Published on 19 December 2022
FIFTH SECTION
Application no. 3016/16
Valeriy Pavlovych BOGDAN against Ukraine
and 2 other applications
(see list appended)
communicated on 30 November 2022
SUBJECT MATTER OF THE CASES
The applications mainly concern the applicants’ right to legal assistance under Article 6 §§ 1 and 3 (c) of the Convention.
Application no. 3016/16 Bogdan v. Ukraine
The applicant was convicted of burglary. The High Specialised Court for Civil and Criminal Matters upheld his conviction on 1 October 2015. One of the key elements of evidence was the record of an on-site reconstruction of the offence in the course of which the applicant indicated how he had committed the crime. No lawyer was present at the reconstruction, the applicant having signed a waiver of his right to a lawyer. He alleged that the waiver had not been valid since at the time he had been suffering from drugs withdrawal syndrome of which the authorities had been aware (an ambulance was called for him several times at the detention facility).
Application no. 46673/18 Opalenko v. Ukraine
In the morning of 14 November 2010 the applicant and his friend found the dead bodies of the applicant’s mother and niece in the mother’s flat. They had been stabbed to death. Later on the same day the applicant wrote a “statement of surrender” confessing to the crime. He alleged that he had done so under duress from the police while in unrecorded detention at the police station.
Still later, on the same day, a lawyer was appointed for the applicant and the applicant repeated his confession in his presence. The applicant alleged that the lawyer had been appointed in breach of the procedure established by law, that is not through a bar association, but rather by a decision taken only by the investigator.
Subsequently the applicant changed lawyers and retracted his confessions. His defence was that he was innocent and that the murder had been committed by unidentified third parties.
As part of his defence the applicant pointed to the statements of Ms M., the victims’ neighbour, who, according to the applicant, stated in the course of investigation and trial, that on the night of the murder she had heard one of the victims scream “Don’t do this!” (не делайте этого, in plural, which would suggest that there was more than one perpetrator, in contradiction with the prosecution’s version that the applicant had acted alone) and then heard the victim speak with a male voice the witness did not recognise.
In convicting the applicant and in upholding his conviction on appeal the domestic courts relied in part on the applicant’s initial confessions and on a range of other evidence.
The trial court stated notably that despite repeated summonses it was unable to ensure the examination of Ms M. at the court hearing because of her health. Because of that, she was examined at her home by the police who provided a record of her examination to the court. The court noted that according to that record the victim’s scream Ms M. had heard was not in the plural, but was rather “please don’t” (не надо, пожалуйста, an expression which could be addressed to one or more people).
On 10 July 2018 the Supreme Court upheld the conviction.
Application no. 36459/19 Pankratyev v. Ukraine
On 13 October 2009 the applicant was de facto taken into custody by the police and on 15 October 2009 formally arrested on suspicion of a robbery committed with S., a co-defendant, which had caused the death of the victim.
On 15 October 2009 (while still in unrecorded detention) without a lawyer but after being warned of his right to remain silent, the applicant signed a written statement confessing to the crime.
He later repeated the confessions in the presence of a lawyer who had been appointed in breach of the procedure established by law, that is not through a bar association, but rather by a decision taken only by the investigator.
Subsequently the applicant changed lawyers and retracted his confessions.
In convicting the applicant and in upholding his conviction on appeal the domestic courts relied in part on the applicant’s initial confessions and on a range of other evidence.
On 29 November 2018 the Supreme Court upheld the applicant’s conviction. The decision was served on the applicant on 8 January 2019.
QUESTIONS TO THE PARTIES
1. Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention and in the light of the procedural guarantees afforded by:
(a) in all applications, Article 6 § 3 (c) of the Convention and,
(b) in application no. 46673/18 (Opalenko v. Ukraine), also Article 6 § 3 (d) of the Convention, on account notably of the admission of the witness statement of Ms M. and the way it was treated?
2. In applications nos. 46673/18 (Opalenko v. Ukraine) and 36459/19 (Pankratyev v. Ukraine) was the length of the criminal proceedings in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
APPENDIX
List of applications
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
Nationality
Represented by
1.
3016/16
Bogdan v. Ukraine
31/12/2015
Valeriy Pavlovych BOGDAN
1988
Vinnytsya
Ukrainian
Andriy
Olegovych KADOCHNIKOV
2.
46673/18
Opalenko v. Ukraine
09/01/2019
Sergіy Vasylyovych OPALENKO
1978
Kaminne
Ukrainian
Galyna Oleksandrivna TARASENKO
3.
36459/19
Pankratyev v. Ukraine
03/07/2019
Sergiy Sergiyovych PANKRATYEV
1984
Kyiv
Ukrainian
Oleksandr Vadymovych ZARUTSKYY