KHIVRENKO v. UKRAINE
Inadmissible
Peer Lorenzen
The applicant, Mr Nikolay Leonidovich Khivrenko, is a Ukrainian national who was born in 1950 and lives in the town of Alushta. The Ukrainian Government (“the Government”) were represented by their Agents, Mr Y. Zaitsev and Mrs V. Lutkovska. The facts of the case, as submitted by the parties, may be summarised as follows. On 3 June 1997 Mr T., a businessman, was kidnapped by a group of persons when he was approaching his hotel after his morning jogging. Shortly afterwards, the police was informed about his disappearance. Mr T.’s business partners received a number of phone calls from the kidnappers, demanding a ransom and explaining the manner in which the money should be paid. Some of the telephone conversations were intercepted by the police. The police also recordered telephone conversations between the kidnappers. The interception was authorised by the President of the Kyiv City Court on 3 June 1997. On 14 June 1997 the applicant and six other persons were apprehended on suspicion of forcible abduction of Mr T. On 17 June 1997 they were charged with aggravated extortion. On 29 August 1997 the investigators ordered an expert examination of the audio recordings of the telephone conversations made in June 1997. The investigators also took samples of the voices of the applicant and other accused and provided the expert with these samples. On 1 December 1997 the examination was completed. The expert concluded that one of the voices on the recordings belonged to the applicant. On 28 January 1998 the applicant familiarised himself with the expert’s conclusions. In May 1999 the investigations were completed and the case was referred to the Moskovskyy District Court of Kyiv for trial. The investigators also submitted a list of persons, the accused and twenty-two witnesses, to be summoned by the court. The applicant and his lawyer took part in the court proceedings. In the course of these proceedings eight witnesses, including one of the investigators, were heard in person. One of those witnesses, Mr S., stated that on 2 June 1997 he had met the applicant and Mr B., whom he had known before, at the hotel where Mr T., the victim, had stayed. Mr B. had asked Mr S. if the latter knew the place where the hotel clients were jogging. Mr S. had given him relevant explanations. On 3 June 1997 Mr S., upon the victim’s business partners’ request, had met with the applicant and Mr B. in order to find out whether the latter knew about the victim’s whereabouts. He had received an affirmative answer from Mr B., the applicant having been present at that meeting but having not participated in the conversation. Thereafter, Mr S. had had several telephone conversations with Mr B., discussing the conditions of the victim’s release. Another witness, Mrs V., informed the court that since May 1997 the applicant had resided in her flat in Kyiv and that her mother, Mrs K., had given the keys to her summer house to one of the applicant’s co-defendants. As it was later established in the course of the investigations and trial, the victim had been held in that summer house. While the investigator heard by the court as a witness submitted that the defendants had fully enjoyed their procedural rights and that they had had access to all the materials contained in the case-file, the remaining witnesses made statements relating to some of the applicant’s co-defendants’ activities at the material time. The court decided to admit and examine the written statements of fourteen other witnesses obtained at the stage of the pre-trial investigation, after having accepted the reasons for their non-appearance before the court. As far as can be determined from the contents of the court records, the police, who had been ordered to bring the witnesses before the court, informed the court that five of those witnesses resided abroad and that four other witnesses could not advance the money for travelling. The reasons for the non-appearance of other five witnesses remained unclear. The co-defendants’ lawyers objected to the admission of the written statements of some of those witnesses and insisted on their appearance at the court hearing. The applicant’s lawyer seconded her colleagues’ objections. In her written submissions, one of the witnesses, Mrs K., had informed the investigators that in May 1997 she had given the keys to her summer house to the applicant, who had intended to use it for the storage of goods. The other written statements examined by the court concerned the victim, his relations with business partners, and the activities of some of the applicant’s co-defendants. Although at the stage of pre-trial investigation some of the applicant’s co-accused had confirmed that he had organised the abduction of Mr T. upon the request of Mr M. and Mrs M., they all withdrew their initial statements at the trial stage. Nonetheless, the court admitted their statements made at the pre-trial stage, as well as their later submissions. The applicant denied his responsibility for the crime of which he had been accused. He also submitted that the statements of Mrs K. and his coaccused made at the pre-trial stage were untrue. In the course of the trial the court also examined the transcripts of the recordings of the telephone conversations made in June 1997 and the expert’s conclusion of 1 December 1997. On 17 January 2000 the applicant together with his co-defendants were found guilty of aggravated extortion. The applicant was sentenced to ten years’ imprisonment with confiscation of his property. In its judgment, the court made the following findings concerning the applicant’s guilt: “... In addition ... the leading role of [Mr] Khivrenko in committing extortion ... is [confirmed] by the evidence collected in the course of ... the interception of telecommunications which had been carried out on the basis of the warrant issued by the President of the Kyiv City Court ... on 3 June 1997. It was established in the court hearing that, given the audio recordings ..., [Mr] Khivrenko had had telephone conversations with [Messrs B. and Y., his co-defendants, and Ms A., a witness], and other persons with the aim of extorting individual property of the victim...” The lawyers, representing the applicant and his co-defendants, appealed in cassation, alleging that the first instance court had wrongfully assessed evidence and applied law in the case. They argued, inter alia, that the court had failed to summon the witnesses, Mr M. and Mrs M., whose written statements had been admitted to the case-file and who had allegedly ordered the victim’s abduction; that the court had not allowed the defendants to familiarise themselves with the audio recordings of the telephone