Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicants were born in 1973, 1985 and 1981 respectively. They live in Orsk in the Orenburg region, Krasnoturinsk in the Sverdlovsk region and Orenburg, respectively.

In May 2006 D. complained to the Department for Combating Organised Crime (the “UBOP”) of the Orenburg regional police department that the applicant was allegedly planning his murder. Kh. and P. ‒ whom the applicant had allegedly hired to murder D. ‒ agreed to cooperate with the UBOP and, acting on the latter’s instructions, organised a meeting with the applicant, told him that they had killed D., showed him photographs simulating D.’s death ‒ which they had prepared as part of the UBOP covert operation ‒ and asked for payment. After paying them later the same day, the applicant and his father, who had accompanied him, were taken to the UBOP office where they arrived at about 2 a.m. on 17 May 2006.

According to the applicant, he was interviewed at the request of the head of the UBOP, K., until 7.30 a.m. by several operative police officers, including M., G. and O., who demanded that he confess to having ordered D.’s murder. They allegedly subjected him to ill-treatment which the applicant described as follows. They handcuffed him, punched him and subjected him to nearsuffocation by use of a plastic bag put over his head. He fainted several times. They forced his legs apart until he fell and then lifted him by his hands, which were shackled behind his back. They tied him up in a painful position with a belt so that his knees were pressed against his neck, and pulled up his shackled hands. They lifted the applicant up whilst thus tied, and dropped him down onto his coccyx. One of them stepped on his head.

At 7.30 a.m. the applicant was placed in a cell in which he stayed until 3 p.m. He was then again interviewed and signed a document entitled “explanation” (объяснение) drawn up by the UBOP operative officer O., in which he gave statements which he later reiterated at his trial.

No record of the applicant’s arrest was drawn up. At 6 p.m. the UBOP officers took the applicant home, carried out a search, and then left.

The next day the applicant was taken by his father to the Pirogov hospital in Orenburg. According to the hospital medical records, the applicant had many bruises on his body, in particular on the head, neck, abdomen and the lumbar region.

On the same day the applicant complained about his ill-treatment to the Leninskiy district police department no. 1 of Orenburg, which ordered a forensic medical examination.

On 18 May 2006 an expert examined the applicant, his medical records, and his allegations of ill-treatment by the UBOP officers the previous day (namely being handcuffed and tied, punched and beaten with a bat), and concluded that bruises and abrasions on the applicant’s body and upper and lower extremities had been inflicted by hard blunt objects at the time, as alleged by him (forensic medical expert report of 19 May 2006).

On 22 May 2006 the applicant was diagnosed with a fractured vertebra and hospitalised. His X-ray examination confirmed fractures of two vertebrae.

On 10 July 2006 the Leninskiy district prosecutor’s office of Orenburg brought criminal proceedings against the applicant in relation to the attempted murder of D. On 12 July 2006 the applicant was arrested.

On 12 and 13 July 2006 the applicant was examined by a forensic medical expert who concluded that, in addition to the injuries noted in the previous report of 19 May 2006, the applicant had a fracture of the seventh thoracic vertebra which resulted in health impairment of medium gravity and had been caused in May 2006 by the impact of a hard blunt object or as a result of hitting such an object with great mechanical force.

According to an additional forensic medical expert opinion of 31 July 2006 produced on the basis of medical records, the fracture of the vertebra could not have resulted from being punched, kicked and beaten with a bat, or as a result of handcuffing, having the legs tied together with a belt, or lifting the applicant up by his hands. It could have resulted from an impact by a traumatic force along the axes of the spine.

On 31 July 2006 an investigator from the Promyshlenniy district prosecutor’s office of Orenburg ‒ who had carried out a pre-investigation inquiry into the applicant’s allegations of illtreatment by the UBOP officers ‒ refused to initiate criminal proceedings, relying on statements by the UBOP police officers, in particular G. and O., that on 17 May 2006 the applicant had been arrested on suspicion of having ordered a murder, and had been taken to the UBOP and interviewed, and that no violence had been used against him. The investigator also referred to statements by the applicant’s father and other persons who had been in the UBOP building at the same time as the applicant and had not seen or heard that the applicant had been subjected to ill-treatment. On 26 July 2006 the applicant had been diagnosed as suffering from a mental disorder. The investigator concluded that the applicant could not be trusted, that he had probably received his injuries as a result of hitting himself accidentally against some objects, and that the true circumstances in which he had received the injuries could not be established.

On 14 May 2008 the Promyshlenniy District Court granted an appeal lodged by the applicant against the investigator’s decision. Subsequently, further refusals to open a criminal case followed on 24 July and 4 August 2008 and were annulled as unlawful by the prosecutor’s office.

On 14 October 2008 the Orenburg Regional Court convicted the applicant of the attempted murder of D., sentenced him to five years’ imprisonment and ordered him to pay damages to D. It took into account the fact that the applicant had no criminal record and also had positive references. At the trial the applicant denied his guilt, stating that his sister had been killed in a traffic accident caused by D.’s drunk driving, that D. had unlawfully avoided serving his sentence of imprisonment, that he ‒ the applicant ‒ had wished to compel D. to serve his prison sentence by using the services of Kh. and P. – who had suggested planting drugs on D., inter alia – and had paid them out of fear for his family’s safety. The applicant’s argument that the crime of which he was accused was the result of police entrapment was dismissed by the court.

On 23 October 2008 an investigator from the investigative committee of the Orenburg regional prosecutor’s office ordered, pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure, that no criminal case be opened into the applicant’s allegations for lack of the elements of a crime under Articles 285 and 286 of the Criminal Code (on abuse of powers) in the acts of the police officers. The decision relied on the same reasoning as that set out in the initial decision of 31 July 2006, adding that the applicant had recovered from his psychiatric disorder and had been convicted.

