Case of European Court of Human Rights, October 31, 2019 (case MAZUR v. UKRAINE)

Defense:UKRAINE
Resolution Date:October 31, 2019
SUMMARY

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

 
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FIFTH SECTION

CASE OF MAZUR v. UKRAINE

(Application no. 59550/11)

JUDGMENT

STRASBOURG

31 October 2019

This judgment is final but it may be subject to editorial revision.

In the case of Mazur v. Ukraine,

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

André Potocki, President,Mārtiņš Mits,Lәtif Hüseynov, judges,and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 8 October 2019,

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

PROCEDURE

  1. The case originated in an application (no. 59550/11) 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 Andriy Igorovych Mazur (“the applicant”), on 12 September 2011.

  2. The applicant, who had been granted legal aid, was represented by Mr M. Tarakhkalo, Ms O. Chilutyan and Ms V. Lebid, lawyers practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.

  3. On 19 April 2018 notice was given to the Government of the complaints under Article 3 of the Convention of ill-treatment of the applicant by the police as well as of the complaints under Article 6 of unfair criminal proceedings against him, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  4. The applicant was born in 1982 and lives in Tlumach.

    1. The background to the case

  5. On 2 November 2002 a minor girl, P., was found dead, with a number of bodily injuries, at a construction site in Tlumach, next to the bar where she had last been seen. On the same date a criminal investigation was instituted into her death. The applicant and his friends, who had been among the clientele of the bar, were questioned as witnesses at the time, but no further action was taken then in their respect. In August 2007 the investigative authorities looked into some operational information on the possible involvement of Tlumach residents in P.’s murder.

  6. On 23 August 2007 D., a friend of the applicant, was placed in administrative detention for ten days for disobedience to the police. On 29 August 2007, during his administrative detention and in the absence of a lawyer, he made a “statement of voluntary surrender and confession to the police” and provided “explanations” in which he confessed to having witnessed the rape of P. by L., B., M. and the applicant. He also stated that it was L. who had murdered P. in order to cover up the sexual assault. He confirmed his confession during his questioning as a witness, in the course of a reconstruction of the crime, and during a face-to face confrontation with B., on 30 August, 1 and 2 September 2007 respectively. No lawyer was present during any of the above-mentioned investigative stages. Later on the applicant confirmed his testimony in the presence of a lawyer but eventually retracted his statements during trial as having been extracted by the police by means of ill-treatment and in the absence of a lawyer.

  7. On 31 August 2007 B. was placed in administrative detention for seven days for disobedience to the police. On 2 September 2007, during his administrative detention, he was questioned on account of P.’s murder and confessed to having covered it up. On 3 September 2007 he made a statement of voluntary surrender and confession to the police in which he confessed to having raped P. and named L., D., M. and the applicant as his accomplices. On the following day, he confirmed his confession while being questioned as a witness and also in the course of a reconstruction of the crime, and provided additional details. No lawyer was present at any of the above-mentioned investigative stages. On 5 September 2007 B. retracted his self-incriminating statements and complained that the police had ill‑treated him in order to extract a confession, providing him with the details he had had to include in his confession.

  8. On 3 September 2007 in order to verify D.’s confession, the regional police department seconded several police officers to Yalta, where the applicant was working at the time, and ordered them to bring him before the investigator in Ivano-Frankivsk.

    1. The applicant’s detention from 4 to 7 September 2007, his alleged ill-treatment and the criminal proceedings against him

  9. On 4 September 2007, at about 2 p.m., the police officers arrived at the applicant’s workplace in Yalta and took him to Ivano-Frankivsk. According to the applicant, he was de facto arrested in Yalta but the arrest was not recorded, he was not granted access to a lawyer and his relatives were not informed of his whereabouts.

