FIFTH SECTION

Application no . 463/06 Vas y l Volodymyrovych KRAVETS against Ukraine lodged on 9 December 2005

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Vas y l Volodymyrovych Kravets , is a Ukrainian national who was born in 1963.

A. The circumstances of the case

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

At an unspecified time on 6 October 2003 officers of the Poltava Regional Department of the State Security Service arrested the applicant , reportedly doing so while he was allegedly stealing crude oil from a pipeline. At about noon on 7 October 2003 he was sent to appear before S., an investigator from the Poltava Regional Police Department.

At 12 noon on 8 October 2003 S. documented the arrest by filling in a document template entitled “Record of a suspect ’ s arrest”, stating that the applicant was “suspected of having committed” theft of crude oil together with three other individuals . The record also indicated that the applicant ’ s wife had been informed of his arrest. The grounds for arrest were included in the pre-printed part of the template and read as follows: “Eyewitnesses directly indicated that he had committed an offence” ; and “other information that give s grounds to suspect him”. The record also contained a pre-printed declaration: “ [I] have been familiarised w ith the arrest record, [the] rights and duties of arrested persons ... were explained to me. ” That pre-printed declaration was followed by a handwritten declaration: “[I] have been familiarised with [the] reasons and grounds for [my] arrest, [I] fully plead guilty”. The record did not mention where the applicant was arrested or the time when he was told about his right to have a meeting with a lawyer upon arrest.

At an unspecified time on the same date records were drawn up indicating that the applicant had been explained his right to mount a defence and that he waiv ed his right to have a lawyer. There is no indication of the content of those records. On the same date the applicant was also interviewed as a suspect. He denies that he was told about his rights, that he declined to have a lawyer at that time, that the grounds indicated for his arrest were relevant to his situation, or that he signed the arrest record or received a copy of it .

On 10 October 2003 the police brought the applicant to the Novi Sanzhary Court in order for that court , as he was informed, to decide on his detention. According to the applicant, while the judge ordered his detention that same day, he never received a copy of this decision.

On 14 October 2003 the applicant was charged with theft and the rights he had as an accused person, including the right to a lawyer ’ s assistance , were explained to him .

It appears from the case file that from 11 November 2003 the applicant was represented by G., and from 20 February 2004 by Zh ., both of whom were advocates.

The applicant ’ s detention was extended on 24 November 2003 and 16 January 2004 respectively. According to him, he did not receive a copy of the first extension order .

On 16 February 2004 the applicant lodged a complaint with the Poltava Prosecutor ’ s Office (“the Prosecutor”) contending that he had “signed anything that was given to him with the aim of self-defence from torture” by unspecified police officers.

On 21 April 2004 the Prosecutor informed the applicant that his case file contained no materials supporting his allegations of torture.

O n 29 June 2004 the Kobelyaky Court , without the applicant ’ s being present, held a preliminary hearing in his case .

On 30 June 2004 Poltava Detention Centre No. 23 (“the SIZO”), where the applicant was held in detention, served a notice of the hearing of 29 June 2004 issued by the Kobelyaky Court on 24 June 2004 .

On 1 July and 26 August 2004 respectively, the applicant appealed against his arrest and detention , alleging that he had not received copies of the relevant decisions , which in turn had impaired his right to defend himself. Moreover, it had not been explained to him that he could appeal against the detention order . N or had he been offered or assigned a lawyer.

His appeal was dismissed on 29 October 2004 by the Poltava Regional Court of Appeal (“the Court of Appeal”) on the ground s that the case was pending before the first-instance court. The applicant appealed i n cassation , raising the same issues as in the appeal and additionally complaining of his arrest having occurred earlier than recorded and pleading not guilty to any offence charged .

By a ruling of 28 December 2004, served on the applicant on 11 January 2005, the Supreme Court rejected his appeal in cassation , finding that the ruling of 29 October 2004 was final.

On 26 January 2005 the Kobelyaky Court issued a resolution finding that the case file concerning the proceedings against the applicant did not indicate that he had been given a copy of his arrest record. The court ordered that a copy be served on the applicant , which was done on 4 February 2005. As to the detention order, the court , relying on Articles 155, 165 and 165-2 of the Code of Criminal Procedure , found no legal grounds for serving a copy of it on the applicant.

On 29 June 2005, replying to submissions lodged by the applicant and other defendants (the content of which is unknown ) , the court informed them that the compliance of any procedural documents drawn up during the preliminary criminal investigation against them with procedural law and the Constitution would only be reviewed after it concluded the trial.

