CASE OF BOYETS v. UKRAINE
Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)
Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
5. The applicant was born in 1955 and lives in Kharkiv. 6. At the time of the events she worked as a passport registration officer (паспортист) in one of the municipal housing and public utilities’ offices (КПЖРЕП) in Kharkiv. 7. On 6 February 2004 a certain M. went to the passport registration office where the applicant worked to apply for a passport for her son, who had reached the age of sixteen. As M. subsequently mentioned to the police (see paragraphs 13 and 17 below), she had already applied to the applicant in the past. According to M., when she was waiting in the queue, she heard people saying that the applicant was known for taking bribes and that her “usual rate” was 100 United States dollars (USD). Given the considerable number of visitors, M. could not get an appointment that day. She waited for the applicant in the corridor after work and explained the situation to her. The applicant allegedly told M. that it might be time-consuming to settle the matter, in particular because of the fact that M.’s son had been born in Russia and his original birth certificate was not available. However, according to M., the applicant agreed to help her to speed up the procedure with the higher authority, where she would need to pay USD 100 to the official in charge. 8. According to the applicant’s version of events, she did indeed have a late visitor in the corridor that day, whom she advised to come back during working hours, with no further exchange taking place. 9. On 7 February 2004 M. made a written statement to the Kharkiv Kyivskyy District Police that the applicant had asked for a bribe of USD 100 to speed up the passport issuance procedure. M. confirmed that she was aware of the criminal liability for knowingly making a false report about a crime. According to the police records, the above statement was made at 5 p.m. However, as subsequently established (see paragraph 59 below), that was an error and the actual time of the statement was about 10 a.m. 10. M. provided the police with a banknote of USD 100, two banknotes of USD 20 and one of USD 10. A detective officer put a special luminescent fluid on the banknotes and returned them to M. That act took place in the presence of two attesting witnesses and was documented in a report. It is not known why it was decided to mark the additional banknotes, not only the USD 100 note. 11. At about 1 p.m. on the same day M. entered the applicant’s office and emerged a few minutes later, indicating to the investigator and the attesting witnesses that she had given the USD 100 banknote to the applicant. As it was the end of the working day, the applicant locked her office and began to leave. However, the investigator stopped her and suggested she return to her office, which they did together in the presence of the two attesting witnesses. The investigator asked the applicant whether she had received any money from M. She stated that she had and took the banknote from her purse. The police officer then checked the applicant’s hands with a special device and found traces of the luminescent liquid. They were wiped off with cotton pads, which were then packed and sealed as material evidence. Such traces were also found on the banknote of USD 100 in the applicant’s purse and on the purse itself. Lastly, several passports and other papers with various banknotes inserted, varying from two Ukrainian hryvnias (UAH) (equivalent to about 0.28 euros (EUR) at the time) to UAH 50 (equal to about EUR 7), were found in the applicant’s bag and were seized. The investigator drew up an inspection and seizure report. The serial number of the USD 100 banknote seized from the applicant, as indicated in the report, differed by one letter (out of eleven characters) from the one noted in the report on marking the bill with the luminescent fluid drawn up earlier that day (see paragraph 10 above). 12. The applicant wrote an explanation, stating that she had indeed taken USD 100 from M., which she had intended to pay to an unspecified official at the local passport registration authority with a view to speeding up the issuance of the passport for M.’s son. The applicant also stated that she had voluntarily complied with the police’s request to give them the banknote in question. She noted that she had studied the inspection and seizure report and that she agreed with its contents. Lastly, she stated that she had no complaints against the police and that she regretted her actions. 13. Also on 7 February 2004, following the police operation, the investigator collected “explanations” from M. and the attesting witnesses. M. supplemented her initial statement to the police with further factual details (see paragraphs 7 and 9 above). Both attesting witnesses described the police operation which they had observed, as summarised in paragraphs 10 and 11 above. 14. On 10 February 2004, during her questioning by the investigator, the applicant changed her account of the events as follows. On 7 February 2004, when she had been about to leave work at 1 p.m., M. had entered the office. She had brought some documents in order to get a passport for her son. The applicant had informed her that certain documents were missing. The applicant had also clarified that she would be working in a different office from Monday, 9 February 2004. While collecting her papers and belongings before leaving, the applicant had noticed that M. had thrown something on the table and had run out of the office. The applicant had seen that it was a USD 100 banknote. She had taken it and had tried to get an explanation from M. However, she had already left. When the applicant had looked out into the corridor, she had only seen a man waiting there. It was T., one of the attesting witnesses. Given that different people would be working in the office on the following working day and because she knew her manager was away, the applicant had decided to keep the banknote in order to return it to M. later. 