CASE OF YEVGENIY PETRENKO v. UKRAINE
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);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;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano
5. The applicant was born in 1988 and is currently serving a prison sentence. 6. On 28 February 2004 R., an adolescent who was born in 1987, disappeared. On 18 March 2004 he was found dead in a garden area of Cherkasy city. The body had numerous stab wounds, including in the neck and the chest. 7. On 18 March 2004 the Sosnivskyy District Prosecutor’s Office of Cherkasy (“the District Prosecutor’s Office”) opened a criminal investigation into the murder. 8. In the evening of the same day the police searched the applicant’s home and seized seven knives, clothes and other items. Allegedly, on the same night the police took the applicant to the police station. 9. Between 11 a.m. and 1.40 p.m. on 19 March 2004 the applicant was questioned as a witness in the murder case. During the questioning, which was not attended by a lawyer, the applicant told that earlier in February 2004 he and R. had committed fraud in order to steal a mobile phone from one of the applicant’s acquaintances. The applicant stated that he did not know who had killed R. 10. That day the Sosnivskyy District Police Department of Cherkasy instituted another set of criminal proceedings concerning the fraudulent theft of the mobile phone and questioned the applicant as a witness in that case. The applicant told the police how he and R. had stolen the mobile phone. The questioning was carried out without a lawyer but in the presence of the applicant’s father. 11. At 6.20 p.m. the police investigator ordered the applicant’s arrest on suspicion of the fraudulent theft of the mobile phone. Further to the applicant’s request, the investigator allowed lawyer G. to act as the applicant’s defence counsel in that set of criminal proceedings. The lawyer signed the arrest report. Then, in the presence of the lawyer, the applicant refused to give any further statements, claiming that he was tired; he asked the police to postpone the questioning until the following day. 12. Between 6.40 and 7.50 p.m. the applicant, in the absence of his lawyer, was questioned as a witness in the murder case. During the questioning the applicant gave further details concerning the theft of the mobile phone; he also said that on 28 February 2004 he had seen R. only at school. 13. Between 9 and 11 p.m. the police searched the home of D., another acquaintance of the applicant. They seized knives, clothes and other items. 14. At 11.15 p.m. the police investigator ordered D.’s arrest on suspicion of murder, noting in the report that there had been brown spots on D.’s jacket. 15. Later that night D. confessed that he had been present at the crime scene. He explained that on 28 February 2004 the applicant had asked him to attend a meeting with R. that day and to bring a knife with him; during the meeting the applicant and R. had started to fight; D. had assisted the applicant in knocking down R., who at a certain moment had attempted to run away; the applicant had then stabbed R. with the knife and cut his throat; D. had helped the applicant to hide the body. 16. The same night the applicant confessed to the murder. He was not assisted by a lawyer at that time. The applicant stated that on 28 February 2004 he had had a meeting with R. concerning the stolen mobile phone, which R. had allegedly sold; the applicant had asked D. to be present at that meeting and to bring a knife; as R. had started to fight, the applicant had taken the knife, cut R.’s throat and caused other injuries to him. 17. According to the applicant, that confession resulted from the psychological pressure and physical ill-treatment that had been applied to him since his arrival at the police station. 18. Between 10 and 10.40 a.m. on 20 March 2004 the applicant was questioned in the presence of his lawyer, G., concerning the theft of the mobile phone. The applicant repeated his earlier statements concerning that episode. 19. Between 11.28 and 11.53 a.m. on that day the applicant was questioned in the presence of the same lawyer concerning the murder. At the beginning of that questioning session, the investigator announced that the applicant had written a confession and asked him to give more details concerning the circumstances described by the applicant in his confession. The applicant then described the murder in more detail. 20. In the afternoon on 20 March 2004 the applicant participated in a reconstruction of the crime, in which he showed how he had murdered R. On his return from the crime scene, the applicant was questioned again and he repeated his self-incriminating statements. The lawyer, G., participated in those measures. 21. At 6.20 p.m. on the same day the applicant was moved to the Temporary Detention Centre of Prydniprovskyy District Police Department of Cherkasy (“the ITT”). 22. On 21 March 2004 a forensic medical expert examined the applicant and issued a report stating that he had no bodily injuries. The expert specified that the medical examination had been held in the Cherkasy Pre-Trial Detention Centre (“the SIZO”). 23. On 22 March 2004 the investigator consolidated the criminal cases concerning the fraudulent phone theft and the murder in a single set of criminal proceedings. On that day the court ordered the applicant’s pre-trial detention. 