Communicated on 23 October 2020 Published on 9 November 2020

FIFTH SECTION

Application no. 56540/14 Merabi Otarovich SUSLOV against Ukraine lodged on 7 August 2014

STATEMENT OF FACTS

1 . The applicant, Mr Merabi Otarovich Suslov, is an Armenian and possibly Russian national, who was born in 1963 and currently serves a life sentence in Berdychiv. He is represented before the Court by Mr A.A. Kristenko, a lawyer practising in Kharkiv.

The circumstances of the case

2 . The facts of the case, as submitted by the applicant and as established on the basis of the documents provided by him, may be summarised as follows [1] .

3 . On 2 October 2009, at about 2.30 p.m., shooting broke out at the entrance of the shopping centre “F.” located in the Kyiv agglomeration. During that shooting, Sh.A. - the applicant ’ s relative and business partner - and both of his bodyguards were shot to death and one of the centre ’ s employees was wounded.

4 . On the same date a criminal investigation was opened into the shooting.

5 . On various dates several of Sh.A. ’ s relatives informed the police that they suspected the applicant of having ordered the murder. They submitted that since 2008 the applicant had been in conflict with Sh.A. concerning their joint business and that the applicant had repeatedly threatened to kill Sh.A. unless the latter would transfer part of his share in the business to him. After Sh.A. ’ s death, the applicant had allegedly reiterated his demands to transfer part of the share to him.

6 . During the night of 3 to 4 October 2009 D.L., a Russian national (subsequently identified as D.B., an Armenian national with a false Russian passport) and his common-law wife R.N. were detained on suspicion of being involved in the killing of Sh.A. and that of his bodyguards.

7 . On 15 October 2009 D.B. declared to the police that he and his friend A.O., an Armenian national [2] , had shot Sh.A. and the latter ’ s bodyguards.

8 . On 16 October 2009 D.B. reiterated the same version of events during a reconstruction of the crime.

9 . Subsequently he changed his testimonies on several occasions, eventually denying his participation in the shooting. He also submitted that his initial confession had been false and extorted by ill-treatment. Later in the course of the investigation D.B. also testified that at the applicant ’ s request A.O. and himself had engaged in surveillance of Sh.A. in order to facilitate recovery of some large debt to some creditors in Moscow, but without any intention to kill him.

10 . It appears that on an unspecified date in October 2009 D.B. ’ s common-law wife R.N. gave testimony implicating D.B., A.O., and the applicant in the triple murder.

11 . On 20 October 2009 criminal proceedings were instituted against the applicant on suspicion of having ordered the triple murder.

12 . On 12 July 2010 the applicant was arrested in Kazan, Russia.

13 . On 18 March 2011 the applicant was extradited to Ukraine and detained pending the investigation of the case. The applicant refused to testify, alleging that his arrest, detention and prosecution were unlawful.

14 . In September 2011 the applicant was committed to stand trial before the Kyyevo-Svyatoshynskyy District Court (“District Court”). According to the applicant, he was not given enough time to study the case-file before trial. In addition to that, some of the case-file materials were in Ukrainian, of which he had no command. His lawyers had also not been given sufficient time to study the file. On several occasions the applicant was not afforded a meeting with a lawyer by the detention facility. Based on the case-file, the applicant was represented by several lawyers of his choice throughout the proceedings; he replaced and changed them on various occasions.

15 . On 12 October 2011 the applicant ’ s case was joined to that of D.B. Taking into account that the applicant had no command of the Ukrainian language, the court decided to conduct the hearings in Russian and encouraged all the participants to give their oral submissions in Russian as well. Procedural documents taken in the course of the hearings and court minutes were also produced in Russian.

16 . On 9 November 2011 the court decided to hold the trial in camera at the request of Sh.A. ’ s relatives, who submitted that the public hearing might encroach upon their safety and private life.

17 . At trial, the applicant pleaded not guilty and refused to testify.