15. Furthermore, the applicant explained that her initial statement (see paragraph 12 above) had been made in a state of shock and had not been truthful. Allegedly, the investigator had dictated the statement to her. 16. On 11 February 2004 a criminal case was opened against the applicant on suspicion of incitement to bribery. 17. On the same date M. gave written explanations to the Kyiv District Prosecutor’s Office with her account of the events, which was the same as before (see paragraphs 7 and 9 above). 18. On 16 February 2004 the applicant expressed a wish to be represented by the lawyer Zh. and the latter was admitted to the proceedings. When questioned in her lawyer’s presence on the same day, the applicant admitted that on 7 February 2004 she had hinted to M. that the examination of her application was likely to take time and that the applicant would be prepared to speed up the procedure before the higher authority, which she had not intended to do in reality. However, she had seen M. putting a USD 100 banknote on the table and had decided to take advantage of the situation given her own financial difficulties. She explained the difference between her latest account and her earlier submissions by shock and stress, and expressed remorse for what had happened. 19. On the same date, 16 February 2004, M. was also questioned. As indicated in the report of the questioning, she was registered as living in Kharkiv. 20. On 26 February 2004 an expert report established that the traces of luminescent liquid on the USD 100 banknote and on the applicant’s hands were the same. 21. On 28 February 2004 fraud was added to the charges against the applicant, given that she had promised to M. to act as an intermediary in bribing a higher-level official, whereas in reality she had meant to keep the money for herself. 22. On 28 February 2004 formal charges were brought against the applicant and her status changed from being a suspect to an accused. 23. On the same day the applicant changed her lawyer. When questioned that day in the presence of her new lawyer (K.), she returned to the account of events she had given on 10 February 2004 (see paragraphs 14 and 15 above). She submitted that she had stated differently in the presence of her previous lawyer (see paragraph 18 above) because she had “considered it useless to prove [her] case and feared that nobody would believe [her]”. 24. On the same day the investigator returned the USD 100 banknote to M., who wrote a receipt in confirmation. She also undertook to keep the banknote until the end of the proceedings. 25. On 29 February 2004 the Kyivskyy District Prosecutor’s Office approved the bill of indictment against the applicant. It contained the following list of persons to be summoned to court: the applicant, the victim (M.) and the two attesting witnesses (G. and T.). 26. On 10 November 2004 the Kyivskyy Court dropped the charge of incitement to bribery. It also ruled to relieve the applicant of criminal liability in respect of the fraud charge and terminated proceedings on that point on the grounds that she was not a danger to society (see paragraph 60 below). 27. The applicant appealed, seeking the termination of the criminal proceedings against her owing to the absence of the constituent elements of a crime in her actions. She denied asking for or receiving any money from M. and maintained that the latter had simply thrown the banknote on her table. Overall, the applicant considered “everything that had happened to [her] as a provocation on the part of the law-enforcement authorities”. She also complained that she had not been able to cross-examine M. 28. On 14 April 2005 the Kharkiv Regional Court of Appeal (“the Court of Appeal”) quashed the above decision. It held that the first-instance court had not been entitled to terminate the proceedings in the way it had done without the applicant’s consent. The appellate court also noted that the applicant’s argument about her inability to cross-examine M. had not been examined. The case was remitted to the same first-instance court for fresh examination by a different panel. 29. The Kyivskyy Court adjourned hearings in the case several times owing to the absence of M. and the two attesting witnesses. On 18 July 2005 it decided that it was impossible to complete its judicial investigation in their absence and ordered the police to ensure their attendance. 30. The police found out that M. had sold her house in Kharkiv on an unspecified date in 2004 and had moved to Russia, with her new address being unknown. G. had moved to a different city in Ukraine, but eventually attended one of the hearings. The other attesting witness, T., was always away from home when visited by the police and his neighbours had not seen him for some time. Eventually, the police located him and on 14 October 2005 he made a written statement that he would appear at a hearing scheduled for 17 October 2005 (with no further details available). 31. As stated in a note issued by a clerk of the Kyivskyy Court on 17 October 2005, the hearing scheduled for that day was postponed to 6 December 2005 given the judges’ involvement in a different case. It is not known whether there was a hearing on 6 December 2005. It is an established fact, however, that T. did not attend any of the hearings. 