CASE OF CHORNIY v. UKRAINE
Violation of Article 6+6-1 - Right to a fair trial (Article 6-3-b - Preparation of defence) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Fair hearing)
Aleš Pejchal;André Potocki;Angelika Nußberger;Mark Villiger;Myroslava Antonovych;Paul Lemmens
5. The applicant was born in 1965 and lives in the village of Khodorkivtsi, Ukraine. 6. On 17 December 2004, at a hearing in criminal proceedings against the applicant, the Zhydachivskyy District Court (“the Zhydachivskyy Court”) found the applicant guilty of non-payment of wages to employees of his business between November 2001 and January 2004. In court the applicant testified that he was the owner, director and main accountant of the business E. He paid his employees’ wages out of his own pocket; however, none of the payments went through the books. The applicant’s employees gave evidence that he had been paying their wages, but this was disregarded by the court since they were still employed by him. The court fined the applicant 1,700 Ukrainian hryvnias (UAH) (at the material time worth approximately 236 euros (EUR)). 7. According to the applicant, he was not provided with a copy of the judgment. The Court has been provided with a copy of the judgment. It comprises two pages and bears the annotation: “This judgment was drafted in the deliberation room in one copy only”. 8. As part of their submissions the Government lodged a copy of the applicant’s request of that day seeking permission to read the court transcript, upon which a court clerk had written that “the applicant received a copy of the judgment on 17 December 2004 (2 pages)”. 9. On 27 and 29 December 2004 the applicant and his lawyer respectively lodged appeals against the decision of 17 December 2004. In these appeals they mainly complained that the court had disregarded the evidence given by the employees. 10. On 10 February 2005 the Zhydachivskyy Court informed the applicant and his lawyer that the applicant’s case would be considered at an appeal hearing on 15 March 2005. However, on the day the hearing was due to take place the Court of Appeal returned the case file to the first-instance court with a request for the documents to be properly organised. 11. On 29 March 2005 the Zhydachivskyy Court informed the applicant and his lawyer that the applicant’s case would be considered at an appeal hearing on 26 April 2005. 12. On 26 April 2005 the Lviv Regional Court of Appeal upheld the lower court’s decision of 17 December 2004. The court reiterated the first-instance court’s arguments and noted that the applicant had not submitted any documentary evidence in support of his statement that he had paid his employees’ wages. According to the applicant, only the operative part of the judgment of 26 April 2005 was read aloud to him. 13. On 11 May 2005 the applicant sought permission from the Zhydachivskyy Court to obtain access to the case file. His request was refused, on the basis that the case file had not yet arrived from the Court of Appeal. 14. On 13 May 2005 the applicant requested a copy of the judgment of 26 April 2005 from the Lviv Regional Court of Appeal but it appears that no response was given. 15. On 19 May 2005 the applicant was again informed by the Zhydachivskyy Court that his case file had not arrived from the Court of Appeal. 16. On 23 May 2005 the applicant lodged an appeal on points of law in which he stated that he still had not received a copy of the appellate court’s judgment of 26 April 2005. 17. On 23 June 2005 he received a copy of the judgment of 17 December 2004. 18. On 19 August 2005 the applicant lodged an additional appeal on points of law in which he informed the court that he had received a copy of the judgment of 17 December 2004 but had not yet received a copy of the judgment of 26 April 2005. 19. On 16 February 2006 the Supreme Court of Ukraine, in the applicant’s absence, rejected his request for leave to appeal on points of law. 20. On an unspecified date the applicant received a copy of the judgment of 26 April 2005. 21. Article 344 of the Code of Criminal Procedure, in force at the material time, required that a copy of a judgment be served on a convicted or acquitted person within three days of judgment being pronounced. 22. Article 349 provided for a fifteen-day time-limit for lodging an appeal against a judgment. During this time the case file was to remain at the court allowing the parties to consult it upon request. 23. Article 386 provided that an appeal on points of law could be lodged within one month of the appellate court’s judgment being pronounced. During this time the case file was to remain at the court “[in charge of] executing the judgment”.