CASE OF YAREMENKO v. UKRAINE (No. 2)
(Application no. 66338/09)
30 April 2015
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Yaremenko v. Ukraine (no. 2),
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mark Villiger, President,
Boštjan M. Zupančič,
Vincent A. De Gaetano,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 7 April 2015,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Background of the case
1. The first set of proceedings against the applicant
2. The applicant’s first case before the Court
“67. As concerns the adequacy of the investigation into the applicant’s allegations of ill-treatment, the Court considers that it had serious deficiencies. It notes in particular that no timely and specific medical examination was conducted on the applicant, despite the explicit request of his lawyer the day after the alleged ill-treatment took place.
68. The Court recalls that following a complaint by the applicant’s wife the prosecutor decided not to institute criminal proceedings in respect of the above allegations. It does not appear that any investigative actions were actually taken, given that neither the applicant nor his wife was questioned. The prosecutor’s decision of 28 February 2001 referred only to the fact that, during questioning on 9 February, that is, prior to his wife’s complaint of 12 February, the applicant had denied having any injuries. Furthermore, none of the alleged perpetrators of the offence were questioned at that time. In this connection the Court cannot agree with the Government that the applicant’s wife, in February 2001, and the applicant himself, in March 2001, provided information of so general a nature that the identity of the alleged perpetrators could not be established. In her complaint of 12 February the applicant’s wife referred to the investigating prosecutor G. and unnamed officers of the Kharkivsky District Police Department. In the Court’s opinion that information would have been sufficient for an independent investigator to identify those concerned, had the allegations of the applicant’s ill-treatment been considered seriously.
69. The Court further notes that the investigation into the applicant’s allegations lacked the requisite independence and objectivity. The first questioning of the applicant about his alleged ill-treatment was conducted by the investigating prosecutor G., whom the applicant’s wife, in her complaint of 12 February, clearly named among those who had coerced her husband. Moreover, in his refusal to institute criminal proceedings following the complaint of ill-treatment, prosecutor V., the head of the Kharkivsky District Prosecutor’s Office, did not even mention prosecutor G., who was from the same District Prosecutor’s Office. What is more, when the applicant provided the names of the other alleged perpetrators from the Kharkivsky Police Department, they were questioned by their alleged accomplice - investigating prosecutor G.
78. Notwithstanding the Government’s arguments that the applicant’s right to silence was protected in domestic law, the Court notes that the applicant’s lawyer was dismissed from the case by the investigator after having advised his client to remain silent and not to testify against himself. This reason was clearly indicated in the investigator’s decision. It was also repeated twice in the prosecutors’ replies to the lawyer O. Kh.’s complaints. In one of those replies (dated 19 February) it was also noted that the lawyer had breached professional ethics by advising his client to claim his innocence and to retract part of his previous confession.
79. Moreover, the Court finds it remarkable that the applicant and Mr S, over two years later, gave very detailed testimonies which according to the [sic] investigator contained no discrepancies or inconsistencies. This degree of consistency between the testimonies of the applicant and his co-accused raise suspicions that their accounts had been carefully coordinated. The domestic courts however considered such detailed testimonies as undeniable proof of their veracity and made them the basis for the applicant’s conviction for the 1998 crime, despite the fact that his testimony had been given in the absence of a lawyer, had been retracted immediately after the applicant was granted access to the lawyer of his choice, and had not been supported by other materials. In those circumstances, there are serious reasons to suggest that the statement signed by the applicant was obtained in defiance of the applicant’s will.
80. In light of the above considerations and taking into account that there was no adequate investigation into the allegations by the applicant that the statement had been obtained by illicit means (see paragraphs 67-70), the Court finds its use at trial impinged on his right to silence and privilege against self-incrimination.
86. The Court notes that in the instant case the applicant’s conviction for the 1998 crime was based mainly on his confession, which was obtained by the investigators in the absence of a lawyer and which the applicant retracted the very next day and then from March 2001 on.
87. The Court further notes with concern the circumstances under which the initial questioning of the applicant about the 1998 crime took place. As can be seen from the relevant provisions of the Code of Criminal Procedure cited in the Domestic Law part, there is a limited number of situations in which the legal representation of the suspect is obligatory. One of the grounds for obligatory representation is the seriousness of the crime of which a person is suspected, and hence the possibility of life imprisonment as a punishment. In the present case the law-enforcement authorities, investigating the violent death of a person, initiated criminal proceedings for infliction of grievous bodily harm causing death rather than for murder. The former was a less serious crime and therefore did not require the obligatory legal representation of a suspect. Immediately after the confession was obtained, the crime was reclassified as, and the applicant was charged with, murder.