18 . According to him, on the hearing dates he had to wake up at 7 a.m. and, after having been taken out of his cell, was locked up for several hours in a small unfurnished waiting room accommodating several dozen detainees waiting for transportation. The room had no ventilation and was full of cigarette smoke. The applicant was not supplied with any food or drink on the hearing dates. As the hearings often lasted until 10 or 11 p.m., by the end of the day he was starving and exhausted. Furthermore, during the trial he was held in a metal cage, which was not furnished with a desk or other facilities enabling him to take notes or use documents. The distance between the cage and the applicant ’ s lawyers was approximately four to five metres, which significantly obstructed his ability to confer with them. He needed to raise his voice to be heard. On several occasions the applicant requested the court to finish the hearings earlier and complained that he had been left without food or drink all day long. He also requested to be supplied with a desk in order to be able to work with documents during the hearings. However, his requests were taken by the court as vexatious and frivolous.

19 . In winter 2012 the District Court ordered removal of two of the applicant ’ s lawyers referring to their repeated improper conduct during the hearings.

20 . On 22 February 2012 R.N. was questioned in court. Based on the file, it appears that at some point during that hearing she alleged that her earlier testimony inculpating the defendants had been false and extorted by the investigative authorities by way of ill-treatment. However, on the very same day she also submitted a written declaration that she was afraid of the defendants and wished to be questioned in their absence. The file as it stands at present does not enable to establish fully the exact nature of R.N. ’ s submissions and other relevant events surrounding R.N. ’ s questioning on the aforementioned date. It appears, however, that the applicant, who was present in the beginning of the hearing, was subsequently temporarily removed from the courtroom until the end of the hearing with reference to his inappropriate conduct.

21 . On 23 February 2012 R.N. filed a declaration with the District Court, alleging that D.B. and his lawyer had been putting pressure on her with a view to making her retract her incriminating testimonies given during the pre-trial investigation.

22 . On 14 March 2012 R.N. appeared for another hearing and filed a new declaration suggesting that in fact she had been under pressure from the investigator in charge of the case to give false inculpating evidence as well as to submit the declaration about the pressure from D.B. and his lawyer.

23 . On the same day, in the course of the hearing, R.N. felt unwell and said that she was unable to testify. At her request an ambulance was called and she was taken to a hospital.

24 . Also on the same date (14 March 2012) the court decided to send both R.N. ’ s declarations to the prosecutor ’ s office for investigation.

25 . On 16 March 2012 R.N. submitted another declaration to the court suggesting, in essence, that she had been under pressure from D.B., his friend and his lawyer to give false exculpating evidence and that her testimony given at the pre-trial stage had been correct.

26 . On 21 March 2012 R.N. gave further testimony in court. As appears from the summary of this testimony made by the Kyiv Regional Court of Appeal (“Court of Appeal”) in its subsequent judgment of 22 April 2013 (see paragraph 36 below), during that questioning she submitted, in particular, that prior to Sh.A. ’ s murder, D.B. had been collecting extensive data concerning the hours of his habitual presence in the “F.” shopping centre, the building plan and location of Sh.A. ’ s office, arrangements for his security and various other similar data. R.N. also noted that on the day of the shooting D.B. had left home in the morning together with A.O. and had returned alone, having told her that A.O. had had a car accident. He had also requested her to wash up his clothes and to pack hers.

27 . On 24 May 2012, at the request of the prosecutor, the District Court decided to remove the applicant from the courtroom for improper behaviour until the end of the trial. In its decision, the court listed over ten various occasions when the applicant had earlier been reprimanded for his improper conduct in the courtroom. It noted that this conduct consisted of shouting, interrupting speakers, making obscene gestures, speaking out of turn, disrespectfully addressing the presiding judge (i.e. “Mr Judge B.” instead of “Your Honour”), addressing witnesses with remarks in the kurmandji language, which they had perceived as threatening and distressing, and other similar acts. The court noted that during the previous incidents the applicant had been repeatedly warned that he might be removed from the courtroom until the end of the proceedings. On several occasions he had been removed temporarily, until the end of a particular hearing session. The court also noted that during the present session the applicant had already received four warnings and had made no effort to adjust his behaviour. Finally, the court held that the interests of the applicant ’ s defence during his absence should be assured by the obligatory presence of his lawyer in the courtroom.

28 . On 1 July 2012 the Kyyevo-Svyatoshynskyy district prosecutor ’ s office issued a ruling refusing to institute criminal proceedings on account of R.N. ’ s allegations of pressure by investigative authorities. It is not clear from the file whether any decision was taken in respect of her declaration alleging that she had experienced pressure from D.B. and his entourage.

