Communicated on 13 February 2015
FIFTH SECTION
Application no. 6628/13
Oleksandr Yuriyovych MALCHENKO
against Ukraine
lodged on 15 January 2013
STATEMENT OF FACTS
The applicant, Mr Oleksandr Yuriyovych Malchenko, is a Ukrainian national, who was born in 1989 and is serving a prison sentence in Krivyy Rig.
The facts of the case, as submitted by the applicant, may be summarised as follows.
According to the applicant, on 9 June 2009 at around 12 noon he was arrested on suspicion of murder of Messrs B., F. and V. and brought to a police station.
The applicant alleges that at the police station he was ill-treated to extract his confession. In particular, he alleges that he was hit with fists and rubber truncheons and kicked on his legs and ribs. He further alleges that police officers placed a plastic bottle filled with water on the back of his head and his neck and hit him through the bottle with fists and a rubber truncheon.
On the same day an arrest report was drawn up indicating that the applicant was arrested at 11 p.m. At the same time the applicant signed a record confirming that his right to legal assistance had been explained to him and that he wished Mrs F., a lawyer, to represent him.
According to the record of the applicant’s questioning, from 11 p.m. to 12 midnight on the same day he was questioned as a murder suspect. He testified, in particular, that on 8 June 2009 he had hit victims F. and V. with a bat on their legs and backs. He testified that he had thought that the victims had already been dead due to blows from other suspects at the time he had hit them. The applicant stated that afterwards he had helped dispose of the dead bodies. The applicant and lawyer F. signed the record of the applicant’s questioning.
According to the applicant, in fact lawyer F. was not present at his questioning and was instead present at the questioning of Mr D., another accused.
According to the record of D.’s questioning, signed by D. and lawyer F., from 10.20 p.m. on 9 June to 1.45 a.m. on 10 June 2009 a police investigator questioned D. in connection with the same events of 8 June 2009. D. testified that he saw the applicant and several other individuals beating up and murdering victims B., F. and V.
On 10 June 2009 a forensic medical expert, having examined the applicant, noted that the applicant had a hematoma on the left side of his torso. The expert classified this as a light bodily injury. The expert took the view that the injury had been likely inflicted with a blunt object within 24 hours prior to the examination. According to the record of the examination, the applicant stated to the expert that he had not been involved in any fights for two weeks prior to his arrest and that he was not ill-treated by the police.
On 28 August 2009 the applicant was questioned by the police. He was represented by lawyer S.
On 6 October 2009 the applicant participated in a crime scene reconstruction. He was represented by lawyer M.
On unspecified dates the applicant was indicted for murder and infliction of grievous bodily harm and committed for trial at the Kherson Regional Court of Appeal (“the trial court”).
On 22 February 2010 the applicant complained to the trial court that his testimony during the pre-trial investigation had been obtained due to “threats, psychological and physical pressure” from the police. In this connection he asked the trial court to disregard his statements made during the pre-trial investigation and to take into account only his testimony during the trial.
On 15 March 2010 the trial court directed the prosecutor of Kherson Region (“the Prosecutor’s Office”) to investigate the applicant’s complaint of ill-treatment.
On 2 April 2010 the Prosecutor’s Office decided not to institute criminal proceedings against police officers finding that there had been no corpus delicti in their actions. The Prosecutor’s Office based this decision on the explanations of the police officers who had been in charge of the applicant’s case who had stated that the applicant had not been ill-treated.
On 11 March 2011 the trial court convicted the applicant of infliction of grievous bodily harm on victim B. which had led to his death and of murder of victims F. and V. The court sentenced the applicant to life imprisonment. The court referred to the applicant’s testimony at trial, according to which he had pleaded guilty to infliction of bodily harm but not murder and admitted only to having hit victim V. but could not recall where he had hit him. The court also relied on the applicant’s testimony during the pre-trial investigation and on D.’s testimony. The court noted that the complaints of the applicant and one of his co-defendants about ill-treatment had not been confirmed by the investigation conducted by the Prosecutor’s Office.
The applicant appealed arguing, in particular, that evidence against him had been obtained unlawfully and complaining about the breach of his right to defence.
On 11 December 2012 the Higher Specialised Civil and Criminal Court upheld the judgment. The court stated, in particular, that the allegations of ill-treatment and of the breach of defence rights were unsubstantiated.
COMPLAINTS
The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment in police custody and that his complaints in this respect were not duly investigated.
He further complains, under Article 6 §§ 1 and 3 (c) of the Convention, that his conviction was based to a large extent on self-incriminating statements obtained from him under duress and in the absence of a lawyer.
QUESTIONS TO THE PARTIES
1. Was the applicant subjected to torture, inhuman or degrading treatment or punishment in police custody in breach of Article 3 of the Convention?
2. Having regard to the procedural protection from torture, inhuman or degrading treatment or punishment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?
3. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, was the applicant’s right not to incriminate himself respected?
4. Was the applicant’s initial questioning by the police compatible with his rights under Article 6 §§ 1, 3 (c) of the Convention?
The Government are requested to submit a chronologically ordered information note on the criminal proceedings against the applicant and the investigation of his alleged ill-treatment, as well as the copies of all relevant documents, including but not limited to:
- the applicant’s submissions and complaints;
- the relevant decisions of the authorities;
- the applicant’s confessions.
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