FIFTH SECTION

Application no. 5187/07 Oleg Viktorovich MOROZ against Ukraine lodged on 16 January 2007

STATEMENT OF FACTS

The applicant, Mr Oleg Viktorovich Moroz , is a Ukrainian national, who was born in 1967 and is currently detained.

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

On 1 June 2005 the applicant came to the office of Mr O., the president of the dentists ’ association, and shot him with a shotgun which he had brought with him. The applicant claimed it to be an accident. According to him, he and Mr O. were interested in hunting and he had brought the shotgun to Mr O. as a present. While he was demonstrating the gun to Mr O., the latter wanted to see it closed and pulled it to himself and the gun accidentally went off.

1. Criminal proceedings against the applicant

Immediately after the incident the applicant was arrested and taken to the police station. He was questioned in the presence of his lawyer, but the investigator refused his request to talk privately to his lawyer before questioning.

On 3 June 2005 the Kyiv Shevchenkivskyy District Court ordered the applicant ’ s pre-trial detention.

On 16 January 2006 the case was referred to the Kyiv City Court of Appeal.

On 19 May 2006 the Kyiv City Court of Appeal, acting as a first-instance court, sentenced the applicant to fifteen years ’ imprisonment for murder of Mr O. According to the court ’ s findings, on 27 May 2005 the Coordinating Council of the Ukrainian Dentists Association held its meeting in Kyiv and the applicant had run for the position of the acting executive director of the Association. The victim, Mr O. proposed another candidate for the same position and that candidate had been elected. The applicant therefore decided to take revenge and came to the office of Mr O. with a shotgun and fired twice at Mr O. ’ s head. The applicant was also found guilty of modifying the shotgun in question prior to the incident.

The court noted that although the applicant had not pleaded guilty and had claimed that it had been an accident, his guilt was proved by the testimonies of witnesses and the results of forensic examinations. In particular, the wife of Mr O. testified that she had been in the neighbouring office when the incident took place and when she had entered the office of her husband she had seen the applicant who had been smiling with satisfaction. She also maintained that her husband had not liked hunting and therefore would not accept a shotgun as a present. The negative attitude of Mr O. to hunting had also been confirmed by his brother. The secretary of Mr O. and one of his colleagues also confirmed that the applicant had been smiling when they entered the office after the incident.

Several witnesses also confirmed that the applicant had shown dissatisfaction with the fact that he had not been elected to the position of the executive director of the Dentists Association.

The forensic expert, questioned in the court hearings, had confirmed the conclusions of the examination that the shots had been made from some distance and not from a close range, as the applicant suggested, given that the traces of metals and gunpowder, which were typical for close-range shots, were not found on the victim. The court also noted that the outcome of the ballistic examination as to the distance, trajectory and angle of the shots had not matched the applicant ’ s version of events.

On 28 November 2006 the Supreme Court upheld the decision of the court of appeal.

2. Conditions of the applicant ’ s detention

Following his arrest on 1 June 2005, the applicant was placed in the ITT in which he stayed in poor conditions until 5 July 2005.

After 5 July 2005 the applicant was transferred to the Kyiv SIZO no. 13 in which conditions of his detention had been equally poor.

The applicant contracted hepatitis, since the kitchen personnel did not comply with hygiene requirements. The quality of and quantity of food were unsatisfactory.

There was only one pair of scissors for the whole SIZO and they were not disinfected prior or after use.

The applicant was not allowed to have special diet or to buy medicaments. He was also refused to have consultations of the doctor, although he had liver problems.

In the cells, the number of cell-mates often exceeded the number of beds.

For several months he had was in cells with no natural light, as the windows were covered with metal sheets. The electric light was very weak.

The walls were covered with water and sometimes with mould. The clothes and linen were always wet and cold.

During his detention in SIZO the applicant was denied family visits, despite his written requests of 7 September, 7 and 21 November 2006.

He was also not allowed to practice his religion, in particular to receive the Bible and to visit the prison chapel. The applicant complained about it to the head of SIZO on 15 July and 1 August 2005.

The applicant ’ s right to correspondence was equally restricted while in SIZO.

On 13 February 2007 the applicant was sent to serve his sentence to the prison.

COMPLAINTS

The applicant complains under Article 3 of the Convention about inappropriate conditions of his detention at the police station, the ITT and the Kyiv SIZO no. 13.

