FIFTH SECTION

Application no . 1452/09 Vasyl Ivanovych YAKUBA against Ukraine lodged on 10 March 200 9

STATEMENT OF FACTS

The applicant, Mr Vasyl Ivanovych Yakuba , is a Ukrainian national who was born in 19 71 and currently serves his prison sentence at the Kirovogradska Correctional Colony.

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

On 9 March 2007 the applicant was arrested on suspicion of drug trafficking. In the course of the arrest the applicant was allegedly beaten up by the police.

On 15 March 2007 a lawyer, who was appointed to represent the applicant in the proceedings, requested the investigators to order the applicant ’ s medical examination. The lawyer stated that the applicant had been beaten up by the police in the course of his arrest and subsequently at a police station. On the same day the applicant was examined by a medical expert who noted that the applicant had multiple abrasions on his arms and legs, which could have been caused to him on 9 March 2007. By decision of 8 May 2007, the prosecutors refused to open a criminal case against the police officers who had taken part in the applicant ’ s arrest. No copy of the decision has been submitted to the Court. The applicant further raised his complaints of ill-treatment by the police before the courts dealing with his criminal case. The courts of three instances rejected the complaints as unsubstantiated, having found that the police had lawfully used force against the applicant during his arrest and that the prosecutors had duly examined the applicant ’ s complaints. The courts did not provide further details in that regard.

During the investigation and the trial the applicant lodged a number of procedural requests, which were mainly aimed at obtaining additional evidence in the case, including questioning of witnesses on his behalf and examining a video recording of the scene of the crime. The applicant also requested the investigators to allow him to undergo medical treatment as regards his drug dependence, which allegedly prevented the applicant from preparing his defence . The applicant ’ s requests were refused for unknown reasons.

The applicant states that he has no knowledge of Ukrainian and that the investigators disregarded his request for having the investigation conducted in Russian. Many of the case documents were allegedly written in Ukrainian.

Upon the applicant ’ s request, the trial was held in Russian.

According to the applicant, the trial court refused, for unknown reasons, to summon the forensic expert, who had compiled a report stating that the applicant ’ s clothes and a syringe found on him on the day of the applicant ’ s arrest contained traces of drugs. An undercover agent, who had purchased the drugs from the applicant (see below), was not summoned either.

On 26 June 2007 the Kirovskyy District Court of Kirovograd found the applicant guilty of drug trafficking and sentenced him to eight years ’ imprisonment. The court found that the applicant had sold drugs on several occasions in February and March 2007 to an undercover police agent during an operation conducted by the police in the form of a test purchase of drugs. The court relied on the statements of the police officer who had organised the test purchase and one of the attesting witnesses, who had been invited by the police to assist in the conduct of the operation. Those persons had been questioned at court hearings. The court also relied on written statements of another police officer and of the undercover agent, whose identity was concealed during the proceedings, obtained at the pre-trial stage of the proceedings. The court noted that in the course of the applicant ’ s arrest, banknotes marked by the police had been found on him and that the applicant ’ s clothes and a syringe found on him on the day of the arrest contained traces of drugs . The court further refused to rely on the statements of the applicant ’ s mother and partner, who had been questioned at court hearings, finding that they had been biased.

In the judgment it was noted that the applicant had been prosecuted for drug related crimes on several occasions in the past.

On 5 July 2007 the applicant ’ s lawyer lodged with the Kirovograd Regional Court an appeal against the judgment of 26 June 2007, challenging the first-instance court ’ s factual and legal findings. The lawyer also complained about the court ’ s refusal to summon the undercover agent and to order an inquiry into the applicant ’ s complaints of ill-treatment by the police.

In February 2008 the applicant amended the appeal, complaining that the first-instance court had failed to question witnesses or to examine evidence demonstrating that he had not committed the crimes of which he had been convicted and that the evidence, on which his conviction had been based, had been collected and kept in violation of the procedure.

At some point of time the applicant also complained to the Court of Appeal that he had not been provided with case documents in Russian , despite his repeated requests, and that his studying of the case file had been unlawfully terminated by the first-instance court.

On 25 March 2008 the Court of Appeal upheld the applicant ’ s conviction, finding that no serious procedural violations had been committed in the proceedings and that the conviction had been based on substantial evidence. The Court of Appeal found that the applicant ’ s complaints as regards his alleged difficulties in understanding the proceedings had been unsubstantiated, as the trial had been held in Russian and the verdict had been issued in that language. The Court of Appeal also noted that t he applicant ’ s studying of the case file after the conviction had been lawfully terminated by the first-instance court, as the applicant had intentionally delayed the proceedings .

The applicant appealed in cassation. He has not been able to provide a copy of his cassation appeal.

On 4 September 2008 a judge of the Supreme Court, having examined the applicant ’ s cassation appeal, found that it was unsubstantiated and refused to order cassation review of the case. In particular, the judge noted that the witnesses, on whose statements the conviction had been based, had been duly questioned and that the Court of Appeal had lawfully rejected the applicant ’ s complaints about his alleged lack of access to the case file.

On 20 September 2008 the applicant received a copy of the decision concerning his cassation appeal.

Subsequently, the applicant lodged with the Supreme Court a new cassation appeal. By letter of 13 December 2008, the Supreme Court informed the applicant that it could not be examined, as the applicant had already exercised his right of cassation appeal.

In order to substantiate his application, in particular as regards the complaints of unfair trial, the applicant submitted a number of requests to the Kirovskyy District Court of Kirovograd, which kept the case file, to provide him with the possibility of obtaining copies of various procedural documents, including minutes of court hearings and his cassation appeal. The applicant ’ s requests were refused as not based on the law.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was beaten-up by the police in the course of his arrest .

Relying on Article 6 § 3 (b) and (d) of the Convention , the applicant complains that the investigators refused to allow him to undergo medical treatment as regards his drug dependence, which hindered the preparation of his defence ; that many of the case documents were drafted in Ukrainian, which he did not understand; that the applicant ’ s procedural requests were unlawfully refused during the investigation and the trial; that he was not given the possibility to study the case file in order to prepare his appeals; and that his right to question witnesses against him and to have witnesses on his behalf questioned was breached during the investigation and the trial.

Relying on Article 13 of the Convention, the applicant complains that the courts dealing with his criminal case did not remedy the alleged violation of his rights at the pre-trial stage of the proceedings.

The applicant complains about a violation of Article 2 of Protocol No. 7 in that the Supreme Court unlawfully refused to examine his cassation appeal.

The applicant also 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

1. Was the applicant subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention, having regard to his complaint of ill-treatment by the police ?

2. Did the applicant have a fair hearing in the determination of the criminal charges against him ? In particular, having regard to the applicant ’ s complaints of unfair trial , did the authorities comply with the requirements of the first and third paragraphs of Article 6 of the Convention?

3. 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?