Communicated on 4 May 2016
FIFTH SECTION
Application no. 15528/11
Andriy Volodymyrovych BOGOMOL
against Ukraine
lodged on 3 March 2011
STATEMENT OF FACTS
The applicant, Mr Andriy Volodymyrovych Bogomol, is a Ukrainian national, who was born in 1980 and is currently serving his prison sentence. He is represented before the Court by Mr V. Dralin, a lawyer practising in Kharkiv.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 15 July 2003, while the applicant and his co-accused T. were being held in a pre-trial detention centre (“the SIZO”) pending criminal proceedings in relation to thefts, they were taken to the Kharkiv regional organised-crime police for questioning. They were returned to the SIZO on 25 July 2003.
During that time the applicant and T. confessed that in 2000 and 2001 they had murdered and robbed two persons. The applicant’s confessions were documented in the statements of surrender of 15 July 2003, the interview records of 16 July 2003, the records of the confrontation between him and T. of 17 July 2003, and the records of the crime-scene reconstructions of 18 and 24 July 2004. The applicant was given access to a lawyer on 16 July 2003.
According to the applicant, he made those self-incriminating statements as a result of ill-treatment. Allegedly, the police officers beat him up, put a gas mask over his head and applied electric shocks to sensitive areas of his body including his genitals.
During questioning on 17 November 2003 and on further dates during the pre-trial investigation the applicant denied participating in the murders and submitted to the investigator that he had incriminated himself as a result of psychological and physical ill-treatment.
In July 2007 the investigation was completed and the case was referred to the Kharkiv Regional Court of Appeal (“the Court of Appeal”) to try the applicant and T.
During the trial, the applicant maintained that he had incriminated himself as a result of ill-treatment. T. argued that he had committed the two murders alone.
At the hearing of 12 December 2007, the Court of Appeal examined Ch., a SIZO officer. The officer submitted that during the applicant’s and T.’s detention in the SIZO he had been on duty and he “[had not seen] any visible signs of violence” on their bodies. Later at the same hearing Ch. stated that he “could not remember whether the applicant had [had] any bodily injuries”.
On 20 June 2008 the Court of Appeal returned the case for additional investigation, stating, in particular, that the applicant’s allegations of ill-treatment had to be scrutinised by way of investigative measures.
On 23 September 2008 the Supreme Court quashed that decision as unfounded and remitted the case to the Court of Appeal to conduct the trial in a new composition.
At the hearing of 16 December 2009 the Court of Appeal re-examined Ch., who, by that time, had retired from the SIZO. Ch. stated that the applicant had had a red eye after his return from the organised-crime police in July 2003 and his gait had not been natural; the applicant explained to him that he had been ill-treated by police officers.
At the hearing of 22 January 2010 the Court of Appeal examined Z., who was a medical officer at the SIZO at the relevant time. Z. stated that in the summer of 2003 she had examined the applicant and found that he had had subconjunctival haemorrhages in both eyes, his genitals were red and blue and he had a bruise in the groin area. She provided him with medical treatment.
On 9 March 2010 the Court of Appeal convicted the applicant and T. of two counts of murder and robbery. It sentenced both defendants to life imprisonment and ordered the confiscation of their property. The court relied on the self-incriminating statements of the defendants and other indirect evidence. The court dismissed the applicant’s allegations of ill-treatment considering that they had not been supported by the material in the case file. As to the statements by Ch. and Z., they had been contradictory and could not be regarded as objective evidence.
The applicant appealed.
On 7 September 2010 the Supreme Court dismissed the applicant’s appeal, finding that the Court of Appeal had correctly based its judgment on the defendants’ initial self-incriminating statements; the allegations of ill-treatment had been unsubstantiated.
COMPLAINTS
1. The applicant complains under Article 3 of the Convention that between 15 and 25 July 2003 police officers ill-treated him with the purpose of extracting his confessions and that there was no effective examination of his allegations.
2. The applicant also complains that the courts unfairly convicted him in relying on his self-incriminating statements obtained through ill-treatment.
3. The applicant lastly complains, under 6 § 1 of the Convention, that the length of the criminal proceedings against him was excessive.
QUESTIONS TO THE PARTIES
1. Has the applicant been subjected to ill-treatment, in breach of Article 3 of the Convention?
The Government are invited to provide, among other things, the applicant’s medical records relating to the period of his alleged ill-treatment.
2. Were the procedures by which the domestic authorities examined the applicant’s allegations of ill-treatment compatible with the procedural requirements of Article 3 of the Convention?
The Government are invited to provide the documents concerning the domestic proceedings in respect of the applicant’s allegations of ill-treatment, including decisions by which the authorities refused to open an investigation (or terminated the investigation) and the decisions of the supervising authorities reviewing those decisions.
3. Did the courts convict the applicant using evidence which was allegedly obtained in breach of his privilege against self-incrimination and by means of ill-treatment? Were the principles of fair trial under Article 6 § 1 of the Convention breached on that account?
The Government are invited to provide copies of the applicant’s confessions and self-incriminating statements referred to by the domestic courts.
4. Has the length of the criminal proceedings against the applicant been in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
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