On appeal by the applicant, the investigator’s decision was found lawful by the Orenburg Promyshlenniy District Court in a decision of 15 January 2009, which was further upheld by the Orenburg Regional Court on 12 March 2009. The District Court held, in particular, that the fact that the applicant had been detained unlawfully for more than three hours at the UBOP premises was not in itself sufficient to prove that he had been illtreated by the police officers or that he had been deliberately subjected to unlawful detention. In reply to the applicant’s criticism of the investigating authority’s failure to carry out a thorough investigation and, in particular, to examine the room at the UBOP premises in which the applicant had been interviewed and allegedly illtreated, the District Court opined that there would be no sense in examining the UBOP office given the considerable length of time that had passed since the events in question.

On 26 January 2009 the Supreme Court of the Russian Federation upheld the applicant’s conviction on appeal.

On 21 May 2015 the acting head of the supervisory department of the Orenburg regional investigative committee annulled the decision of 23 October 2008 for being based on an incomplete inquiry and ordered an additional inquiry and the applicant’s additional forensic medical examination.

On 25 December 2010 between 8.43 a.m. and 11.50 a.m. the police searched the applicant’s flat in Nizhniy Novgorod, pursuant to a decision of the Kanavinskiy District Court on 14 December 2010 concerning criminal proceedings against third persons, in order to find evidence of those persons’ membership of extremist organisations. The police found explosives and bomb-making material. Once the search had been completed, they took the applicant to the Centre for Combating Extremism at the Nizhniy Novgorod regional police department.

Between 4 p.m. and 5.08 p.m. the applicant was questioned as a witness in the criminal proceedings against third persons by investigator A. of the Kanavinskiy district investigative committee, who later stated that at the time of the questioning the applicant had had no injuries on the visible parts of his body.

The investigator ordered that the case concerning the applicant’s illegal possession of arms be transferred to an investigator at police department no. 1 of Nizhniy Novgorod.

The applicant was then interviewed by the head of the Centre for Combating Extremism, T., his deputy K. and three operative police officers of the Centre A., S. and Sh. According to the applicant, they demanded that he confess to preparing a terrorist act and sign a “statement of surrender and confession” (явка с повинной). They allegedly subjected him to illtreatment which the applicant described as follows. They beat him up, punching and kicking him. With his hands handcuffed behind his back they bound him with a two-metre-long orange rope, so that his crossed legs were pressed to his torso. They pulled on the rope and lifted the applicant off the floor, subjecting him to near-suffocation as the knots in the rope were pressing against the front of his neck, making it impossible to breath. They then loosened the rope, so that the applicant fell and hit his buttocks on the floor, causing him severe pain. The applicant lost consciousness. At some point two other police officers Ch. and K. joined the others. K. punched the applicant in the face, making his lip bleed. The applicant’s illtreatment lasted until approximately 8 p.m.

At about 9 p.m. the applicant was taken to police station no. 1 of the Nizhniy Novgorod town police department, formally arrested at 11.30 p.m. and questioned as a suspect.

In his report of 25 December 2010 to the head of the Centre for Combating Extremism, T., police officer Sh. stated that physical force had been used in order to apprehend the applicant when he tried to escape. According to subsequent statements made by Sh. and A. to the investigative authority, Sh. had tripped the applicant up in order to prevent his escape and the applicant had fallen over, whereupon Sh. “had used physical force to overcome the applicant’s resistance” and kept the applicant on the ground until the arrival of A. They had then handcuffed the applicant. As a result, the applicant had allegedly received abrasions to the head, face and neck.

After the applicant’s questioning as a suspect he was taken to a temporary detention facility (an “IVS”). The IVS officer on duty saw the applicant’s injuries and refused to admit him without a prior medical examination.

At 2.45 a.m. on 26 December 2010 the police officers took the applicant to town hospital no. 40 in the Avtozavodskoy district of Nizhniy Novgorod, where a doctor recorded contusions and bruises on his face and assessed his condition as not precluding detention.

On the applicant’s arrival at the IVS, the officer on duty examined the upper part of his body above the waist and recorded bruises and abrasions. The applicant stated that his injuries were the result of illtreatment to which he had been subjected by the police officers at the Centre for Combating Extremism from approximately 4 p.m. to 6 p.m. on 25 December 2010. The applicant stated, in particular, in relation to the injuries on the face, that he had an abrasion in the temple area on the right side, a bruise under the right eye, an abrasion on the chin on the right side, and a damaged lip on the left side.

On 27 December 2010 the applicant was detained on remand by a court order and at 11.55 p.m. transferred from the IVS to pre-trial detention facility IZ-52/1 (the “SIZO”), where an on-duty officer and medical assistant recorded the following injuries on his body: a bruise on the right of the abdomen, a bruise in the left axillary region and multiple bruises on the face and neck. The applicant reiterated that he had been illtreated by the police. The incident was reported to the head of the SIZO.

On 25 January 2011 the Kanavinskiy district prosecutor’s office received a communication from the SIZO about the injuries found on the applicant on his admission and forwarded it to the Kanavinskiy district investigation division of the Nizhniy Novgorod regional investigative committee (Следственный отдел по Канавинскому району г. Н.Новгород СУ СК России по Нижегородской области). The applicant lodged a complaint with the investigative authorities about his alleged ill-treatment and on 4 February 2011 gave a statement.

