CASE OF OMELCHENKO 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)
Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Myroslava Antonovych
6. The applicant is a Ukrainian national who was born in 1972. He is currently serving a prison sentence in Berdychiv. 7. On 27 October 2004 the body of Ms V. was found on a deserted street in Simferopol. V. had suffered numerous knife wounds. 8. On 28 October 2004 the police obtained an expert opinion that a fingerprint found on the cover of V.’s notebook could possibly belong to the applicant (whose fingerprints were stored in the police database). The police also discovered that some of V.’s belongings, including a mobile telephone and one earring, were missing. 9. On 29 October 2004 several officers from the Simferopol Kyivsky District Police arrived at the applicant’s home (some 120 kilometres away from Simferopol), inspected it, seized some of the applicant’s clothes and took him to the police station in Simferopol. 10. No formal record of the applicant’s arrest was drawn up. 11. On 29 and 30 October 2004 the applicant was questioned as a witness about V.’s murder and the theft of her belongings. 12. On 30 October 2004 he confessed that on 27 October 2004 he had come to Simferopol from his village to enjoy himself and had decided to murder a passer-by in order to steal her belongings. He had stolen V.’s mobile telephone, which he had lost on his way back home, and had killed her with a kitchen knife he had been carrying with him. 13. On 31 October 2004 the applicant was questioned as a suspect. Before the questioning session, the applicant was informed that he was suspected of having committed the murder of V. within the meaning of Article 115 § 1 of the Criminal Code of 2001 and that as a suspect he had right to legal assistance, which he waived in writing. 14. On the same date the applicant underwent a medical expert assessment, according to which he had not sustained any injuries in the period from 29 to 31 October 2004. 15. Again on the same date an undertaking not to abscond was selected as the preventive measure to be used in the applicant’s respect. 16. According to the applicant, it was not until 1 November 2004 that he was released from custody under the undertaking not to abscond. 17. During the afternoon of 1 November 2004 the applicant was arrested in Simferopol on charges of breaching the public order (through swearing, spitting and vagrancy) and detained for ten days as an administrative punishment, pursuant to a decision of the Simferopol Zaliznychnyy District Court. 18. On 4, 9 and 10 November 2004 the applicant, held in administrative detention, was further questioned concerning the murder and robbery. Before each of the questioning sessions the applicant signed waivers of his right to legal representation. 19. On 11 November 2004 the Simferopol Kyivsky District Court remanded the applicant in custody as a preventive measure in connection with the criminal proceedings against him. 20. On 16 November 2004 lawyer E. was admitted to the proceedings to represent the applicant. However, according to the applicant, the lawyer did not visit him until 26 December 2004 and no questioning of the applicant took place in his presence. 21. On 12 January 2005 the charges against the applicant were reclassified in law from those of simple murder within the meaning of Article 115 § 1 of the Criminal Code of 2001 to those of murder for profit (an aggravated form of murder) under Article 115 § 2 of the Code. 22. On 10 February 2005 a new lawyer, R., was admitted to the proceedings to replace lawyer E. 23. On 28 February 2005 the applicant was indicted with having robbed V. and having murdered her for profit within the meaning of Article 115 § 2 of the Criminal Code. On the same date he was questioned for the first time as an accused in the presence of lawyer R. During the questioning session, the applicant retracted his initial confessions and pleaded innocent. He maintained that he had not left his village on the day of V.’s murder and had previously confessed to the murder under pressure from the police, who had detained him unlawfully, threatened and ill-treated him. 24. On the same date the prosecutor’s office refused to institute criminal proceedings into the alleged breaches of the applicant’s rights, having found that there was no case to answer, and declared the case in respect of V.’s murder and robbery ready for trial. 25. On 5 April 2005 the Court of Appeal of the Autonomous Republic of Crimea (hereafter “the ARC Court”), acting as a first-instance court, convicted the applicant of armed robbery and murder for profit and sentenced him to fifteen years’ imprisonment. 26. On an unspecified date the ARC Court also issued a separate ruling noting that there was no record of the applicant’s arrest on 29 October 2004. 27. The applicant appealed in cassation against his conviction. He alleged that his confessions given in October and November 2004 should have been excluded from the body of evidence for having been taken in breach of applicable procedural guarantees. In particular, those statements had been taken during the applicant’s unlawful detention. He maintained that he had been held at the police station between 29 October and 1 November 2004 without any procedural records having been drawn up. On 1 November 2004 the applicant had been released. However, almost immediately afterwards he had been arrested under the false pretext of breaching the public order and subsequently detained. This tactical move had enabled the police to question him at any time and, in the absence of a lawyer, apply pressure on him to obtain self-incriminating statements to best suit their purposes. 28. The applicant next stated that the above-mentioned confessions had been obtained in breach of his right to legal representation. In particular, while he had been brought to the police station specifically in connection with the suspicion that he had killed V., initially he had only been questioned as a witness. Furthermore, the applicant had been initially charged with simple murder under Article 115 § 1 of the Criminal Code, a charge which enabled a suspect to waive his right to a lawyer. In the meantime, the scope of the accusation had clearly been pointing to “murder for profit”. This charge fell within the ambit of Article 115 § 2 of the Criminal Code, which could result in a life sentence and so entailed mandatory legal representation of a defendant and allowed no waivers of this right. The investigation had purposefully delayed reclassifying the charges in order to exert unlawful pressure and extract confessions from the unrepresented applicant. 29. The applicant also maintained that without his initial confessions the prosecution would have collapsed, as the other evidence had been contradictory and patchy. 30. On 21 July 2005 the Supreme Court of Ukraine quashed the applicant’s conviction and remitted the case for additional investigation. It noted, in particular, that the trial court should have verified more carefully whether the applicant’s confessional statements had been admissible evidence. In particular, as appeared from the case file, these statements had been obtained during the applicant’s detention between 29 October and 10 November 2004. Part of this detention was covered by an administrative detention decision and part was not covered by any records. In these circumstances, the applicant’s allegations concerning the ulterior motives in detaining him should have been carefully investigated. The Supreme Court also found that the evidence of the applicant’s involvement in the crime had been contradictory and needed to be reassessed, with various discrepancies being reconciled. 31. On 18 November 2005 the ARC Court again found the applicant guilty of armed robbery and murder for profit under Article 115 § 2 of the Criminal Code. It relied on various pieces of physical, forensic, and witness evidence, as well as on the applicant’s confessions given at the beginning of the investigation. The court concluded that there were no reasons to exclude these confessions from the body of evidence. In particular, according to the medical evidence, no injuries had been inflicted upon the applicant by the police and there was no other evidence of his ill-treatment. The court further found that on 29 October 2004 the applicant had been taken to the police station in connection with the suspicion that he had committed a crime of violence and had duly been questioned first as a witness and then as a suspect. It also noted that the applicant, informed of his rights as a suspect, had voluntarily waived his right to legal representation. As at the material time the applicant had been suspected of simple murder, which could not lead to a life sentence, such a waiver had been compatible with applicable law. The ARC Court then sentenced the applicant to fifteen years’ imprisonment. 32. On 16 March 2006 the Supreme Court of Ukraine dismissed a further cassation appeal brought by the applicant and upheld the ARC Court’s judgment of 18 November 2005.