CEDH · CASELAW;COMMUNICATEDCASES;ENG — 6 mars 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA36B60A1 { font-family:Arial; font-style:italic }   Communicated on 6 March 2017   FOURTH SECTION Application no. 18895/08 Mykhaylo Vasylyovych BONDAR against Ukraine lodged on 3 April 2008 STATEMENT OF FACTS The applicant, Mr Mykhaylo Vasylyovych Bondar, was a Ukrainian national, who was born in 1960. He died on 1 June 2012. The applicant’s mother, Ms Kateryna Mykhailivna Bondar, expressed a wish to pursue the application on his behalf. Reference will still be made to the applicant throughout the ensuing text. The applicant is represented before the Court by Mr O. Levytskyy, a lawyer practising in Kyiv. The facts of the case, as submitted by the applicant, may be summarised as follows. On 26 July 2003 the dead body of Mr Z. was discovered in the applicant’s village. On 27 July 2003 the applicant was arrested, ostensibly for the administrative offence of maliciously disobeying a police officer. He alleges that in fact he was arrested on suspicion of Z.’s murder and that the police ill-treated him to make him confess to the murder. In particular, he alleges that he had been dunked in a vat with heavily chlorinated water, electroshock was applied to his genitalia, he was beaten and hung by his elbows from a metal rod for a substantial period of time. According to him, as a result of this treatment he partially lost the use of his arms for some time and was hospitalised. On 4 August 2003 the applicant, in the absence of a lawyer, confessed to Z.’s murder. On 6 August 2003 the applicant was formally arrested on suspicion of Z.’s murder. On 7 August 2003 the applicant was questioned in the presence of a lawyer and retracted his confession as given under duress. On 10 August 2003 a forensic medical expert observed a number of injuries on the applicant’s body. The investigator asked the district court to remand the applicant in custody on suspicion of Z.’s murder. On 15 August 2003 a district court judge rejected the investigator’s request to remand the applicant in custody and released him on an undertaking not to abscond, holding that evidence against him was insufficient and noting his allegation that his confession had been coerced. On an unspecified date the prosecutor’s office refused to institute criminal proceedings against the police officers for ill-treatment. On 1 February 2007 a certain Ms O., serving a sentence of imprisonment, informed the authorities that in the summer of 2004, when she had resided in the applicant’s village, the applicant had confessed to her that he had murdered Z. On 20 February 2007, based in part on O.’s new evidence, the applicant was again arrested on suspicion of Z.’s murder. On 25 February 2008 the Vinnytsya Court of Appeal, sitting as the trial court, convicted the applicant of murder and sentenced him to thirteen years’ imprisonment. The applicant appealed. He argued that the trial court erred in its assessment of the evidence. He argued, among other things, that a search conducted in his home in 2003, which apparently did not return any incriminating items, was unlawful for various reasons, including the fact that at the time it had been conducted the applicant had been in detention and was being tortured. On 10 July 2008, in a final decision, a panel of three judges of the Supreme Court upheld the trial court’s judgment. On 21 May 2009 five judges of the Supreme Court asked the plenary formation of the Supreme Court consisting of all judges of the court’s criminal and military chambers to reopen the proceedings in the applicant’s case in view of exceptional circumstances, to quash his sentence and to order a retrial. The judges argued, in particular: (i) that there was medical evidence in the file which indicated that the applicant had been seriously ill ‑ treated in 2003, in particular by being hung by his elbows, (ii) that the investigation into his allegations in this respect had been superficial, and (iii) that the trial court had failed to comment on this and to rule on the admissibility of the applicant’s 2003 confession which was the only document in the file which had shown the applicant acknowledging his guilt. The judges also pointed out what they believed were a number of contradictions in the evidence cited by the trial court in the judgment in support of the applicant’s conviction. On 5 June 2009 the plenary formation of the court held that the arguments cited by the five judges could only serve as grounds for reopening provided they were investigated by the prosecutor’s office and found to be “newly established circumstances” justifying a reopening. COMPLAINTS 1.     In the application form, lodged by the applicant’s initial representative Ms E. Talayeva on his behalf, he described, in the “Statement of the Facts” part of the form, the facts set out above, including the ill-treatment he had allegedly suffered in 2003. In the “Statement of alleged violations of the Convention and Protocols and of relevant arguments” part of the form he complained, in particular, under Article 6 § 2 that his right to be presumed innocent had been breached in that the domestic authorities had relied on evidence obtained as a result of the use of force against the defendant. 2.     On 1 April 2013 Mr Levytskyy wrote to the Court on behalf of the applicant’s mother. He informed the Court of the applicant’s death and expressed the mother’s wish to pursue the application on the applicant’s behalf. In his letter, Mr Levytskyy cited two arguments in favour of the applicant’s mother’s right to pursue the application. Firstly, he stated that the applicant had been convicted on the basis of his statements made under torture. Secondly, Mr Levytskyy stated that: “The applicant’s former representative [Ms] Talayeva is a journalist by training. However, this was not why she had described in the application the fact of torture but limited the application to violation of Article 6 of the Convention only, leaving the fact of torture outside of the scope of the application... At the time the application was lodged in 2008-2009 the Court was declaring applications under Article 3 inadmissible where the applicants failed to appeal to court against the prosecutor’s office’s decision not to institute criminal proceedings.” Mr Levytskyy went on to describe the Court’s approach to the admissibility of such complaints adopted in Kaverzin v. Ukraine (no.   23893/03, §§ 97-99, 15 May 2012) and asked the Court to allow the applicant’s mother to pursue his application before the Court. QUESTIONS TO THE PARTIES 1.     Were the complaints under Article 3 and Article 6   § 1 of the Convention, as indicated in points 3-5 below, lodged within the six-month time-limit laid down in Article 35 § 1 of the Convention? In particular, when were they first lodged with the Court?   2.     Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, in respect of his complaint under Article 6 § 1 of the Convention concerning admission in evidence of his confession allegedly obtained under duress? In particular, did he raise this complaint in his appeal to the Supreme Court?   3.     Has the applicant been subjected to torture, inhuman or degrading treatment, in breach of Article 3 of the Convention?   4.     Having regard to the procedural protection from torture, inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no.   26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?   5.     Did the applicant have a fair hearing in the determination of the criminal charges against him, as required by Article 6 § 1 of the Convention? In particular, did his statements allegedly obtained under duress play a role in his conviction?