88. The Court is struck by the fact that, as a result of the procedure adopted by the authorities, the applicant did not benefit from the requirement of obligatory representation and was placed in a situation in which, as he maintained, he was coerced into waiving his right to counsel and incriminating himself. It may be recalled that the applicant had a lawyer in the existing criminal proceedings, yet waived his right to be represented during his questioning for another offence. These circumstances give rise to strong suspicion as to the existence of an ulterior purpose in the initial classification of the offence. The fact that the applicant made confessions without a lawyer being present and retracted them immediately in the lawyer’s presence demonstrates the vulnerability of his position and the real need for appropriate legal assistance, which he was effectively denied on 1 February 2001 owing to the way in which the police investigator exercised his discretionary power concerning the classification of the investigated crime.
89. As to the removal of lawyer O. Kh. on 2 February 2001, the Government’s argument that this was done solely at the applicant’s request seems scarcely credible, since this was not mentioned in the removal decision itself, and in the replies of the prosecutors it was referred to as an additional ground for the lawyer’s removal.
90. The Court notes that the fact that two other lawyers who represented the applicant saw him only once each, during questioning, and never before the questioning took place seems to indicate the notional nature of their services. It considers that the manner of and reasoning for the lawyer’s removal from the case, as well as the alleged lack of legal grounds for it, raise serious questions as to the fairness of the proceedings in their entirety. The Court also notes that the lawyer was allowed back onto the case in June 2001 without any indication that the alleged grounds for his removal had ceased to exist.”
The Court’s judgment became final on 12 September 2008.
B. The review of the case
“In review of the case (При перегляді даної справи), the judges at their joint meeting concluded that the written confession and statements of O.V. Yaremenko during his questioning as a suspect of murder of Kh. could not be considered admissible evidence that prove O.V. Yaremenko’s guilt in respect of that episode, since they were obtained in violation of the requirements of criminal procedure law.
In these circumstances, they should be excluded from the body of evidence accusing O. V. Yaremenko of this episode of criminal activity.
However, the exclusion of those pieces of evidence from the court decisions does not significantly affect the correctness of the conclusion of the court as to the proof of O.V. Yaremenko’s guilt on the count of the murder of Kh., because the case file contains other pieces of evidence that prove his guilt of that offence.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Code of Criminal Procedure 1960 (in force at the material time)
Substantial violations of criminal procedure law
“1. A substantial violation of criminal procedure law is a violation of this Code that has prevented or could have prevented the court from conducting a complete and comprehensive examination of a case and from making a lawful, reasoned and fair judgment or decision...”
Scope of review in cassation
“The court of cassation shall verify the lawfulness of a court decision in the light of the materials available in the case and those additionally adduced concerning the matters appealed against...”
Outcome of the examination of a case by a court of cassation
“Having examined a case in cassation, the court shall:
1) uphold the judgment, ruling or resolution and dismiss the appeal in cassation;
2) reverse the judgment, ruling or resolution and refer the case for additional investigation, retrial or fresh consideration on appeal;
3) reverse the judgment, ruling or resolution and discontinue the proceedings;
4) amend the judgment, ruling or resolution.”
Grounds for reversing or amending a judgment, ruling or resolution
“Grounds for reversing or amending a judgment, ruling or resolution are:
1) a substantial violation of criminal procedure law;
2) an incorrect application of the criminal law;
3) the punishment imposed on the convicted person being disproportionate to the seriousness of the crime...”
Article 400 § 4
Grounds for review of final judgments under the extraordinary review procedure
2) there were errors in application of the criminal law and substantial violations of criminal procedure law that have significantly affected the correctness of the judgment ...”
Article 400 § 10
“... A judges’ application for judicial consideration of a request for the review of a judgment on grounds envisaged by sub-paragraph 2 of the first part of Article 400 § 4 of this Code shall be examined ... in cassation...”
B. Code of Criminal Procedure 2012 (in the wording of 12 February 2015)
Grounds for review of the judicial decisions by the Supreme Court of Ukraine
“1. Grounds for review by the Supreme Court of Ukraine of the judicial decisions which came into force shall be:
4) finding by an international judicial body, which jurisdiction is accepted by Ukraine, of a violation by Ukraine of its international obligations during the judicial examination of the case.”
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him...”
1. Applicability of Article 6
(a) The parties’ submissions
(i) The Government
(ii) The applicant
(b) The Court’s assessment
2. Otherwise as to admissibility
1. The parties’ submissions
2. The Court’s assessment
There has, accordingly, been a violation of Article 6 §§ 1 and 3 (c) of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the remainder of the application admissible;
2. Holds that there has been a violation of Article 6 §§ 1 and 3 of the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention,, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 30 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Westerdiek Mark Villiger