Professional Documents
Culture Documents
JUDGMENT
STRASBOURG
31 October 2019
PROCEDURE
1. The case originated in an application (no. 59550/11) against Ukraine
lodged with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”) by a
Ukrainian national, Mr Andriy Igorovych Mazur (“the applicant”), on
12 September 2011.
2. The applicant, who had been granted legal aid, was represented by
Mr M. Tarakhkalo, Ms O. Chilutyan and Ms V. Lebid, lawyers practising in
Kyiv. The Ukrainian Government (“the Government”) were represented by
their Agent, Mr I. Lishchyna.
3. On 19 April 2018 notice was given to the Government of the
complaints under Article 3 of the Convention of ill-treatment of the
applicant by the police as well as of the complaints under Article 6 of unfair
criminal proceedings against him, and the remainder of the application was
declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
5. On 2 November 2002 a minor girl, P., was found dead, with a number
of bodily injuries, at a construction site in Tlumach, next to the bar where
she had last been seen. On the same date a criminal investigation was
instituted into her death. The applicant and his friends, who had been among
the clientele of the bar, were questioned as witnesses at the time, but no
2 MAZUR v. UKRAINE JUDGMENT
further action was taken then in their respect. In August 2007 the
investigative authorities looked into some operational information on the
possible involvement of Tlumach residents in P.’s murder.
6. On 23 August 2007 D., a friend of the applicant, was placed in
administrative detention for ten days for disobedience to the police. On
29 August 2007, during his administrative detention and in the absence of a
lawyer, he made a “statement of voluntary surrender and confession to the
police” and provided “explanations” in which he confessed to having
witnessed the rape of P. by L., B., M. and the applicant. He also stated that
it was L. who had murdered P. in order to cover up the sexual assault. He
confirmed his confession during his questioning as a witness, in the course
of a reconstruction of the crime, and during a face-to face confrontation
with B., on 30 August, 1 and 2 September 2007 respectively. No lawyer was
present during any of the above-mentioned investigative stages. Later on the
applicant confirmed his testimony in the presence of a lawyer but eventually
retracted his statements during trial as having been extracted by the police
by means of ill-treatment and in the absence of a lawyer.
7. On 31 August 2007 B. was placed in administrative detention for
seven days for disobedience to the police. On 2 September 2007, during his
administrative detention, he was questioned on account of P.’s murder and
confessed to having covered it up. On 3 September 2007 he made a
statement of voluntary surrender and confession to the police in which he
confessed to having raped P. and named L., D., M. and the applicant as his
accomplices. On the following day, he confirmed his confession while
being questioned as a witness and also in the course of a reconstruction of
the crime, and provided additional details. No lawyer was present at any of
the above-mentioned investigative stages. On 5 September 2007 B. retracted
his self-incriminating statements and complained that the police had
ill-treated him in order to extract a confession, providing him with the
details he had had to include in his confession.
8. On 3 September 2007 in order to verify D.’s confession, the regional
police department seconded several police officers to Yalta, where the
applicant was working at the time, and ordered them to bring him before the
investigator in Ivano-Frankivsk.
The court also found that the lawfulness of the applicant’s arrest in Yalta
and the investigative measures conducted with him thereafter had yet to be
proved. It noted, inter alia, that, according to the police officers’ mission
orders, they had arrived in Yalta on 4 September 2007, departed on
6 September 2007 and returned to Ivano-Frankivsk on 7 September 2007,
but the applicant had confessed to the crimes in Ivano-Frankivsk on
6 September 2007. It also pointed out that the officers had stated at the trial
that they had departed with the applicant from Yalta late in the evening and,
having travelled for about twenty-four hours, arrived in Ivano-Frankivsk,
“late at night”. In addition, officer G. testified before the court that on the
morning after the applicant had been delivered from Yalta, he, and officer
Gon., had taken a parcel from the applicant’s father for the applicant.
26. On 7 May 2009 the Ivano-Frankivsk Court of Appeal upheld the
above-mentioned ruling of the Kalush Town Court.
27. In the context of the additional investigation, a traumatologist from
the Tlumach hospital was questioned as a witness. He submitted, inter alia,
that, when admitted to the hospital in 2007, the applicant had explained that
his injuries had resulted from a domestic incident and the relevant notations
had accordingly been made in his medical file. He subsequently confirmed
that testimony at trial, in December 2009, and also submitted that the police
officers had not visited the applicant at the hospital.
