FIFTH SECTION
Application no. 17969/09
Igor Nikolayevich TIKHONOV
against Ukraine
lodged on 20 March 2009
STATEMENT OF FACTS
The applicant, Mr Igor Nikolayevich Tikhonov, is a Ukrainian national, who was born in 1979 and is currently serving his sentence in prison.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 12 February 2006 a man was found killed in his house in the village of Pavlysh, Kirovohrad Region. A criminal investigation was opened.
On the same day the police arrested the applicant under Article 263 of the Administrative Offences Code for minor disorderly conduct which constituted an administrative offence laid down in Article 173 of that Code. Allegedly, during the next two days the police officers repeatedly questioned the applicant without allowing him to sleep, psychologically pressured him and applied physical violence against him with the purpose of extracting his confession to the murder.
On 14 February 2006 the applicant confessed to the crime. The confession was videotaped. He was then arrested as a suspect to the murder. The material concerning the administrative offence was not submitted to any authority for being considered on the merits.
On 15 February 2006 the applicant participated in the reconstruction of the crime where he showed how he committed the murder. That investigatory measure was also videotaped. Three witnesses were present at the reconstruction of the crime. According to the applicant, one of those witnesses was a driver of the local prosecutor’s office; the other two were detainees.
During the above period the applicant was not given access to a lawyer.
On 24 February 2006 the applicant was provided with a legal aid lawyer. The applicant refused that lawyer and requested that another lawyer, hired by his relatives, be admitted to him. The request was refused and applicant was questioned without any lawyer on that day.
On an unspecified date the investigation was completed and the case was referred to the Onufriyivka District Court of Kirovohrad Region (“the District Court”) for the applicant to be tried.
On 15 August 2006 the District Court remitted the case for additional investigation noting that the applicant’s defence rights had not been respected during the pre-trial investigation.
On 28 August 2006 the applicant requested the authorities to provide him with a list of procedural measures carried out in his respect between 11 and 16 February 2006. He also requested the other documents including those concerning his waiver of the right to legal assistance. No reply followed from the authorities.
On 3 October 2006 the Kirovohrad Region Court of Appeal upheld the District Court’s decision of 15 August 2006.
On 22 November 2006 the local prosecutor’s office refused to open an investigation in connection with the applicant’s complaints of ill-treatment.
On an unspecified date the additional investigation was completed and the case was again referred to the District Court for the trial.
During the trial the applicant denied the charges and contended that his self-incriminating statements were obtained by ill-treatment and in breach of his procedural rights.
On 21 June 2007 the District Court found the applicant guilty of murder and sentenced him to nine years’ imprisonment. The court based its findings on the material, oral, documentary and expert evidence. The court referred in particular to the applicant’s initial self-incriminating statements and noted that they were consistent with the other evidence available in the file. As to the applicant’s allegations of ill-treatment, the court questioned the law-enforcement officers and the witnesses participating in the reconstruction of the crime who denied the allegations. The court also reviewed the videotapes of the applicant’s self-incriminating statements and found no signs of ill-treatment.
On the same day the District Court issued a separate ruling obliging the Prosecutor of Kirovograd Region to pay attention to the procedural violations committed by the law-enforcement officers during the pre-trial investigation in the applicant’s case. The court noted in particular that there had been grounds to conclude that the applicant’s arrest and detention between 12 and 14 February 2006 on account of an administrative offence had not been lawful and that the applicant’s defence rights had not been respected during certain investigatory measures.
The applicant appealed against his conviction. He claimed, inter alia, that his defence rights had not been respected at the initial stage of the investigation and that his self-incriminating statements had been obtained as a result of ill-treatment and unlawful detention.
On 15 January 2008 the Kirovohrad Region Court of Appeal upheld the judgment of 21 June 2007 noting that the applicant’s guilt was well established by various pieces of evidence in the case file, including the applicant’s self-incriminating statements made during the pre-trial investigation. It dismissed the applicant’s allegations of ill-treatment and violations of his procedural rights as groundless. The court further held that the procedural shortcomings identified by the first-instance court did not affect its findings concerning the substance of the criminal case.
The applicant appealed in cassation repeating the arguments he made before the court of appeal.
On 7 October 2008 the Supreme Court dismissed the applicant’s cassation appeal as unfounded and upheld the decisions of the lower courts.
B. Relevant domestic law
1. Administrative Offences Code of Ukraine of 7 December 1984 as worded at the relevant time
Article 173 of the Code reads as follows:
Article 173. Minor disorderly conduct
“Minor disorderly conduct, that is, utterance of obscenities in public places, offensive behaviour towards others and other similar acts that breach public order and peace,
shall be punishable by a fine of between three and seven times the minimum tax-free monthly income or by from one to two months’ correctional work combined with the withholding of twenty percent of the offender’s wages, or – if, in the circumstances of the case and having regard to the offender’s character, these measures are not deemed to be adequate – by up to fifteen days’ administrative arrest.”
Article 263 of the Code provides, inter alia, that a person who has committed a minor disorderly conduct may be arrested until the case has been considered on the merits.
2. Code of Criminal Procedure of 28 December 1960
The relevant provisions of the Code of Criminal Procedure are quoted in Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012).
COMPLAINTS
1. The applicant complains that during the first days of his detention he was subjected to psychological and physical ill-treatment prohibited by Article 3 of the Convention.
2. The applicant complains under Article 5 of the Convention that his arrest and initial detention were unlawful.
3. The applicant complains under Article 6 § 1 of the Convention that the courts failed to properly examine the evidence in the file and to correctly apply the law. In particular, the applicant alleges that the court unfairly convicted him relying on the evidence obtained in breach of his privilege against self-incrimination, by means of ill-treatment, and in the period of his unlawful detention.
4. He complains under Article 6 §§ 1 and 3 (c) of the Convention that he had no access to a lawyer at the initial stage of the proceedings.
5. The applicant also complains that there have been violations of Article 13, 14 and 17 of the Convention.
QUESTIONS TO THE PARTIES
1. Has the applicant been subjected to ill-treatment, in breach of Article 3 of the Convention?
2. In respect of the applicant’s complaint under Article 5 of the Convention concerning his arrest and detention between 12 and 14 February 2006, has the applicant complied with the rule of exhaustion of domestic remedies and the six-month rule?
3. Were the applicant’s arrest and detention in the above period compatible with Article 5 § 1 of the Convention?
4. Were the principles of fair trial under Article 6 § 1 of the Convention respected in the present case given that the courts convicted the applicant using the evidence which was obtained allegedly in breach of his privilege against self-incrimination and as a result of the alleged ill-treatment and unlawful detention?
5. Was the applicant provided with access to a lawyer in accordance with the requirements of Article 6 §§ 1 and 3 (c) of the Convention? Has the principle of fairness of the proceedings been impaired in this regard?
The Government are invited to provide the following material:
(a) copies of all the medical evidence concerning the applicant’s health between 12 and 16 February 2006;
(b) copies of the documents concerning the domestic proceedings in respect of the applicant’s allegation of ill-treatment, including the decisions by which the authorities refused to open an investigation and the decisions of the supervising authorities quashing those decisions (if any).
(c) copies of the records of the investigatory and other procedural measures carried out in respect of the applicant between 12 and 16 February 2006;
(d) copies of all the records containing the applicant’s statements which he made to the authorities during the pre-trial investigation;
(e) copies of the materials of the case file concerning the appointment or dismissal of the applicant’s defence counsel, the applicant’s waiver of his right to legal assistance, and the acceptance of such waiver.
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