According to the applicant, on 25 August 2005 police officers escorting him to and from court beat him up in the courtroom of the Poltava District Court. According to a letter from the SIZO dated 12 October 2005, on the relevant date a physician examined the applicant and found abrasions and bruise s on various parts of his body. The applicant complained of the beating to the local prosecutor , who rejected his complaint. The courts subsequently upheld the prosecutor ’ s decision, with the Supreme Court giving a final ruling o n 16 October 2008. The applicant has provided neither copies of the above decisions, nor any specifics of the alleged beating.

On 20 April 2006 the Poltava District Court sentenced the applicant to six years ’ imprisonment with confiscation of property, following his conviction for theft and other offences committed as part of an organised criminal group. In reaching its conclusion as to the applicant ’ s guilt, the court relied on evidence obtained from the applicant during his interviews as a suspect and as an accused that were held on unspecified dates, the accounts of six other defendants and thirty-nine witnesses, six cross-examinations, fifteen photo identifications, thirteen expert opinions and various pieces of documentary evidence contained in twenty-six volumes of the case file. The court also ordered the further detention of the applicant.

The applicant appealed, complaining , in particular , that his right to defend himself was violated when no lawyer was appointed to represent him and that all documents in which it was indicated that he had declined to have a lawyer were forged. He further argued that any reference to his incriminating himself during his interviews as suspect or as an accused were incorrect as he had made no such statements . The applicant neither complained of any authority ’ s decision rejecting his requests for a handwriting examination.

On 21 March 2007 the Court of Appeal reduced the applicant ’ s sentence to five years ’ imprisonment, while upholding his conviction . The court found, inter alia , that the applicant ’ s allegations of falsification of his signatures in procedural documents pertaining to the case contradicted the case materials.

On 5 July 2007 the Prosecutor rejected a criminal complaint lodged by the applicant on an unspecified date against investigator S., who had allegedly falsified procedural documents concerning his criminal case. The courts upheld the prosecutor ’ s decision, with the Supreme Court making a final ruling o n 9 June 2008.

On 26 March 2008 the Poltava District Court informed the applicant that due to technical reasons it could not provide him with a copy of his appeal in cassation , consisting of 150 pages.

On 20 January 2009 the Supreme Court dismissed the applicant ’ s appeal in cassation and upheld his conviction and his sentence as reduced by the Court of Appeal. Neither the Supreme Court n or the Court of Appeal considered, in the reasoning part of their decisions, whether the applicant ’ s right to defend himself had been violated during the trial or the pre-trial investigation.

The case file contains no document indicating that the applicant ever requested a handwriting examination to be conducted in his case or such request was rejected by investigative or judicial authorities.

B. Relevant domestic law

Code of Criminal Procedure , as amended on 15 March 2006

Article 21: Ensuring the defence rights of a suspect, accused or defendant

“The defence rights of a suspect, accused or defendant shall be ensured.

Persons conducting an inquiry, investigators, prosecutors, judges and the courts are obliged to explain to the suspect, accused or defendant that, in order to have the benefit of a defence lawyer before the first examination, they [the competent officials] must draw up a written statement. They should also provide the suspect, accused or defendant with an opportunity to defend himself in accordance with the means established by law, and ensure the protection of his or her personal and property rights.”

Article 45: Compulsory participation of a defence lawyer

“The participation of a defence lawyer during the inquiry and the preliminary investigation and during the consideration of the criminal case by the first-instance court is obligatory... in cases [against] persons ... [who are accused of] committ ing a crime who are less than 18 years old ..., ... who are disab l ed ..., ... [who] do not speak language of the case..., ... [when] the sanction ... [for] the crime ... [is] life imprisonment, ... where compulsory medical ... [or] ... educational measures [can be applied] ...”

Article 46: Refusal to have a defence lawyer and his replacement

“ A s uspect, accused or defendant ha s the right to refuse legal representation... A refusal of this nature is only possible at the initiative of the suspect, accused or defendant...

In the event of a refusal to be represented ... the person conducting the inquiry or the investigator shall draw up a record indicating the reason(s) for the refusal , whereas the court shall indicate it in the court record s . If the refusal [to be represented] is accepted or rejected, the person conducting the inquiry, the investigator or the judge shall deliver a resolution , whereas the court shall issue a ruling.”

