CASE OF LOBODA v. UKRAINE
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms)
André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
5. The applicant, who was born in 1952, is a farmer and the head of a farming company, A. He lives in Borzna. 6. In the winter of 2001, S.Sh., the newly-appointed head of a private agricultural company, D., requested that the law-enforcement authorities investigate the suspected misappropriation of D.’s property. In particular, S.Sh. stated that in the autumn of 2000, K., another agricultural company, had written off a debt of 15,517 Ukrainian hryvnyas (UAH) owed to his company, although the latter had not received any payment. 7. On 17 and 21 March 2001 the applicant, interviewed in connection with the inquiry into the case, informed the police that in the autumn of 2000 he had received twenty concrete slabs from K. in settlement of a debt to D., of which he was a shareholder. The applicant said he had used the slabs to construct a trench for A., to which D. had also owed money. D.’s former director had been aware of that fact. The transaction had not been finalised on the books as there had been disagreements between the parties over the price of the slabs and on various procedural issues. 8. On 3 May 2001 the Borznyanskiy district prosecutor (the “district prosecutor”) instituted criminal proceedings against the applicant on suspicion of fraudulently appropriating slabs that he had received on D.’s behalf. 9. On 6 June 2001 a police investigator called the applicant in for questioning as a witness in connection with the case, but rejected his request to be assisted by a lawyer during the questioning. According to the applicant, his lawyer had accompanied him to the investigator’s office but had not been allowed to be present during the questioning. 10. In the course of the questioning the applicant again admitted to receiving the slabs and using them on his farm. He also explained that the transaction had not been finalised in the accounts because the parties had had debts to each other and had still been negotiating over how to write those debts off. In any event, the directors of K. and D. had been well aware that the applicant had used the slabs on his own farm and had never objected to that use. As can be seen from the copy of the record of the questioning submitted to the Court, it was apparently filed as pages 82 and 83 in the domestic case file. 11. On 5 July 2001 the applicant was officially indicted for the fraudulent appropriation of twenty concrete slabs transferred by the K. company to the D. company in payment of a debt. On the same date, the applicant was questioned as a defendant in the presence of his lawyer but he refused to testify and relied on his right to silence. 12. On 11 July 2001 the applicant was informed of the completion of the pre-trial investigation and committed to stand trial in the Borznyanskiy District Court (“the District Court”). 13. On an unspecified date the applicant presented the authorities with an agreement dated 14 April 2001 and signed by the directors of K., D. and himself. According to that document, the three parties had agreed that the value of the twenty slabs received by the applicant was UAH 2,000 and that the transfer of the slabs to the applicant covered the relevant portion of K.’s debt to D. and D.’s debt to the applicant’s farm. 14. By September 2001 the above agreement had been reflected in all three parties’ documents relating to accounting, tax and other matters. 15. In the course of the trial, the District Court questioned the applicant and numerous other individuals, including the directors and accountants of D. and K., and examined various documents. As can be seen in the minutes of the court hearings submitted by the Government, the documents examined in the course of the trial included “a letter from the farming company”, included as page 65 in the domestic case file. 16. During the trial, the applicant, represented by a lawyer of his own choice, reiterated that he had had no fraudulent intent in taking possession of the slabs and that the three parties had decided on all the details of the transaction in April 2001 (that is, before the criminal proceedings had been instituted against him). The transaction had also been properly accounted for in all the paperwork by September 2001 (that is, before the trial had commenced). The delay in finalising the papers had been due to various objective circumstances, including initial disagreements between the parties concerning the scope of the transaction and a fair price for the slabs, the replacement of D.’s director in November 2000, and a lengthy break in the functioning of D.’s accounts office. 