According to a forensic medical examination report of 24 February 2011 prepared on the basis of the applicant’s SIZO medical records (and ordered on 11 February 2011 by an investigator who inquired, inter alia, whether the injuries could have been self-inflicted), the applicant’s injuries could be classified as blunt trauma. Although the description of the injuries in the SIZO report made it impossible to determine reliably the date of their infliction, the expert suggested that the bruises on the right part of the abdomen and multiple bruises on the face and neck could have been inflicted within a period of three days prior to the applicant’s examination at the SIZO on 27 December 2010 and the bruise in the left axillary region could have been inflicted more than three days before that examination. The expert noted that the injuries were located on parts of the body within the reach of the applicant’s own hands.

According to an additional forensic medical examination report of 2 September 2011, prepared on the basis of the applicant’s medical documents, the applicant’s injuries could have originated either as a result of being punched and kicked, or as a result of the use of force as alleged by police officers Sh. and A.

According to a report of 23 March 2011, prepared on the basis of an internal inquiry and approved by the head of the internal security division of the Nizhniy Novgorod regional police department, Sh. stated that in order to overcome the applicant’s resistance he had twisted the applicant’s hand behind his back, and that the applicant had received the abrasions to the head and face as a result of falling over. The other four police officers who had interviewed the applicant had given similar statements. The report suggested that the question of the police officers’ responsibility for the applicant’s illtreatment could only be decided by the investigative committee pursuant to a pre-investigation inquiry.

The Kanavinskiy district investigative committee issued six refusals to institute criminal proceedings concerning the applicant’s alleged illtreatment (on 28 February, 8 April, 19 August, and 5 September 2011, 22 February and 1 July 2012). The first five decisions were revoked by the deputy head of the Kanavinskiy district investigative committee or the Kanavinskiy district deputy prosecutor for being based on an incomplete inquiry (decisions of 10 March, 20 July and 22 August 2011, 30 January and 22 June 2012).

On 15 June 2011 the Avtozavodskoy District Court of Nizhniy Novgorod convicted the applicant of illegal storage of explosives under Article 222 § 1 of the Criminal Code. On 18 November 2011 the Nizhegorodskiy Regional Court upheld the judgment on appeal.

In the decision refusing to open a criminal investigation into the allegations of the applicant’s ill-treatment of 1 July 2012, pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure, for lack of the elements of a crime under Article 286 of the Criminal Code (on abuse of powers) in the actions of police officers Sh., A. and T., it was stated that the applicant had tried to escape during his transfer from the Centre for Combating Extremism to police station no. 1 on 25 December 2010 and could have received the injuries as a result of the lawful use of force by police officers Sh. and A. in their effort to stop him. That conclusion was based on statements by police officers based at the Centre, namely Sh., A., T., K., Ch., G., M. and S., who had conducted the applicant’s interview (опрос) with a view to establishing his possible accomplices, in particular persons who had supplied him with the explosives. They denied the use of any violence against the applicant. The investigator confirmed that, in accordance with Article 6 § 1 of the Operational-Search Activities Act, the police officers had the right to conduct the applicant’s interview.

The applicant appealed against the investigator’s decision of 1 July 2012 to a court. He complained, in particular, that the investigator had not given him the opportunity to challenge the police officers’ version. The applicant’s appeal was rejected by a decision of 16 May 2013 of the Kanavinskiy District Court, which was satisfied that the decision was reasoned and lawful. That decision was upheld by the Nizhniy Novgorod Regional Court on 5 August 2013.

On 25 May 2015 an acting prosecutor of the Nizhniy Novgorod region annulled the refusal of 1 July 2012 as unlawful and based on an incomplete inquiry and ordered an additional inquiry, finding that the applicant’s statements contesting the police officers’ version of events and alleging the use of violence by police officer K. had not been investigated.

On 26 August 2011 a woman was attacked and robbed on the street.

On 27 August 2011 nine police officers (Sh., R., P., G., S., M., Kh., Z. and A.S.) were ordered to arrest the applicant, who was suspected of having committed the robbery. At about 10 a.m. they apprehended the applicant on a street in Podmayachnyy village in the Orenburg Region. The applicant tried to flee because, according to him, he did not realise that those pursuing him ‒ who were dressed in plain clothes ‒ were police officers. Sh. and R. stopped him. According to the applicant, they tied his hands with a belt. The applicant was taken to the Orenburg town police department.

The applicant described the events at the police station as follows. He was led through an entrance for staff only to an office on the first floor and handcuffed. The police officers, in particular O., demanded that he confess to having attacked the woman and stolen her gold chain and mobile phone. O. punched the applicant twice in the chest, then hit the applicant on his feet with a rubber truncheon for about forty minutes, while the other police officers, in particular A., pinned him down on the floor, holding onto his arms and legs. He was then asked to stand up on his feet but was unable to do so, fell over and was hit by the truncheon on the left side of his torso. His feet were stepped on and he was suffocated with a plastic bag. During the suffocation, which lasted three or four hours, he fainted several times. The applicant wrote a “statement of surrender and confession” (явка с повинной), as requested. O. threatened him with further torture if he did not reiterate his confession to an investigator.

The “statement of surrender and confession”, in which the applicant confessed to having attacked the woman and stolen her gold chain, was recorded by the police. The applicant also signed a document entitled “explanation”, drawn up by operative police officer D., with a detailed description of the circumstances of the crime.

At 8.40 p.m. an investigator drew up a record of the applicant’s arrest as a suspect. The applicant gave selfincriminating statements when questioned as a suspect in the presence of a State-appointed lawyer, reiterating the confession statement he had given earlier to the police officers.

At 12.25 a.m. on 28 August 2011 the applicant was placed in the temporary detention facility (the “IVS”) in Orenburg town police department, where the following injuries on his body were recorded: bruises on the chest, an abrasion on the face on the left cheek bone, many abrasions on the waist, abrasions on both wrists and scars on the left forearm. The applicant stated that those injuries had been inflicted during his arrest.

