FIFTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 65743/01 by Nikolay Leonidovich KHIVRENKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 25 September 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr V. Butkevych , Mr R. Maruste , Mr J. Borrego Borrego , Mrs R. Jaeger , Mr M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 16 January 2001,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Nikolay Leonidovich Khivrenko, is a Ukrainian national who was born in 1950 and lives in the town of Alushta . The Ukrainian Government (“the Government”) were represented by their Agents, Mr Y. Zaitsev and Mrs V. Lutkovska.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 3 June 1997 Mr T., a businessman, was kidnapped by a group of persons when he was approaching his hotel after his morning jogging. Shortly afterwards, the police was informed about his disappearance. Mr T. ’ s business partners received a number of phone calls from the kidnappers, demanding a ransom and explaining the manner in which the money should be paid. Some of the telephone conversations were intercepted by the police. The police also recordered telephone conversations between the kidnappers. The interception was authorised by the President of the Kyiv City Court on 3 June 1997.

On 14 June 1997 the applicant and six other persons were apprehended on suspicion of forcible abduction of Mr T. On 17 June 1997 they were charged with aggravated extortion.

On 29 August 1997 the investigators ordered an expert examination of the audio recordings of the telephone conversations made in June 1997. The investigators also took samples of the voices of the applicant and other accused and provided the expert with these samples.

On 1 December 1997 the examination was completed. The expert concluded that one of the voices on the recordings belonged to the applicant.

On 28 January 1998 the applicant familiarised himself with the expert ’ s conclusions.

In May 1999 the investigations were completed and the case was referred to the Moskovskyy District Court of Kyiv for trial. The investigators also submitted a list of persons, the accused and twenty-two witnesses, to be summoned by the court. The applicant and his lawyer took part in the court proceedings.

In the course of these proceedings eight witnesses, including one of the investigators, were heard in person. One of those witnesses, Mr S., stated that on 2 June 1997 he had met the applicant and Mr B., whom he had known before, at the hotel where Mr T., the victim, had stayed. Mr B. had asked Mr S. if the latter knew the place where the hotel clients were jogging. Mr S. had given him relevant explanations. On 3 June 1997 Mr S., upon the victim ’ s business partners ’ request, had met with the applicant and Mr B. in order to find out whether the latter knew about the victim ’ s whereabouts. He had received an affirmative answer from Mr B., the applicant having been present at that meeting but having not participated in the conversation. Thereafter, Mr S. had had several telephone conversations with Mr B., discussing the conditions of the victim ’ s release.

Another witness, Mrs V., informed the court that since May 1997 the applicant had resided in her flat in Kyiv and that her mother, Mrs K., had given the keys to her summer house to one of the applicant ’ s co-defendants. As it was later established in the course of the investigations and trial, the victim had been held in that summer house.

While the investigator heard by the court as a witness submitted that the defendants had fully enjoyed their procedural rights and that they had had access to all the materials contained in the case-file, the remaining witnesses made statements relating to some of the applicant ’ s co-defendants ’ activities at the material time.

The court decided to admit and examine the written statements of fourteen other witnesses obtained at the stage of the pre-trial investigation, after having accepted the reasons for their non-appearance before the court. As far as can be determined from the contents of the court records , the police, who had been ordered to bring the witnesses before the court, informed the court that five of those witnesses resided abroad and that four other witnesses could not advance the money for travel ling. T he reasons for the non-appearance of other five witnesses remained unclear.

The co-defendants ’ lawyers objected to the admission of the written statements of some of those witnesses and insisted on their appearance at the court hearing. The applicant ’ s lawyer seconded her colleagues ’ objections.

In her written submissions, one of the witnesses, Mrs K., had informed the investigators that in May 1997 she had given the keys to her summer house to the applicant, who had intended to use it for the storage of goods.

The other written statements examined by the court concerned the victim, his relations with business partners, and the activities of some of the applicant ’ s co-defendants.

Although at the stage of pre-trial investigation some of the applicant ’ s co-accused had confirmed that he had organised the abduction of Mr T. upon the request of Mr M. and Mrs M., they all withdrew their initial statements at the trial stage. Nonetheless, the court admitted their statements made at the pre-trial stage, as well as their later submissions.

The applicant denied his responsibility for the crime of which he had been accused. He also submitted that the statements of Mrs K. and his co ‑ accused made at the pre-trial stage were untrue.

In the course of the trial the court also examined the transcripts of the recordings of the telephone conversations made in June 1997 and the expert ’ s conclusion of 1 December 1997.

On 17 January 2000 the applicant together with his co-defendants were found guilty of aggravated extortion. The applicant was sentenced to ten years ’ imprisonment with confiscation of his property.

