CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 12 juin 2008

.s800EAC49 { font-size:12pt } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s11AD46B1 { font-family:Arial; font-size:7.33pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s51351B31 { margin-left:28.06pt; padding-left:7.94pt; font-family:serif; font-size:11pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s4BAE41EE { font-family:Arial; font-size:11pt } .s92A5AB2 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#0069d6 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS   432 12.6.2008   Press release issued by the Registrar   CHAMBER JUDGMENT YAREMENKO v. UKRAINE   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Yaremenko v. Ukraine (application no. 32092/02).   The Court held unanimously that there had been:   no violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights; a violation of Article 3 (lack of an effective investigation) of the Convention on account of the failure of the authorities to conduct an effective investigation into Mr   Yaremenko’s allegations that he was ill-treated by the police and prosecutors; and, a violation of Article 6 §§ 1 and 3 (c) (rights to a fair trial and to legal assistance).   As the applicant had not submitted a claim under Article 41 (just satisfaction), the Court made no such award. (The judgment is available only in English.)   1.     Principal facts   The applicant, Oleksandr Volodymyrovych Yaremenko, is a Ukrainian national who was born in 1976 and is currently serving a life sentence in Zhytomyr prison (Ukraine) for murder.   The case concerned the applicant’s complaints in particular that he was ill-treated in police custody and that the authorities failed to carry out an adequate investigation into his allegations of ill-treatment.   On 27 January 2001 Mr Yaremenko was arrested on suspicion of murdering a taxi driver and of several other crimes committed in 2001 and was placed in a cell at the Kyiv Kharkivsky District Police Department.   The same day the applicant   asked to be represented by Mr O. Kh.. This was allowed and the lawyer attended the initial questioning of the applicant. On 1 February 2001 the applicant was questioned with a view to establishing his possible involvement in the death of another taxi driver in the summer of 1998. The crime was classified as   infliction of grievous bodily harm causing death, for which legal representation of a suspect was not obligatory. The applicant signed a waiver of his right to counsel. The applicant was then questioned and confessed that he and Mr S. had committed the 1998 crime. The same day that criminal case was transferred to the Kharkivsky Prosecutor’s Office on the ground that the applicant’s actions could be classified as murder.   On 2 February 2001, the applicant denied his involvement in the 1998 crime, in his lawyer’s presence. The same day, the applicant signed a waiver in respect of his counsel, O. Kh., on the ground that the latter had prevented him from confessing to the 1998 crime. O. Kh. was removed from the applicant’s case on 2 February 2001. He was told that he had breached professional ethics by advising his client to assert his innocence and retract part of his previous confession. In letter of March 2001, the applicant complained that he had signed the waiver in respect of O. Kh. under pressure from the police officers and the case investigator. Later on, O. Kh. was allowed to return to the case and on 8 June 2001 the applicant was questioned in the presence of O. Kh. The applicant repeatedly claimed that he was innocent of the 1998 crime and explained that he had been forced to confess by officers from the police department.   In   November   2001, Kyiv Appellate Court convicted the applicant and S. of the 1998 and 2001 crimes and sentenced them to life imprisonment. It disregarded their denials of their involvement in the 1998 crime on the ground that their confessions during pre-trial investigation were detailed and consistent. The Supreme Court of Ukraine upheld the judgment.   According to the applicant, on 1 February 2001 he was beaten with truncheons by police officers, who forced him to sign a waiver of his right to counsel and to confess to the 1998 crime. On 2 February 2001, the applicant informed his lawyer O. Kh. about those events. The lawyer advised him to assert his innocence and to complain about ill-treatment. On 13 February 2001 the applicant was transferred to a pre ‑ trial detention centre. On arrival he was examined by a doctor and was found to be in good health. The applicant made no complaints of ill-treatment. The applicant’s wife complained that her husband was ill-treated in order to extract confessions with regard to the 1998 crime, but the prosecutor decided not to bring criminal proceedings in respect of those allegations. The applicant also lodged a complaint against police officers and investigating prosecutor G.. However, the complaint was transferred to investigating prosecutor G. for examination in the context of the investigation into the criminal case against the applicant. Finally, the applicant’s retraction of his confessions and his allegations of ill ‑ treatment were found to be groundless.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 13 August 2002 and declared admissible on 13 November 2007.   