On 29 August 2011 the applicant was taken to a traumatology centre, where he was diagnosed with contusion of the left side of his chest and both wrists.

At 2.30 p.m. the applicant appeared before the Promyshlenniy District Court of Orenburg, which ordered his detention on remand. The court decision referred to the investigator’s submissions that the applicant’s involvement in the crime had been established on 26 August 2011 but he had been hiding from the lawenforcement authorities until his arrest on 27 August 2011.

On the same day he was placed in pre-trial detention facility IZ56/3, where bruises on the left side of his chest, both wrists and both feet were recorded.

On 30 August 2011 the applicant’s lawyer A., who had been retained by his family, observed injuries on the applicant when visiting him in the detention facility. The applicant told her about his ill-treatment at the police station and the selfincriminating statements he had given as a result.

On 31 August 2011 when questioned as an accused in the presence of lawyer A., the applicant retracted his selfincriminating statements, explaining that he had given them on 27 August 2011 as a result of his illtreatment by the police officers.

According to the applicant’s mother and brother, and his acquaintance Zh., the applicant had no injuries before his arrest.

On 5 September 2011 the applicant lodged a criminal complaint concerning his alleged ill-treatment by the police. The Orenburg town investigative committee carried out a preinvestigation inquiry. The operative police officers who had arrested the applicant on 27 August 2011 gave explanations. They stated that as soon as the applicant had seen them he had run away and they had lost sight of him. When running away the applicant had fallen over several times. The police officers had split into several groups in order to find and stop him. Police officers Sh. and R. had caught up with the applicant, knocked him to the ground and handcuffed his hands behind his back. R. suggested that any bruises or abrasions on the applicant’s body could have been received as a result of his falling over when trying to run away from them. The police officers denied any deliberate use of force against the applicant either during his arrest or afterwards at the police station when they interviewed him.

On 5 October 2011 an investigator refused to initiate criminal proceedings pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure for lack of the elements of a crime under Articles 285 and 286 of the Criminal Code (on abuse of powers) in the acts of the police officers. Relying on the police officers’ statements, the investigator found that the police officers had acted lawfully in using handcuffs and “blocking” the applicant, a suspect in criminal proceedings, who had tried to escape and resisted his arrest. On 10 October 2011 a deputy head of the Orenburg town investigative committee annulled the investigator’s decision on the grounds that the inquiry had been incomplete, and ordered an additional inquiry. Subsequently fourteen more refusals to open a criminal investigation into the applicant’s allegations of illtreatment were issued by investigators and annulled by their superiors within the investigative committee for being based on incomplete inquiries.

On 28 December 2012 the Promyshlenniy District Court of Orenburg convicted the applicant of robbery and sentenced him to three years’ imprisonment. The applicant pleaded guilty in relation to the assault against the victim but denied robbery, stating that he had given the selfincriminating statements at the pre-trial stage of the proceedings as a result of the ill-treatment by the police. The court considered his allegations of ill-treatment unfounded, relying on the results of the inquiry and one of the refusals to open a criminal case of 21 December 2012 which had not at that moment been annulled. The court declared the applicant’s selfincriminating statements of 27 August 2011 admissible evidence. The applicant’s “statement of surrender and confession” served as a mitigating circumstance. The judgment became final.

During one of the additional rounds of the pre-investigation inquiry into the applicant’s allegations of ill-treatment two forensic medical expert reports were prepared, on 11 September and 18 October 2013, based on the applicant’s medical documents. The experts concluded that the applicant’s injuries – the bruises on his chest and both feet, numerous abrasions on his waist, the abrasion on the face, and numerous abrasions and bruises on both wrists – could have been inflicted as a result of impacts from a hard blunt object shortly before his injuries had been recorded at the IVS and possibly on 27 August 2011.

On 7 May 2014 an additional forensic medical expert report was prepared at the investigator’s request. The expert concluded that the applicant’s injuries had originated from the impact of a blunt hard object with a limited contact surface (with a limited narrow elongated contact surface in the case of the injuries to his wrists). The nature, location and mechanism of the origin of the injuries were consistent with the applicant’s version. All his injuries could have been received as a result of illtreatment by the police officers as described by him. As regards the police officers’ version, the abrasions on the applicant’s face and waist could have been received as a result of the applicant falling over when running away during his arrest. The abrasions on the wrists could have been received as a result of the use of handcuffs. There was nothing, however, in the police officers’ statements to explain the bruises on the chest and feet.

On 2 June 2014 investigator V. of the Orenburg north administrative circuit investigative committee initiated criminal proceedings into the applicant’s allegations under Article 286 § 3 (a) of the Criminal Code (abuse of power with use of violence). He held that it was impossible to resolve the contradictions existing in the case-file material by means of a pre-investigation inquiry, and that it was therefore necessary to open a criminal case and examine the applicant’s allegations by way of a criminal investigation, as there was sufficient data to indicate that a crime under Article 286 of the Criminal Code might have been committed.

The next day the acting prosecutor of the Promyshlenniy district of Orenburg annulled the investigator’s decision as unlawful and illfounded, disagreeing with the investigator that there was sufficient data to indicate that a crime could have been committed. The prosecutor stressed that it was possible to implement urgent measures aimed at establishing the circumstances of alleged illtreatment within the framework of a preinvestigation inquiry, in particular by ordering forensic medical examinations. He noted that the pre-investigation inquiry had established that the applicant had received the injuries during his arrest as a suspect, and that in the final judgment in the applicant’s criminal case the applicant’s allegations of ill-treatment had been found unsubstantiated and that it was therefore impossible to question that finding.