Article 47: The procedure for a ppointin g a defence lawyer

“ A d efence lawyer ... may be requested to participate in the proceedings by the suspect, accused or defendant, [his or her] l awful representatives, or by other people on the request of the suspect, accused or defendant.”

Article 155: Taking into custody

“Taking in custody as a measure of restraint is imposed in cases on offences punishable with deprivation of liberty for more than three years. In exceptional cases, this measure of restraint may by ordered in cases related to crimes punishable with deprivation of liberty for less than three years.

Persons in whose respect taking in custody is imposed as a measure of restraint are kept in pre-trial detention centres. In some cases, these persons may be kept in prisons or temporary detention centres.

...

In temporary detention centres, those taken in custody may be kept for not more than three days. If delivery of imprisoned persons in pre-trial detention centre ... is impossible within this time limit because of the long distance or lack of appropriate roads, they may be kept in temporary detention centres for up to 10 days.

....

The procedure for pre-trial detention is prescribed by the Preliminary Imprisonment Act and the present Code.”

Article 165: Application of a measure of restraint

“Measure of restraint in the form of committing to custody shall be imposed only by a motivated decision of the judge or ruling of the court. Other measures of restraint are imposed by a decision of the inquiry agency, investigator, prosecutor, judge or by court ’ s ruling.

The inquiry agency, investigator, prosecutor, judge or court may change or revoke a measure of restraint in accordance with provisions of the first paragraph of the present Article.

A measure of restraint is revoked or changed if it is no longer necessary.

Investigator and inquiry agency may revoke or change a measure of restraint, except custody, which was imposed by the prosecutor only upon consent of the latter.”

Article 165-2: Procedure for imposition of a measure of restraint

“At the pre-trial investigation stage of the proceedings, the inquiry agency, investigator or prosecutor imposes a measure of restraint other than custody.

If the inquiry agency or investigator finds that there are grounds for imposition of a measure of restraint in the form of custody, he/it submits an appropriate application to court. Prosecutor may submit such application also. When deciding this matter, the prosecutor shall review all materials of the case which contain grounds for committing to custody, verify whether the evidence has been obtained legally and is sufficient for bringing charges.

The application should be considered within seventy two hours after the suspect or accused has been arrested.

If it is sought in the application to take into custody a person who is at large, judge may authorise in his/her decision, arrest of the suspect, accused and his/her bringing to court under guard. In this case, the detention may not exceed 72 hours; and, if a person is outside the settlement in which the court operates – the period of detention may not exceed 48 hours from delivering the person concerned into this settlement.

Having received the application, the judge reviews materials of the criminal case as submitted by the inquiry agency, investigator, prosecutor, questions the suspect or the accused, if necessary takes explanations from the person who conducts proceedings in the case, hears opinion of the prosecutor, defence counsel if he/she has appeared, and thereafter takes a decision:

1) to deny imposing the measure of restraint if there no grounds for ordering such measure of restraint;

2) to order the measure of restraint in the form of custody against the suspect, accused.

Having denied ordering the measure of restraint in the form of custody, the court may impose a measure of restraint other than custody on the suspect or accused.

Judge ’ s decision may be challenged by the prosecutor, the suspect, accused his/her defence counsel, or legal representative within three days from the day on which such decision has been taken. Filing the appeal does not postpone execution of the judge ’ s decision.

Whenever ordering a measure of restraint for the arrested person requires additionally reviewing information on the personality of the arrested person or ascertaining other circumstances of importance for taking a decision on this matter, the judge may extend period of detention for up to ten days, and, upon request of the suspect, accused, – for up to fifteen days and an appropriate decision is made thereon. Whenever it is necessary to decide this matter in respect of the person who has not been arrested, the judge may defer consideration of the matter for up to ten days and take measures to ensure his/her adequate behaviour during this period or may detain the suspect, accused for this period by his/her decision.”

Article 237 : Matters to be ascertained by judge at the stage of preliminary consideration of a case

“ In a case referred from prosecutor, the judge ascertains in respect of each of the accused the following matters:

1) whether the proceedings fall wi thin court ’ s jurisdiction;

2) whether grounds for dismissing o r suspending proceedings exist;

3) whether the indictment was drawn up in co mpliance with the present Code;

4) whether grounds for altering, revoking, or imposing a measure of restraint exist ;

5) whether, at the stage of instituting criminal proceedings, inquiry or pre-trial investigation, there were violations of the present Code without whose elimination the case cannot be assigned for trial.