  10. On 6 September 2007, at the Ivano-Frankivsk Regional Police Department (“the Department”), the applicant made a statement of voluntary surrender and confession to the police in which he submitted, in particular, that in October 2002 he and his friends had been having a party at K.’s apartment; that one by one, L., D., M. and B. had had sexual relations with P. who had also been present; that the applicant had not had sex with P. as, at some point that night, she had refused to continue having sexual relations; that D. and L. had then gone to the bedroom where P. had been and when they had come back they had been arguing about who of the two of them had murdered P.; that his friends had then requested his help hiding the body but that he had refused and left. The handwritten text of the confession was followed by a statement, written in different handwriting, by which the applicant testified that everything set down in the document was correct and that no physical or psychological force had been used on him by the police.

  11. According to the applicant, the police subjected him to ill-treatment in order to obtain the above confession. In particular, on the way from Yalta, a police officer hit him on his nose and demanded that he confess to P.’s murder. In the evening of 5 September 2007 they arrived first in Ivano‑Frankivsk but did not stay there before going on to the Tlumach police station. There, at an office on the second floor, he met the head of the criminal investigations unit and three police officers: G., Pav. and Gon. They accused him of the sexual assault and murder of P. and demanded his confession to those crimes, stating that his accomplices had been questioned and had implicated him. When the applicant refused to confess, the police officers started beating him about his head, kidneys and ears. During the beating they provided him with the details of the crime which he was supposed to state in his confession. He was also suffocated by means of a polyethylene bag. Then they handcuffed him to a radiator and left the room. Officer Gon. then returned and instructed a young officer to “practise on the applicant”. The applicant was beaten about his head with a plastic bottle filled with water until he lost consciousness. When he regained consciousness, he was vomiting. The officers again demanded that he confess and beat him when he refused. Officer Pav. threatened the applicant with a gun, saying that if he did not confess then he would shoot him and say that he had had to do so in order to try to prevent the applicant from escaping. The applicant spent that night handcuffed to a radiator in the investigation office of the Tlumach police station, without food or any opportunity to go to the toilet.

    On 6 September 2007 the applicant was once again informed that his four acquaintances had implicated him in the crime. He was advised to testify, if he wished to avoid a life sentence, that he had witnessed, but not participated in, the crimes. He refused and was then taken to the Department, where he was beaten again and shown a copy of B.’s confession. Unable to bear the beating, he agreed to confess. Officer Got. came in and drafted the confession. The applicant signed it without reading it as he found the officer’s handwriting to be illegible and, in addition, his eye had been seriously damaged by the beating to the extent that he was no longer able to see. The officer read out the confession several times and demanded that he repeat it during all subsequent investigative actions if he wished to be allowed to return home. He spent that night handcuffed to a radiator in the Department and on the next day was taken before the investigator.

  12. On 7 September 2007 the applicant, as a witness, confirmed his confession in detail when questioned by the investigator, and during a reconstruction of the crime and a face-to-face confrontation with K., the person who had rented the apartment in which P. had been murdered. No lawyer was present during those investigative steps. Officers G. and Pav. were present during the crime reconstruction. According to the applicant, he repeated his confession as the police officers had threatened further ill‑treatment and because he was physically exhausted, hungry and had a constant headache and nausea after the beatings. He wanted to go home. The applicant indicated that he was released at a time near midnight on that date.

  13. On the morning of 8 September 2007 the applicant was admitted to the Tlumach hospital and remained there until 14 September 2007. He was diagnosed with a closed head injury in the form of a concussion and with a contusion to the soft tissues on his face.

  14. On the same date, 8 September 2007, the applicant’s father, and on 10 September 2007 the applicant himself, complained to the Ivano‑Frankivsk prosecutor’s office of the unlawful detention of the applicant by the police between 4 and 7 September 2007 and of his ill‑treatment. In doing so, the applicant provided a detailed description of the treatment to which he had been subjected and retracted all statements he had made in police custody. The complaints were forwarded to the Tlumach prosecutor’s office for examination.

  15. On 17...

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