CASE OF BOGOMOL v. UKRAINE

 

 

 

FIFTH SECTION

CASE OF BOGOMOL v. UKRAINE

(Application no. 15528/11)

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT
 

 

STRASBOURG

10 November 2022

This judgment is final but it may be subject to editorial revision.

In the case of Bogomol v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Mārtiņš Mits, President,
 Lətif Hüseynov,
 Kateřina Šimáčková, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 15528/11) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 3 March 2011 by a Ukrainian national, Mr Andriy Volodymyrovych Bogomol, who was born in 1980 and is currently detained in Novhorod-Siverskyi (“the applicant”), and who was represented before the Court by Ms O.A. Braslavska, a lawyer practising in Zmiyiv;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented, most recently, by their acting Agent, Ms O. Davydchuk; and

the parties’ observations;

Having deliberated in private on 20 October 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The present case concerns allegations, under Articles 3 and 6 of the Convention, that the applicant was tortured by officers of the Kharkiv Organised Crime Police Unit (“the UBOZ”); that his relevant complaint was not properly investigated; that his self-incriminating statements had served as a basis for his conviction on murder charges; and that the criminal proceedings against him had been inordinately lengthy.

2.  It is apparent from the available material that on 15 July 2003 the applicant, at that time detained in the Kharkiv pre-trial detention centre (SIZO) on theft charges, was taken for questioning to the UBOZ unit, where he submitted two handwritten “statements of surrender”[1] incriminating himself and A.T. in two murders. It is not clear whether access to a lawyer was available to him on that day.

3.  According to a report by V.R., a forensic expert, dated 23 July 2003, he had given the applicant a physical examination on 16 July 2003 and established that he had had no injuries. It appears from the file that the applicant was given a copy of that report in May 2007 only.

4.  Between 16 and 25 July 2003 the applicant and A.T. (who had also given similar self-incriminating statements) – both assisted by lawyers - actively participated in the investigation, expanding on their initial statements and arguing with each other as to the scope and nature of their personal involvement in the two murders.

5.  During an interview on 17 November 2003, the applicant retracted his self-incriminating statements, alleging (without describing the relevant circumstances) that he had been subjected to duress. During various other interviews between 2004 and 2007, he insisted that he had been subjected to duress, but provided no or few details and refused to implicate any particular officers, stating that he feared reprisals. Nevertheless, in 2007 the investigator handling the applicant’s case conducted an inquiry of his own motion and on 10 May 2007 decided that there was no call to institute criminal proceedings. He noted, in particular, that the applicant, legally represented, had refused to provide a detailed account and had filed no formal complaints; that no injuries had been recorded by the forensic expert and in the SIZO medical file; and that law-enforcement officers and attesting witnesses, who took part in the investigative activities in July 2003, denied allegations of ill-treatment.

6.  On an unspecified date the applicant, together with A.T., was committed to stand trial before the Kharkiv Regional Court of Appeal, acting as a first-instance court, on charges of having committed two murders. During that trial, the applicant argued that his statements of surrender had been false and extorted by torture. In particular, his limbs and genitals had been repeatedly twisted; he had been suffocated and electrocuted. The applicant further argued that expert V.R. had not examined him; that his report was false; and that its copy had not been provided to him until in 2007. The court requested the Kharkiv regional prosecutor’s office to inquire into those allegations.

7.  On 7 April 2008 the prosecutor’s office took a decision not to institute criminal proceedings, relying on the fresh statements by law-enforcement officers and otherwise copying the text of the aforementioned decision of 10 May 2007.

8.  In December 2009 and January 2010, respectively, two former employees of the Kharkiv SIZO, A.Ch. and L.Z, testified in court that in July 2003 the applicant had had red eyes and a swollen groin upon his return from the UBOZ. They explained that no record had been drawn up in that regard, at the request of the applicant and his father, who feared reprisals. The applicant’s father concurred with those accounts.

9.  On 9 March 2010 the court found the applicant and A.T. guilty of both murders and sentenced them to life imprisonment. It dismissed the applicant’s ill-treatment allegations as unsubstantiated. His father’s, A.Ch.’s and L.Z.’s accounts were rejected as lacking credibility and as being inconsistent with other material, including an account of various details given by the applicant and A.Ch.’s own previous statements made in court. The above judgment, upheld by the Supreme Court on appeal, became final on 7 September 2010.

10.  In 2014 the applicant and his father filed formal criminal complaints alleging that in 2003 the applicant had been tortured at the UBOZ. Criminal proceedings having been instituted on 29 July 2014, they were subsequently closed and reopened on several occasions on account of various flaws in the relevant inquiry and, as of the last update on the matter by the parties (July 2017), they were ongoing.

11.  On 11 November 2019 the Dergachivskyy District Court allowed an application by the applicant for extraordinary reopening of the murder proceedings against him. Since the last correspondence received from the parties (24 July 2021) the case was under re-examination.

THE COURT’S ASSESSMENT

          ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

12.  The applicant complained under Article 3 of the Convention that he had been tortured by officers of the UBOZ and that his relevant complaint had not been properly investigated.

13.  The Government argued that the applicant’s ill-treatment allegations were ill-founded and that, notwithstanding that fact and the applicant’s own ambivalent procedural conduct, the authorities had thoroughly investigated them.

