1 6 February 2009

FIFTH SECTION

Application no. 10543/03 by Yuriy Semenovich LEONOV against Ukraine lodged on 1 March 2003

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Yuriy Semenovich Leonov , is a Ukrainian national who was born in 1948 and currently is serving a sentence in the Makoshino Penitentiary no. 91 , Chernigiv r egion, Ukraine .

The circumstances of the case

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

1. Criminal proceedings against the applicant

On 23 August 2001 in the morning the applicant had a conflict with D. At least three persons were eye-witnesses to the conflict. After a fight the applicant went to work a twenty-four hour shift. The next morning D. was found dead in the vicinity of the applicant ’ s place of work.

a. Pre-trial investigation

According to the applicant , he was arrested the same day, that is 24 August 2001, and was unlawfully detained at the police office until the evening of 25 August 2001. However, according to the local prosecutor ’ s reply of 11 February 2004 to the applicant ’ s complaint, the applicant was not detained during the mentioned period. The applicant also submits that during this period he was ill-treated by the police who forced him to plead guilty and that he was coerced into declining legal representation. He further maintains that the police planted evidence against him, having put a blood stain on his shirt.

On 25 August 2001 the local police instituted criminal proceedings against the applicant charging him with the infliction of grievous bodily harm to D. resulting in his death. By the end of that day the applicant was subjected to a written undertaking not to abscond.

Between the end of August and the beginning of September 2001 a hoe was found close to the place where D. was found dead.

According to the applicant, he was arrested again on 14 September 2001; the arrest report refers to 15 September 2001 though. On 18 September 2001 the Kirovskiy District Court of Donetsk (hereafter “the District Court”) extended the applicant ’ s arrest until 25 September 2001. On the latter date the District Court ordered the applicant ’ s detention on remand . It is not clear from the applicant ’ s submissions whether he has appealed against that court decision.

By November 2001 the investigator took a number of measures, in particular, on-sight inspection, post-mortem examination of the victim and other forensic examinations, questioning the applicant and witnesses, and confrontations between the latter. On 26 November 2001 the indictment was approved by the district prosecutor and sent to the District Court. According to the applicant, the decisive evidence against him, that is the abovementioned bloodstained shirt and the hoe, which was concluded to be the murder weapon, were not sealed during the investigation, as required by the relevant rules of procedure, and were ultimately replaced with other ones, more consistent with his charges and consequently more incriminating. He denied the charges against him.

b. Trial and appeal

According to the applicant, he had been represented by a lawyer since 6 December 2001.

During the trial the applicant pleaded not guilty.

On 10 September 2002 the District Court, having examined the case before it, found the applicant guilty of murder of D. and sentenced him to eleven years ’ imprisonment.

On 9 December 2002, in the course of the applicant ’ s study of the case file, which at the material time consisted of two volumes, the District Court found that the applicant was abusing this right by, inter alia , requesting to arrange simultaneous familiarisation with the court minutes and audio and video records, challenging the lawfulness of the court hearings ’ minutes and how the case file was processed. Eventually on 8 January 2003 the District Court terminated the applicant ’ s study of the case file. The applicant insists that he was not provided with access to the audio and video records of the court hearings, that some of the documents in the case-file (for instance, minutes of the court hearings) were drafted in an improper manner (in his view he was not provided with the final version of court minutes but only with a draft version) written in illegible handwriting , that the case file was improperly processed and so on.

The applicant and his lawyer appealed against the judgment, challenging the conclusions of forensic examinations and the testimonies of a number of witnesses, and alleging procedural shortcomings in the investigation and trial. They requested, accordingly, to discontinue the proceedings in question due to the lack of evidence of the applicant ’ s guilt .

