5.  The applicant, Mr Aleksey Alekseyevich Malyy, is a Ukrainian national who was born in 1972 and is currently serving a sentence of life imprisonment.
6.  In the evening of 12 October 2004 a couple, Mr and Ms S. (aged 62 and 55, respectively), were robbed and murdered in their house in the Dnipropetrovsk region. The victims’ 15‑year-old son A. informed his neighbours, the family of K. (an acquaintance of the applicant), about that tragic event. According to A., the perpetrator was a masked man equipped with a knife and a hammer.
7.  On the same day the police arrested A. on suspicion of the murder. He was detained for over three months and confessed to having killed his parents. However, eventually he retracted that confession as made under duress.
8.  On 15 January 2005 the police arrested the applicant and his acquaintance, K. (see paragraph 6 above), on suspicion of a number of armed robberies of jewellery stores and banks committed together with several other persons in Dnipropetrovsk on various dates in 2004.
9.  On the same date the applicant signed a waiver of legal assistance and confessed to several counts of robbery.
10.  On the following day he again waived his right to a lawyer and reiterated his confessions, adding some further details.
11.  On 17 January 2005 a confrontation was conducted between the applicant and K., in the course of which they both confessed to the robberies and explained all the details.
12.  Later that day the applicant expressed a wish to be represented by lawyer Z. The investigator allowed that request and lawyer Z. was admitted to the proceedings.
13.  On 18 January 2005, shortly before an identification parade in which the security guard of one of the jewellery stores was to recognise the perpetrators, the applicant changed his mind and submitted that he did not need legal representation. Accordingly, he was not assisted by a lawyer during that investigative measure.
14.  Later the same day the applicant once again changed his mind and requested to be represented by lawyer Z. His request was allowed.
15.  The Government submitted to the Court a copy of the record of the applicant’s questioning as an accused conducted later on 18 January 2005 in the presence of his lawyer, Z. The applicant maintained his confession statements.
16.  The applicant did not comment on the above-mentioned record. According to information which he had provided to the Court in his application form, he had had the first meeting with his lawyer on 25 January 2005 in the investigator’s presence. It appears from the case-file materials that no investigative measures were conducted on that date.
17.  On 18 January 2005 the Dnipropetrovsk Kirovskyy District Court remanded the applicant in custody pending trial. On the same day he was transferred to the Dnipropetrovsk Temporary Detention Facility (“the Dnipropetrovsk ITT”).
18.  The applicant kept confessing to the robberies of which he was accused, in particular, during a reconstruction of the events conducted on 27 January 2005. Before the beginning of that investigative measure, he had stated that he did not need legal assistance given that he maintained his confession and wanted to show his remorse.
19.  The case file contains a copy of the search report of 28 January 2005, according to which the police conducted a search at the applicant’s home from 7.30 a.m. to 8 a.m. on that day. As stated in the report, some of the applicant’s sweaters and t-shirts of different colours and fabrics (about ten in total) were seized with a view to “being adduced to the investigation material”.
20.  Later on 28 January 2005 the applicant wrote “a statement of surrender to the police” confessing to the robbery and murder of Mr and Ms S. (see paragraph 6 above). As stated therein, he had found out from K. that the latter’s neighbours, Mr and Ms S., had sold some real estate and had a significant amount of money. The applicant and K. had agreed that the applicant would rob the couple, but the applicant had overstepped that agreement and had killed them.
21.  According to the applicant, the above-mentioned “statement of surrender” was a result of his continued ill-treatment on that day by the police on the premises of the criminal investigation department of Dnipropetrovsk Region (see paragraph 38 below).
22.  Later the same day K., too, wrote “a statement of surrender to the police” in respect of the robbery and murder of Mr and Ms S., in which he confirmed to the same investigator the account of the events given in the applicant’s related confession (see paragraph 20 above). K. submitted that on 12 October 2004 he had accompanied the applicant to the house of Mr and Ms S., that the applicant had gone inside for about twenty minutes and that after his return he had given K. 1,000 US dollars. Subsequently, in the course of the trial, K. would submit that the investigator had forced him to incriminate the applicant (see paragraphs 31 and 35 below).
23.  The case file contains a copy of the investigator’s decision on the admission of lawyer G. on 28 January 2005, “at the request of the accused”, to represent the applicant in the proceedings. As can be deduced from the case number indicated, those proceedings concerned the murder investigation. It is not known why the applicant’s procedural status was “an accused” at that stage (see also paragraphs 24 and 25 below). Nor is there any information or documents indicating when the lawyer started representing him in practice.