14.  Reviewing the facts of the present case (in particular, the opaque circumstances in which the applicant incriminated himself in two murders, see paragraph 2 above), the Court considers that the present complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and not inadmissible on any other grounds. They must therefore be declared admissible.

15.  The relevant general principles have been summarised in Bouyid v. Belgium [GC], no. 23380/09, §§ 81-90 and 114-23, ECHR 2015).

16.  Regard being had to the lack of medical or other objective evidence indicating that the applicant might have been ill-treated in July 2003, the Court finds it impossible to establish the veracity of his relevant allegations. The Court finds, however, that this difficulty stems from the authorities’ failure to investigate his complaints effectively (see Barysheva v. Ukraine, no. 9505/12, § 55, 14 March 2017, with further references).

17.  The Court notes that the applicant’s apparent initial reluctance to pursue an ill-treatment complaint (see paragraph 5 above) could have impeded the possibility of securing evidence promptly. However, in view of the authorities’ obligation to act of their own motion in this regard (see, as a recent authority, Chernega and Others v. Ukraine, no. 74768/10, § 167, 18 June 2019), the Court is struck by the fact that a full-scale investigation was not initiated until July 2014, whereas the applicant had first raised ill‑treatment allegations in November 2003, when retracting his self‑incriminating statements. Although some steps with a view to collecting relevant evidence were taken in 2007 and 2008 in the course of two inquiries, the first inquiry, in addition to being quite tardy, lacked the requisite independence, as it was conducted by the same investigator who had also been in charge of investigating the murder charges in respect of the applicant. The second inquiry, in its turn, essentially relied on the evidence collected during the previous one and the statements by law-enforcement officers taken at face value (see paragraphs 5 and 7 above). The criminal proceedings which eventually began in 2014 have been marked by the repeated closing and reopening of the case with reference to shortcomings in the previous rounds. Although those proceedings appear to be still pending, regard being had to the lapse of time since the date of the alleged ill-treatment, it is doubtful that yet another round of inquiries will be able to redress the previous omissions in collecting the necessary evidence.

18.  In view of the circumstances of the present case and its earlier case‑law (see, inter alia, Kaverzin v. Ukraine (no. 23893/03, §§ 173-80, 15 May 2012; Danilov v. Ukraine, no. 2585/06, § 70, 13 March 2014; and Kirpichenko v. Ukraine, no. 38833/03, § 85-88, 2 April 2015), the Court considers that the investigation of the applicant’s ill-treatment allegations in the present case lacked the requisite effectiveness.

19.  The above findings are sufficient for the Court to establish that there has been a breach of Article 3 of the Convention in that regard.

     ALLEGED VIOLATION of Article 6 § 1 on account of the leNgth of proceedings

20.  The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against him had been inordinately lengthy. The Government contested it.

21.  The Court notes that the criminal proceedings at issue started in 2003 and, according to the information provided by the parties, are currently still ongoing. Their overall duration (excluding the period between the adoption of a final judgment and the extraordinary reopening) has exceeded nine years before two instances.

22.  The Court further considers that the present complaint, which is covered by its well‑established case-law, is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. Accordingly, it must be declared admissible.

23.  Having examined all the material before it, the Court concludes that it discloses a violation of Article 6 § 1 of the Convention in the light of its findings in Pélissier and Sassi v. France ([GC], no. 25444/94, § 67, ECHR 1999‑II), Frydlender v. France ([GC], no. 30979/96, § 43, ECHR 2000‑VII) and Merit v. Ukraine (no. 66561/01, 30 March 2004).

   REMAINING COMPLAINTS

24.  The applicant also complained, under Article 6 § 1 of the Convention, that the domestic courts had unfairly convicted him on the basis of his self‑incriminating statements obtained through ill-treatment. After the case had been communicated to the Government, the applicant complained, additionally, that an interim judgment of 25 January 2021 taken by the Kharkiv Regional Court of Appeal in the course of the extraordinary review proceedings was not fair.

25.  The Court has examined the above complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, in particular on account of the fact that the extraordinary review proceedings during which the applicant’s conviction was quashed are still ongoing, they do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

26.  It follows that this part of the application must be rejected in accordance with Article 35 §§ 1, 3 a) and 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

27.  The applicant did not submit any monetary claim for just satisfaction. He noted that the object of his application was to obtain a recognition that his fundamental rights under the Convention had been breached and to restore justice.

28.  There is therefore no call for the Court to determine any monetary award.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Declares the complaints concerning the alleged ill-treatment and the ineffective investigation of the relevant allegations under Article 3 of the Convention, and the length of the criminal proceedings against the applicant under Article 6 § 1 of the Convention admissible, and the remainder of the application inadmissible;Holds that there has been a violation of Article 3 of the Convention on account of the failure of the domestic authorities to conduct an effective investigation concerning the applicant’s complaints of police ill‑treatment;Holds that there has been a violation of Article 6 § 1 of the Convention as regards the complaint concerning the length of the criminal proceedings against the applicant.

Done in English, and notified in writing on 10 November 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 

 Martina Keller  Mārtiņš Mits
 Deputy Registrar President

[1] Article 96 of the Code of Criminal Procedure (1960), as in force at the material time, stated that the term “statement of surrender” (явка з повинною) referred to a voluntary notification by an individual to a law-enforcement or judicial authority that he or she had committed or was preparing to commit a criminal offence, in the absence of any pending criminal proceedings charging him or her with that offence.

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