29 . In August 2012 R.N. addressed two further declarations to the court indicating that her testimonies inculpating the applicant and D.B. in the shooting were false and extorted from her as a result of ill-treatment and illegal pressure. The declarations were written in the territory of the Russian Federation, one in the presence of a lawyer, and the other one in the presence of a notary. R.N. explained in those declarations that she had moved to live in Russia in order to avoid unlawful influence from the investigative authorities and Sh.A. ’ s family and that she was ready to provide further testimonies, but only in Russian territory. She also stated that in order to extort her first testimony in October 2009, the police authorities had held her in unrecorded detention for several weeks and had ill-treated her (she had been handcuffed to a radiator, threatened and beaten). Subsequently, on 14 March 2012, when she had come to court with the intention to give a truthful testimony, the investigator and his colleagues had met her in the corridor of the court building and had pressured her not to do so. She had been so distressed that she felt unwell and requested an ambulance. She had then been taken to a hospital, where the investigator and his colleagues had visited her and continued to put her under pressure to maintain her previous submissions.

30 . On several occasions the applicant ’ s lawyer, requested the court to verify the identities of witnesses A.I., M.A. and A.A. and to summon them to testify in court. According to the case-file materials, these witnesses had given incriminating evidence against the applicant to the investigative authorities, having refused to confront him personally. In particular, all of them had submitted that they had been aware of the conflict between Sh.A. and the applicant and the latter ’ s threats to kill him. In addition, M.A. had also suggested that the applicant had already attempted to send a killer in 2008, however, Sh.A. ’ s family had discovered the plan and had been able to prevent the crime. In his turn, A.A. had suggested that the applicant had boasted to him in November 2009 that he had “removed” Sh.A. The applicant ’ s lawyer submitted that the identities of these witnesses were false. He had received notices from the address bureaux that the addresses indicated by A.I. and M.A. did not exist, while the address indicated by A.A. existed, but the person presenting himself as A.A. had not lived there. None of the indicated individuals were registered in the address databases of the respective localities.

31 . On various dates the court rejected the applicant ’ s lawyers ’ requests to summon the above witnesses or verify their identities. During one of the hearings the presiding judge read out the telegrams said to have been received by the court from the above individuals. The addressees indicated in those telegrams that they were unable to come to the hearings due to poor health and/or financial problems and that they supported their initial testimony. The court further noted that the true identities of these persons were concealed because, according to the submissions by the prosecution, they were subject to the witness protection programme.

32 . On 8 November 2012 the District Court found that the applicant had ordered and organised the murder of Sh.A. and his bodyguards, while D.B., accompanied by late A.O., had executed his order. Both defendants were sentenced to life imprisonment.

33 . In determination of the applicant ’ s guilt, the District Court referred, in particular, to D.B. ’ s confession statements given during the pre-trial investigation, as well as R.N. ’ s testimonies incriminating him. It dismissed as unfounded the allegations of their ill-treatment, with the reference to the investigation in the matter by the prosecution authorities.

34 . Furthermore, the trial court relied, in particular, on: testimonies by six of Sh.A. ’ s relatives who submitted that the applicant had threatened to kill Sh.A. on a number of occasions and that following the latter ’ s death he had also attempted to convince them to write off part of the shopping centre to him; testimonies by ten of Sh.A. ’ s friends, associates, employees and former guards, who submitted that Sh.A. and the applicant had had a conflict regarding their joint business; and testimonies by several persons who attested that the applicant and D.B. had been acquainted and that in July 2009 the applicant had been helping D.B. to collect a debt from the latter ’ s former associates in Moscow. The court also referred to the statements by the aforementioned A.I., A.A., and M.A., whose true identities remained undisclosed. In addition to the witness statements, the court also relied, in particular, on telephone logs indicating that D.B. and the applicant had regularly been in contact and, in particular, on the day of Sh.A. ’ s murder shortly after the shooting.

35 . The applicant and D.B., represented by the lawyers of their choice, appealed against their conviction. In his appeal, D.B. submitted, in particular, that he had been performing surveillance of A.Sh., Sh.A. ’ s son, with a view to his possible kidnapping at the request of the applicant in order to urge his father to return a debt. However, there had never been a plan to kill anyone. His personal participation in the shooting had not been proved beyond a reasonable doubt and his confessional statements during the pre-trial investigation had been extorted in the absence of a lawyer and by way of physical ill-treatment and psychological pressure.