24.  On 1 February 2005 the applicant signed a report confirming that he had been familiarised with his defence rights as a suspect. He wrote that he “[did] not need a lawyer at [that] moment”. In the course of his questioning as a suspect that day, he reiterated his confession to the double murder. He signed a statement that “no measures of physical or psychological coercion” had been applied to him. According to his submissions to the Court, he was forced to waive his right to legal assistance and to further incriminate himself under the psychological pressure of the police.
25.  According to the information provided by the Government, on 4 February 2005 criminal proceedings were instituted against the applicant on suspicion of aggravated murder.
26.  On 10 February 2005 the investigator started to hold a confrontation between the applicant and K., in the presence of their lawyers, in respect of the murder case. The applicant, however, refused to participate in that investigative measure, referring to his hostile relations with K.
27.  On 11 February 2005 the investigator showed K. four different sweaters seized from the applicant’s home on 28 January 2005 (see paragraph 19 above). K. recognised one of them as that worn by the applicant at the time of the murder on 12 October 2004. Immediately thereafter, the sweaters were shown to A., who also recognised the same sweater.
28.  On 9 March 2005 a forensic medical immunological expert examination report was issued in respect of the applicant’s sweater recognised by K. and A. as the one worn during the crime (see paragraphs 19 and 27 above). A brown spot measuring about one square centimetre was discovered on the right sleeve. The experts established that it was human blood and that it could not be excluded that it might originate from a person or persons with the same blood group as the victims.
29.  On 12 May 2005 an identification parade took place in the absence of the applicant’s lawyer. A. identified the applicant “by his stature and voice” as the person who had murdered his parents. As submitted by the applicant, he had been the only person wearing winter clothes, which were also dirty. Furthermore, instead of masks the three participants of the identification parade had worn black plastic bags on their heads. A copy of the identification report of 12 May 2005 in the case file is illegible. It can only be seen that its text is limited to one brief paragraph.
30.  On 14 July 2005 the case was referred to the Dnipropetrovsk Regional Court of Appeal (“the Dnipropetrovsk Court”) for trial.
31.  On 19 January 2006 the Dnipropetrovsk Court, sitting as a court of first instance, found the applicant guilty of double murder committed with particular cruelty (in front of the victims’ child) and for profit, several counts of robbery, illegal arms’ handling, and creating a criminal gang. The most severe penalty, life imprisonment, was for the aggravated murder and absorbed those in respect of the other charges. During both the pre-trial investigation and the trial the applicant consistently confessed to almost all the robberies (except for one count). He had, however, retracted at a certain point during the trial his confession to the aggravated murder as extracted under duress and without legal assistance. K. also retracted his earlier statement on that charge in which he had incriminated the applicant, as having been obtained under duress.
32.  In reaching its conclusion about the applicant’s guilt, the trial court relied on his and K.’s “statements of surrender” made during the pre-trial investigation (see paragraphs 20 and 22 above). It noted that their ill‑treatment complaints had been duly investigated and dismissed by the prosecution authorities (see paragraph 43 below). Accordingly, the court considered that their initial confessions had been made of their own free will and observed that they were concordant with each other in all the details. At the same time, given the fact that the defendants had retracted them during the trial, the court refused to consider them as a mitigating circumstance in setting the sentence. The court further relied on the results of the identification parade of 12 May 2005, during which A. had recognised the applicant as the offender (see paragraph 29 above). Lastly, the trial court mentioned the applicant’s sweater among the evidence in support of his guilt (see paragraphs 19, 27 and 28 above).
33.  Both the applicant and his lawyer (the applicant was still represented by lawyer Z. – see paragraph 12 above) lodged cassation appeals against the above judgment. The case file before the Court contains only a copy of the lawyer’s cassation appeal, but not that lodged by the applicant (see also paragraphs 56-60 below).
