Case of European Court of Human Rights, January 09, 2020 (case SIYANKO v. UKRAINE)

Defense:UKRAINE
Resolution Date:January 09, 2020
SUMMARY

Violation of Article 6+6-1 - Right to a fair trial (Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Fair hearing)

 
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FIFTH SECTION

CASE OF SIYANKO v. UKRAINE

(Application no. 52571/11)

JUDGMENT

STRASBOURG

9 January 2020

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

In the case of Siyanko 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 3 December 2019,

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

PROCEDURE

  1. The case originated in an application (no. 52571/11) 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 Mykola Fedorovych Siyanko (“the applicant”), on 27 July 2011.

  2. The applicant, who had been granted legal aid, was represented by Ms N. Okhotnikova, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.

  3. On 16 May 2018 notice of the application was given to the Government.

  4. No comments were received in due time from Res Publica, an Albanian non-governmental organization, which was given leave to intervene in the written proceedings under Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  5. The applicant was born in 1959 and is detained in Cherkasy.

    1. Background to the case

  6. Between October 2004 and May 2009 four old women, Tso., S., Z. and Ye., were found dead in their houses in the village where the applicant was living. Some of them had visible head injuries. The police were not called and no criminal proceedings were instituted at the time in connection with their deaths on the assumption that there was nothing suspicious in their deaths; it was considered that they had died by accident.

  7. In March 2008 criminal proceedings were instituted in connection with a theft of money from K.’s house. The applicant and his wife, who were K.’s neighbours, had been involved as attesting witnesses in those proceedings. The proceedings were suspended on an unspecified date in 2008 as no perpetrator had been identified.

    1. Criminal proceedings against the applicant

  8. In the early morning on 7 July 2009 Kl., another aged neighbour of the applicant, was found murdered at her home. The police dog had brought the police to the applicant’s house. The applicant was taken to the village council and then to a police station.

    The applicant did not contest before the Court that it had been him who had killed Kl. According to him, he had planned to go to the police to confess to the murder but the police had come first.

  9. On the same date a criminal investigation was instituted against the applicant for the murder of Kl. and at 10 a.m. on that day he was formally arrested at the police premises. The available documents suggest that during his arrest the applicant was apprised of his rights as a suspect but waived his right to a lawyer in writing indicating that his refusal was not linked to his financial situation. Investigator Pav. accepted the waiver, noting that legal representation was not mandatory under a murder charge. Following this, from 12.05 to 12.50, the applicant was questioned as a suspect. During the interview, he admitted his guilt in Kl.’s death, submitting that he had killed her by accident on 6 July 2009 and providing details.

    The applicant stated that after his arrest he had requested the assistance of a legal-aid lawyer or a meeting with a person who could assist him in hiring a private one but the request had been dismissed by the investigator. Following an insistent request by the investigator, he had had to waive his right to legal assistance.

  10. At 2 p.m. on the same day a record of the applicant’s voluntarily surrender and confession to the police (явка з повинною) was drawn up by Investigator P., whom the applicant knew. The applicant confessed, in a concise fashion, to the murder of Kl.

    According to the applicant, the confession was written on the demands of, and as dictated by, the investigator.

  11. On 8 July 2009 a reconstruction of the crime was organised at Kl.’s house in the absence of a lawyer and in the presence of attesting witnesses, a forensic medical expert and a criminal law specialist. According to the reconstruction record, the applicant was invited by the investigator to show, of his own free will, how he had killed Kl. The applicant agreed. He provided a detailed account of the relevant circumstances, clarifying them on the request of the forensic expert and the investigator.

    According to the applicant, he gave evidence as instructed by Investigator Shch., who did not appear in the formal records at the time but was de facto heading the investigation instead of Pav.

  12. On 10 July 2009, from 9 to 9.20 a.m., the applicant was informed by Investigator Pav. of his procedural rights, including the right to legal assistance, and again waived his right to a lawyer in writing. He was then charged with the premeditated murder of Kl. and, between 9.30 and 10.30 a.m., he repeated his earlier testimony, maintaining that he had killed Kl. by accident.