36 . The applicant, in his turn, alleged that he had no connection to the incriminated offence. He complained, inter alia , that his conviction had been based to a decisive degree on the testimonies of D.B. and R.N. which had been retracted by them as given under ill-treatment and the testimonies of three fake witnesses – A.I., M.A. and A.A., whom he had never confronted. He alleged that an oral allegation by the prosecution that those witnesses were subject to the witness protection programme had been a lie, since the file contained no documents ordinarily required by the applicable procedure for the imposition of witness protection measures. Moreover, according to the telegrams read out by the District Court, the persons representing themselves as A.I., M.A. and A.A. had refused to appear for trial on the grounds of poor health and financial difficulties, rather than invoking their status as “protected witnesses”. In addition, the applicant also complained about numerous alleged procedural violations of his rights, including owing to the fact that the trial had been held in camera without proper justification and that he had had no possibility to participate in it effectively. More specifically, the applicant complained about the exhausting late-night hearings without having been provided with nutrition and about his eventual removal from the courtroom for nearly six months.

37 . On 22 April 2013 after a hearing during which the applicant and D.B., represented by lawyers, were personally present and gave oral submissions, the Court of Appeal upheld the District Court ’ s judgment. The Court of Appeal noted, in particular, that the applicant had been correctly removed from the proceedings in view of his repeated misconduct; that the court ’ s decision to hold the trial in camera at the request of Sh.A. ’ s family members was not in breach of the applicable law; and that the allegations that R.N. ’ s and D.B. ’ s testimonies inculpating the applicant had been extorted under duress had been manifestly ill-founded. The court further found that there had been no breaches of the applicant ’ s procedural rights susceptible of rendering the whole trial unfair.

38 . The applicant and D.B., represented by lawyers, filed further appeals on points of law, essentially reiterating their previous arguments.

39 . On 13 February 2014 the Higher Specialised Court for Civil and Criminal Matters having held a hearing during which the applicant and D.B., represented by lawyers, were personally present and gave oral submissions, rejected their appeals on points of law. The court reiterated the findings of the Court of Appeal and noted, in particular, that, insofar as those appeals concerned the impossibility to question certain witnesses in court, there were always good reasons for their absence. In addition, the majority of the absent witnesses had informed the District Court in writing that they maintained their previous testimonies given during the pre-trial stage. In any event, all such testimonies were supported by real and other evidence.

40 . According to the applicant, during both of the appeal hearings, he remained in handcuffs and was held in glass cabins separating him from his lawyers and the rest of the hearing participants. These arrangements made it impossible for him to confer with his lawyers during the hearings. During both hearings he also remained handcuffed. While during the hearing before the Higher Specialised Court his hands were at least handcuffed in front of him, before the Court of Appeal they were handcuffed behind his back, precluding him from any opportunity to work with documents, use or take notes. In response to the complaint of the applicant ’ s lawyer to the Ministry of Interior about such courtroom arrangements, he obtained a letter (dated 8 January 2014) informing him that according to the relevant regulations, persons convicted to life imprisonment were to be held in handcuffs outside the precincts of their detention facility at all times. It was also noted that in order to confer with a lawyer during a hearing, a detained defendant had to request a guard, who would normally allow him to do so only upon permission by the presiding judge and usually during the breaks. Finally, the letter indicated that there was no law or regulation envisaging the installation of desks in the defendants ’ cabins in the courtroom.

COMPLAINTS

41 . The applicant complains under Article 6 §§ 1 and 3 of the Convention that his trial was not fair.

42 . He notes, firstly, that judge B. presiding during his trial had not been impartial and that he had acted in the interests of Sh.A. ’ s family, who had sought the applicant ’ s conviction with a view to appropriating his business.

43 . The applicant also complains, under the same provision, that some of the valid arguments by defence, which were of essential importance for the case, had been ignored by the courts.

44 . He next argues that decision of the trial court to hold its hearings in camera was unjustified and therefore in breach of his right to a public hearing as stipulated in Article 6 § 1 of the Convention.