28. On 3 July 2009 another forensic medical examination by a panel of
experts was conducted, following an order by the investigator. No copy of
that report has been provided to the Court by the Government despite the
Court’s request. The prosecutor’s decision of 26 August 2009 refusing to
institute criminal proceedings against the police officers (see paragraph 30
below) suggests that the experts concluded that the applicant had had an eye
injury (a bruise around his right eye) which could have been caused by a
punch or by indirect pressure from a blunt object within a day before the
applicant’s hospitalisation at the Tlumach hospital. According to the
experts, it was most likely that the applicant’s injury had been sustained
domestically, as the result of a fall, as suggested by the applicant at the
hospital. The injury, according to them, could not have been the result of
repeated kicks and prolonged beatings, and there had been no other injuries
which corresponded to the applicant’s description of his ill-treatment.
29. In July and August 2009 the prosecutor further questioned the
applicant and the police officers, including those on duty on
5 and 6 September 2007, and conducted face-to-face confrontations between
the applicant and the alleged perpetrators. The applicant denied his
involvement in the crimes and maintained that the police had ill-treated him
in order to obtain his confession. He submitted, inter alia, that when at the
Tlumach hospital he had not wished to tell the doctors about the police’s
violence and had therefore stated that his injuries had resulted from a
domestic accident that had occurred two days before his hospitalisation. He
8 MAZUR v. UKRAINE JUDGMENT
was not able to explain to the investigator why there had been no other
injuries noted in his medical file or during his forensic medical examination
of 3 July 2009 which would have fitted his account of the ill-treatment. The
police officers, in turn, denied administering any ill-treatment either during
his transfer from Yalta or thereafter. They noted that the applicant had not
been arrested in Yalta but had voluntarily followed them to give
explanations to the investigator. The officers also denied the fact that the
applicant had been delivered to the Tlumach police station either on
5 or 6 September 2007 and submitted that from Yalta they had arrived
directly at the Department on 6 September 2007. Officer G. submitted that
the applicant had been released on the same day, once he had signed his
confession. He also stated, in reply to the applicant’s lawyer’s questions,
that he did not remember if the applicant’s entry to and departure from the
Department had been recorded in any way. The convoying officers testified
that the applicant had had no visible bodily injuries during his transportation
from Yalta to the Department.
30. On 26 August 2009 the prosecutor’s office refused to institute
criminal proceedings in respect of the ill-treatment complaints of the
applicant and his co-accused. As far as the applicant was concerned, the
prosecutor found that the bruise recorded by the forensic medical experts
had been sustained by the applicant after he had been released from custody.
In that connection, he relied on the statements given by the police officers,
including officer G.’s statement that he had released the applicant late in the
evening on 6 September 2007, and the applicant’s explanation given to the
Tlumach hospital regarding the origin of his injury, supported by the results
of the forensic medical examination of 3 July 2009.
31. On 27 August 2009 the additional investigation was completed and
in September 2009 the criminal case against the applicant and others was
sent for trial to the Ivano-Frankivsk Court of Appeal. During the trial the
defendants pleaded not guilty and again retracted the self-incriminating
statements that they had made at the investigation stage, stating that they
had been obtained by the police by means of ill-treatment during their
administrative or unrecorded detention, in the absence of a lawyer.
32. On 4 August 2010 the Ivano-Frankivsk Court of Appeal, sitting as a
first-instance court, found the defendants, including the applicant, guilty as
charged and sentenced them to various terms of imprisonment. The
applicant was sentenced to a term of seven years’ imprisonment. His
conviction was primarily based on his confession of 6 September 2007, the
confessions made by his co-defendants, the records of his questioning as a
witness, the reconstruction of the crime and the face-to-face-confrontation,
all of 7 September 2007. The court found that evidence to be reliable,
admissible, adequate and sufficient since it had all been consistent, had been
corroborated by other evidence in the case, and had been obtained by lawful
methods of investigation, without any significant violations of procedural
MAZUR v. UKRAINE JUDGMENT 9
rules. Thus, according to the court, the applicant’s and B.’s confessions had
been corroborated by statements made by their cellmates in police custody,
who had said that the applicant and B. had told them that they had
participated in a crime; by the statements of other attesting witnesses and
police officers to the extent that the defendants had given their statements of
their own free will during the investigative steps taken; and by indirect
evidence given by other witnesses. It noted that the details of the crime
provided by the defendants, including the place of the murder and
construction features of the building where the body had been hidden would
only be known to them if they had been the perpetrators. It also found that it
was not prohibited by law to question defendants about a murder while they
were being held on administrative detention. The inconsistencies between
the defendants’ statements were declared insignificant and explained by the
amount of time that had elapsed since the crime had been committed in
addition to the effects of alcohol on the defendants at the time it had been
committed.
