CASE OF BALITSKIY v. UKRAINE
Remainder inadmissible;Violation of Art. 6-1 and 6-3-c;Non-pecuniary damage - finding of violation sufficient
Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
5. The applicant was born in 1979 and lives in Kharkiv. 6. On 9 May 1998 the Frunzenskiy District Prosecutor’s Office instituted criminal proceedings in connection with the murder of Mr T. 7. On the same day the applicant was arrested by the police for hooliganism and taken to the police station. According to the applicant, the police severely beat him in order to force him to confess to the murder of Mr T. who had lived with him in the same apartment block. 8. On 11 May 1998 the applicant was brought before the Frunzenskiy District Court. The court found him guilty of an administrative offence (hooliganism), committed on 9 May 1998 at 1 p.m., and ordered his administrative arrest for fifteen days. The applicant was then returned to the police station, where, according to him, the police ill-treated him again. On the same day he was questioned as a witness in connection with the murder of Mr T. 9. On 12 May 1998 the applicant confessed to the murder and theft. He was questioned from 6.45 p.m. to 8 p.m. on suspicion of the murder of Mr T. At 9 p.m. he was formally arrested as a suspect. The applicant also signed a waiver from a lawyer indicating that he did not need legal representation at that point and would decide on his representation later. 10. On 13 May 1998 the applicant underwent a medical examination. In his opinion of 14 May 1998, the forensic expert noted that the applicant had abrasions on his wrists that could have been caused by handcuffs. He further had three abrasions on his left elbow, one abrasion on the lower part of the abdomen and one abrasion on his leg. According to the expert opinion, the applicant had maintained that the police had not applied force to him and that the abrasion on his abdomen had been caused by falling in his garage two weeks prior to the examination. The expert concluded that the abrasions on the wrists could have been caused by handcuffs one to three days prior to the examination and the other injuries had no relevance to the events indicated in the referral for the medical examination. 11. On 15 May 1998 the applicant was charged with murder. During the questioning he refused the assistance of lawyer T., who had been engaged by his father, and was questioned as an accused without a lawyer. 12. On 1 June 1998 the criminal case against the applicant was transferred to the Kharkiv City Prosecutor’s Office for further investigation. Shortly afterwards, the applicant received assistance from lawyer G. 13. On 22 June 1998 the applicant was examined by a forensic expert who established that the applicant had a broken rib, a scar on his head and three scars on his left arm, two scars on his right arm and a broken tooth. On some later date another X-ray examination was carried out which found that the applicant’s rib was not broken. 14. On 26 June 1998 the applicant was examined by a dentist who established that the applicant’s tooth had split into two as a result of tooth decay. 15. On 27 July 1998 the investigator reclassified the applicant’s offence as murder for profit, which was punishable by life imprisonment and required the obligatory legal representation of the applicant. 16. On 10 January 1999 the investigation was completed and the case against the applicant was referred to the Kharkiv Regional Court. 17. On 9 September 1999 the Kharkiv Regional Court referred the case for further investigation. In so deciding, the court noted, in particular, that the applicant’s allegations of ill-treatment had not been properly investigated and the time of death of Mr T. mentioned in the medical forensic report did not correspond to the police version of the events. It also noted that, although the official time of the applicant’s arrest as a suspect was 9 p.m. on 12 May 1998, the applicant had been arrested on 9 May 1998 by the police officers who were investigating the murder of Mr T. Furthermore, according to the testimony of the witnesses, the arrest had taken place at around 8 a.m., while the police had recorded that the applicant had been arrested for hooliganism at 1 p.m. 18. On 2 November 1999 the Supreme Court upheld the decision of 9 September 1999 with minor amendments. 19. On 8 February 2000 a board of forensic experts conducted an additional forensic examination. The board established that the applicant had minor bodily injuries that might have been caused by handcuffs and a truncheon and it could not be excluded that they might have been inflicted during the period 10 to 13 May 1998. They further noted that following the conflicting findings of the previous X-ray examinations, the latest one had been conducted in the presence of testifying witnesses and the result showed no fractures in the applicant’s ribs. 20. Between February 2000 and July 2001 the criminal case against the applicant was referred to the Kharkiv Regional Court several times for examination and remitted by that court for further investigation. 21. On 10 July 2001 the case was referred to the Sumy Regional Court, which assumed jurisdiction over the case. 22. During the examination of the case the court rendered a separate ruling ordering the prosecutor to look into the applicant’s allegations of ill-treatment. On 14 December 2001 the Frunzenskiy Prosecutor’s Office refused to institute criminal proceedings against the police for lack of proof of a crime. The prosecutor referred to the testimony of the police officers, who had denied any ill-treatment of the applicant. The applicant did not appeal against that decision to the court but raised the issue of ill-treatment in the ensuing criminal proceedings against him. 23. On 20 June 2002 the Sumy Regional Court found the applicant guilty of murder and robbery and sentenced him to fifteen years’ imprisonment. The court based its findings on the confessions of the applicant made between 12 and 15 May 1998 and other pieces of evidence, including the testimony of Mr Sh. and Mr To., who had seen the applicant shortly after the murder. The court rejected the applicant’s allegations of illtreatment as unsubstantiated and noted that the applicant had voluntarily waived his right to legal representation at the initial stage of the proceedings. 24. The applicant and his lawyers appealed. In their appeals they complained, among other things, that the court had based its finding on the applicant’s self-incriminatory statements, that the applicant’s right to defence had been violated, and that the court had assessed the evidence selectively. They further complained that the court refused to question a number of witnesses who could have proved an alibi for the applicant, or whose testimony needed clarification as to the exact time they had seen the applicant and the victim on the day of murder. In particular number of witnesses saw the victim until 8 p.m. and they had not been questioned by the court or their testimonies had not been included in the criminal case-file. Furthermore, several witnesses saw the applicant near the house or at home for some time between 7 p.m. and 8 p.m. when the applicant was coming and leaving. 25. On 22 October 2002 the Supreme Court upheld the judgment of 20 June 2002. The court rejected the applicant’s complaints. It noted that the time the witnesses had last seen the victim alive had been approximate and the murder, according to the applicant’s confessions, had happened quickly, in a matter of minutes. In the court’s opinion, the fact that the witnesses indicated by the applicant had not been summoned and questioned by the lower court did not require the quashing of the judgment, given that their testimony did not refute that the murder had been committed by the applicant. As to the confessions made by the applicant while under administrative arrest, the court noted that this fact did not render his confessions inadmissible and that not all of them had been made during the administrative arrest. As to unlawfulness of the actions of the police during the applicant’s initial arrest, the court noted that it was for the prosecutor to look into the matter. 26. The relevant domestic law is summarised in the cases of Yaremenko v. Ukraine (no. 32092/02, §§ 45-53, 12 June 2008) and Zhoglo v. Ukraine (no. 17988/02, § 21, 24 April 2008).