In its judgment, the court made the following findings concerning the applicant ’ s guilt:

“ ... It was established in the court hearing that, taking into account the circumstances of the case, [Mr] Khivrenko had been one of the organisers and a leader of the organised criminal group.

In addition ... the leading role of [Mr] Khivrenko in committing extortion ... is [confirmed] by the evidence collected in the course of ... the interception of telecommunications which had been carried out on the basis of the warrant issued by the President of the Kyiv City Court ... on 3 June 1997.

It was established in the court hearing that, given the audio recordings ... , [Mr] Khivrenko had had telephone conversations with [Messrs B. and Y., his co-defendants, and Ms A., a witness], and other persons with the aim of extorting individual property of the victim...”

The lawyers, representing the applicant and his co-defendants, appealed in cassation, alleging that the first instance court had wrongfully assessed evidence and applied law in the case. They argued, inter alia , that the court had failed to summon the witnesses, Mr M. and Mrs M., whose written statements had been admitted to the case-file and who had allegedly ordered the victim ’ s abduction; that the court had not allowed the defendants to familiarise themselves with the audio recordings of the telephone conversations made in June 1997; and that the court had failed to re-qualify the acts of the defendants who had allegedly abducted the victim in order to ensure his compliance with financial obligations in respect of a third party. On the whole, according to the defence lawyers, the conviction was not based on any reliable evidence.

The applicant ’ s lawyer lodged an amendment to the above appeal, reiterating that neither he nor the applicant had been able to familiarise themselves with the audio recordings of the telephone conversations made in June 1997. The lawyer also submitted that the court had failed to take into account the fact that there had been procedural irregularities in the course of the pre-trial investigation in that the applicant had not been provided with assistance by a lawyer at his first interrogation. Finally, the lawyer contested the trustworthiness of the statements of the witness Mrs K.

On 3 August 2000 the Kyiv City Court upheld the judgment of the first instance court. The city court found that the judgment had been well ‑ founded and that there had been no procedural irregularities at the stage of the investigation or trial.

On 17 September 2002 the applicant was conditionally released from serving his sentence.

B. Relevant domestic law

1. Procedural status of the suspected, accused, defendant, and defence lawyer

Pursuant to Article 48 of the Code of Criminal Procedure (the Code), as worded at the material time, the procedural rights of the defence lawyer included the rights to meet with the suspected or the accused; to be present at their interrogation; to be present during the investigative procedures in which the suspected or the accused took part or which were initiated by them; to take part in other investigative procedures subject to the consent of the person conducting an inquiry or the investigator; to familiarise himself with the case-file following the completion of the pre-trial investigations and to make notes; to participate in the trial; to collect evidence; to get the expert ’ s written conclusions concerning the issues the examination of which required special knowledge; to submit evidence and to lodge motions.

The defence lawyer should be informed in advance about the date and place of the investigative procedures which he requested or in which the suspected or the accused took part.

During an investigative procedure the defence lawyer had the right to put questions to the persons who were interrogated and to submit written remarks concerning the accuracy of the notes taken by the investigator.

According to Article 255, the procedural rights of the defendant included the right to challenge the persons participating in the trial; to lodge motions and to express his opinion concerning the motions of other persons participating in the trial; to request the court to include documents into the case-file, to summon witnesses, to order expert examination; to testify or to refuse to give evidence or answer questions; to put questions to other defendants, witnesses, expert, specialist, victim, and civil party; to participate in the examination of material evidence etc.

Article 266 entitles the defence lawyer to participate in the examination of evidence by the court; to lodge motions concerning the admission of new evidence; to express his opinion on the meaning of the evidence examined in the course of the proceedings etc.

2. Rights of the suspected, accused, defendant, and defence lawyer as regards expert examinations

According to Article 62, the suspected, the accused or their lawyer could request the withdrawal of an expert. The expert should withdraw from the case if he was a victim, civil party or their relative, or a relative of the investigator, the person conducting an inquiry, the prosecutor or the defendant; if he had already participated in the proceedings as a witness, defence lawyer, victim ’ s or civil party ’ s representative, person conducting an inquiry, investigator, prosecutor, or if he had already considered procedural complaints in the case as a judge; if he was he was personally interested, directly or indirectly, in the outcome of the proceedings; if there were other reasons for which his impartiality could be called into question.

Article 197 of the Code provided that at the time when an expert examination was ordered or was being carried out the accused enjoyed the following rights:

1) to challenge an expert;

2) to request the appointment of an expert from a list of persons submitted by the accused;

3) to request additional questions to be put to the expert;

4) to give explanations to the expert;

5) to submit additional documents;

6) to familiarise himself with the expert ’ s materials and conclusions after the completion of the expert examination;

7) to request a new or additional expert examination.

