PLYATSEVYY v. UKRAINE
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych
The applicant, Mr Denys Oleksandrovych Plyatsevyy, is a Ukrainian national who was born in 1985 and lives in Kamyanets-Podilsky. He is represented before the Court by Mr I.A. Melnyk, a lawyer practising in Kamyanets-Podilsky. The respondent Government are represented by their agent, Mr Y. Zaytsev. In January 2002 Mr V.L. complained to the police that the applicant had taken several hundred U.S. dollars from V.V., his minor son, as well as giving V.V. some forged dollar bills. On 23 February 2002 criminal proceedings were instituted against the applicant. In summer 2002 the police also received complaints from other minors, who alleged that on various occasions the applicant had extorted from them or robbed them of petty cash and various objects, such as an ice-cream cone or a school bag. Having found out about these complaints, the applicant’s mother, cousin, and, according to contested accounts of some minors, his advocate, visited the complainants’ families. On several occasions the applicant’s mother returned to the families the amounts of money claimed to have been stolen by the applicant. According to some records, she also returned the stolen school bag to R.G., one of the minors. According to other records, she gave R.G. a bag which simply resembled his. Following these visits, in August 2002 S.S., one of the complainants, as well as parents of three other complainants (O.L., I.D. and S.Z.) informed the police that their complaints against the applicant had been written under duress on behalf of the police officers. In spite of these submissions, on 26 August 2002 new charges of extortion and robbery were brought against the applicant. In September 2002 the applicant was further charged with hooliganism. In particular, he was accused that in August 2002 jointly with L.L. he had beaten S.R. in a public place. During the pre-trial investigation, twelve minors, including those whose parents had attempted to retract their complaints in August 2002, testified that the applicant had extorted from them or robbed them of their money and possessions. On 29 October 2002 the applicant and L.L. were committed to the Podilsky District Court (Подільський міськрайонний суд Хмельницької області, “the District Court”) for trial. On 25 November 2002 the District Court allowed the requests submitted by minors S.S., O.P., S.Z. and the parents of O.L., O.P., R.G. and I.D. to hold hearings in camera, in view of pressure purportedly exerted on them by the applicant’s entourage to retract their allegations. In the course of the hearings, the District Court questioned V.V. and his father, who confirmed their earlier testimonies that the applicant had taken several hundred dollars from V.V. and given him some forged bills. Five other minors (I.D., O.L., O.P., S.S. and S.Z.) confirmed their testimonies given to the police concerning petty extortion and robbery. O.L., S.Z. and I.D. corroborated each other’s statements concerning some of the episodes. The parents of O.P., S.S. and S.Z. corroborated the statements of their children and explained that the children had earlier complained to them on several occasions about the applicant’s conduct. The mother of R.G., the seventh minor, who was absent from the courtroom, spoke before the court in support of her son’s testimony given to the police concerning the theft of a school bag and several episodes of petty extortion. Those individuals who had earlier attempted to retract their accusations against the applicant contended before the court that they had done so under pressure from the applicant’s entourage. The judge further announced that another five minors, who had been questioned by the investigation under pseudonyms, had lodged requests to be dispensed from attendance at the hearings for fear of reprisals by the applicant’s entourage and that in these requests they had confirmed their earlier statements given to the police. The judge then read out the depositions given before the police by these minors, and other documentary evidence. According to the case file materials, the applicant, represented by the lawyer, did not question or challenge these testimonies before the District Court. Further, the District Court heard L.L. (the applicant’s co-accused on the charge of hooliganism) and some thirty other witnesses, who gave details predominantly concerning the beating of S.R. and V.V.’s character. On 10 December 2002 the District Court found that the applicant was guilty of some seven counts of robbery and eight counts of extortion in respect of the injured parties who had been examined in the courtroom. It further found that the applicant was guilty of three counts of robbery and six counts of extortion in respect of the victims whose identities had been concealed. The court finally designated the applicant’s actions as repeated robbery and extortion and sentenced him to three years’ imprisonment for each of the offences. The court further found it unnecessary to add up the two full terms and determined the final punishment as four years’ imprisonment. However, in view of the applicant’s age, other personal circumstances and the nature of his offences, the applicant was released from punishment subject to two years’ probation. The applicant, represented by a lawyer, appealed, seeking to be acquitted. He pleaded that the case had been falsified by the police in retaliation for his mother’s complaints that he had been beaten during the first questioning, in January 2002. Hence the victims who gave evidence against the applicant at the trial had done so under threats from the police to institute proceedings against them for their own transgressions, as they were all on the police juvenile offenders’ register. The episodes in respect of the anonymous victims had been completely falsified. Moreover, the testimony of I.B., one of these alleged victims, was