34.  The applicant’s lawyer submitted in his cassation appeal that his client maintained his confessions to the robberies, but denied his involvement in the creation of a criminal gang. He also insisted that the applicant had had nothing to do with the aggravated murder of the Mr and Ms S. The lawyer found it suspicious that on 28 January 2005 the applicant had made his “statement of surrender to the police” in respect of that murder in the criminal investigation department of Dnipropetrovsk Region, whereas the ongoing criminal investigation at that time had been under the responsibility of the Kirovskyy police. In the lawyer’s opinion, that indicated that the applicant’s confession had not been made of his own free will. He further observed that his client had not been legally represented while making that confession. The lawyer argued that, even when the applicant had been legally represented, most investigative measures had taken place in the absence of his lawyer. That had concerned, in particular, the identification parade of 12 May 2005, of which the lawyer had not been informed in due time. The applicant’s lawyer considered that investigative measure to have been flawed also given the considerable difference in appearance between his client and the other participants, as well as the fact that A., who had himself been under suspicion, had had his own interests to pursue. Lastly, the lawyer observed that the trial court had relied on the statements of K. incriminating the applicant even though K. had stated that he had made them under duress.
35.  K. also lodged an appeal in cassation challenging, in particular, his conviction for abetting the robbery of the S. family. He submitted that he had been coerced into incriminating the applicant.
36.  On 3 October 2006 the Supreme Court upheld the applicant’s conviction, as well as that of the other defendants (six persons in total were convicted of the robberies), having found that the first-instance court had duly examined his arguments and complaints. During the hearings before the Supreme Court the applicant, along with the other defendants, was kept in a metal cage and remained handcuffed.
37.  According to the applicant, during the period from 15 to 18 January 2005, when he was held in the Kirovskyy police station after his arrest (see paragraph 8 above), he was subjected to various forms of ill-treatment, such as being kept in extremely tight handcuffs, slaps on his ears, deprivation of sleep and verbal abuse.
38.  The applicant also alleged that on 28 January 2005 he had been taken to the Dnipropetrovsk Region criminal investigation department, where the police had ill-treated him with a view to extracting his confession to the aggravated murder of Mr and Ms S. The applicant provided the following account. Police officers put a black cap on his head covering his eyes and hit him many times in the head with a pile of books. His hands remained handcuffed behind his back. They also hit him several times with a rubber truncheon in the kidneys and on the legs. He further alleged that the police had threatened him with rape. The alleged ill-treatment continued from about 10 a.m. to about 6 p.m., after which he succumbed to the pressure (see paragraph 20 above).
39.  The case file contains contradictory information as to whether the applicant was taken to the Dnipropetrovsk Region criminal investigation department on 28 January 2005. The ITT’s records indicate that he did not leave the ITT premises on that day. However, as noted by the head of the Dnipropetrovsk Region criminal investigation department in his letter of 14 May 2007 sent in reply to an enquiry from the applicant, on 28 January 2005 the applicant had indeed been on the premises of that department, but no investigative measures had been carried out on that date. Following the applicant’s request for additional details, the official’s reply was that there was no information as to the exact time the applicant spent in that building on 28 January 2005 or as to which officer had requested his transfer there.
40.  According to the applicant, in the morning of 29 January 2005 he told the ITT doctor that he had been beaten up and that he was suffering from a headache, but his complaints were disregarded.
41.  On 31 January 2005 the applicant was transferred from the Dnipropetrovsk ITT to the Dnipropetrovsk Pre-Trial Detention Centre (“the Dnipropetrovsk SIZO”). According to the Government, during his medical examination no injuries were discovered on him and he did not raise any complaints. According to the applicant, that examination was superficial and his complaints of headache did not receive any attention.
42.  On 8 November 2005 the Dnipropetrovsk Court instructed the prosecution authorities to investigate the applicant’s allegation of ill‑treatment, along with similar allegations from the other accused (see paragraphs 31 and 32 above).
43.  On 18 November 2005 the Dnipropetrovsk regional prosecutor’s office issued a ruling refusing to institute criminal proceedings in respect of the above allegations, having found them unsubstantiated. That decision was based on the statements of the police officers concerned, who denied having ill-treated the applicant and the other accused. As the investigator had explained, all the accused had confessed of their own free will to the offences of which they were suspected and had consistently reiterated those confessions. Furthermore, none of them had raised any complaints of ill‑treatment. In sum, their allegations were dismissed as being without basis.
44.  After his conviction, the applicant complained to various authorities of ill-treatment by the police during the pre-trial investigation and of the unfairness of his conviction.
45.  On 19 April 2007, having sent numerous requests, the applicant received a copy of the prosecutor’s ruling of 18 November 2005 (see paragraph 43 above). His subsequent complaint to the courts against it was dismissed without examination as belated: having initially complained to the wrong court, the applicant missed the seven-day time-limit calculated from 19 April 2007.