24. On the same day the applicant dismissed lawyer G. and appointed lawyers K. and Dr. When questioned in the presence of those lawyers, he repeated his earlier self-incriminating statements. 25. On 26 March 2004 the applicant was transferred from the ITT to the SIZO. 26. In May 2004, during another round of questioning, the applicant specified that he had needed the knife for self-defence when meeting with R. 27. On 8 June 2004 a forensic medial expert issued a report stating that the applicant had sustained no bodily injuries during the preliminary detention. The expert based the report on the results of the applicant’s medical examination of 21 March 2004. 28. On 9 June 2004 another lawyer, P., was admitted to the case, in addition to lawyers K. and Dr. 29. On 16 June 2004 the applicant was questioned in the presence of his three lawyers. He changed his earlier statements and asserted that it was D. who had repeatedly stabbed and killed R. 30. On the same day a confrontation between the applicant and D. was held. It was revealed that T., an acquaintance of the applicant and D., had also been present at the scene of the murder. 31. On 17 June 2004 the applicant dismissed lawyers K. and Dr., leaving his representation to lawyer P. 32. On 19 June 2004 the investigator questioned T., who stated that it was the applicant who had stabbed R. On the same day T. participated in a reconstruction of the events, in the course of which he confirmed his statements. 33. On 21 June 2004 confrontations between T. and the applicant, as well as T. and D., were held, during which T. repeated his earlier statements. 34. On 17 July 2004, during another questioning session, the applicant maintained that it was D. who had killed R. 35. On 22 July 2004 the investigation was completed. The applicant was charged with aggravated murder and fraudulent theft of a mobile phone; D. was charged as the applicant’s accomplice in the murder. The applicant and his lawyer were provided with the criminal case file for examination. 36. On 27 July 2004 the applicant’s lawyer, having examined the file, requested that D. be charged as the perpetrator, arguing that the evidence in the file pointed at him. He asserted that the applicant’s confession was the result of pressure by police officers and a clandestine agreement he had made with D. The investigator refused the request as unsubstantiated. 37. On 10 August 2004 the case was referred to the Cherkasy Regional Court of Appeal (“the Court of Appeal”) for the applicant and D. to be tried. 38. On 21 September 2004 the Court of Appeal remitted the case for additional investigation noting, among other things, that the actions of the defendants and the role of each defendant had not been properly classified under the criminal law. 39. On 14 December 2004 the Supreme Court quashed the decision of 21 September 2004 as unfounded and remitted the case to the Court of Appeal for trial. 40. On 26 August 2005 the applicant was medically examined by a nephrologist, who issued a medical certificate specifying, among other things, that three of the applicant’s ribs on his right side showed signs of healed fractures, and it was recommended that he be examined by a traumatologist. 41. On 7 November 2005 the Court of Appeal found the applicant guilty of murder and fraudulent theft of a mobile phone and sentenced him to fourteen years’ imprisonment. The court also found D. guilty of concealment of murder and imposed a conditional sentence. 42. The prosecutor and the victim’s relatives appealed against the judgment, claiming, inter alia, that the sentences were unduly mild. The applicant also appealed, claiming that his confession had been obtained by way of ill-treatment and in the absence of a lawyer. He argued that on the night of 19 March 2004, when he had been in the police station, police officers had beaten him to the extent that he had lost consciousness and that when he had come to, they had continued to beat him. As he had earlier been threatened by D., the applicant had eventually given up and agreed to incriminate himself. 43. On 8 November 2005, in reply to the applicant’s complaint of ill-treatment and violation of his procedural rights during the investigation, the Regional Prosecutor’s Office informed him that those issues had been examined during the pre-trial investigation and the trial, and had been rejected as unfounded. On 25 November 2005 the Regional Prosecutor’s Office additionally informed the applicant that his complaints would be examined by the Supreme Court in the course of the review of the criminal case. 44. On 17 November 2005 the applicant appointed lawyer B. to act as his defence counsel. 45. By a letter of 21 November 2005 the governor of the ITT provided the applicant’s lawyer with a list of the procedural measures undertaken in respect of the applicant during his detention in the ITT between 20 and 26 March 2004. According to that list, on 21 March 2004 (see paragraph 22 above) the applicant was not escorted anywhere from the ITT and he did not take part in any procedural measures on that day. 46. On 14 February 2006 the Chrekasy Regional Prosecutor’s Office ordered the District Prosecutor’s Office to carry out pre-investigation enquiries in respect of the applicant’s allegations of ill-treatment. 