CASE OF SEMENENKO v. UKRAINE
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
Erik Møse;Mārtiņš Mits;Yonko Grozev
4. The applicant was born in 1982 and resides in Vinnytsia. 5. The applicant suffers from emotional instability and slight mental retardation since childhood. Several forensic psychiatric examinations found him to have sufficient mental capacity to be held criminally liable. 6. On 17 July 2007 Ms O., a tobacco kiosk seller, was stabbed to death at her working place. 7. On 19 July 2007 the applicant was apprehended by the police. According to the police reports, that measure was undertaken on at least two different occasions, each time in respect of an administrative (minor) offence formally unrelated to the murder. 8. Under the first police report, at 2.30 a.m. on 19 July 2007, the applicant was noted in a public place while being in a state of manifest alcohol intoxication, swearing and disturbing passers-by. When the police ordered him to produce his documents and follow them to their vehicle, he resisted in a vehement manner. As indicated in the apprehension report, at 10.30 a.m. on 19 July 2007 the applicant was taken to the court for the examination of the above administrative offence case. 9. In the morning on the same day the Vinnytsya Leninskyy District Court (“the Leninskyy Court”) found the applicant guilty of the administrative offence of resisting the police and fined him 150 Ukrainian hryvnias (around 14 euros). 10. It is not known what exactly happened next. The case file contains two more reports on the applicant’s administrative apprehension dated 19 July 2007. According to one of them, he was released at 9.40 p.m. on that date, without any further details being indicated. As noted in the other report, at 10.10 p.m. on that day the applicant was apprehended again in respect of an administrative offence. According to the related judicial ruling of 20 July 2007 (see paragraph 14 below), at 3.25 p.m. on 19 July 2007 the police apprehended the applicant in a street after he resisted to an identity check. 11. It appears from the materials of the criminal proceedings against the applicant, which were instituted later (see paragraph 19 below), that on 19 July 2007 he was questioned in respect of Ms O.’s murder. He submitted that he had bought cigarettes at her kiosk on 17 July 2007, without anything unusual having happened. The case file does not contain any further information regarding that questioning. 12. On the same day the applicant had a conversation with his cell-mate in the temporary detention facility, Yu., who convinced him to confess to the murder. He also promised the applicant money in exchange for the information as to where the applicant had thrown the knife. The applicant drew a scheme. Subsequently the police found the knife at the indicated place. Yu.’s statements and the related material evidence were eventually relied on by the trial court in the criminal proceedings against the applicant. 13. Still on 19 July 2007, from 6.30 to 7.30 p.m., the police carried out a search in the applicant’s flat in the context of the investigation of the murder of Ms O. It appears that they seized his shirt. 14. On 20 July 2007 the Leninskyy Court found the applicant guilty of the administrative offence of resisting the police at 3.25 p.m. on 19 July 2007 (see also paragraph 10 above) and sentenced him to five days’ administrative detention to be calculated from 19 July (at 3.25 p.m.) to 23 July 2007. 15. On the same day the applicant was questioned as a witness in the murder case. He reiterated his statement that he had only bought cigarettes at Ms O.’s kiosk. 16. On 21 July 2007 the applicant was questioned again as a witness concerning the murder of Ms O. He confessed to having stabbed her several times after she had refused to give him cigarettes without payment. 17. On the same day the applicant repeated his confession during a reconstruction of the crime. He also showed where he had thrown the knife. 18. Later on 21 July 2007 the applicant was questioned as a criminal suspect. The questioning took place in the presence of a lawyer appointed for him. As noted in the investigator’s decision to that effect, there were sufficient reasons to suspect the applicant of the murder and, given the fact that he suffered from a mental disorder, his legal representation was mandatory. During that questioning the applicant retracted his earlier confession and submitted that he had not been at the tobacco kiosk on the day of the murder. He explained that he had invented his confession being scared that otherwise he would not be released. 19. On 23 July 2007 at 9.20 p.m. the applicant was formally arrested on suspicion of Ms O.’s murder. The arrest report noted that there were eyewitnesses who had directly pointed at him as the offender. During his questioning on that and the following day the applicant confessed to that crime. 20. On 26 July 2007 the Leninskyy Court ordered the applicant’s pretrial detention as a preventive measure pending trial. 21. The trial court remitted the case for additional investigation many times. According to the case-file materials, the most recent such remittal took place on 31 October 2013. There is no information about any subsequent developments.