Ukraine loses another case in Strasbourg over questionable “confessions”


In the Case of Kolesnik v. Ukraine (application no. 17551/02), the European Court of Human Rights has reiterated that self-incriminating statements made in the absence of a lawyer cannot serve as the main basis for criminal conviction

In a chamber judgment issued on 19 November 2009, it found that there had been a violation of Article 6 §§ 1 and 3 (c) and (d) (right to defend oneself and right to have witnesses examined) of the European Convention on Human Rights

Principal facts

The applicant is a Ukrainian national, born in 1963, currently detained in Zhytomyr Prison in Ukraine. In November 1998, together with three other persons, he was arrested on suspicion of aggravated murder and robbery. During the initial questioning and a subsequent reconstruction of the events, conducted without legal assistance, the applicant confessed that he and other suspects had killed two persons in August and October 1998 respectively. The applicant later alleged that the police had forced him to confess and to waive his right to a lawyer.

Assigned a lawyer in the meantime, the applicant retracted his confession and claimed his innocence when questioned by the prosecutor in March 1999. In July of the same year the Regional Court remitted the case to the Prosecutor of the Region for additional investigation, as it found that the investigation authorities had violated certain provisions of the Code of Criminal Procedure. In particular, the court found that the criminal charges against the applicant would have required his legal representation at the initial stage of the proceedings.

After the additional investigation had been carried out, the Regional Court convicted the applicant – who pleaded innocent – in February 2001 of aggravated murder and robbery and sentenced him to 14 years’ imprisonment. The conviction was mainly based on the applicant’s self-incriminating statements made during the initial questioning and the testimony of three witnesses. The testimony of two other witnesses, who had confirmed the applicant’s alibi, were not taken into consideration, as the court doubted their credibility. The judgment was upheld by the Supreme Court in May 2001.

The applicant complained that the criminal proceedings against him had been unfair. He alleged that at the initial stage of the investigation he had been forced to incriminate himself and that the main investigative measures had been conducted without a lawyer. He also submitted that he had not been able to examine key witnesses against him as they had failed to attend the trial.

The application was lodged with the European Court of Human Rights on 2 November 2001.

Decision of the Court

The Court noted that the domestic courts had acknowledged the violation of the applicant’s procedural rights during the initial stage of the investigation, in particular his right to defence. Nevertheless the applicant’s self-incriminating statements, obtained in the absence of a lawyer and in circumstances giving rise to a suspicion that both the waiver of the right to legal representation and the applicant’s confessions had been obtained against his will, had served as a key element in his conviction. The Court therefore unanimously held that there had been a violation of Article 6 §§ 1 and 3 (c).

The Court further reiterated that all evidence normally had to be produced at a public hearing with the accused having the possibility to examine or have examined witnesses against him or her, and in his or her presence. In the present case the applicant had not had the opportunity to confront the three key witnesses against him either at the investigation stage or during the trial. According to the evidence and explanations presented by the Ukrainian Government, the domestic authorities had not taken sufficient steps to ensure the presence of those witnesses before the court. Despite these shortcomings, the witnesses’ testimonies had formed an important part of the body of evidence for the applicant’s conviction. The applicant had therefore been denied a fair trial in this respect too. Consequently, the Court held unanimously that there had been a violation of Article 6 §§ 1 and 3 (d).

The Court moreover unanimously held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.

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