    According to the applicant, he requested a meeting with a lawyer but his request was again rejected.

  13. Later on the same date, from 11 a.m. to 3.20 p.m. five records of the applicant’s voluntary surrender to the police had been consecutively drawn up by Investigator P., suggesting that the applicant had appeared before him and confessed to having committed a number of crimes: the theft from K.’s house (see paragraph 7 above); the murders of Z. and Tso.; the murder and robbery of Ye.; and the murder of a woman from his village named Motria whose last name he did not remember but who was later identified as S. (see paragraph 6 above).

    According to the applicant, his confession to the theft from K.’s house had been made following a threat by an investigator that if he refused to confess, his wife would be charged as his accomplice to the theft and that this would expose their child to the risk of placement in an orphanage. Other self-incriminating statements were also made under “pressure” from the investigator and as dictated by him. He also submitted that on the same date, he had been forced to agree that some ammunition would be planted in his house by the police; he had been promised in this connection that he would not be prosecuted as the bullets were too old and no longer usable.

  14. On 11 July 2009 the police conducted a search of the applicant’s house and seized seventy-six bullets for different weapons.

  15. On 13 July 2009 the applicant was additionally questioned as a suspect in the investigation related to Kl.’s murder. The available documents suggest that before the questioning, at which a prosecutor was also present and of which a video-recording was made, the applicant was apprised of his procedural rights in writing and he requested the assistance of Ts., a lawyer; the lawyer was admitted to the proceedings and the above interview took place in his presence. According to the record of the above interview, the applicant admitted his guilt regarding Kl.’s death and, as a reply to unspecified questions on the part of Investigator Pav., made further statements in which he confirmed he had murdered Z., Tso., Ye. and S., providing details. He stated, inter alia, that he had come to the victims’ house to ask for a loan as he had needed money to pay his bills; once the victims had refused to give him money, he had killed them.

    According to the applicant, before being questioned he was apprised of his rights orally but did not understand a word. He further stated that after he had managed to talk to the prosecutor, he had been provided with legal assistance by Ts., but that he had had no possibility to talk to the lawyer in private before or during the interview.

  16. Between 14 and 22 July 2009, still in the framework of criminal proceedings in respect of Kl.’s murder, a number of investigative measures were taken to verify the applicant’s confessions in respect to the other murders which included examination of the crime scenes, questioning of the victims’ relatives and other witnesses, and exhumation and examination of the victims’ corpses. Material evidence, including one of the victim’s hairs found covered with blood on a doorframe, was discovered following an examination of the crime scene. The forensic expert confirmed following the exhumation that there had been injuries inflicted on the victims’ bodies. In his reports issued after the reconstructions of the crime with the applicant’s participation had been conducted (see paragraph 19 below), the expert concluded that the victims’ injuries could have been inflicted in the circumstances indicated by the applicant.

  17. On 20 July 2009 criminal proceedings were instituted against the applicant on account of unlawful possession of ammunition seized from his house on 11 July 2009 (see paragraph 14 above).

  18. On 23 and 24 July 2009 investigator L. questioned the applicant as a suspect and accused accordingly in the proceedings concerning unlawful possession of ammunition. No lawyer was present during the interviews as the applicant had waived his right to legal assistance. The applicant admitted his guilt in the offence. According to the applicant, he did so at the request of the investigator and provided evidence as dictated to him in exchange for a promise to grant him a meeting with his wife to discuss the issue of hiring a private lawyer.

  19. On 29 July 2009, in order to verify statements given by the applicant during his questioning of 13 July 2009, reconstructions of the crimes were conducted in the village in the presence of Ts., a forensic medical expert, attesting witnesses and criminal law specialists. The applicant provided a detailed account of the crimes, confirming his guilt. The applicant alleged that...

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