The investigator was obliged to provide the accused with a possibility to familiarise himself with the order for an expert examination and to explain him the rights listed in this Article.

Article 200 of the Code stipulated that upon the completion of the examination the expert had to draw up a report containing the information concerning his name and professional qualification; grounds for the examination; questions put to him and answers to these questions; materials used in the course of the examination; studies carried out etc.

Under Article 202, the investigator was obliged to provide the accused with a possibility to familiarise himself with the materials of the expert examination and to note the explanations, remarks and objections which the accused raised, as well as the latter ’ s requests.

3. Rules applicable in cases of a witness ’ failure to appear before the court

If a witness or an expert failed to appear before the court, Article 292 obliges it to consult the parties before deciding whether the proceedings could continue.

In exceptional cases the court could release a witness, who was subject to special measures of protection, from his obligation to appear before it, provided the witness had confirmed in writing his earlier statements.

Pursuant to Article 306, the court could, on its own initiative or upon the prosecutor ’ s or other party ’ s motion, read out the witness ’ statements obtained at the stage of inquiry, pre-trial investigation or trial, if

1) the statements made at the trial and in the course of the investigation or inquiry substantially contradicted each other;

2) the witness ’ presence at the hearing was, for some reason, impossible;

3) the case was heard in the witness ’ absence pursuant to Article 292 of the Code.

4. Other relevant rules of procedure

Under Article 312 the court had powers to order a new or additional expert examination. In such a case the proceedings could be suspended.

Article 313 stipulated that material evidence had to be observed by the court and the parties were to be given an opportunity to examine them. The pieces of evidence, which could not be brought into the court hearing, could be observed on spot.

According to Article 323, the judgment had to be based on the evidence examined at the court hearing.

COMPLAINTS

The applicant complained under Article 6 § 1 separately and in conjunction with Article 6 § 3 (d) of the Convention that he had been denied a fair trial. In particular, the applicant alleged that the audio recordings, on which his conviction had been based, had not been examined in the proceedings and that he had not been able to familiarise himself with these recordings in order to contest their trustworthiness. The applicant also complained that the courts had not allowed him to question fourteen witnesses whose written statements had been admitted to the case file.

THE LAW

The applicant complained about a violation of Article 6 §§ 1 and 3 (d) of the Convention, which reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...

3. Everyone charged with a criminal offence has the following minimum rights:

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ... ”

1. The Government submitted that the application had been introduced out of time. In particular, they referred to the Court ’ s partial decision of 5 April 2005 as to the admissibility of the application, in which it was stated that the application had been introduced on 19 December 2001. The Government suggested that, since the Court had established that the application had been lodged on that specific date, it should have been examined in the light of that finding.

They also maintained that the applicant had not exhausted domestic remedies available to him under Ukrainian law, since he had not requested, in accordance with relevant procedural rules and international treaties, the first instance court to summon the witnesses, whom he had allegedly wished to be heard in person.

The applicant disagreed. In particular, he stated that the application had been lodged on 16 January 2001. The applicant further contended that he had complied with the rule on exhaustion of domestic remedies, as he had appealed in cassation against the judgment of the Moskovskyy District Court of Kyiv of 17 January 2000.

The applicant also argued that the first instance court had been obliged to ensure the appearance before it of all witnesses from the list submitted by the investigators, even assuming that the defence had lodged no specific motion in this respect. He finally submitted that his co-defendants ’ lawyers had objected to the admission of the written statements of the witnesses not heard by the court and that they had been insisting on their appearance at the court hearing.

The Court does not consider it necessary in the present case to rule on the Government ’ s objections , as the application is in any event inadmissible for the following reasons.

2. The Government submitted that the applicant had had a fair hearing in his case. They stated that it had been unnecessary to examine the audio recordings in question at the court hearing, since the applicant had acquainted himself with the expert ’ s conclusions concerning these recordings during the pre-trial investigations and, thus, he could have submitted his comments or objections before the court. The applicant could also request an additional expert examination of the recordings, if he so wished. Furthermore, at the court hearings the transcripts of the recordings were read out, but the applicant did not contest their trustworthiness.

The Government also maintained that the applicant had been able to comment on the written statements of the witnesses who had not been heard in person and to introduce his counter arguments.

The applicant disagreed. In particular, he submitted that he had not been allowed to familiarise himself with the audio recordings at issue and that he had been informed about the expert examination of these recordings more than four months after the examination had started. As a result, he was not able to exercise his procedural rights envisaged in Article 197 of the Criminal Procedure Code (see Relevant Domestic Law above).