On 11 July 2003 the Donetsk Regional Court of Appeal ( “t he Court of Appeal ”) , pointing out a number of the inferior court ’ s shortcomings (for example, failure to establish how the injuries to D. had been caused and how the blood stain had appeared on the applicant ’ s shirt, to address the applicant ’ s version of events, etc.), found that the applicant ’ s guilt was not sufficiently proven and quashed the judgment of 10 September 2002. Accordingly, the case was remitted for fresh consideration.

c. Re-trial and ensuing appeals

On an unspecified date the District Court resumed the trial.

On 23 September 2003 the defence lawyer requested the District Court to release the applicant. On 27 February 2004 the District Court dismissed the request limiting its reasoning to a statement that “there [was] no ground to replace the applicant ’ s detention on remand with a non-custodial preventive measure”. The applicant asserts that on 27 November and 3 December 2001 and 27 August 2002 he also applied to the court to be released but the results of these applications are unclear.

According to the applicant, on 26 March 2004 he was expelled from the court room during the hearing. He was allowed to be present at the court hearing on 21 July 2004, on 30 July 2004 the court interrupted him and prohibited him from finishing his last plea .

On 21 July 2004 the applicant refused the assistance of his lawyer, alleging collusion and incompetence of the latter, and subsequently requested the court to appoint another lawyer to represent him. According to him, on 30 July 2004 the District Court dismissed that request. Apparently he was not legally represented until the end of trial.

According to the applicant, he requested several times during the trial and re-trial to summon certain witnesses (in particular, C., the investigator; an unidentified policeman, who on 24 August 2001 convoyed the applicant to the police station; A., the policeman at whose office on 25 August 2001 his abovementioned bloodstained shirt had been allegedly produced; S., the policeman who signed the protocol on the examination and seizure of the aforesaid evidence) but to no avail. He also challenged on several occasions the judges who examined his case but to no avail .

In June and July 2004 additional forensic examinations were held.

On 2 August 2004 the District Court, having examined the case before it, found the applicant guilty of D. ’ s murder and sentenced him to eleven years ’ imprisonment. In convicting the applicant, the court had regard to:

- the testimonies by eye-witnesses to the conflict between the applicant and D. in the morning of 23 August 2001, according to which there were no injuries to D. after the conflict and that the applicant and D. had had these types of conflicts before;

- the testimonies of those who discovered the dead body of D.;

- the testimonies by the applicant ’ s colleagues according to which the hoe disappeared from their workplace after D. was found dead;

- the statement by L., the police officer who interrogated the applicant in August 2001, that the applicant had pleaded guilty but refused to confirm his confession in writing;

- the forensic cytological examination report of 7 September 2001 according to which the blood stain on the applicant ’ s shirt “could be from any person, including D., whose blood contains antigen H” and not from the applicant ’ s blood;

- the post-mortem examination report of 15 September 2001 according to which the injuries to D. could be caused either by a blunt instrument or by a hoe;

- the forensic expert report of 9 October 2001 concluding that it was not possible to establish the features of the instrument by which D. was injured but “the probability that the injuries to D. [had been] caused by the hoe under examination [could] not be excluded”;

- the additional forensic expert report of 9 July 2004 stating that the blood did not gush out of D. ’ s injuries during the assault but could have splashed around on surrounding objects;

- other procedural documents relating to the extraction of evidence.

The court also noted that the procedural shortcomings committed at the pre-trial investigation were not so grave to prejudice its examination of the case. It did not specify those shortcomings. In addition to the judgment, the court rendered on the same day a special ruling ( окрема ухвала ) informing the superior investigation authorities of the bad faith and negligence of their subordinates in charge of the applicant ’ s case. In particular, the court noted that, initially, the hoe had contained blood and hair samples which subsequently had been lost by the investigators in question at the pre-trial stage.

The judgment itself states that the hearing was public and that the defence lawyer was present. This judgment, according to the applicant, was “secretly” pronounced to him on 2 August 2004 in SIZO , a pre-trial detention centre where he was detained. In support the applicant submitted a copy of the District Court ’ s letter of the same date requesting the SIZO administration to provide them with the premises to pronounce the applicant the judgment.

