Judgment (Merits and Just Satisfaction) of Court (Fifth Section), February 19, 2015 (case CASE OF ZHYZITSKYY v. UKRAINE)

JudgeCHUKHAS M.
Resolution DateFebruary 19, 2015
Issuing OrganizationCourt (Fifth Section)

   FIFTH SECTION      CASE OF ZHYZITSKYY v. UKRAINE (Application no. 57980/11)     JUDGMENT    STRASBOURG  19 February 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 Zhyzitskyy v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:              Mark Villiger, President,
              Angelika Nußberger,
              Boštjan M. Zupančič,
              Ganna Yudkivska,
              André Potocki,
              Helena Jäderblom,
              Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 20 January 2015,Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1.  The case originated in an application (no. 57980/11) 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 Valentyn Tsezarovych Zhyzitskyy (“the applicant”), on 8 September 2011.

  2.  The applicant was represented by Ms M. Chukhas, a lawyer practising in Gorodok, Khmelnytskyy region. The Ukrainian Government (“the Government”) were represented by their then Agent, Mr Nazar Kulchytskyy.

  3.  The applicant alleged, in particular, that he had been ill-treated by the police and that there had been no effective domestic investigation into the matter. He also complained that his self-incrimination under duress and in the absence of legal assistance had rendered his trial unfair.

  4.  On 28 November 2012 the application was communicated to the Government.

    THE FACTS

    I.  THE CIRCUMSTANCES OF THE CASE

  5.  The applicant was born in 1971. He is currently serving a prison sentence.

  6.  On 1 May 2007, at about 1 a.m., the corpse of Ms Kh., the applicant’s wife, from whom he was separated, was discovered with multiple stab wounds.

  7.  Later on 1 May 2007, at about 3 a.m., the police apprehended and questioned the applicant. His questioning was documented as that of a witness. The applicant confessed to the murder of Ms Kh.

  8.  The applicant described the circumstances in which that confession was given as follows. He had been taken to Gorodok Town Police Station, where the police had threatened him with a view to extracting a confession. As the applicant had refused to confess, they had handcuffed his hands behind his back, pulled a black cap over his head, covering his eyes, and had taken him somewhere downstairs. The applicant had been made to sit on a chair and his feet had been tied to the chair legs. The applicant had felt something touching his head behind the ears and something being pressed against his temples, and as his body started to shake and jerk realised that electric shocks were being administered to him. This had been repeated several times. The applicant had fallen off the chair. Thereafter a police officer had unzipped the applicant’s trousers and attached electric wires to his genitals. After several electric shocks had been administered to his genitals, the applicant had agreed to confess to the incriminated murder. After saying that he could not remember certain details, more electric shocks had been administered to him. One of the police officers involved in the ill-treatment had complained to the applicant that the latter had ruined his birthday celebration and had expressed his determination to obtain a confession from him.

  9.  According to the Government’s account of the events, the applicant had not suffered any ill-treatment and had confessed to the murder of his own free will.

  10.  On the evening of 1 May 2007 the applicant’s “voluntary surrender to the police” was documented, and he was questioned again, this time as a suspect. He signed a report confirming that his right to legal assistance had been explained to him. As noted in the questioning report, at first the applicant had expressed the wish to be represented by a lawyer, but had later decided to waive his right to legal assistance. He stated during the questioning that his waiver had not resulted from any ill-treatment.

  11.  On the same day an expert from the Yarmolyntsi Town Forensic Expert Examination Bureau examined the applicant on the investigator’s instruction with a view to establishing whether he had any injuries, if so, what their location and nature were, and finally whether those injuries could have been caused by a struggle with the victim.

  12.  With effect from 2 May 2007, the applicant was represented by lawyer B., who had been contracted by his sister. He was questioned as a suspect in the presence of his lawyer and maintained his confession. He further maintained it during the reconstruction of the crime conducted on the same day with the participation of his lawyer.

  13.  On 3 May 2007 the expert who had examined the applicant on 1 May 2007 completed the examination report. It documented a bruise on the applicant’s left shoulder blade, a bruise on the left side of his torso, a bruise beneath the right shoulder blade, a bruise on the left shoulder and another bruise in the upper part of the left forearm, a bruise on the left wrist, a bruise on the back of the right hand and on the right wrist, and an abrasion and a bruise on the left ear. The injuries in question were assessed as having originated one or two days prior to the examination from blows inflicted by blunt objects with a limited surface, and by falling against a blunt surface. They were assessed as insignificant. In addition, the expert reported two abrasions behind the applicant’s right ear, which could have originated from blunt hard objects with a limited surface and a slightly sharp edge (such as nails). The age of these sores was assessed as one day prior to the examination. Some older bruises (three to five days old) were also discovered.

  14.  On 4 May 2007 the applicant was again questioned in the presence of his lawyer. He maintained his confession. As regards his injuries, he explained that he had sustained them while working on a construction site and during his fight with Ms Kh. The applicant stated that the police had not ill-treated him.

  15.  On the same day the Gorodok Town Court remanded the applicant in custody pending trial. During the hearing he repeated his confession and did not lodge any complaints.

  16.  Still on that date, 4 May 2007, the applicant was examined by a panel of doctors in the Gorodok Central City Hospital. They found him to be in good health.

  17.  With effect from 8 May 2007 the applicant was represented by lawyer T. instead of lawyer B. He immediately retracted his confession and complained of his ill-treatment to the Gorodok town prosecutor’s office. The applicant submitted that he had incriminated himself as a result of coercion and that he had not committed the crime in question. He alleged that he had sustained electric shocks at the hands of the police and stated that no other ill-treatment had been used on him. As to his bruises, the applicant noted that they could have been caused by his falling to the floor whilst tied to a chair. He further explained that even when represented by lawyer B., he had been afraid to tell the truth and had repeated his confession as the lawyer had recommended.

  18.  On 10 May 2007 the applicant was questioned in the presence of his lawyer T. While maintaining the complaint concerning his ill-treatment, he submitted that his ear had been injured earlier...

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