Upon request of the prosecutor, the accused, his/her defense counsel or legal representative, victim or his/her representative, the judge also ascertains whether grounds for prosecution of other persons exist.

Upon motion of the prosecutor, victim or his/her representative, the judge also finds out whether there are grounds for classifying actions of the accused under provision of the Criminal Code which provides for liability for more severe crime, or grounds for bringing a charges against him/her which has not been brought so far. ”

Article 240: The preliminary consideration of a case

“Preliminary hearing is conducted be a single judge with mandatory participation of the prosecutor. Other parties to the proceedings are informed of the day of preliminary hearing, but their non-appearance does not preclude consideration of the case.

... ”

Pre-Trial Detention Act 1993 , as amended on 11 July 2003

Section 9: Rights of detained persons

“Detainees have the right to:

... [mount a] defence in accordance with criminal procedure legislation ;

... ”

Pre-Trial Detention Act 1993 , as amended on 20 December 2005

Section 9: Rights of detained persons

“Detainees have the right to:

... defend their rights and interests in person or through the assistance of a defence lawyer from the moment of the ir arrest or detention, as well as to be informed upon detention of the reasons and causes for the ir detention, to challenge [th ose reasons and causes] before the court s , to receive in writing an explanation of the provisions of Articles 28, 29, 55, 56, 59, 62, and 63 of the Constitution of Ukraine, of this section and of the other rights of detainees established by law, including the right to defend their rights and interests in person or through the assistance of a defence lawyer from the moment of arrest (detention), [and] the right to refuse to testify before defence counsel arrives;

... ”

COMPLAINTS

1. The applicant complains under Article 6 § 3 (b) and (c) of the Convention that he could not defend himself or ask for legal assistance as he was not informed of his rights.

2. Relying on Article 3 of the Convention, he complains that on 25 August 2005 the police officers escorting him to and from court tortured him in the courtroom. Relying on Articles 3 and 6 § 1 of the Convention , he alleges that investigator S. made numerous technical and factual mistakes in the procedural documents or forged them , and that the authorities failed to institute criminal proceedings against her in that respect .

3. Without relying on any particular provision of the Convention, the applicant further complains of a violation of his right to liberty and security of person, raising, in particular, the following arguments: he was arrested unlawfully as, contrary to the official record, he was arrested at a location different than that indicated on 6 October 2003; his wife was not notified of his arrest ; the arrest record did not contain a note of the time when he was informed of his right to meet with a lawyer upon arrest; his arrest record indicated irrelevant grounds for arrest and contained a forged confession to a crime; and that someone forged his signatures on the arrest record and detention order.

4. Under Article 5 § 3 of the Convention, the applicant complains that he was not sure of exactly whom he was appear ing before in the Novi Sanzhary Court on 10 October 2003.

5. Under Article 5 §§ 3 and 4 of the Convention, he complains that when arrested and detained he was not informed of his right to appeal against the arrest and detention. In particular , he complains that he only received copies of the arrest record, the detention order and the first extension order in 2005. Under the same provisions, he contends that the national courts failed to consider his complaints of unlawful arrest.

6. Relying on Article 6 § 1 of the Convention, the applicant complains that he was not afforded a fair trial. In particular, he alleges that he did not attend the Kobelyaky Court ’ s preliminary hearing in his case. All of the national courts were allegedly not fair when assessing the evidence, classifying the crime and applying procedural law in his case and they conducted the trial within an unreasonable time frame . Finally under the same provision, he complains that an unspecified court failed to order a handwriting examination following his complaints of his signatures being forged in procedural documents that were drawn up during the preliminary investigation.

7. Under Article 6 § 2 of the Convention, the applicant further complains that the arrest record stated that he had committed theft.

8. Relying on Article 13 of the Convention , he contends that the authorities failed to institute criminal proceedings against investigator S.

9 . Finally, the applicant refers to Article 17 of the Convention without providing any further details .

QUESTIONS TO THE PARTIES

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

2. In particular, was the applicant afforded adequate facilities to prepare his defence, as required by Article 6 § 3 (b) of the Convention?

3. Was he able to defend himself through a lawyer of his own choosing, as required by Article 6 § 3 (c) of the Convention?

4. What statements w ere taken from the applicant, when were they taken and which statements made by applicant w ere used against him by the courts?

The Government are requested to submit a copy of the applicant ’ s appeal in cassation against his conviction and documents on the use of the applicant ’ s statements against him by the courts.