On 28 February 2005 the District Court, alleging the applicant ’ s abuse of his right, terminated the applicant ’ s study of the case file (subsequently, as appears from the applicant ’ s submissions, the Court of Appeal remitted the case to the District Court in order to give the applicant opportunity to familiarize himself with the case file).

The applicant appealed against the judgment of 2 August 2004. He maintained, inter alia , that the impugned judgment was unreasoned and had been “secretly” pronounced to him in SIZO .

On 31 March 2006 the Court of Appeal, having reiterated the aforesaid pieces of evidence, upheld the conclusions in the judgment of 2 August 2004. It did not dwell on the alleged lack of “publicity” of the criminal proceedings against the applicant as maintained in his appeal.

On 25 October 2007 the Supreme Court of Ukraine rejected the applicant ’ s appeal in cassation. According to the applicant, he familiarised himself with that decision on 28 November 2007.

2. Proceeding s relating to the applicant ’ s complaints of ill-treatment

According to the applicant, on 24 and 25 August 2001 he was ill-treated by the police who allegedly coerced him into pleading guilty.

On 25 and 29 August 2001 a forensic medical expert, having examined the applicant, revealed some bruises on his shoulders and arm. The expert concluded that these injuries might have been caused on the 23 and 24 August 2001 during a fight or in self-defence.

On 26 December 2001 the prosecutor refused to institute criminal proceedings upon the applicant ’ s complaints of ill-treatment finding no prima facie case. The applicant states that no copies of that and of all other decisions on the matter were served to him and, therefore, he could not challenge them before the domestic courts.

Subsequently the applicant requested several times the prosecutor to institute criminal proceedings against the policemen who had allegedly beaten him on 24 and 25 August 2001 but to no avail.

During the trial the applicant also complained about ill-treatment by the police on the 24 and 25 August 2001. On 10 September 2002 the District Court found the complaint unfounded .

On 11 July 2003 the Court of Appeal, remitting the case for fresh consideration, underlined, among other points, the inferior court ’ s failure to address the applicant ’ s complaints of ill-treatment by the police and the need for additional investigation.

In the judgment of 2 August 2004 the District Court found that the injuries revealed by the expert at the applicant ’ s body had been caused during the fight between the applicant and D. on 23 August 2001. In doing so the court made reference to the applicant ’ s statements to the medical expert during his examination; the applicant denied that he had ever made those statements.

On 9 December 2005 the Court of Appeal , having examined the applicant ’ s appeal against the judgment of 2 August 2004, remitted the case to the District Court and ordered the local Prosecutor ’ s Office to hold an inquiry into the applicant ’ s complaints of ill-treatment that he had allegedly been subjected to in the course of pre-trial investigation. No further information about the prosecutor ’ s decision taken after the inquiry is available.

In their decisions of 31 March 2006 and 25 October 2007 the Court of Appeal and the Supreme Court of Ukraine, respectively, rejected the applicant ’ s complaints of ill-treatment as unsubstantiated.

3. Proceeding s relating to the applicant ’ s complaints that his property had been embezzle d

On an unspecified date the applicant requested the local police and Prosecutor ’ s Office to institute criminal proceedings in respect of embezzlement of his property which allegedly took place following his detention in 2001. In February 2002 the local police refused to institute the requested proceedings. Subsequently this decision was quashed and the preliminary inquiry was resumed several times. On 12 October 2006, the latest available decision, the local police refused again to institute the requested proceedings.

The applicant did not appeal against these refusals to a court. He states however that he could not do that because he was not provided with the copies of pertinent decisions.

4. The applicant ’ s pension

On an unspecified date the applicant requested the local department of the State Pension Fund (hereafter “the SPF”) to grant him a pension in so far as he was eligible due to his age. By letter of 6 July 2006 the local department of the SPF replied that the applicant was not entitled to a pension under national law as long as he was serving his sentence.

On 16 August 2006 the local department of the SPF pointed out, inter alia , that the applicant would be entitled to a pension upon his release from prison.

