FIFTH SECTION      CASE OF ZYAKUN v. UKRAINE (Application no. 34006/06)        JUDGMENT    STRASBOURG 25 February 2016  FINAL 25/05/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zyakun v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President, Ganna Yudkivska, Khanlar Hajiyev, Erik Møse, Faris Vehabović, Síofra O’Leary, Carlo Ranzoni, judges,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 2 February 2016,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 34006/06) 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 Vladimir Aleksandrovich Zyakun (“the applicant”), on 5 August 2006.2. The applicant was represented by Mr P. Sushko, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr B. Babin, of the Ministry of Justice.3. The applicant alleged, in particular, that he had been ill-treated by the police and that a confession obtained from him under duress had been used to secure his conviction.4. On 30 March 2011 the application was communicated to the Government.THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1961 and is currently detained.6. On the night of 12 to 13 June 2003 a house was robbed and three individuals were murdered in the Ivanivka District of the Odessa Region. On 13 June 2003 criminal proceedings were instituted in this respect.7. According to the applicant, on 27 June 2003 he was arrested in Sumy; the reasons for his arrest were not explained to him, no record of the arrest was drawn up, and there was a delay in charging him. He remained in detention thereafter. On the same day, the applicant was taken to the Sumy Regional Police headquarters, where he was allegedly beaten up by police officers from the Odessa Regional Police. According to the applicant, he had been handcuffed and remained so during the night.8. On 28 June 2003 the applicant was interviewed in Sumy by an officer of the Odessa Regional Police concerning the circumstances of his business trip to the Odessa Region from 10 to 18 June 2003. According to a written explanation signed by the applicant, he denied any involvement in the murder.9. According to the applicant, on the same day he was transferred to the Ivanivka police station, where he was allegedly subjected to beatings and psychological pressure by police officers with a view to obtaining a confession.10. According to the arrest report drawn up by Mr I.G., an investigator from the Odessa regional prosecutor’s office, the applicant was arrested on 30 June 2003 as a suspect in the criminal case. The applicant refused to sign the report. On the same day I.G. apprised the applicant of his right to defence and his right not to incriminate himself. According to a decision issued by I.G. on the same date, the applicant wished to be represented by P., who was formally appointed as his lawyer. Thereafter, the applicant was questioned by I.G. in his lawyer’s presence and confessed to the robbery and murder of three persons. According to the applicant, he was in fact questioned on 3 July 2003 and the record of his questioning was backdated to 30 June 2003. The applicant further maintained that the lawyer had left the interview in protest against the applicant’s poor state of health, but the lawyer’s signature was added to the record of the questioning afterwards.11. On 2 July 2003 the applicant made a written confession in the Ivanivka police station; his lawyer was not present.12. On 3 July 2003 another arrest report was drawn up by an officer on duty at the Ivanivka police station. It stated that the applicant had been placed under arrest on suspicion of murder. On the same day the Ivanivka District Court ordered the applicant’s pre-trial detention. His lawyer was not present.13. According to a statement from the applicant’s wife, on 8 July 2003 the lawyer P. informed her by telephone that her husband, who had been arrested in Sumy on 27 June 2003, was in Ivanivka.14. On 8 July 2003 the applicant was transferred to the Odessa temporary detention facility (ізолятор тимчасового тримання, “the ITT”). According to the applicant, the ITT had initially refused to admit him because of his injuries and a medical officer arranged for him to attend the local hospital for a medical examination. At the hospital a general surgeon and a neurosurgeon examined the applicant and issued a medical certificate stating that he had bruising on his shoulders and hips, and extensive bruising on his head and face, but that there was no indication of brain damage. Subsequently, the applicant was taken back to the ITT but the medical officer sent him back to the hospital for an additional examination, as not all the injuries on his body had been recorded. However, the hospital doctors refused to issue a new certificate.15. On an unspecified date the applicant was transferred from the ITT to the Odessa pre-trial detention centre (слідчий ізолятор, “the SIZO”).16. On 9 July 2003 the investigator charged the applicant and a Mr Y.G. with the robbery and murder of three persons.17. On the same day, at the applicant’s request, lawyer P. was replaced by lawyer K.18. On 5 September 2003 the applicant complained to investigator I.G. that the police officers had beaten him and put psychological pressure on him in order to force him to confess.19. In response to a request from the investigator I.G., on 23 October 2003 the ITT informed him about the injuries observed on the applicant on 8 July 2003 and about the disagreement as to their full extent which had occurred on that day.20. On 19 December 2003 investigator I.G. refused to institute criminal proceedings into the above complaint for want of proof against the police officers. According to the investigator’s decision, it was impossible to establish the circumstances in which the applicant had sustained his injuries. The investigator relied on a certificate from the SIZO, according to which at the time of the applicant’s admission to the SIZO he had had no injuries, and on the ITT records