32. In January 2006 the applicant enquired with the Kharkiv Kyivskyy District Military Enlistment Office as to whether M.’s son was registered there. On 24 January 2006 she received a reply that he had appeared before that office in April and May 2005, and that the army conscription commission had found him unfit for military service in peacetime by a decision of 6 May 2005. The son had not changed the place of his military registration. The applicant brought the above information to the knowledge of the trial court dealing with her case. 33. On 26 January 2006 the Kyivskyy Court once again ordered the police to ensure the presence of M. and the two attesting witnesses at the trial. 34. On 8 February 2006 it decided to continue the examination of the case in the absence of M. as it appeared impossible to establish her whereabouts. In reaching that conclusion, the court referred to the fact that she was no longer registered as being resident in the Kharkiv region and that the police had information that she had emigrated to Russia. By the same ruling, the Kyivskyy Court ordered the prosecution authorities to ensure the mandatory presence of T. 35. On 16 February 2006 the Kyivskyy Court found the applicant guilty of fraud and incitement to bribery and sentenced her to a fine of UAH 5,000 (then equivalent to EUR 830). Although the applicant pleaded innocent, the court considered her guilt to be proved by the totality of the evidence. It relied on the statements of M., the aggrieved party, made during the pretrial investigation, and those of the attesting witnesses, made by G. before the court and by T. during the pre-trial investigation. The court stated that it had “no grounds for questioning the credibility of the aggrieved party and the witnesses whose statements [were] corroborated by other objective [...] evidence”. The trial court also relied on the inspection and seizure report of 7 February 2004 (see paragraph 11 above) and the forensic expert examination report of 26 February 2004 (see paragraph 20 above). The verdict noted that the applicant had initially confessed to the offences, but had later retracted her confession for no apparent reason other than an attempt to escape liability. Her initial statement was considered, however, more plausible. 36. On 3 March 2006 the applicant appealed and on 25 April 2006 she submitted further “written explanations to [her] appeal”. She complained, in particular, that her conviction had been based mainly on the statements of M., who had never appeared before the court and whom the applicant had never been able to cross-examine. She argued that the first-instance court had not shown due diligence in finding and summoning M. The applicant also complained that the Kyivskyy Court had wrongly relied on her initial confession, which had been dictated to her by the police before the institution of criminal proceedings against her. 37. The applicant did not refer in her appeal or in its supplement to her inability to examine T. or to have him examined. At the same time, on 7 April 2006, she lodged a written application to the appellate court to summon T. given that he “was an attesting witness” and that he “had made statements against [the applicant]”. 38. On 25 April 2006 the Court of Appeal upheld the judgment of 16 February 2006. It considered that the applicant had initially made a confession of her own free will and that she had failed to give any convincing explanation about her subsequent change in position. Furthermore, the appellate court noted that the whereabouts of M. and T. could not be established. There were no reasons to question the veracity of the statements they had made during the pre-trial investigation. Nor were there any reasons to suspect any intention by them to falsely accuse the applicant. In sum, the appellate court did not discern any procedural flaws which warranted quashing the verdict. 39. The applicant appealed on points of law. She argued that the covert operation of 7 February 2004 had been unlawful because it had not been duly authorised and had taken place in the absence of any criminal proceedings against her, even prior to the formal registration of M.’s statement. The applicant also complained that her rights under Article 6 § 3 (d) of the Convention had been breached on account of her inability to cross-examine M. and T. 40. On 18 October 2007 the Supreme Court dismissed the applicant’s appeal on points of law and upheld the lower courts’ decisions. Its general conclusion was that no violations of the law of criminal procedure had been established. 41. On 27 March 2009 the Kyivskyy Prosecutor’s Office opened a criminal case against the applicant for a failure to comply with the judgment of 16 February 2006 (see paragraph 35 above and paragraph 61 below). 42. On 10 November 2009 the applicant was placed under an undertaking not to leave her town of residence as a preventive measure pending trial. 43. In the absence of any formal charges against her, the preventive measure ceased to apply ten days later, on 20 November 2009 (see paragraph 62 below), a fact of which the applicant was not aware. It is not known if there was any formal decision lifting the measure in question. 44. On 7 December 2009 the criminal proceedings were terminated for lack of the constituent elements of a crime in the applicant’s actions. On 11 December 2009 that decision was quashed and the case was returned for additional investigation. The case file does not contain any documents regarding the preventive measure then applicable to the applicant, if any. 45. On 12, 15 and 18 June 2012 the applicant, who considered herself still bound by the undertaking not to leave her town of residence of 10 November 2009, requested leave to travel outside the Kharkiv region from the investigator. On 22 June 2012 the investigator sent her a letter stating that her request could not be granted because she had not provided any address or other details about the planned trip. 46. On 5 July 2012 the criminal proceedings against the applicant were discontinued again. However, two days later the investigation was resumed. 