17. On 13 August 2003 the District Court found the applicant guilty of the charges. It found that although the case had eventually been settled, there was sufficient evidence that the applicant’s initial intent had been fraudulent. In justifying that finding, the court noted, in particular, as follows: “As regards the arguments by the defendant Loboda G.I. that ... the three-party agreement had been concluded ... before the initiation of the criminal case, and that the managers of the three entities had agreed on the price and procedure for the transfer of the concrete slabs, the court cannot accept them, as they contradict the case file materials and the evidence examined in court. It appears from the case file materials that the above-mentioned agreement was submitted by Loboda G.I. at the end of the pre-trial investigation. It can be seen from the testimony of the witnesses ... that [K.’s debt to D.], amounting to UAH 15,517, had been reinstated after having been written off ... According to ... order no. 6 of August 2001 the slabs transferred were valued at UAH 2,000 and [K.’s] debt to D. as of 1 September 2001 remained at UAH 13,517. The aforementioned evidence shows that an understanding between the managers of [K.], [D.] and [A.] concerning the price and procedure for the transfer was reached after the criminal case had been instituted, in the course of the pre-trial investigation. These findings correspond to the declarations by the head of the farming company Loboda G.I. contained on pages 65 and 67 of volume 1 of the case, dated June 2001”. 18. The District Court then granted the applicant an amnesty and released him from any punishment. 19. On the same date the court issued a separate ruling (окрема постанова) in which it drew the attention of the district prosecutor to various procedural shortcomings in the preparation of the case for trial. It noted, in particular, as follows: “On 3 May 2001 the [district prosecutor] initiated criminal proceedings against [the applicant]. On 6 June 2001 the [police investigator] ... questioned [the applicant] as a witness, despite ... sufficient evidence ... for him to be questioned as a defendant, in compliance with all the requirements of the Code of Criminal Procedure of Ukraine ... With regard to the said breaches, the testimony [of the applicant] given ... during his questioning as a witness on 6 June 2001 was not taken into account by the court as evidence in the present case ....” 20. It appears from the case-file materials that on an unspecified date the applicant filed an appeal against his conviction, which was accepted for examination. No copy of this appeal has been provided to the Court. 21. On 27 August 2003 lawyer I. also filed a separate appeal in the applicant’s interests. In this appeal he challenged, primarily, the substantive conclusions of the trial court and contended that the applicant’s actions had not been criminal. 22. On 23 October 2003 the Chernigiv Regional Court of Appeal (“the Court of Appeal”) upheld the applicant’s conviction. Referring to statements by various witnesses and the documentary evidence on file, it concluded that the applicant had not made any reasonable and meaningful efforts to regularise his appropriation of the slabs until the criminal proceedings had been instituted. 23. The applicant lodged a cassation appeal, in which he complained, in particular, that his right to mount a defence had been breached on account of his being questioned without a lawyer on 6 June 2001. He argued that it was clear from the phrase, “These findings correspond to the declarations by the head of the farming company Loboda G.I. contained on pages 65 and 67 of volume 1 of the case, dated June 2001” in the District Court’s judgment of 13 August 2003, that the testimony he had given on 6 June 2001 had in fact been relied on for his conviction, in spite of the District Court’s formal decision to exclude the record of that questioning from the case file. 24. On 28 October 2004 the Supreme Court of Ukraine examined submissions by the applicant, in the absence of both the applicant and his lawyer. However, the prosecutor was present and advised the Panel to reject the applicant’s arguments. 25. On the same date the Supreme Court rejected the applicant’s cassation appeal, finding that the lower courts had correctly assessed the facts and applied the law. Without addressing directly the applicant’s complaint concerning the breach of his right to defence, it made the following general remark concerning the procedural fairness of the proceedings: “... no breaches of the provisions of the criminal-procedure law in the course of pre-trial investigation as well as during the court proceedings can be identified”. 26. A copy of the Supreme Court’s ruling of 28 October 2004 was sent to the applicant by post on 29 August 2005 and, according to him, was received on 29 September 2005. 27. At various times the applicant made unsuccessful attempts to institute criminal proceedings against the investigator who had questioned him on 6 June 2001, and to begin administrative and civil proceedings to challenge various purported procedural omissions on the part of the District Court judge in his case.