The court rejected the defendants’ allegations of ill-treatment as
unsubstantiated, regarding them as a part of their defence strategy. The
court relied in this respect on the results of the prosecutor’s investigation
into the defendants’ complaints, the statements of the police officers and
other attesting witnesses given at trial, as well as some unspecified
statements provided by doctors Me., F., and Pl. and medical evidence
examined at trial. It went on to note that during the pre-trial investigation
the applicant and B. had testified in writing that their injuries had resulted
from domestic incidents. Finally, the court referred to the results of a
technical forensic examination of B.’s and D.’s voluntary surrenders to the
police, according to which they had written their confessions of their own
free will, without being affected by unusual circumstances. At the same
time, the court found no objective evidence to confirm B.’s statement, set
out in his confession, that he had had sexual relations with P. The court also
noted that the existence of certain inconsistencies between the defendants’
statements was evidence against their allegations of ill-treatment.
33. The applicant and his lawyer appealed in cassation against the
conviction. The applicant challenged the court’s assessment of the evidence
and objected to the admissibility of his self-incriminating statements, and
those of his co-defendants, as they had been made under police duress
during their unrecorded or administrative detention, in the absence of a
lawyer, and had been retracted at trial. He noted in this context that the
existence of bodily injuries on him had been confirmed by a number of
items of evidence, including the forensic medical report of 2007 and a
video-recording of the reconstruction of the crime scene, which had been
disregarded by the first-instance court. He also pointed to the inconsistent
explanations of the origin of his injuries given by the police officers
throughout the investigation. He went on to note that the witnesses referred
10 MAZUR v. UKRAINE JUDGMENT
to by the court had withdrawn their statements during the trial and had
submitted that they had been forced to testify against the applicant and his
co-defendants by the investigating authorities and that the statements of the
people who had allegedly been their cellmates while in police custody could
not be seen as reliable evidence as those alleged witnesses were serving
their prison sentences and were under the authority of the police. Lastly, the
applicant pointed to the first-instance court’s failure to assess evidence in
his favour.
34. In his appeal, the applicant’s lawyer raised similar arguments. He
challenged the admissibility and assessment of evidence and stated, inter
alia, that the applicant’s detention, during which he had made the
self-incriminating statements, was unrecorded and unlawful, and that no
access to a lawyer had been granted to him during that period. He further
pointed out that the confessions of the applicant’s co-defendants had been
obtained in a similar way. The lawyer noted the trial court had rejected the
applicant’s allegation of ill-treatment merely on the basis of the statements
of the police officers, ignoring the results of the forensic medical
examination of 17 September 2007 and other evidence of bodily injuries on
the applicant. Finally, he pointed out inconsistencies between the statements
of the defendants and other witnesses and the factual circumstances of the
case and complained of the trial court’s failure to properly assess other
evidence in the applicant’s favour, including that suggesting that the crime
had been committed by an unidentified man with whom P. had last been
seen, hours before her death.
35. On 22 March 2011 the Supreme Court of Ukraine, sitting as the
second-instance court, upheld, in substance, the arguments and conclusions
of the lower court with respect to the applicant. At the same time, it
acknowledged that, when questioned as a witness, the applicant had not
been provided with a lawyer but had been warned about his criminal
liability if he failed to testify which, according to the court, raised doubts as
to the admissibility of the evidence obtained in such a way. It therefore
ruled that the reference to the applicant’s questioning as a witness should be
excluded from the body of the judgment. It further absolved the applicant
from serving his sentence for the charge of covering up the murder. The
Supreme Court rejected the defendants’ ill-treatment complaints, referring
merely to the level of detail provided by them as regards the circumstances
of the crime, witnesses’ statements, and the fact that no evidence in support
of the defendants’ allegations had been found in the course of the
prosecutor’s investigation.
