CASE OF ZAKSHEVSKIY v. UKRAINE
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Take proceedings);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
5. The applicant was born in 1972 and is currently serving a sentence in prison no. 100. 6. On 1 April 2000 criminal proceedings were instituted in Donetsk in connection with a robbery committed in Dzerzhinsk. 7. On 2 June 2000 criminal proceedings were instituted in Kharkiv in connection with a robbery committed on the Kharkiv-Dnipropetrovsk-Simferopol road. 8. On 9 August 2001 criminal proceedings were instituted in Yevpatoriya in connection with a murder and attempted murder committed in the course of an armed robbery (“the murder proceedings”). 9. On 30 October 2001 the Chervonodzerzhynskiy District Court (“the District Court”) granted the prosecutor’s request to put the applicant, a former police officer, on remand as a suspect in the criminal proceedings concerning the robbery on the Kharkiv-Dnipropetrovsk-Simferopol road. The District Court held that, as the applicant was suspected of having committed a serious crime and had absconded during the investigation, his detention was necessary to prevent him from reoffending. The court also noted that the applicant’s personality was to be taken into consideration, without giving any further details. On the same date, the applicant’s name was put on a wanted list. 10. On 11 November 2001 the applicant was arrested in accordance with the District Court decision of 30 October 2001. He submitted that he had presented himself to the police voluntarily once he had become aware that he was wanted. On the same day, he drafted a “statement of voluntary surrender” (явка з повинною) in which he confessed to committing, as part of a criminal group, a number of armed robberies on the Kharkiv-Dnipropetrovsk-Simferopol road, as well as one in the town of Yevpatoriya. He stated that, in the course of the latter, he had used a firearm against the victim. The applicant also provided more details in writing about the above crimes and his acquaintance with his accomplices and informed the police about two other armed robberies which he and his accomplices had committed in the town of Dzerzhynsk, as well as about other crimes of which he was aware. 11. On 12 November 2001 the applicant was charged with armed robbery and questioned. Before being questioned he was informed of his procedural rights but signed a waiver of his right to legal assistance. He made similar statements to those given to the police the day before, including about the shooting incident in Yevpatoriya. On the same day, he familiarised himself with the decision of 30 October 2001, against which he was entitled to appeal. He did not appeal against the decision. 12. On 13 November 2001, in the absence of a lawyer, the applicant was questioned in the context of the robbery proceedings. The Government submitted – and this is not contested by the applicant – that the applicant again waived his right to a lawyer, having once again been informed of his rights. During the questioning, the applicant, apart from giving information on the robberies, reiterated his statements regarding the shooting which had occurred in Yevpatoriya. He was further questioned in that regard. 13. On 21 November 2001 a lawyer, D., was appointed to represent the applicant. On the same day, in the absence of a lawyer, the applicant was questioned as a suspect in the murder proceedings. He admitted to shooting a victim in the course of the armed robbery but denied that he had done so intentionally. 14. On 22 November 2001, in the presence of his lawyer, the applicant was charged with murder and attempted murder, and questioned as an accused. He admitted his guilt in respect of the armed robbery but denied the murder charges. A reconstruction of the crime scene was carried out. 15. On 12 December 2001 the applicant was charged with armed robbery causing grievous bodily harm. He waived his right to a lawyer during questioning. 16. On 13 December 2001 the applicant was charged with premeditated armed robbery as part of a criminal group. He again waived his right to a lawyer. 17. On 4 January 2002 the District Court extended the applicant’s pre-trial detention to four months. The applicant did not appeal against this decision. 18. On 8 February 2002 the criminal proceedings concerning robberies on the Kharkiv-Dnipropetrovsk-Simferopol road were joined with the murder proceedings. 19. On 7 March 2002 the Kharkiv Regional Court of Appeal, having heard the investigator and the prosecutor, and referring to “the applicant’s personality”, albeit without assessing it, the seriousness of the charges against him, and the need for additional time to conduct the necessary investigative measures, extended the applicant’s detention to six months. The decision was not amenable to appeal. 