Judgment was given by a Chamber of seven judges, composed as follows:   Peer Lorenzen (Danish), President , Rait Maruste (Estonian), Karel Jungwiert (Czech), Volodymyr Butkevych (Ukrainian), Mark Villiger (Swiss) [2] , Mirjana Lazarova Trajkovska (citizen of “the former Yugoslav Republic of Macedonia”), Zdravka Kalaydjieva (Bulgarian), judges , and also Claudia Westerdiek , Section Registrar .   3.     Summary of the judgment [3]   Complaints   Relying on Article   3 the applicant complained that, following his arrest, he was ill-treated in police custody and that the authorities failed to carry out an adequate investigation into his allegations of ill-treatment. He further complained that the criminal proceedings against him were unfair because he had been forced to incriminate himself and that his lawyer had been removed from his case unlawfully, in breach of Articles   6   §§ 1 and 3   (c).   Decision of the Court   Article 3   Concerning the alleged ill-treatment   The Court noted that no special medical examination had been conducted in respect of the ill-treatment allegations made by the applicant and his lawyer. There was no evidence that the applicant had actually been ill-treated. The Court considered that the circumstances surrounding the applicant’s detention in the Kharkivsky District Police Department, in particular his abrupt retraction of the confession immediately after arrival of his lawyer, evoked some suspicion of physical or psychological pressure having been put on him at the beginning of February, even though the medical examination of 13 February had not established any sign of bodily harm. That medical examination, however, had not been specifically designed to verify the allegations of ill-treatment. It had been a routine examination, conducted twelve days after the alleged ill-treatment had taken place.   The Court therefore considered that on the basis of the evidence, it could not be established to the requisite standard of proof that the applicant had been ill-treated while in police custody. Accordingly, there had been no violation of Article 3.   Concerning the investigation   The Court considered that the investigation into the applicant’s allegations of ill-treatment had had serious deficiencies. In particular, no timely and specific medical examination had been conducted on the applicant, despite the explicit request   from his lawyer the day after the alleged ill-treatment had taken place. Following a complaint by the applicant’s wife the prosecutor had decided not to bring criminal proceedings in respect of those allegations. No investigative actions had actually been taken, although, had the allegations of ill-treatment been considered seriously, information provided by the applicant’s wife would have been sufficient for an independent investigator to identify the alleged perpetrators.   The Court further noted that the investigation into the applicant’s allegations had lacked the requisite independence and objectivity. In particular, it was the prosecutor who had allegedly ill-treated the applicant who subsequently questioned him and the officers accused of the ill-treatment.   The Court concluded that the State authorities had failed to conduct an effective and independent investigation into the allegations of ill-treatment, in violation of Article 3.   Article 6 § 1 (fair hearing)   The Court noted that the applicant’s lawyer had been dismissed from the case by the investigator after having advised his client to remain silent and not to testify against himself. It further considered that there had been serious reasons to suggest that the statement signed by the applicant had been obtained   against the applicant’s will.   Taking also into account that there had been no adequate investigation into the allegations by the applicant that the statement had been obtained by illicit means, the Court found its use at trial impinged on his right to silence and     his   right not to incriminate himself, in violation of Article 6 § 1.   Article 6 § 3 (c)   The Court noted that the applicant’s conviction for the 1998 crime had been based mainly on his confession, which had been obtained by the investigators in the absence of a lawyer and which the applicant had retracted the very next day and then from March 2001 on.   The Court was struck by the fact that, as a result of the procedure adopted by the authorities, the applicant had been placed in a situation in which he had been coerced into waiving his right to counsel and incriminating himself.   The fact that the applicant had made confessions without a lawyer having been present and retracted them immediately in the lawyer’s presence had demonstrated his vulnerability and the real need for appropriate legal assistance, which he had effectively been denied on 1 February 2001 owing to the way in which the police investigator had exercised his discretionary power concerning the classification of the investigated crime.   The Court considered that the manner, reasoning and alleged lack of legal grounds for the removal of lawyer O.Kh on 2 February 2001 had raised serious questions as to the fairness of the proceedings in their entirety. It therefore concluded that there had been a violation of Article 6 § 3 (c).     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone: 00 33 (0)3 90 21 54 91) Sania Ivedi (telephone: 00 33 (0)3 90 21 59 45)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] Judge elected in respect of Liechtenstein. [3] This summary by the Registry does not bind the Court.