The applicant appealed against the prosecutor’s decision. On 9 February 2015 the Promyshlenniy District Court found the prosecutor’s decision lawful. It held that under Article 125 of the Code of Criminal Procedure the court did not have competence to assess whether the evidence or the presence of data indicating the elements of a crime constituted grounds for instituting criminal proceedings. That decision was upheld on 16 April 2015 by the Orenburg Regional Court.

Following the prosecutor’s decision, on 30 July 2014 investigator V. refused to open a criminal case. His decision was annulled on 18 August 2014 by a deputy head of the second procedural supervision department of the investigative committee of the Russian Federation for being based on an incomplete inquiry. Subsequently two more decisions refusing to open a criminal case ‒ of 2 October 2014 and 26 March 2015 ‒ were also annulled for the same reason, on 16 March and 21 May 2015, respectively, by an acting head of the procedural supervision department of the Orenburg regional investigative committee.

In the investigator’s decision of 26 March 2015, as in the previous decisions, it was found that the police officers had acted lawfully in using handcuffs and physical force, in particular for the purposes of “blocking” the applicant, who had actively resisted arrest. The applicant had received the injuries when trying to escape and resisting arrest. The injuries on his wrists had been caused by the lawful use of handcuffs.

On 22 May 2015 the acting district prosecutor pointed to flagrant violations of the criminal procedural law, in particular the reasonable time requirement for examination of reports about crimes. He noted that, due to the lack of supervision and the acquiescence of the investigative committee management, the investigative committee had failed to conduct a thorough and objective inquiry for more than four years ‒ thereby violating the applicant’s rights ‒ and that this constituted a serious disciplinary offence.

According to a report by a psychologist who examined the applicant in September 2015 the applicant complained that, as a consequence of the police illtreatment, he suffered from frequent headaches, blood pressure abnormalities and sleep disturbances. He displayed signs that the illtreatment experienced by him and the lack of justice still affected him. He was diagnosed with post-traumatic stress disorder and was recommended treatment and rehabilitation measures.


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1988 and is currently serving a prison sentence.

On 28 February 2004 R., an adolescent who was born in 1987, disappeared. On 18 March 2004 he was found dead in a garden area of Cherkasy city. The body had numerous stab wounds, including in the neck and the chest.

On 18 March 2004 the Sosnivskyy District Prosecutor’s Office of Cherkasy (“the District Prosecutor’s Office”) opened a criminal investigation into the murder.

In the evening of the same day the police searched the applicant’s home and seized seven knives, clothes and other items. Allegedly, on the same night the police took the applicant to the police station.

Between 11 a.m. and 1.40 p.m. on 19 March 2004 the applicant was questioned as a witness in the murder case. During the questioning, which was not attended by a lawyer, the applicant told that earlier in February 2004 he and R. had committed fraud in order to steal a mobile phone from one of the applicant’s acquaintances. The applicant stated that he did not know who had killed R.

That day the Sosnivskyy District Police Department of Cherkasy instituted another set of criminal proceedings concerning the fraudulent theft of the mobile phone and questioned the applicant as a witness in that case. The applicant told the police how he and R. had stolen the mobile phone. The questioning was carried out without a lawyer but in the presence of the applicant’s father.

At 6.20 p.m. the police investigator ordered the applicant’s arrest on suspicion of the fraudulent theft of the mobile phone. Further to the applicant’s request, the investigator allowed lawyer G. to act as the applicant’s defence counsel in that set of criminal proceedings. The lawyer signed the arrest report. Then, in the presence of the lawyer, the applicant refused to give any further statements, claiming that he was tired; he asked the police to postpone the questioning until the following day.

Between 6.40 and 7.50 p.m. the applicant, in the absence of his lawyer, was questioned as a witness in the murder case. During the questioning the applicant gave further details concerning the theft of the mobile phone; he also said that on 28 February 2004 he had seen R. only at school.

Between 9 and 11 p.m. the police searched the home of D., another acquaintance of the applicant. They seized knives, clothes and other items.

At 11.15 p.m. the police investigator ordered D.’s arrest on suspicion of murder, noting in the report that there had been brown spots on D.’s jacket.

Later that night D. confessed that he had been present at the crime scene. He explained that on 28 February 2004 the applicant had asked him to attend a meeting with R. that day and to bring a knife with him; during the meeting the applicant and R. had started to fight; D. had assisted the applicant in knocking down R., who at a certain moment had attempted to run away; the applicant had then stabbed R. with the knife and cut his throat; D. had helped the applicant to hide the body.

The same night the applicant confessed to the murder. He was not assisted by a lawyer at that time. The applicant stated that on 28 February 2004 he had had a meeting with R. concerning the stolen mobile phone, which R. had allegedly sold; the applicant had asked D. to be present at that meeting and to bring a knife; as R. had started to fight, the applicant had taken the knife, cut R.’s throat and caused other injuries to him.

According to the applicant, that confession resulted from the psychological pressure and physical ill-treatment that had been applied to him since his arrival at the police station.

Between 10 and 10.40 a.m. on 20 March 2004 the applicant was questioned in the presence of his lawyer, G., concerning the theft of the mobile phone. The applicant repeated his earlier statements concerning that episode.

Between 11.28 and 11.53 a.m. on that day the applicant was questioned in the presence of the same lawyer concerning the murder. At the beginning of that questioning session, the investigator announced that the applicant had written a confession and asked him to give more details concerning the circumstances described by the applicant in his confession. The applicant then described the murder in more detail.

In the afternoon on 20 March 2004 the applicant participated in a reconstruction of the crime, in which he showed how he had murdered R. On his return from the crime scene, the applicant was questioned again and he repeated his self-incriminating statements. The lawyer, G., participated in those measures.

At 6.20 p.m. on the same day the applicant was moved to the Temporary Detention Centre of Prydniprovskyy District Police Department of Cherkasy (“the ITT”).