36. The relevant provisions of the Constitution of Ukraine and the Code
of Criminal Procedure can be found, in particular, in the Court’s judgment
MAZUR v. UKRAINE JUDGMENT 11
THE LAW
A. Admissibility
37. The Government stated that the applicant had not exhausted
domestic remedies in respect of this complaint because he had not appealed
against the decision of 26 August 2009 not to institute criminal proceedings
against the police officers. They further argued that the applicant’s
complaints of ill-treatment during the trial and in his appeal to the Supreme
Court did not mean that he had exhausted domestic remedies.
38. In the alternative, the Government submitted that if the applicant had
considered that there were no effective remedies available to challenge the
decision of the prosecutor of 26 August 2009, he should have raised that
issue before the Court within a period of six months after that decision was
taken. However, the applicant had lodged his application much later – on
12 September 2011.
39. The applicant disagreed. He submitted that he had been ill-treated
and had sufficiently raised his complaint before the relevant authorities. He
also submitted that he had not been provided with a copy of the prosecutor’s
decision referred to by the Government.
40. The Court notes that it has previously rejected similar objections by
the Government as to the non-exhaustion of domestic remedies in the
context of allegations of ill-treatment, for example in the case of Kaverzin
v. Ukraine (no. 23893/03, §§ 84-99, 15 May 2012). In that case, in similar
factual circumstances, the Court concluded that the applicant had taken
sufficient steps at the domestic level to bring his complaints of police
ill-treatment to the attention of the national authorities, noting that the fact
that the complaints had been rejected by the prosecutor had not prevented
the domestic courts from examining them on their merits in the course of
the applicant’s trial. The Court further concluded that in such circumstances
12 MAZUR v. UKRAINE JUDGMENT
it had been reasonable for the applicant to wait for the completion of the
trial before raising the complaints before the Court and he had accordingly
complied with the six-month rule provided in Article 35 § 1 of the
Convention (ibid., § 99). The Court sees no reason to depart from those
findings in the present case and therefore considers that this complaint
cannot be rejected for failure to exhaust domestic remedies or for
non-compliance with the six-month time-limit.
41. The Court thus finds that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
the result of a domestic incident after being released from police custody on
6 September 2007 (see paragraph 30 above).
52. However, it remains unclear to the Court why the prosecutor’s office
relied in this respect on the applicant’s statement made at Tlumach hospital
about the origin of his injuries in spite of his more recent and consistent
submissions before the relevant authorities that the injuries had resulted
from his ill-treatment by the police. Moreover, there is nothing in the
documents available before the Court to suggest that any attempt
whatsoever was made by the investigative authorities to establish the
circumstances of the alleged domestic incident, to which they referred to
explain the origin of the applicant’s injuries or to provide details of that
incident. This, however, was not seen as an obstacle to dismissing the
applicant’s allegation of ill-treatment as unsubstantiated.
53. The Court also can find no explanation on the part of the authorities
as to why the credibility of the police officers’ statements as regards the
applicant’s movements between 4 and 7 September 2007 was given
preference by the prosecutor over the applicant’s version of events. There is
nothing to confirm the police officers’ statements that the applicant was
released on the day of his arrival in Ivano-Frankivsk, after signing the
confession, as it appears that no relevant records were drafted by the police.
Moreover, statements made by officer G. during the proceedings at the
Kalush Town Court (see paragraph 25 in fine) in fact support the applicant’s
version of events. There is also no evidence before the Court that the
prosecutor tried to find any objective evidence, such as statements from
third-party witnesses, to confirm the date of the applicant’s release.
54. Likewise, as regards the medical evidence relied upon by the
prosecutor, the Court cannot but note that it is not clear, in the absence of
any comments on the Government’s part and the relevant documents, why
the conclusion of the first forensic medical examination, which was
conducted shortly after the alleged ill-treatment (see paragraph 15 above),
when the injuries were still visible, and which corroborated the applicant’s
allegations, was doubted by the prosecutor and a new expert examination
requested. The new examination – which was conducted almost two years
after the events in question – resulted, as is apparent from the prosecutor’s
decision, in a different conclusion as regards the date and the origin of the
injuries and was accepted by the prosecutor, again without any reasoning
being provided to justify such a decision. Nor have the Government
provided any justification for the prosecutor’s preference.