The applicant also submitted that, although he had familiarised himself with the transcripts of the audio recordings and the expert ’ s conclusion of 1 December 1997, this had been insufficient for him to prepare his defence. Furthermore, he argued that no copy of the warrant of the President of the Kyiv City Court of 3 June 1997, authorising the police to intercept his phone conversations, had been included into the case file. Accordingly, the courts based his conviction on evidence obtained in violation of procedural rules.

The applicant submitted that he had not been confronted with the witnesses, whose written statements had been examined at the court hearing, and, thus, he had been put at a substantial disadvantage vis-à-vis the prosecution. As a result, the impugned proceedings as a whole had not been fair.

At the outset, the Court notes that the applicant ’ s complaints under Article 6 §§ 1 and 3 (d) of the Convention mainly concern two aspects of the impugned proceedings, namely:

(a) the fact that the domestic courts did not include into the case-file or to examine at a public hearing the audio recordings, to which they referred in finding the applicant guilty of aggravated extortion; and

(b) the fact that the courts did not hear the witnesses, whose written statements the courts admitted as evidence.

The Court considers that in the circumstances of the instant case it has to determine whether, having regard to the specific issues raised by the applicant, the proceedings at issue before the Ukrainian courts, taken as a whole, were compatible with the applicant ’ s right to have a fair hearing. Thus, it is appropriate to examine the applicant ’ s complaints under the general rule of paragraph 1 of Article 6 of the Convention, whilst taking into account the guarantees of paragraph 3 (see, inter alia , the Bönisch v Austria judgment of 6 May 1985, Series A no. 92, pp. 14-15, § 29; Brandstetter v. Austria , judgment of 28 August 1991, Series A no. 211, p. 20, § 42 ).

The Court recalls that one of the elements of a fair hearing within the meaning of Article 6 § 1 is the right to adversarial proceedings; each party must in principle have the opportunity not only to make known any evidence needed for his claims to succeed, but also to have knowledge of and comment on all evidence adduced or observations filed with a view to influencing the court ’ s decision (see, Mantovanelli v. France , judgment of 18 March 1997, Reports of Judgments and Decisions 1997 ‑ II, p. 436, § 33).

As regards the first issue raised by the applicant , the Court notes that identification of voice recordings requires special expertise and was, accordingly, entrusted to an expert. It is not disputed that during the investigations and at the trial the applicant and his lawyer were able to familiarise themselves not only with the expert ’ s report and transcriptions of the recordings, but also with the expert ’ s identity. They could thus challenge the accuracy of that material and the reliability of the expert himself. However, they failed to do so.

Furthermore, the Court observes that the domestic courts did not base his conviction solely on the contents of the audio recordings or on the expert ’ s report of 1 December 1997 . The courts also had regard to other evidence in the case, including the testimonies of witnesses and the observations submitted by the applicant and his co-defendants during the investigations and at the trial.

As regards the witnesses ’ written statements obtained during the investigations and used at the trial, the Court recalls that all the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial principle. However, the use as evidence of statements obtained at the stage of the police inquiry and the judicial investigation is not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6, provided that the rights of the defence have been respected (see, for instance, Hulki GüneÅŸ v. Turkey , no. 28490/95, § 86, ECHR 2003 ‑ VII (extracts) and Isgrò v. Italy , judgment of 19 February 1991, Series A no. 194 ‑ A, § 34).

In this respect the Court observes first that the applicant could challenge, and did challenge, the witnesses ’ statements in his submissions before the courts of two levels of jurisdiction.

It is true that at no point of the proceedings could the defence put question to these witnesses and challenge their trustworthiness. However, in his submissions before the Court the applicant did not show that he or his lawyer had used all the procedural means provided for in Ukrainian law in order to have all the witnesses against the applicant heard at a public hearing and to refute their statements (see Relevant Domestic Law above). In particular, neither the applicant nor his lawyer lodged with the domestic courts a motion under Articles 255 or 266 of the Code of Criminal Procedure, indicating the reasons for the witnesses to be summoned and proving that it was necessary to have these witnesses questioned at the trial. Moreover, they did not contest in a qualified manner the accuracy of the witnesses ’ written statements explaining why these statements were untrue. In this context, the Court also notes that most of those statements concerned the victim, his relations with business partners, and the activities of some of the applicant ’ s co-defendants, and were thus not directly relevant to the applicant ’ s conviction.

On the whole, it was the conclusion of the courts, based on their own assessment of the evidence before them, that the applicant was guilty of aggravated extortion. The Court finds no fault with the way in which the courts dealt with the evidence before them or with the adequacy of the reasons which they adduced to ground their decisions in the applicant ’ s case.

In these circumstances any limitations which might have been imposed on the rights of the defence were not such as to deprive the applicant of a fair trial.

It follows that the application must be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention. Accordingly, the Court decides to discontinue the application of Article 29 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President