47. On 12 October 2012 the investigator terminated the criminal proceedings against the applicant for lack of the constituent elements of a crime in her actions. It was concluded that she had not evaded paying the fine, but that it had been impossible for her to do so given her low income. By the same ruling, the preventive measure in respect of the applicant was lifted, without further details. 48. On 20 November 2012 a new Code of Criminal Procedure (“the CCP”) entered into force. Instead of opening a criminal case, it provided for the initiation of an investigation by way of making an entry in the Unified Register of Pre-trial Investigations. 49. On 22 March 2013 a criminal investigation into the applicant’s failure to comply with the judgment of 16 February 2006 was launched again and was registered in the Unified Register of Pre-trial Investigations. On an unspecified date the proceedings were discontinued. On 8 April 2013 they were, however, resumed. 50. On 5 June 2013 those proceedings were discontinued once again on the grounds that there were no constituent elements of a crime in the applicant’s actions. The case file contains no information about any further developments. 51. On 26 February 2013 the applicant lodged a claim against the State Treasury, seeking compensation for non-pecuniary damage sustained as a result of her allegedly unlawful criminal prosecution from 27 March 2009 to 12 October 2012. She enclosed copies of the two rulings of those dates, by which the investigator had opened and had discontinued the criminal proceedings against her. The applicant also mentioned, in general terms, that she had been unlawfully placed under an undertaking not to leave her town, without further details. 52. The prosecutor submitted objections. He stated that on 20 November 2009 the investigator dealing with the applicant’s case had revoked the impugned preventive measure, given that no charges had been brought against her within ten days of 10 November 2009 (see paragraphs 43 above and 62 below). The prosecutor also noted that the criminal proceedings against the applicant had been reopened on 8 April 2013 (see paragraph 49 above) and remained pending. 53. On 17 May 2013 the Kyivskyy Court rejected the applicant’s claim as unsubstantiated. As regards her undertaking not to leave the town, the court concluded that it had only been applicable from 10 to 20 November 2009. 54. The applicant appealed. She submitted, in particular, that “the [firstinstance] court had not given any legal assessment to the fact that the criminal proceedings against [her] had been instituted on 27 March 2009 and discontinued on 12 October 2012, and that all that time [she] had been under an undertaking not to abscond, which had been lifted by the ruling on the termination of the criminal proceedings of 12 October 2012, that being confirmed by [the investigator’s] letter of 22 June 2012” (see paragraph 45 above). The applicant indicated in brackets the page number of the letter concerned in the case file. She further argued, in general terms, that the court had incorrectly interpreted Article 1176 of the Civil Code (see paragraph 63 below) and that it had not calculated, as prescribed under the Compensation Act (see paragraph 64 below), an amount of compensation in respect of non-pecuniary damage to which she was entitled. The applicant did not enclose any documents with her appeal. 55. On 18 June 2013 the Court of Appeal upheld the decision of the Kyivskyy Court. It noted that the sole fact that the criminal proceedings against the applicant had been discontinued did not imply that she had suffered non-pecuniary damage and she had failed to prove otherwise. The appellate court further observed that the applicant “[had] not proved when exactly she had been placed under the undertaking not to leave the town as a preventive measure. Therefore, her submission that she had been restrained in her liberty of movement for more than three years [could] not be taken into consideration”. 56. The applicant lodged an appeal on points of law, in which she indicated, in particular, that the applicability of the undertaking not to leave the town from 10 November 2009 to 12 October 2012 had been established by documents. She reiterated her earlier argument that no assessment had been given to the investigator’s refusals of her requests for leave to travel outside the Kharkiv region in June 2012. This time the applicant enclosed a copy of the letter referred to. 57. On 22 July 2013 the Higher Specialised Court for Civil and Criminal Matters rejected the applicant’s request for leave to appeal on points of law. 58. On 17 April 2006 the applicant sought the institution of criminal proceedings against the police officers involved in the undercover operation of 7 February 2004. Her main argument was that M.’s complaint had been registered only at about 5 p.m. that day, which had been after the completion of the police operation and thus had undermined its lawfulness. 59. The prosecution authorities refused to open a criminal case against the police on several occasions. It was established that M.’s complaint had indeed been registered, by mistake, at 5 p.m. instead of 10 a.m. on 7 February 2004, for which the respective officer had been reprimanded. However, there was no indication of a criminal offence.