On 21 March 2004 a forensic medical expert examined the applicant and issued a report stating that he had no bodily injuries. The expert specified that the medical examination had been held in the Cherkasy Pre-Trial Detention Centre (“the SIZO”).

On 22 March 2004 the investigator consolidated the criminal cases concerning the fraudulent phone theft and the murder in a single set of criminal proceedings. On that day the court ordered the applicant’s pre-trial detention.

On the same day the applicant dismissed lawyer G. and appointed lawyers K. and Dr. When questioned in the presence of those lawyers, he repeated his earlier self-incriminating statements.

On 26 March 2004 the applicant was transferred from the ITT to the SIZO.

In May 2004, during another round of questioning, the applicant specified that he had needed the knife for self-defence when meeting with R.

On 8 June 2004 a forensic medial expert issued a report stating that the applicant had sustained no bodily injuries during the preliminary detention. The expert based the report on the results of the applicant’s medical examination of 21 March 2004.

On 9 June 2004 another lawyer, P., was admitted to the case, in addition to lawyers K. and Dr.

On 16 June 2004 the applicant was questioned in the presence of his three lawyers. He changed his earlier statements and asserted that it was D. who had repeatedly stabbed and killed R.

On the same day a confrontation between the applicant and D. was held. It was revealed that T., an acquaintance of the applicant and D., had also been present at the scene of the murder.

On 17 June 2004 the applicant dismissed lawyers K. and Dr., leaving his representation to lawyer P.

On 19 June 2004 the investigator questioned T., who stated that it was the applicant who had stabbed R. On the same day T. participated in a reconstruction of the events, in the course of which he confirmed his statements.

On 21 June 2004 confrontations between T. and the applicant, as well as T. and D., were held, during which T. repeated his earlier statements.

On 17 July 2004, during another questioning session, the applicant maintained that it was D. who had killed R.

On 22 July 2004 the investigation was completed. The applicant was charged with aggravated murder and fraudulent theft of a mobile phone; D. was charged as the applicant’s accomplice in the murder. The applicant and his lawyer were provided with the criminal case file for examination.

On 27 July 2004 the applicant’s lawyer, having examined the file, requested that D. be charged as the perpetrator, arguing that the evidence in the file pointed at him. He asserted that the applicant’s confession was the result of pressure by police officers and a clandestine agreement he had made with D. The investigator refused the request as unsubstantiated.

On 10 August 2004 the case was referred to the Cherkasy Regional Court of Appeal (“the Court of Appeal”) for the applicant and D. to be tried.

On 21 September 2004 the Court of Appeal remitted the case for additional investigation noting, among other things, that the actions of the defendants and the role of each defendant had not been properly classified under the criminal law.

On 14 December 2004 the Supreme Court quashed the decision of 21 September 2004 as unfounded and remitted the case to the Court of Appeal for trial.

On 26 August 2005 the applicant was medically examined by a nephrologist, who issued a medical certificate specifying, among other things, that three of the applicant’s ribs on his right side showed signs of healed fractures, and it was recommended that he be examined by a traumatologist.

On 7 November 2005 the Court of Appeal found the applicant guilty of murder and fraudulent theft of a mobile phone and sentenced him to fourteen years’ imprisonment. The court also found D. guilty of concealment of murder and imposed a conditional sentence.

The prosecutor and the victim’s relatives appealed against the judgment, claiming, inter alia, that the sentences were unduly mild. The applicant also appealed, claiming that his confession had been obtained by way of ill-treatment and in the absence of a lawyer. He argued that on the night of 19 March 2004, when he had been in the police station, police officers had beaten him to the extent that he had lost consciousness and that when he had come to, they had continued to beat him. As he had earlier been threatened by D., the applicant had eventually given up and agreed to incriminate himself.

On 8 November 2005, in reply to the applicant’s complaint of ill-treatment and violation of his procedural rights during the investigation, the Regional Prosecutor’s Office informed him that those issues had been examined during the pre-trial investigation and the trial, and had been rejected as unfounded. On 25 November 2005 the Regional Prosecutor’s Office additionally informed the applicant that his complaints would be examined by the Supreme Court in the course of the review of the criminal case.

On 17 November 2005 the applicant appointed lawyer B. to act as his defence counsel.

By a letter of 21 November 2005 the governor of the ITT provided the applicant’s lawyer with a list of the procedural measures undertaken in respect of the applicant during his detention in the ITT between 20 and 26 March 2004. According to that list, on 21 March 2004 (see paragraph 22 above) the applicant was not escorted anywhere from the ITT and he did not take part in any procedural measures on that day.

On 14 February 2006 the Chrekasy Regional Prosecutor’s Office ordered the District Prosecutor’s Office to carry out pre-investigation enquiries in respect of the applicant’s allegations of ill-treatment.

On 5 March 2006 the assistant prosecutor of the District Prosecutor’s Office refused to open an investigation in connection with the applicant’s allegations of ill-treatment, noting that there was no indication that the police officers had committed an offence. The decision referred to the statements of the police officers and the medical report of 21 March 2004. The applicant challenged the decision before the Prydniprovskyy District Court of Cherkasy (“the District Court”).

On 16 May 2006 the Supreme Court quashed the judgment of 7 November 2005 as regards the applicant’s conviction for murder and D.’s conviction for concealment of murder, and remitted the case to the Court of Appeal for fresh consideration in that part. It noted that the case had not been properly examined by the Court of Appeal as regards D.’s role in the incident. It further ordered careful scrutiny of the applicant’s allegations that his rights had been violated. The Supreme Court then upheld the applicant’s conviction for the fraudulent theft of the mobile phone.