improbable, as on the date of the purported offence the applicant had not attended the school in which he had allegedly committed it. No specific challenge was raised to the accounts of events contained in the testimonies of other absentee victims. The applicant further challenged various details of the testimonies obtained during the hearings as unreliable. Lastly, he complained that the hearings had been held in camera. On 4 March 2003 the Khmelnytsky Regional Court of Appeal (Апеляційний суд Хмельницької області) upheld the judgment of 10 December 2002, having found no violation, in that the hearing had been held in camera and that the case file materials contained sufficient evidence to find the applicant guilty of repeated extortion and robbery of minors. The applicant appealed in cassation before the Supreme Court of Ukraine, raising essentially the same arguments as before the Regional Court. On 15 July 2003 the Supreme Court rejected the applicant’s request for leave to appeal in cassation. On 12 January 2004 the applicant and his mother instituted civil proceedings against the Kamyanets-Podilsky Police Department, seeking monetary compensation for the pecuniary and non-pecuniary damage allegedly suffered as a result of their unlawful actions when investigating the applicant’s case. On 16 March 2005 the District Court rejected the applicant’s claim. The applicant appealed. On 17 May 2005 his appeal was dismissed by the Khmelnytsky Regional Court of Appeal. On 15 January 2002 the applicant was taken by police officers to the police department, where he was questioned in connection with the case above. The applicant was allegedly put under pressure, threatened and beaten to make him confess; and he was released from the police only upon the arrival of his mother some eleven hours after his apprehension. On 17 January 2002 the applicant was examined by a court medical expert at his request. No injuries were recorded. According to the applicant, the expert refused to record injuries. On 28 February 2002 the applicant was examined by a doctor, who established that he was suffering from cerebral concussion, injury to the left kidney and hepatitis. It was only then that the applicant told his mother that he had been beaten by the police officers. On 19 March 2002 the applicant’s mother lodged a criminal complaint against the police officers for the alleged ill-treatment of her son. On 16 May 2002 the Kamyanets-Podilsky Prosecutor’s Office decided not to bring any charges against the police officers. It found, inter alia, that there was no evidence that the officers had committed the alleged offences, other than the applicant’s own allegations. Furthermore, regard being had to the lapse of time between the interrogation and the date on which the injuries were discovered by doctors, the injuries could have been sustained elsewhere. On 27 May 2002 the Khmelnytsky Regional Prosecutor’s Office annulled this decision and ordered the applicant to undergo an additional medical assessment and additional measures to be taken to find possible witnesses. On 2 July 2002 the applicant’s mother withdrew her complaint. She explained that she had lodged it because she had been upset about the initiation of criminal proceedings against her son. On 3 July 2002 the Kamyanets-Podilsky Prosecutor’s Office terminated the inquiry into the incident as a result of the applicant’s mother’s request. On 4 October 2002 the Khmelnytsky Regional Prosecutor’s Office annulled this decision, having found that not all measures ordered in its previous decision had been carried out. On 14 October 2002 the applicant was examined by a medical expert. He found that the applicant had no injuries at the time of the assessment. As regards the injuries recorded at the end of February, it was not possible to determine whether the applicant’s version of events was probable, on account of the lapse of time between the purported ill-treatment and his first application to a doctor and the further lapse of time before the present assessment. In light of the above, on 24 October 2002 the Kamyanets-Podilsky Prosecutor’s Office dismissed the applicant’s mother’s request for the institution of criminal proceedings. According to Section 186, repeated robbery is punishable by four to six years’ imprisonment. According to Section 189, repeated extortion is punishable by three to seven years imprisonment. According to Section 52-1, an injured party in the criminal proceedings may request security measures to prevent a real threat of harm to his life, limb or property. If this request is granted, according to Section 52-3, the injured party’s personal data may be replaced by a pseudonym in all procedural documents. According to Section 290, in exceptional circumstances the court may absolve an injured party, in whose respect security measures have been indicated, from the duty to appear for the hearings, if he submits a written statement that he confirms his earlier depositions. According to Sections 303 and 308, the parties may request cross-examination of a witness or an injured party who is absent from the courtroom for safety reasons, via a teleconference. To reduce the risk of identification of the voice of the witness (the injured party), acoustic distortion may be created. If it is not possible to organise a teleconference, the court may examine the witness (the injured party) in the absence of the defendant. The judge in this event is obliged to disclose his testimony to the defendant and to give him an opportunity to comment on it. The defendant and other parties to the proceedings may ask questions of the witness (injured party), which are answered in the absence of the defendant. Further relevant provisions of the Code concerning the rights of defence in respect of examination of witnesses can be found in the admissibility decision in the case of Khivrenko v. Ukraine (no. 65743/01, 25 September 2007).