55. Although the domestic courts dealing with the applicant’s criminal
case eventually addressed his repeated complaints of ill-treatment by the
police, the shortcomings in the pre-investigation inquiry noted above were
not remedied. Ultimately, the Supreme Court rejected the complaint as
unsubstantiated, relying on the findings of the prosecutor (see paragraph 35
above).
MAZUR v. UKRAINE JUDGMENT 15
56. In view of these circumstances, the Court considers that the domestic
authorities’ conclusions as regard the origin of the applicant’s injuries were
not based on a thorough investigation into the matter.
57. That being the case, the Court cannot but conclude that the
applicant’s injuries were inflicted as a result of ill-treatment by the police.
58. Accordingly, there has been a violation of Article 3 of the
Convention.
59. The applicant complained that his right to a fair trial had been
violated because his conviction in criminal proceedings had been based on
confessions obtained from him and his co-defendants as a result of
ill-treatment by the police and in the absence of a lawyer. He relied on
Article 6 §§ 1 and 3 (c) of the Convention which, as far as relevant, read as
follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled
to a fair ... hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(c) to defend himself in person or through legal assistance of his own choosing or, if
he has not sufficient means to pay for legal assistance, to be given it free when the
interests of justice so require; ...”
A. Admissibility
60. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
been the primary evidence used to secure his conviction, despite the fact
that he had retracted his confession shortly after he had been released from
unlawful police custody. He further relied on the other arguments that he
and his lawyer had advanced before the domestic courts (see paragraphs 33
and 34 above).
(b) The Government
62. The Government argued that the applicant had given his statement of
voluntary surrender and confession of his own free will. He had voluntarily
confirmed his self-incriminating statements on 7 September 2007 as a
witness, having been informed of his right not to incriminate himself. Once
criminal proceedings had been instituted against the applicant and he had
been arrested as a suspect, on 23 October 2007 he had been provided with
access to a lawyer of his choice.
63. They further submitted, in reliance on the conclusions of the
domestic authorities, that there had been no evidence that the applicant and
his accomplices had been ill-treated by the police.
64. Lastly, the Government noted that the applicant’s self-incriminating
statements were not the sole evidence on which his conviction had been
based and that his guilt had been sufficiently proven by other evidence in
the case, including witness statements and the results of forensic
examinations.
A. Damage
74. The applicant also claimed EUR 3,750 in respect of his legal
representation before the Court and requested that this amount be paid into
his lawyer’s bank account. To substantiate that claim, the applicant
submitted a legal assistance contract with Mr Tarakhkalo dated 1 August
2018, indicating an hourly rate of EUR 150, and a report of 31 October
2018 completed by Mr Tarakhkalo for twenty-five hours’ work, without any
further details.
75. The Government contested the above claim as excessive.
76. According to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. In the present case, regard being had to the documents in its
possession and the above criteria, the Court considers it reasonable to award
the applicant, in addition to the legal aid granted (see paragraph 2 above),
the sum of EUR 1,600 for costs and expenses. This amount is to be paid into
the bank account of the applicant’s lawyer, Mr Tarakhkalo, as indicated by
the applicant (see, mutatis mutandis, Khlaifia and Others v. Italy [GC],
no. 16483/12, § 288 and point 12 (a) of the operative provisions,
15 December 2016). The Court rejects the remainder of the claim for costs
and expenses.
C. Default interest
77. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
5. Holds
(a) that the respondent State is to pay, within three months, the
following amounts, to be converted into the currency of the respondent
State at the rate applicable at the date of settlement:
(i) EUR 11,000 (eleven thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage sustained by the
applicant on account of the violation of Article 3 of the Convention,
to be paid to the applicant;
(ii) EUR 1,600 (one thousand six hundred euros), plus any tax that
may be chargeable to the applicant, in respect of costs and expenses
incurred for the proceedings before the Court, to be paid into the
bank account of the applicant’s representative, Mr Mykhailo
Tarakhkalo;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;