FIFTH SECTION

Application no . 29820/10 Petro Petrovych KHYZHNYAK against Ukraine lodged on 14 May 2010

STATEMENT OF FACTS

The applicant, Mr Petro Petrovych Khyzhnyak , is a Ukrainian national who was born in 1961 and currently serves his sentence at the Berdychivska Correctional Colony.

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

On 11 March 2008 the applicant had a fight with a group of five people, as a result of which one person died and another was seriously injured. There were several other people who witnessed the fight.

The applicant was arrested by the police shortly after the incident.

In the course of the investigation and the trial the applicant argued that he had injured the victims while acting in self-defence . According to the applicant, one of the victims had attacked him with a knife. The other people involved in the incident stated that the applicant had started the fight and intentionally injured the victims with a knife. Those, who had witnessed the incident, reported that they had seen the applicant having been beaten up by a group of people. The knife, by which the victims had been injured, was not found.

On 29 May 2008 the investigation was completed and the applicant was officially charged with murder and infliction of bodily injuries.

On 30 May 200 8 the investigators allegedly forced the applicant to discontinue studying the case file, threatening him with physical punishment. The applicant complained about that to the prosecutors, but to no avail.

On 25 November 2008 the Bila Tserkva Court found the applicant guilty as charged and sentenced him to fifteen years ’ imprisonment. The court found that the applicant had intentionally injured the victims with a knife which he had had on him and that his version of the events was inconsistent and disproved by the evidence in the case. The court ’ s findings were mainly based on the statements of those involved in the incident, on the statements of the eyewitnesses and on several forensic reports. The statements were made at open hearings.

The applicant and his lawyer appealed to the Kyiv Regional Court of Appeal, stating that the first-instance court ’ s findings had not been supported by sufficient evidence and that that court had incorrectly established the facts. According to them, the statements of those involved in the incident were false and should not have been admitted as evidence; the court had not duly taken into account the statements of the eyewitnesses confirming the applicant ’ s version of the events and the statements of other witnesses demonstrating that the victims had behaved aggressive ly prior to the incident and could have started the fight. The applicant also argued that his statements had been incorrectly recorded in the minutes of the court hearings; that the injuries he had received in the course of the incident had not been duly recorded ; and that the investigators had unlawfully refused, by decision of 28 September 2008, to institute criminal proceedings against the persons who had beaten up the applicant. The applicant further argued that the investigators had unlawfully refused to carry out confrontation with those involved in the incident .

On 10 June 2009 the Kyiv Regional Court of Appeal rejected the appeals and upheld the applicant ’ s conviction.

According to the applicant, during the hearing on appeal his arguments were not taken into consideration and he was not allowed to put questions to one of the witnesses who were present at the hearing.

On 15 October 2009 the applicant appealed in cassation to the Supreme Court.

On 4 December 2009 the applicant was informed about the decision of 18 November 2009, by which the Supreme Court had rejected his cassation appeal as unsubstantiated. The Supreme Court found no procedural violations in the case and held that the substantive law had been correctly applied.

During the proceedings against him, the applicant was initially detained at a police detention facility (“the ITT”); between April 2008 and December 2009 he was detained at the pre-trial detention facility (“the SIZO”) in Kyiv. Subsequently, the applicant has been detained at the Berdychivska Correctional Colony.

The applicant alleges that during the investigation he was not provided with adequate and timely medical assistance for the injuries he had received during the fight on 11 March 2008. The applicant further alleges that during the investigation and the proceedings before the Bila Tserkva Court he was transported in the inhuman conditions.

In 2010 the Court invited the applicant to submit copies of several documents from his criminal case file, including his appeals. The applicant submitted to the Bila Tserkva Court several requests for such copies. In October 2011 the Bila Tserkva Court sent to the applicant a copy of his appeal. It also informed the applicant that the case file did not contain his cassation appeal.

COMPLAINT

The applicant complains under Article 34 of the Convention that the authorities have refused to provide him with the possibility to obtain copies of documents he needed for substantiation of the application.

QUESTIONS TO THE PARTIES

Has there been any hindrance by the State in the present case with the effe ctive exercise of the applicant ’ s right of petition, as guaranteed by Article 34 of the Convention? In particular, did the applicant have the opportunity to obtain copies of the documents from his case file and to send them to the Court in order to pursue the application?