45 . The applicant further complains under the same provision that his conviction was mainly based on incriminating statements by D.B. and R.N., which had been obtained under duress, and by the three fake witnesses A.A., M.A. and A.I.

46 . The applicant next complains under Article 6 §§ 1 and 3 (a), (b) and (e) that he had insufficient time and facilities for preparing his defence because some of the case-file materials had not been provided to him at all; some others had been provided belatedly and/or without having been translated into the Russian language, and because neither himself nor his lawyers had sufficient time for studying the materials and preparing defence.

47 . Furthermore, the applicant complains under Article 6 § 3 (c) that he had been excluded from the courtroom for an extended period of time during the trial and the taking of evidence and that on several occasions he had been arbitrarily refused a meeting with one of his lawyers when requested. Additionally, he complains that two of his lawyers were unfairly removed from the proceedings for their alleged misconduct. Finally, he notes that the hearing day arrangements made it impossible for him to participate in the trial effectively, in particular, owing to: the measures of confinement in the courtroom (in a cage and, before the appeal instances, in glass boxes); permanent handcuffing; lack of a desk; and exhausting lengthy hearings coupled with insufficient sleep and complete lack of catering arrangements.

48 . The applicant also complains that Article 6 § 3 (d) was breached because he had never been able to confront witnesses A.I., M.A. and A.A. and because twenty-two of the witnesses whose testimonies were used in his conviction had allegedly not been questioned in court. In addition to that, some defence witnesses had not been summoned by the court for questioning.

49 . Finally, the applicant invokes Article 18 of the Convention suggesting that his prosecution and conviction had pursued ulterior motives. More specifically, Sh.A. ’ s family, using its corrupt connections, attempted this way to appropriate his share in business.

QUESTIONS TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 of the Convention?

The parties are invited, in particular, to comment on the following matters:

(a) Was the exclusion of the public in the present case “strictly necessary”, within the meaning of Article 6 § 1 of the Convention (see Yam v. the United Kingdom , no. 31295/11, § 54, 16 January 2020, with further case-law references)?

(b) Having regard to the fact that the applicant was excluded from the courtroom during a substantial period of the trial, was that situation compatible with the requirements of Article 6 §§ 1 and 3 (c) and (d) ( Idalov v. Russia [GC], no. 5826/03, §§ 175-182, 22 May 2012 ) ?

(c) Having regard to the applicant ’ s complaints concerning the exhausting hearing-day arrangements, his confinement in a metal cage during the first-instance proceedings and in glass cabins during the hearings before the appeal instances, was he afforded adequate facilities for the preparation of his defence and a possibility to participate in the trial effectively in compliance with Article 6 §§ 1 and 3 (b) and (c) (see Moiseyev v. Russia , no. 62936/00, §§ 224-25, 9 October 2008 and Razvozzhayev v. Russia and Ukraine and Udaltsov v. Russia , nos. 75734/12 and 2 others, §§ 248-55, 19 November 2019)?

(d) Was the applicant ’ s inability to examine some witnesses against him, in particular, A.I., M.A. and A.A., compatible with Article 6 § 3 (d) of the Convention, and was the use of the statements given by the aforementioned witnesses in the applicant ’ s conviction compatible with the fair trial requirements under Article 6 § 1?

INDEX OF ABBREVIATIONS [3] :

A.A., A.I. and M.A.

Three prosecution witnesses never confronted by the applicant, whose written statements given to the investigation had been used in substantiation of his conviction. According to the applicant, these persons did not exist.

A.O.

Acquaintance of D.B. (the applicant ’ s co-defendant), with whom D.B. had shared a rented flat and who died from gunshot wounds on 2 October 2009. As concluded by the investigation, one of the two perpetrators who took part in the killing of Sh.A. and his bodyguards together with D.B.

D.B.

The applicant ’ s co-defendant. As concluded by the investigation, one of the two perpetrators who took part in the killing of Sh.A. and his bodyguards, together with A.O.

R.N.

Common-law wife of D.B.

Sh.A.

Co-owner of the “F.” shopping centre, who was shot to death, together with his bodyguards, on 2 October 2009.

[1] The summary of facts contains numerous references to abbreviated names. To facilitate reading, the index of abbreviations is provided at the end of this document.

[2] A.O. himself died of fire-arm wounds on 2 October 2009 and was never questioned.

[3] In alphabetical order.