conversations made in June 1997; and that the court had failed to re-qualify the acts of the defendants who had allegedly abducted the victim in order to ensure his compliance with financial obligations in respect of a third party. On the whole, according to the defence lawyers, the conviction was not based on any reliable evidence. The applicant’s lawyer lodged an amendment to the above appeal, reiterating that neither he nor the applicant had been able to familiarise themselves with the audio recordings of the telephone conversations made in June 1997. The lawyer also submitted that the court had failed to take into account the fact that there had been procedural irregularities in the course of the pre-trial investigation in that the applicant had not been provided with assistance by a lawyer at his first interrogation. Finally, the lawyer contested the trustworthiness of the statements of the witness Mrs K. On 3 August 2000 the Kyiv City Court upheld the judgment of the first instance court. The city court found that the judgment had been wellfounded and that there had been no procedural irregularities at the stage of the investigation or trial. On 17 September 2002 the applicant was conditionally released from serving his sentence. Pursuant to Article 48 of the Code of Criminal Procedure (the Code), as worded at the material time, the procedural rights of the defence lawyer included the rights to meet with the suspected or the accused; to be present at their interrogation; to be present during the investigative procedures in which the suspected or the accused took part or which were initiated by them; to take part in other investigative procedures subject to the consent of the person conducting an inquiry or the investigator; to familiarise himself with the case-file following the completion of the pre-trial investigations and to make notes; to participate in the trial; to collect evidence; to get the expert’s written conclusions concerning the issues the examination of which required special knowledge; to submit evidence and to lodge motions. The defence lawyer should be informed in advance about the date and place of the investigative procedures which he requested or in which the suspected or the accused took part. During an investigative procedure the defence lawyer had the right to put questions to the persons who were interrogated and to submit written remarks concerning the accuracy of the notes taken by the investigator. According to Article 255, the procedural rights of the defendant included the right to challenge the persons participating in the trial; to lodge motions and to express his opinion concerning the motions of other persons participating in the trial; to request the court to include documents into the case-file, to summon witnesses, to order expert examination; to testify or to refuse to give evidence or answer questions; to put questions to other defendants, witnesses, expert, specialist, victim, and civil party; to participate in the examination of material evidence etc. Article 266 entitles the defence lawyer to participate in the examination of evidence by the court; to lodge motions concerning the admission of new evidence; to express his opinion on the meaning of the evidence examined in the course of the proceedings etc. According to Article 62, the suspected, the accused or their lawyer could request the withdrawal of an expert. The expert should withdraw from the case if he was a victim, civil party or their relative, or a relative of the investigator, the person conducting an inquiry, the prosecutor or the defendant; if he had already participated in the proceedings as a witness, defence lawyer, victim’s or civil party’s representative, person conducting an inquiry, investigator, prosecutor, or if he had already considered procedural complaints in the case as a judge; if he was he was personally interested, directly or indirectly, in the outcome of the proceedings; if there were other reasons for which his impartiality could be called into question. Article 197 of the Code provided that at the time when an expert examination was ordered or was being carried out the accused enjoyed the following rights: to challenge an expert; to request the appointment of an expert from a list of persons submitted by the accused; to request additional questions to be put to the expert; to give explanations to the expert; to submit additional documents; to familiarise himself with the expert’s materials and conclusions after the completion of the expert examination; to request a new or additional expert examination. The investigator was obliged to provide the accused with a possibility to familiarise himself with the order for an expert examination and to explain him the rights listed in this Article. Article 200 of the Code stipulated that upon the completion of the examination the expert had to draw up a report containing the information concerning his name and professional qualification; grounds for the examination; questions put to him and answers to these questions; materials used in the course of the examination; studies carried out etc. Under Article 202, the investigator was obliged to provide the accused with a possibility to familiarise himself with the materials of the expert examination and to note the explanations, remarks and objections which the accused raised, as well as the latter’s requests. If a witness or an expert failed to appear before the court, Article 292 obliges it to consult the parties before deciding whether the proceedings could continue. In exceptional cases the court could release a witness, who was subject to special measures of protection, from his obligation to appear before it, provided the witness had confirmed in writing his earlier statements. Pursuant to Article 306, the court could, on its own initiative or upon the prosecutor’s or other party’s motion, read out the witness’ statements obtained at the stage of inquiry, pre-trial investigation or trial, if the statements made at the trial and in the course of the investigation or inquiry substantially contradicted each other; the witness’ presence at the hearing was, for some reason, impossible; the case was heard in the witness’ absence pursuant to Article 292 of the Code. Under Article 312 the court had powers to order a new or additional expert examination. In such a case the proceedings could be suspended. Article 313 stipulated that material evidence had to be observed by the court and the parties were to be given an opportunity to examine them. The pieces of evidence, which could not be brought into the court hearing, could be observed on spot. According to Article 323, the judgment had to be based on the evidence examined at the court hearing.