On 2 August 2006 the District Court quashed the assistant prosecutor’s decision of 5 March 2006 and ordered further pre-investigation enquiries. It noted that the medical report of 21 March 2004 was not reliable since the other evidence suggested that the applicant had not been escorted to the SIZO for a medical examination on that day. Moreover, the prosecutor’s office had not properly examined whether the applicant had really sustained rib fractures as noted by the nephrologist in his certificate of 26 August 2005.

On 13 August and 25 December 2006, and 28 February and 25 June 2007 the assistant prosecutors refused to open an investigation in connection with the applicant’s allegations of ill-treatment for the reason that the additional enquiries had not disclosed any element of crime on the part of the police officers. All those decisions were quashed by the supervising authorities as unfounded and further enquiries were ordered.

During the trial the applicant requested a medical examination in order to determine his state of health and whether he was suffering from any illnesses. On 18 October 2006 panel of forensic medical experts found that the applicant was suffering from chronic pyelonephritis, chronic duodenal ulcer, chronic cholecystitis and benign hyperbilirubinemia.

On 10 August 2007 the assistant prosecutor of the District Prosecutor’s Office again refused to open an investigation in connection with the applicant’s allegations of ill-treatment, considering that there had been no elements of crime in the actions of the police officers.

On 19 November 2007 the District Court quashed the assistant prosecutor’s decision of 10 August 2007 as unfounded and ordered further pre-investigation enquiries. The court noted that the District Prosecutor’s Office had not removed the contradictions between the medical report of 21 March 2004 and the medical certificate of 26 August 2005, even though the supervising authorities, in quashing the earlier similar decisions, had highlighted that issue. The District Prosecutor’s Office appealed against that decision.

On 28 November 2007 the Court of Appeal found the applicant guilty of murder and sentenced him to fourteen years’ imprisonment. The court further found that D. had been an accomplice to the murder and sentenced him to six years’ imprisonment. The court noted that while the applicant had accused D. of the murder, the evidence in the file was sufficient to establish that it was the applicant who had killed R. The court relied on the statements of T. and other oral, documentary and material evidence. It also cited the applicant’s self-incriminating statements made during the pre-trial investigation in the presence of lawyers.

The Court of Appeal dismissed the applicant’s allegations of ill-treatment, noting that during the trial the police officers had denied the alleged facts; moreover, the medical reports of 21 March and 8 June 2004 refuted those allegations.

The applicant appealed against the judgment claiming, inter alia, that his defence rights had not been respected at the initial stage of the investigation, he had not been given access to a lawyer immediately after the arrest and his self-incriminating statements had been obtained as a result of ill-treatment.

On 18 December 2007 the Court of Appeal partly allowed the prosecutor’s appeal against the District Court’s decision of 19 November 2007. It noted that the applicant’s allegations of ill-treatment concerned the admissibility and veracity of evidence in his criminal case. Therefore those issues had to be examined by the Court of Appeal in the course of the applicant’s trial and not by way of separate proceedings. The court further found that the judgment adopted in the applicant’s criminal case had addressed the relevant issues. Accordingly, the proceedings on that matter had to be terminated. The applicant lodged an appeal on points of law.

On 6 May 2008 the Supreme Court upheld the judgment of 28 November 2007, noting that the applicant’s guilt had been well established by various pieces of evidence in the case file, including the self-incriminating statements that he had made during the pre-trial investigation. It dismissed as groundless the applicant’s allegations of ill-treatment and of violations of his procedural rights.

On 10 June 2008 the Supreme Court upheld the Court of Appeal’s decision of 18 December 2007, noting that the relevant issues could not be examined concurrently with the trial in the applicant’s criminal case.


No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

The applicant was born in 1947 and lives in Co. Roscommon.

In November 1999 the applicant purchased a newly-built house, which has been her dwelling place since then. The sale took the form of two agreements. The first was an agreement to purchase the land from the owners, Mr and Mrs F, for the sum of 5,000 Irish pounds (IEP) (approximately 6,350 euros). The second was a building agreement under which she paid IEP 80,000 (approximately 101,600 euros) to a building company called T and C Developments Ltd. The company was owned by Mr and Mrs F, who were the only shareholders. The house was covered by a guarantee provided by a company known as Homebond.

From the time she moved into the house in March 2000, the applicant noted major structural defects in the property. She reported this to Homebond in September 2001. The company carried out an inspection of the house and, in September 2002, offered to make certain repairs to it in accordance with the terms of the guarantee. According to the applicant, Homebond refused to issue an Engineer’s certificate/guarantee upon the completion of the works, which would have been required if the applicant were to sell the house afterwards.

In February 2003 the applicant instituted proceedings in the High Court against the parties mentioned above, i.e. Mr and Mrs F (first and second defendants), T and C Developments (third defendant), and Homebond (fourth defendant). A fifth defendant was included in the action, a Mr Q, who, as an engineer, had certified that the house was in compliance with the relevant building regulations. In March 2003, Mr Q’s company was named as the sixth defendant. The applicant filed her statement of claim in May 2003.

Over the following months, she wrote several times to the solicitors for the first three defendants requesting that they deliver their defence, on each occasion offering some additional time for this purpose. By December 2003 these defendants had not yet delivered their defence, at which point the applicant applied to the High Court for a judgment in default of defence against them.

The statement of claim was not served on the fourth defendant until December 2003, an oversight that the applicant attributed to her solicitors. The fourth defendant entered its defence to the plaintiff’s claims in May 2004.

In January 2004 the High Court ordered the first three defendants to deliver their defence within three weeks. In March 2004, the applicant agreed to allow an additional 21 days for them to file their defence.

In July 2004 the applicant again applied to the High Court for a default judgment against the first three defendants, in light of their failure to enter their defence to the action. The defence was filed in September 2004. While it was presented as the defence of the first and second defendants, it was clarified at a later stage in the proceedings (in mid-2009), that it also concerned the third defendant.