It appears that the applicant did not challenge the aforesaid refusals before any domestic court.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was il l-treated by the police on 24 and 25 August 2001 and that the investigation into his complaint was not effective .

He also relies on Article 5 § 1 (a) and (c) of the Convention challenging the lawfulness of his arrest and detention on the 24 and 25 August 2001, in particular, that there was no lawful detention order and that his detention was not properly recorded. Under the same provision the applicant submits that his arrest on 14 September 2001 and further detention were unlawful as they were based on far - fetched reasons and forged evidence. The applicant further states that in breach of Article 5 § 4 of the Convention the courts did not examine the lawfulness of his detention upon his requests for release. He also relies in this regard on Article 5 § 5 of the Convention .

Referring to Article 6 § 1 of the Convention, the applicant complain s of the courts ’ assessment of the evidence and interpretation of the law and challenge s the lawfulness of his conviction . In particular, he submits that his conviction was based on fabricated and illegally obtained evidence. In his view, the institution of criminal proceedings against him violates Article 6 § 2 of the Convention. In this respect he adds that the courts were lacking independence and impartiality. He further complains under Article 6 § 1 of the Convention about the length of the criminal proceedings against him. The applicant also relies on Article 2 of Protocol No. 7 in so far as his appeals were not examined in due time.

The applicant complains under Article 6 § 3 (b) of the Convention that the courts did not provide him with full access to the case file.

He further contends that the courts did not respect his right under Article 6 § 3 (d) of the Convention by refusing to summon certain witnesses (in particular, C., A. and S., and other policemen) whose statements, in his view, would have proven his innocence.

The applicant also relies on Article 13 of the Convention , stating that no proper response was given to dozens of his requests and complaints.

With reference to Article 14 of the Convention and Article 1 of Protocol No. 1 2, the applicant complains that his arguments and the witnesses ’ statements in his favour were not taken into account by the domestic courts during the criminal proceedings against him.

Referring to Article 1 of Protocol No. 1 , the applicant asserts that the State authorities have failed to protect his property during his detention.

In addition to the aforesaid complaint, the applicant relies on the provisions of the 1966 International Covenant on Civil and Political Rights.

Without reference to any provision of the Convention the applicant also complains about the refusal to grant him a pension.

Finally, the applicant complains that the domestic courts have failed to provide him with properly certified copies of their decisions and other documents (for example, the minutes of court hearings, photos) in breach of Article 34 of the Convention.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to inhuman or degrading treatment on 24 and 25 August 2001, in breach of Article 3 of the Convention?

2. Having regard to the procedural protection from ill-treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

3. Did the courts afford the applicant review of the lawfulness of his detention, as required by Article 5 § 4 of the Convention? In particular, did the domestic courts examine every request by the applicant or his lawyer for release and, if so, whether the decision taken following that examination was available for the defence and open to their appeals?

The Government are requested to provide copies of all court decisions ordering or prolonging the applicant ’ s detention on remand or taken on the applicant ’ s requests for release pending trial.

4. During which period(s) of the criminal proceedings in question was the applicant represented by a lawyer?

5. Has the applicant exhausted the domestic remedies available to him (see Arkhipov v. Ukraine ( dec. ), no. 25660 / 02 , 18 May 2004) with regard to his complaints that he was expelled from the court room during the hearing on 26 March 2004 and that he was not present there until 21 July 2004, at least; that on 30 July 2004 the court interrupted him and prohibited him from finishing his last plea; and that the judgment of 2 August 2004 was not pronounced publicly ?

If so,

was the applicant ’ s right to a fair trial enshrined in Article 6 § 1 of the Convention respected in the present case, having regard to the applicant ’ s submissions that from 21 July 2004 onwards he was no longer represented by a lawyer? and

was the judgment of 2 August 2004 pronounced publicly, as required by Article 6 § 1 of the Convention?

The Government are requested to furnish the copies of all the applicant ’ s submissions lodged with the domestic courts after 26 March 2004.

6. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?