of 8 July 2003 describing the applicant’s injuries. The investigator stated that despite this information from the ITT, the applicant had not raised any complaints during his questioning at the ITT. The decision was included in the applicant’s criminal case file.21. On 30 December 2003 the applicant and his representative studied the criminal case file in its entirety.22. On 16 February 2004 the applicant refused to continue to be represented by lawyer K. and was given time to find a new lawyer.23. On 18 February 2004 the applicant wrote to the deputy prosecutor of the Odessa Region arguing that the decision of 19 December 2003 had been based on an error and asking that his case be examined impartially and carefully. The applicant alleged that the ITT had originally refused to admit him because of his injuries and had agreed to admit him only after he had presented a written explanation of his injuries to the ITT medical officer.24. On 4 May 2004 the applicant concluded a contract with Mr P. Sushko, who represented him in the proceedings thereafter.25. Following remittal of the applicant’s criminal case for an additional investigation, on 2 October 2004 it was transferred to the Odessa Regional Court of Appeal for trial. According to the applicant, he had been allowed to study only part of the case file material.26. In the course of the trial the applicant and Mr Y.G. retracted all their confessions, which they claimed had been given under duress, and asserted their innocence. The applicant raised the complaint that he had been ill‑treated. The Court of Appeal questioned the investigator I.G., who stated that the injuries recorded at the ITT could have been inflicted on the applicant in the course of arrest.27. On 1 August 2005 the Court of Appeal found the applicant and his co-defendant Y.G. guilty of murder and sentenced them to life imprisonment with confiscation of their property. The court based their conviction, among other things, on the testimony of Ms V., who had seen the applicant and Y.G. before and after the murder, on fingerprints from Y.G. found at the scene of crime, on the confessions made by the applicant and Y.G. in the presence of their lawyers, and on the applicant’s written confession of 2 July 2003 made in the absence of his lawyer. Commenting on the applicant’s complaint of ill-treatment, the court also took into account the investigator’s decision of 19 December 2003. It thus found that there was no evidence that the applicant’s confession had been obtained under duress and rejected his complaint as unsubstantiated.28. The applicant and his lawyer appealed in cassation, complaining, inter alia, of the applicant’s alleged ill-treatment in police custody, as a result of which he had confessed.29. On 11 April 2006 the Supreme Court upheld the applicant’s conviction. It noted that his complaint of ill-treatment had been thoroughly examined by the Court of Appeal and had been lawfully rejected as unsubstantiated. It also mentioned that the applicant’s guilt had been proved by his confession, among other things.II. RELEVANT DOMESTIC LAW30. The relevant domestic law is summarised in the cases of Yaremenko v. Ukraine (no. 32092/02, §§ 45-47, 12 June 2008) and Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012).THE LAWI. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION31. The applicant complained that the police officers had ill-treated him to extract his confession. He relied on Article 3 of the Convention, which reads as follows:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”A. Admissibility32. The Government noted that the applicant had complained to the prosecutor of the Odessa Region about ill-treatment by the police on 5 September 2003, and that the investigator had refused to institute criminal proceedings for lack of corpus delicti. The refusal decision had been made on 19 December 2003 and attached to the applicant’s criminal case file, thus the applicant must have become aware of it the same month, given that on 30 December 2003 he and his lawyer had studied the said case file in its entirety. The Government further noted that the applicant and his representatives had never challenged the prosecutor’s refusal of 19 December 2003 before a higher prosecutor or a court. The Government considered therefore that the applicant had not exhausted available domestic remedies. They further noted that the applicant’s complaints of ill-treatment during the trial and in his appeal to the Supreme Court did not mean that he had exhausted domestic remedies.33. In the alternative, the Government submitted that if the applicant had considered that there were no effective remedies available under which to challenge the decision of the prosecutor of 19 December 2003, he should have raised that issue before the Court within a period of six months after the decision was taken or, at the latest, after the date when he ought to have become aware of that decision, namely 30 December 2003. However, the applicant had lodged his application much later – on 6 August 2006.34. The applicant disagreed. He stated that he had been ill-treated and that his lawyers had seen the resulting injuries, but had not reacted. He considered the Government’s contentions unsubstantiated.35. The Court notes that it has previously rejected similar objections by the Government as to non-exhaustion of domestic remedies in the context of allegations of ill-treatment, for example in the case of Kaverzin (cited above, §§ 84 to 99). In that case, in similar factual circumstances the Court concluded that the applicant had taken sufficient steps at the domestic level to bring his complaints of police ill-treatment to the attention of the national authorities, noting that the fact that the complaints had been rejected by the prosecutor had not prevented the domestic courts from examining them on the merits in the course of the applicant’s trial.

Outcome for Article 6: violation