20. On 12 March 2002 B. was appointed as the applicant’s lawyer. 21. On 4 April 2002 the criminal proceedings regarding the robberies in Dzerzhynsk were joined with the other proceedings against the applicant. 22. On 8 April 2002 the Kharkiv Regional Court of Appeal, having heard the investigator and the prosecutor, extended the applicant’s detention to nine months on the same grounds as those in its ruling of 7 March 2002. The decision was not amenable to appeal. 23. On 10 July 2002 L. replaced B. as the applicant’s lawyer. On the same day, the applicant was charged with a number of crimes, including banditry, several counts of armed robbery, premeditated murder and attempted murder, and questioned. He pleaded not guilty as charged and refused to give further testimonies. 24. On 18 November 2002 amended charges were brought against the applicant and he was questioned again. 25. On 28 December 2002 the applicant was granted access to the case file. According to the Government, no investigative measures were conducted that day. 26. After the investigation had been completed the case was referred to the Donetsk Regional Court of Appeal (“the Court of Appeal”), acting as a first-instance court, for trial. The decision to do so was not amenable to appeal. 27. On 12 June 2003 the applicant requested the Court of Appeal to change his preventive measure to a non-custodial one. 28. On 17 December 2003 the Court of Appeal remitted the case for additional investigation, holding that the applicant’s rights of defence had been breached. It found, inter alia, that the applicant had officially been charged with offences other than those considered by the trial court. It further established that on 10 July, 18 November and 28 December 2002 investigative measures had been carried out in the absence of the applicant’s lawyer, contrary to the requirements of domestic law. The court also decided, without giving reasons or setting a time-limit, that the applicant would remain in detention. The applicant appealed in cassation against that decision and requested, inter alia, that the preventive measure, namely the detention ordered be lifted. 29. On 29 April 2004 the Supreme Court heard the applicant’s appeal in the presence of the prosecutor. It upheld the decision of the Court of Appeal of 17 December 2003 and stated, without giving any reasons, that there were no grounds for changing or discontinuing the preventive measure imposed on the applicant. 30. On 2 August 2004 V. was appointed as the applicant’s lawyer. 31. On 6 August 2004, in the presence of his lawyer, the applicant was charged with a number of criminal offences, including banditry, several counts of armed robbery, premeditated murder and attempted murder, and questioned. He admitted to his acquaintance with the co-accused, but pleaded not guilty on all charges. 32. On 20 August 2004, in the presence of his lawyer, amended charges were brought against the applicant. The latter refused to sign or receive copies of the relevant papers as he disagreed with the charges. During further questioning he pleaded not guilty and refused to give any testimony. 33. On 27 August 2004 the applicant and his lawyer were granted access to the case file, and on 3 September 2004 the case was referred for trial. 34. On an unspecified date, the applicant lodged a request for release with the Court of Appeal. 35. On 6 October 2005 the Court of Appeal, having acquitted the applicant on four of the eight charges for lack of proof, found him guilty of banditry, several counts of armed robbery, intentional murder and attempted murder. It sentenced him to life imprisonment with confiscation of all his property. The court based its findings to a large extent on the testimonies of the applicant and his co-defendants given during the pre-trial investigation, having found them to be corroborated by a number of other pieces of evidence. In the part of the judgment which concerns the murder charges, the court referred, in particular, to the “testimonies given by the applicant as a suspect and an accused, including in the presence of a lawyer”. It further dismissed as ill-founded the applicant’s complaints that his rights of defence had been violated and his requests to declare inadmissible his statements obtained in the absence of a lawyer. In this context, when finding the applicant guilty of armed robberies, the court held that, having been informed of his procedural rights, the applicant had voluntarily waived his right to legal representation and that such a waiver had been lawfully accepted by the investigative authorities as robbery charges could not lead to a life sentence. It further held that during questioning on the murder, the applicant had been legally represented and had made his statements in the presence of a lawyer. 