harm. 35. On 17 November 2004 the Zhytomyr Court found the applicant guilty as charged, and sentenced him to twelve years’ imprisonment. It relied, among other things, on the confession statements he had made during the pre-trial investigation, even though he had retracted them during the judicial proceedings. The court noted that the bruises documented in the report of the applicant’s medical examination had been inflicted on him during his fight with the people who had apprehended him. The guilty verdict was also based on the statements of several eyewitnesses who had recognised him as P.’s attacker (she had been unable to recognise her attacker as she had been suffering from shock). Furthermore, the court relied on the statements of the applicant’s colleague confirming his absence from the workplace at the time of the incident. According to the applicant, he refused the services of a Ukrainian-Russian interpreter at the beginning of the trial, but later changed his mind. The later request he submitted for an interpreter had been unsuccessful. 36. The applicant, who had legal representation, appealed. He complained, in particular, that his confession had been extracted from him by torture and that he had been coerced into waiving his right to legal representation, which was unacceptable given his mental illness and ran contrary to criminal procedural law. 37. On 25 January 2005 the Zhytomyr Regional Court of Appeal upheld the applicant’s conviction, but reduced his sentence to eight years. It agreed with the first-instance court that there was no reason to consider that the applicant’s confession statements obtained during the pre-trial investigation had been made against his will. As regards the alleged restriction on his right to legal assistance, the appellate court noted that the applicant had himself waived that right and that the investigator had appointed a lawyer for him as soon as his mental illness had become known. 38. On 29 November 2005 the Supreme Court upheld the lower courts’ decisions and their reasoning. On 14 February 2006 the ruling was sent to the applicant. 39. Article 45 § 2 of the Code of Criminal Procedure (“the CCP”) provides that if criminal proceedings are brought against persons unable to exercise their right to defend themselves on account of a physical or mental disability, their legal representation is obligatory starting from the moment they are arrested, charges are brought against them, or their disability becomes known. 40. Under Article 46 § 1 of the CCP, a suspect, accused or defendant may dispense with invited or appointed counsel at any stage of the proceedings. Such a waiver is possible only at the initiative of the suspect, accused or defendant and does not preclude him or her from appointing the same or a different counsel at a later stage of the proceedings. However, a waiver of counsel in the cases covered by Article 45 should be based on reasoning found to be satisfactory by the inquiry officer, investigator or the court (Article 46 § 3). Should it be accepted, the suspect, accused or defendant has up to three days to replace counsel (Article 46 § 4). If he or she fails to do so within the set time-limit, and if his or her legal representation is mandatory under Article 45 of the Code, a legal representative must be appointed by the inquiry officer, investigator or judge, depending on the stage of the proceedings (Article 46 § 5). 41. According to paragraph 13 of Resolution of the Plenary Supreme Court of Ukraine no. 8 of 24 October 2003 on the application of legislation ensuring the right to defence in criminal proceedings, “persons who are unable to exercise their right to defend themselves because of a physical or mental disability” (Article 45 § 2 of the CCP) should be understood to be persons with considerable speech, sight, hearing or other defects, as well as persons who, even though recognised as having criminal capacity, have psychiatric conditions which would impede their ability to mount a defence against the charges brought against them. Such persons should be legally represented as soon as the aforementioned defects have been established.