He further complains under Article 5 § 1 that he was apprehended and taken to the police station without the report on his arrest having been drawn up.

The applicant complains under Article 6 § 1 of the Convention that during the court hearings, the prosecutor put pressure on some witnesses, insisting on his understanding of their testimonies. He also complains that the judge of the first-instance court called him twice “offended” ( обиженный ), while this term had very negative meaning among the prisoners. He complains that forensic expert first declared that it was impossible to conduct the forensic examination, given that the shells used by the applicant were no longer manufactured, and then conducted the forensic examination anyway. He complains that one of the witnesses gave false testimonies but the authorities failed to prosecute her. He also complained that the guidelines for forensic examination of weapons run contrary to the framework law on weapons adopted by the Interparliamentary Assembly of the Commonwealth of Independent States. He further complains that the records of the court hearings were falsified and inaccurate and he was not allowed to have them corrected. He also complains that the Supreme Court refused his request for an audio recording of the hearings. The applicant also complains about the length of the proceedings.

Under Articles 6 §§ 1 and 2 the applicant complains that the Supreme Court found his conviction lawful and well-founded.

The applicant complains under Article 6 § 3 (b) of the Convention that he had been refused a consultation with his lawyer in private prior to first interrogation. Under the same provision, the applicant complains that he was not allowed to listen to the audio record of the court hearings, when he was preparing his appeal in cassation. He also complains that although he informed the Supreme Court that he was not allowed to study the case-file in preparing his cassation appeal and that he was not ready for defence in cassation, the Supreme Court refused his request to postpone the hearing in his case. The Supreme Court also refused to accept new materials which the applicant presented at the hearing. He also complains that he was not provided with a copy of the Supreme Court ruling and was not allowed to make copies of the documents in support of this application while in SIZO no. 13 and was allowed to make such copies only when he was transferred to the prison.

He complains under Article 6 §§ 1 and 3 (c) of the Convention that, despite his request, he was not present at the court hearing, on which the court of appeal examined the issue of referring to the Supreme Court accusations against him by an aggrieved party. He further complains that he was absent from the Supreme Court hearing of 3 October 2006 in his case.

Referring to Article 6 § 3 (d), the applicant complains that his right to defence had been violated because his requests for ( i ) a forensic examination of the trigger of his shotgun, (ii) summoning forensic experts to the court, (iii) granting access to some documents which served the ground for his conviction and (iv) summoning witness Sh. had been refused.

He complains under Article 6 § 1 and 8 that he was not allowed family visits during his detention. He further complains under Articles 3 and 8 of the Convention, that the refusal of the authorities to test him for hepatitis and HIV prevented him and his wife from comprehensive communication ( полноценное общение ).

Invoking Article 9, the applicant complains that his request for reading the Bible, for seeing a priest and attending the prison church were rejected or remained without answer.

Under Article 10 the applicant complains that he was deprived of the freedom of correspondence while in SIZO during the period between his conviction on 19 May 2006 and his transfer to prison on 13 February 2007.

Relying on Articles 1 and 13, the applicant complains that the State authorities knowingly violated his rights.

Under Article 7, the applicant complains that he was convicted for murder, although it was an accident.

In his later correspondence with the Court, he further complains under Article 6 § 1 that his complaints to the Supreme Court, the High Council of Justice, the General Prosecutor ’ s Office and other institutions about unlawful conviction and violation of law during the trial were to no avail.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to inhuman and degrading treatment, in breach of Article 3 of the Convention? In particular, were the conditions of the applicant ’ s detention and medical treatment in Kyiv SIZO no. 13 in breach of that provision?

2. Was the refusal of the investigator to allow the applicant to talk privately with his defence counsel before the first quest ioning in breach of Article 6 § 3 (c) of the Convention?

3. Has there been an interference with the applicant ’ s right to respect for his correspondence, within the meaning of Article 8 § 1 of the Convention, during his stay in Kyiv SIZO no. 13? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

4. Has there been an interference with the applicant ’ s right to respect for his private and family life, within the meaning of Article 8 § 1 of the Convention, as concerns family visits during his stay in Kyiv SIZO no. 13? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

5. Has there been an interference with the applicant ’ s freedom of religion, within the meaning of Article 9 § 1 of the Convention, during his stay in Kyiv SIZO no. 13? If so, was that interference prescribed by law and necessary in terms of Article 9 § 2?