46.  In February 2008 the applicant’s mother complained to the Prosecutor General’s Office that there had been no effective investigation into his ill-treatment allegations. Her complaint was dismissed as unsubstantiated.
47.  On 23 March 2017 the Dnipropetrovsk prosecutor informed the Government’s Agent, in reply to an enquiry from the latter, that all the investigation materials had been destroyed because the five-year time-limit for their storage had expired.
48.  From 31 January 2005 to 26 July 2007 the applicant was detained in the Dnipropetrovsk SIZO: in an ordinary cell before his conviction on 19 January 2006; and in the high-security wing located in a semi-basement thereafter.
49.  According to the applicant, during the entire period the conditions of his detention in the SIZO were unacceptable. There were tight metal screens on the windows preventing access to daylight. The artificial light was poor, too. The toilet was not separated from the living area and was exposed to the video-surveillance camera. The sanitary conditions were very poor, with a malfunctioning sewerage system, recurrent floods and a permanent smell of excrement. For most of the time he was detained in a basement cell measuring 1.9 m by 3.7 m, which he shared with another inmate. The cell lacked basic furniture and items such as a cupboard, a mirror or a rubbish bin. The premises were infested with rats and had never been disinfested. The detainees had very limited access to news and information about the outside world, the only source being a radio turned on only for a limited period of time every day, apart from weekends. The food was meagre and consisted mostly of bread and wheat-based cereal.
50.  According to the information provided by the Government, the applicant was detained in the following cells: nos. 1003, 1021 and 1024 (designated for six inmates), nos. 717, 724, 725, 728, 732, 733, 739, 743 and 786 (designated for four inmates), and, following his conviction by the first-instance court, in high-security cells nos. 01, 1k, 02, 03, 04, 4k, 05, 06 and 6k (designated for two inmates). As stated by the SIZO administration, the applicant had been provided with a bed and with “all the necessary items”.
51.  On 12 January 2007 the applicant complained about the conditions of his detention to the State Department for Execution of Sentences (“the Prison Department”), which replied that they were in compliance with the applicable legal standards.
52.  According to the applicant, on 11 December 2006 he submitted to the SIZO administration his first letter to be dispatched to the Court, outlining his complaints and requesting that proceedings be opened. In the absence of a reply, on 23 February 2007 the applicant submitted another similar letter to the administration. In his further correspondence with the Court he indicated the reference numbers assigned by the administration to those first two letters. The Court has never received them. The first letter from the applicant to have reached the Court was dated 11 December 2006; it had been sent to the Court by his mother on 14 March 2007 (the date on the postage stamp).
53.  As indicated in a letter sent to the applicant by an official of the Prison Department on 11 October 2007, the administration of the Dnipropetrovsk SIZO had duly registered and sent his letters to the Court.
54.  In November 2007 the applicant’s mother requested the governor of Yanakiyeve prison (in which the applicant was serving his sentence at the time) to provide her with documentary evidence proving that her son’s letter of 11 December 2006 had indeed been sent to the Court. The prison official replied that it could be proved by the fact that a copy of the cover letter from the SIZO administration accompanying the applicant’s letter in question was available in the file.
55.  In March 2017 the Dnipro (renamed “Dnipropetrovsk”) prison authorities informed the Government’s Agent, in reply to an enquiry from the latter, that the correspondence records of the Dnipropetrovsk SIZO related to the period in question had been destroyed owing to the expiry of the time-limit for the storage of such documents.
56.  Starting from October 2006 the applicant sent numerous requests to the trial court, seeking access to his case file and copies of certain documents, which he intended to submit in substantiation of his application to the Court.
57.  On 27 July and 23 August 2007 the Court requested the applicant to submit a copy of his cassation appeal against the judgment of the Dnipropetrovsk Court of 19 January 2006.
58.  By a letter dated 19 October 2007, the applicant, relying on the above-mentioned letters from the Court, asked the Dnipropetrovsk Court to send him a copy of his appeal in cassation.
59.  In its reply of 24 October 2007, the court stated that there was no legal basis for providing the applicant with copies of documents from his case file after the entry into force of the verdict in his case.
60.  The applicant and his mother on his behalf sent a total of about ten requests for copies of documents from his case file. All of them were rejected with the same reasoning as mentioned above.