Judgment (Merits and Just Satisfaction) of Court (Fifth Section), April 30, 2015 (case CASE OF YAREMENKO v. UKRAINE (No. 2))

JudgeBUSHCHENKO A.P.
DefenseUKRAINE (No. 2)
Resolution DateApril 30, 2015
Issuing OrganizationCourt (Fifth Section)

FIFTH SECTION

CASE OF YAREMENKO v. UKRAINE (No. 2)

(Application no. 66338/09)

JUDGMENT

STRASBOURG

30 April 2015

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Yaremenko v. Ukraine (no. 2),

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

             Mark Villiger, President,              Angelika Nußberger,              Boštjan M. Zupančič,              Ganna Yudkivska,              Vincent A. De Gaetano,              Helena Jäderblom,              Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 7 April 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in an application (no. 66338/09) 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 Oleksandr Volodymyrovych Yaremenko (“the applicant”), on 8 December 2009.

  2. The applicant, who had been granted legal aid, was represented by Mr A.P. Bushchenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, at the relevant time Ms V. Lutkovska, from the Ministry of Justice.

  3. On 21 September 2010 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the alleged unfairness of the retrial in the applicant’s case to the Government.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  4. The applicant was born in 1976 and is currently serving a life sentence in Zhytomyr Prison.

    1. Background of the case

  5. The first set of proceedings against the applicant

  6. In 2001 the applicant was prosecuted for two counts of murder. Those criminal proceedings had been examined by the Court in the first case of the applicant (see Yaremenko v. Ukraine, no. 32092/02, 12 June 2008). The abridged facts from the above judgment, insofar as relevant, read as follows.

  7. On 27 January 2001 the applicant was arrested on suspicion of murdering a taxi driver, M., and of several other crimes committed in 2001 (“the 2001 crimes”). At the applicant’s request, he was represented by lawyer O. Kh. during the initial questioning, which took place the same day.

  8. On 1 February 2001 M., a police officer at the Kyiv Kharkivsky District Police Department (“the police department”), who was in charge of an investigation into the death of a taxi driver, Kh., in the summer of 1998, questioned the applicant with a view to establishing his possible involvement in that crime. The crime was classified as infliction of grievous bodily harm causing death, for which legal representation of a suspect was not obligatory. According to the applicant, he was beaten with truncheons on his wrists and shoulders by police officers, who forced him to sign a waiver of his right to counsel and to confess that he and S. had murdered taxi driver Kh. in the summer of 1998 (“the 1998 crime”). On the same day, that criminal case was transferred to the Kharkivsky Prosecutor’s Office on the grounds that the applicant’s actions could be classified as murder and the investigation of such a crime was within the competence of the prosecutor’s office.

  9. On 2 February 2001 the criminal cases in respect of the 1998 and 2001 crimes were joined. On the same day, the applicant participated in a videotaped on-site reconstruction of the 2001 crimes. According to the minutes of this investigative action, which was attended by the applicant, his lawyer O. Kh., two attesting witnesses, investigating prosecutor G. and police officer M., who had questioned the applicant on the previous day, the applicant made statements concerning the circumstances of the 2001 crimes, but denied his involvement in the 1998 crime. His lawyer formally requested the authorities to conduct a medical examination of him. This request was handed to investigating prosecutor G., who acknowledged receipt by signing a copy of it. After the reconstruction had been conducted, the applicant signed a waiver in respect of his lawyer O. Kh., on the grounds that the said lawyer had prevented him from confessing to the 1998 crime. According to the applicant, while the waiver bore the date of 2 February 2001, it had actually been signed on a later date under coercion from the police officers and the case investigator.

  10. On an unknown date investigating prosecutor G. replied to lawyer O. Kh., stating that his request of 2 February 2001 for a medical examination of the applicant could not be granted since he had been removed from the case.

  11. On 7 February 2001 the applicant, who was represented by a newly‑appointed counsel, K., participated in a videotaped on-site reconstruction of the 1998 crime and confessed to having committed it with S.

  12. On 8 February 2001 lawyer O. Kh. complained to prosecutor V. that investigating prosecutor G. had not replied to his request for a medical examination of the applicant, would not permit him to visit the applicant, and had tried to force the applicant to request a replacement lawyer.