On 20 December 2004, at the request of the applicant, the High Court gave a default judgment against the fifth and sixth defendants (Mr Q and his company), holding them liable to the applicant in damages and for costs. According to the judgment, these sums were to be assessed at a future date. The judgment was never enforced. The applicant explained that she received legal advice to the effect that the practice was to hold over such judgments until the case had been heard and damages assessed. She added that at a later stage in the proceedings (2009/2010) she received legal advice that the default judgment had by then expired.

According to the applicant, in the years 2005-2008 her solicitors considered it more effective to engage principally with the fourth defendant, Homebond, in light of the guarantee on the house. Homebond made a proposal to the applicant in June 2006 to carry out remedial work on the house. Her solicitor sought clarification of the proposal, writing several times between December 2006 and February 2008 when Homebond replied. The applicant indicated her readiness to accept the proposal. However, when subsequently requested to assign her rights to Homebond she sought clarification of the matter from the company, writing in April 2008 and again in April 2009.

On 20 April 2009 the High court granted a motion brought by the applicant’s solicitor to cease to represent her. From that point onwards, she acted as a lay litigant.

On 22 April 2009 the applicant gave notice of intention to proceed with her case to all of the defendants, a necessary step under domestic law where proceedings have been dormant for more than one year (Order 122 r. 11 of the Rules of the Superior Courts).

On 20 July 2009 the High Court struck out the applicant’s motion for a judgment in default of defence. The applicant sought to appeal this ruling to the Supreme Court, requesting additional time for this purpose in September 2009, which the Supreme Court refused to allow on 16 October 2009.

On 13 October 2010 the applicant again gave notice of her intention to proceed. The following month, she was informed by solicitors for Homebond that the offer made in 2002 was still valid.

On 12 September 2011 the applicant once more issued notice of her intention to proceed. In November 2011 she sought a trial date and was informed that a hearing would take place in March 2012, later moved to April 2012. At that point it was suggested by a High Court judge that the parties could attempt to resolve the dispute by mediation. The applicant explored this option but did not pursue it when it became clear, by June 2012, that some of the defendants were not interested. By this stage she had been informed that the sixth defendant had gone into voluntary liquidation. In July 2012 the applicant was informed that the case would be heard in early 2013.

The case was not heard as a single action. Only the fourth and fifth defendants appeared (the latter only briefly) at the hearing that commenced on 29 January 2013. The first three defendants, although given notice of the hearing, were not represented at it. The High Court’s ruling, given on 20 March 2013, therefore only considered the claims against Homebond and Mr Q. The judge ruled that Homebond was liable to the applicant under the terms of the guarantee. Although the guarantee set an upper limit of IEP

On 10 April 2013 the High Court issued an order against the fourth defendant for the amount awarded to the applicant.

On 15 May 2013 the same judge dealt with the case against the first three defendants. She held them jointly and severally liable to the applicant in damages for 94,082 euros.

Homebond sought to appeal the judgment and order against it. For this it was required to serve the notice of appeal personally on the applicant within twenty-one days. According to the elements in the case-file, the company’s solicitors tried unsuccessfully to arrange service on the applicant. They subsequently applied to the Supreme Court for additional time to appeal, which was granted on 14 June 2013.

The applicant brought a cross appeal, claiming that the High Court had wrongly failed to award her legal costs.

In October 2014 the applicant sought to have the appeal struck out for lack of prosecution by Homebond. This was not granted. Instead, ruling on 10 October 2014 the Supreme Court granted her two weeks to make her submissions on the question of costs. The applicant filed her submissions the following week.

On 28 October 2014 many pending appeals were transferred from the Supreme Court to the new Court of Appeal, including the Homebond appeal.

In November 2014, the Court of Appeal directed the parties to file their respective submissions within two weeks, granting a short extension of this deadline the following month. On 19 December 2014 it set a hearing date of 23 February 2015. On the latter date it allowed Homebond’s appeal and dismissed the applicant’s cross appeal.

On 10 June 2013 the first and second defendants filed a notice of appeal against the judgment of the High Court.

On 8 July 2013 the High Court made a garnishee order attaching monies owed by a commercial bank to the first and second defendants in the amount of the damages awarded to the applicant.

On 26 July 2013 the Supreme Court granted to the defendants a stay on the award of damages, on condition that they pay into court the sum of 45,000 euros within a period of three months, failing which the stay would lapse. The payment was not made. An application by the defendants to put forward property deeds in lieu of money was refused by the Supreme Court on 22 November 2013.

The applicant obtained a judgment mortgage against the defendants on 29 October 2013.

On 24 January 2014 the Supreme Court again refused an application from the defendants to stay the judgment of the High Court. It also refused to lift the garnishee order and to vacate the judgment mortgage obtained by the applicant.

On 11 July 2014 the Supreme Court refused an application from the applicant to strike the appeal out for lack of prosecution. It directed the defendants to file their books of appeal within ten weeks, failing which the appeal would be dismissed.

The appeal was transferred to the Court of Appeal, which indicated on 19 November 2014 that it would first consider the issue of the liability of the first and second defendants, and set a short deadline for the parties’ submissions on this.

The hearing took place on 9 March 2015. The Court of Appeal set aside the judgment of the High Court, holding that as a matter of law Mr and Mrs F were not liable to the applicant for the defects in the house since they had simply sold her the land and were not themselves party to the building agreement. There could only be a remedy against the third defendant, T and C Developments Ltd., with whom the applicant had concluded the agreement in 1999.

The applicant sought leave to appeal to the Supreme Court against this judgment. On 29 July 2015 the Supreme Court refused to grant leave.