47. On 5 March 2006 the assistant prosecutor of the District Prosecutor’s Office refused to open an investigation in connection with the applicant’s allegations of ill-treatment, noting that there was no indication that the police officers had committed an offence. The decision referred to the statements of the police officers and the medical report of 21 March 2004. The applicant challenged the decision before the Prydniprovskyy District Court of Cherkasy (“the District Court”). 48. On 16 May 2006 the Supreme Court quashed the judgment of 7 November 2005 as regards the applicant’s conviction for murder and D.’s conviction for concealment of murder, and remitted the case to the Court of Appeal for fresh consideration in that part. It noted that the case had not been properly examined by the Court of Appeal as regards D.’s role in the incident. It further ordered careful scrutiny of the applicant’s allegations that his rights had been violated. The Supreme Court then upheld the applicant’s conviction for the fraudulent theft of the mobile phone. 49. On 2 August 2006 the District Court quashed the assistant prosecutor’s decision of 5 March 2006 and ordered further pre-investigation enquiries. It noted that the medical report of 21 March 2004 was not reliable since the other evidence suggested that the applicant had not been escorted to the SIZO for a medical examination on that day. Moreover, the prosecutor’s office had not properly examined whether the applicant had really sustained rib fractures as noted by the nephrologist in his certificate of 26 August 2005. 50. On 13 August and 25 December 2006, and 28 February and 25 June 2007 the assistant prosecutors refused to open an investigation in connection with the applicant’s allegations of ill-treatment for the reason that the additional enquiries had not disclosed any element of crime on the part of the police officers. All those decisions were quashed by the supervising authorities as unfounded and further enquiries were ordered. 51. During the trial the applicant requested a medical examination in order to determine his state of health and whether he was suffering from any illnesses. On 18 October 2006 panel of forensic medical experts found that the applicant was suffering from chronic pyelonephritis, chronic duodenal ulcer, chronic cholecystitis and benign hyperbilirubinemia. 52. On 10 August 2007 the assistant prosecutor of the District Prosecutor’s Office again refused to open an investigation in connection with the applicant’s allegations of ill-treatment, considering that there had been no elements of crime in the actions of the police officers. 53. On 19 November 2007 the District Court quashed the assistant prosecutor’s decision of 10 August 2007 as unfounded and ordered further pre-investigation enquiries. The court noted that the District Prosecutor’s Office had not removed the contradictions between the medical report of 21 March 2004 and the medical certificate of 26 August 2005, even though the supervising authorities, in quashing the earlier similar decisions, had highlighted that issue. The District Prosecutor’s Office appealed against that decision. 54. On 28 November 2007 the Court of Appeal found the applicant guilty of murder and sentenced him to fourteen years’ imprisonment. The court further found that D. had been an accomplice to the murder and sentenced him to six years’ imprisonment. The court noted that while the applicant had accused D. of the murder, the evidence in the file was sufficient to establish that it was the applicant who had killed R. The court relied on the statements of T. and other oral, documentary and material evidence. It also cited the applicant’s self-incriminating statements made during the pre-trial investigation in the presence of lawyers. 55. The Court of Appeal dismissed the applicant’s allegations of ill-treatment, noting that during the trial the police officers had denied the alleged facts; moreover, the medical reports of 21 March and 8 June 2004 refuted those allegations. 56. The applicant appealed against the judgment claiming, inter alia, that his defence rights had not been respected at the initial stage of the investigation, he had not been given access to a lawyer immediately after the arrest and his self-incriminating statements had been obtained as a result of ill-treatment. 57. On 18 December 2007 the Court of Appeal partly allowed the prosecutor’s appeal against the District Court’s decision of 19 November 2007. It noted that the applicant’s allegations of ill-treatment concerned the admissibility and veracity of evidence in his criminal case. Therefore those issues had to be examined by the Court of Appeal in the course of the applicant’s trial and not by way of separate proceedings. The court further found that the judgment adopted in the applicant’s criminal case had addressed the relevant issues. Accordingly, the proceedings on that matter had to be terminated. The applicant lodged an appeal on points of law. 58. On 6 May 2008 the Supreme Court upheld the judgment of 28 November 2007, noting that the applicant’s guilt had been well established by various pieces of evidence in the case file, including the self-incriminating statements that he had made during the pre-trial investigation. It dismissed as groundless the applicant’s allegations of ill-treatment and of violations of his procedural rights. 59. On 10 June 2008 the Supreme Court upheld the Court of Appeal’s decision of 18 December 2007, noting that the relevant issues could not be examined concurrently with the trial in the applicant’s criminal case.