  13. On 9 February 2001 lawyer O. Kh. was informed that he had been removed from the case and was provided with the investigating prosecutor’s decision to that effect dated 2 February 2001. The decision stated, inter alia, that the applicant had confessed to the 1998 crime but had later asserted his innocence on the advice of lawyer O. Kh. The investigating prosecutor had therefore decided to remove lawyer O. Kh. from the case.

  14. On 9 February 2001 the applicant, who was represented by yet another lawyer, Mi., was formally charged with the 1998 and 2001 crimes, served with the indictment and questioned as an accused.

  15. On 14 February lawyer O. Kh. complained to prosecutor V. about the decision to remove him from the case, and asked him to quash that decision. In his reply of 19 February 2001, prosecutor V. informed lawyer O. Kh. that his removal from the case had been well-founded and was in accordance with Article 61 of the Code of Criminal Procedure. It was further noted that the lawyer had breached his professional duties by advising his client to assert his innocence and retract part of his previous confession.

  16. In a letter to the General Prosecutor’s Office (GPO) dated 4 March 2001, the applicant complained that he had signed the waiver in respect of lawyer O. Kh. under pressure from the police officers and the case investigator.

  17. On 6 March 2001 lawyer O. Kh. complained to the Kyiv Prosecutor’s Office about his removal. In a reply dated 13 April 2001, it stated that the decision to remove him had been well-founded, and that, moreover, the criminal case file contained a waiver in this respect signed by the applicant.

  18. On 10 March 2001 the applicant submitted a request to investigating prosecutor G., asking that lawyer O. Kh., his first lawyer in the case, replace lawyer Mi. as his defence counsel.

  19. On 24 April 2001 the Kharkivsky Prosecutor’s Office replied to the applicant’s letter of 4 March 2001. It informed him that the replacement of his lawyer had taken place at his request, that lawyer O. Kh. was allowed to return to the case, and that they had found no violation of criminal procedure law in the investigation of the criminal case against him.

  20. On 27 May 2001 the applicant asked investigating prosecutor G. to cross-examine him together with his co-accused S., since the accusations against him had been mainly based on statements made by S.

  21. On 1 June 2001 investigating prosecutor G. replied, informing the applicant that a cross‑examination would be conducted after S. was questioned further, in case any discrepancies emerged between their testimonies.

  22. On 8 June 2001 the applicant was questioned in the presence of his first lawyer O. Kh. He confirmed all the statements with regard to the 2001 crimes he had made during the interview on 27 January 2001. He also claimed repeatedly that he was innocent of the 1998 crime, and explained that he had been forced to confess to the latter crime by officers from the police department.

  23. On 24 June 2001 investigating prosecutor G. informed the applicant that his request for cross-examination had been rejected, since no discrepancies had been found between his and S.’s statements.

  24. On 20 November 2001 the Kyiv Appellate Court, acting as a court of first instance, convicted the applicant and S. of the 1998 and 2001 crimes and sentenced them both to life imprisonment. Three other individuals were sentenced to between three and six years’ imprisonment. In its judgment the court made no mention of the fact that the lawyer had been removed from the case. The court also disregarded the denials by the applicant and S. of their involvement in the 1998 crime on the grounds that their confessions during the pre-trial investigation had been detailed and consistent.

  25. On 18 April 2002 the Supreme Court of Ukraine upheld the judgment of the appellate court. In reply to a complaint by the applicant of a violation of his right to defence, the Supreme Court stated in its judgment given the same date that it found no evidence of a violation of the right to defence or of any other substantial violation of criminal procedure law that could provide a basis for quashing the judgment of the appellate court. The Supreme Court also stated that it had found no evidence that the applicant had been ill-treated.

  26. The applicant’s first case before the Court

  27. On 13 August 2002 the applicant lodged an application (no. 32092/02) with the Court, alleging that he had been subjected to ill‑treatment in police custody and that his complaints in that regard had not been given due consideration. He also complained that he had been deprived of legal assistance of his own choosing during part of the proceedings, had been forced to incriminate himself, and that the above violations...

To continue reading

Request your trial