36. In addition, the Court of Appeal gave a separate ruling by which it declared inadmissible a number of pieces of evidence related to different charges against the applicant and his co-defendants, as the evidence had been obtained in violation of the defendants’ rights of defence. In particular, as far as the applicant was concerned, apart from the evidence which had been found inadmissible on 17 December 2003, the court further excluded from the body of evidence some of the testimonies given by the applicant on 8 and 9 January 2002. It held that, even though the applicant had allegedly confessed to murdering five people shortly after his arrest, he had nevertheless been questioned as a witness, in the absence of a lawyer. 37. The applicant appealed in cassation against the judgment of 6 October 2005. He stated in particular that there had been insufficient evidence to prove his guilt; he had been ill-treated by the police; on a number of occasions during the pre-trial investigation he had been questioned in the absence of a lawyer and that evidence obtained in violation of his rights of defence had nevertheless been used to secure his conviction. 38. On 19 October 2006 the Supreme Court of Ukraine held a hearing in the presence of the prosecutor, the applicant and his sister – who acted as his representative. On the same day, it upheld the applicant’s conviction of 6 October 2005. It dismissed as unsubstantiated his complaints that his rights of defence had been violated at the pre-trial stage of the proceedings, holding that those complaints had been duly examined and dismissed by the Court of Appeal. It also dismissed as unsubstantiated the applicant’s allegations of ill-treatment by the police. 39. Between 28 July and 13 October 2004 the applicant was held in the Kharkiv pre-trial detention centre no. 27 (“Kharkiv SIZO”), in cell no. 537. He submitted that his cell had been overcrowded: it had measured 16 square metres, contained eight beds for ten people, and detainees had had to take turns to sleep. He also alleged that some of the cellmates had been suffering from tuberculosis. In this context, he submitted written statements made by his cellmates K., G., K.I., P. and O. 40. The applicant’s sister complained to the Governor of Kharkiv SIZO about the conditions of her brother’s detention. By a letter dated 13 June 2005 the Governor informed her that the cell in question had been designed to accommodate eight people and that no more than eight inmates had been held in that cell during the applicant’s detention. The Governor further informed her that, according to medical documents concerning K., G., K.I., P. and O., none of them had been suffering from an active form of tuberculosis. He stated that the applicant had never been in contact with anyone suffering from such a disease whilst in Kharkiv SIZO. 41. After his conviction on 6 October 2005, the applicant was transferred to the high-security wing of the Donetsk pre-trial detention centre no. 5 (“Donetsk SIZO”). According to the applicant, he was handcuffed whenever he left his cell, including during daily walks and meetings with his relatives. 42. In Kharkiv SIZO the applicant was held in cells nos. 27 and 537 measuring 24.2 square metres each, designed to accommodate eight detainees. The cells were equipped with a dining table, a bench, a washstand and a toilet, which was separated from the living area by a brick partition. There was natural ventilation and light through windows; artificial lighting allowed inmates to read and write without damaging their eyesight. The temperature in the cells was between 18oC and 20oC. Running water was constantly available in the cells. All detainees were provided with bed linen and clothes in accordance with domestic standards. 43. As regards the applicant’s allegations that he had shared his cell with persons suffering from tuberculosis, the Government pointed out that the domestic legislation provided that persons suffering from that disease should be kept separately from healthy detainees. The Government could not provide any information about the applicant’s cellmates and their state of health, however, because the time-limit for keeping the relevant documents had expired and the records had been destroyed. They noted that the applicant had not complained that his state of health had worsened in detention. 44. Whenever the applicant was taken out of his cell and escorted within the Donetsk SIZO, handcuffs were used pursuant to the relevant domestic legislation. The Government contested the applicant’s statement that he had been handcuffed during his daily walks and meetings with relatives, as the former was prohibited by the relevant domestic regulations.