CASE OF GRYB v. UKRAINE
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms);No 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 - Obtain attendance of witnesses);No 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 - Obtain attendance of witnesses)
Erik Møse;Yonko Grozev;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1979 and lives in Korostyshiv. 6. The applicant, at the relevant time a judge of the Radomyshl District Court (“the District Court”), was convicted of abuse of office for having exploited a certain Mr I. as a worker on the renovation of his father’s house under the following circumstances. In April 2007 the applicant, having sentenced I. to fifteen days’ imprisonment for disorderly conduct, had the site manager for the house renovation, Mr Sh., check I. out of the police detention facility (“the facility”) where the latter was serving his sentence and take him to the construction site where he was to work under Sh.’s direction. Then, in November 2007, a police officer, G., conspired with the applicant in drawing up a report falsely accusing I. of another episode of disorderly conduct. G. fabricated written statements by false witnesses, P.S. and I.A., incriminating I., and submitted the file to the applicant. Knowing that I. was innocent and the report was false, the applicant convicted I. and sentenced him to another fifteen days’ detention. The same scheme was used to exploit I. on the construction site. 7. On 21 November 2007 officers of the Security Service discovered I. on the construction site in Sh.’s company. 8. According to the transcript of his statement dated 23 January 2008, which was also video-recorded, Sh. stated that the applicant had employed him to work on his father’s house, that in April 2007 I. had worked on the site on terms he had negotiated with the applicant and that in November I. had worked while serving his fifteen-day sentence. The applicant had instructed Sh. to collect I. from the detention facility, so he had done so. The statement was signed by Sh. on the first and second pages, where his rights as a witness were explained. The statement consists of three more type-written pages containing the transcript of the interview but is not signed by Sh. at the end. It contains a note by the investigator to the effect that Sh. did not sign because he failed to appear when summoned by the investigator. The file contains a report of the same date, signed by Sh., to the effect that he had watched the video recording of his interview and had no comment to make. 9. On 23 January 2008 I. was interviewed by the investigator. He stated that around May (sic) 2007 he had been sentenced to fifteen days’ imprisonment for disobeying the orders of a police officer. While serving his sentence he had worked on the construction of a house belonging to the applicant, under the direction of Sh. After his release, he had agreed to work for the applicant in return for payment and had carried out construction work for him in June and October 2007. He had then stopped working for the applicant. On 8 November 2007 he had been taken from his home by police officers, who had told him that the applicant had accused him of stealing some cables from the building site. He had been taken to the office of the applicant, who had told him that since he refused to work for money, he would have to work for free. As he had refused to work for free, the applicant had responded that then he would rot in a cell, and had given him a fifteen-day sentence. While he had been serving his sentence, Sh. had taken him out of the detention facility several times and he had worked on the applicant’s construction site: he had refused to build a fence and had done some other work on the site. He had not been remunerated. The applicant had visited the site once and had seen him working but they had not spoken. 10. On 12 September 2008 I. made a notarised statement to the effect that his statement incriminating the applicant had been given “under the influence of psychological violence and trickery” (з застосуванням щодо мене психологічного насильства та обману) and that in fact he had worked willingly and for remuneration. 11. On 30 September 2008 I. was again interviewed by the investigator. The interview was video-recorded. He largely confirmed the tenor of his statement of 23 January 2008 and denied knowingly signing the notarised statement repudiating it. In addition to repeating various elements of his statement of 23 January 2008, he said that although the house where he had worked formally belonged to the applicant’s father, it was the applicant himself who had organised the work. He stressed that he had not been remunerated for his work in April and November 2007 and had not worked voluntarily. In September 2008 the applicant had made him visit a notarial office to formalise some papers, the nature of which he was not clear about. 12. The applicant and his co-defendant, former police officer G., stood trial before the Vinnytsya Regional Court of Appeal, which was acting as the trial court. 13. The applicant testified that he had had no connection to his father’s house or work on it. He had not requested that I. be sent there. When convicting I., he had not been aware that the charges against him had been false. I. had worked voluntarily and for remuneration. The applicant did not deny that Sh. had been the construction site manager on the renovation of his father’s house but argued that it had been his father who had been concerned by those works and that the applicant himself had had minimal contact with Sh. The phone number which the prosecution argued he had used to contact Sh. in fact belonged not to him but to his father. 14. G. admitted that he had forged the administrative arrest report in respect of I. but stated that he had done it at the request of officers B. and S. (see paragraphs 15 and 16 below). He said that the applicant had not been involved and had been unaware of the forgery when convicting I. 15. B., the head of the detention facility, testified that in late October or early November 2007 the applicant had told him that I. had stolen some things from his construction site and had asked B. to bring I. to him. On 8 November 2007 he had taken I. from his home to the police station. He denied having instructed G. to forge documents in I.’s case. On 12 November 2007 B. was informed by another officer that a stranger claiming to be a court officer showed up at the station and was asking for prisoners to perform works at the court. This was refused. Sometime afterwards the applicant called the station to discuss the release of prisoners and spoke to the commanding officer of the station who gave permission for release of prisoners. 16. S., an officer on duty at the police station, testified that I. had on several occasions been handed over to a person introduced as an employee of the District Court, supposedly for work at the court. On 21 November 2007 the applicant had called personally and asked that I. be handed over for such work. The applicant contested the way S.’s testimony was recorded in the domestic court’s judgment and asserted that S. had not identified him by name. It appears that S. also denied having given any unlawful instructions to G. concerning I.’s case. 17. Other police officers testified that Sh. had checked I. out of the facility on several occasions. 18. P., a District Court officer, stated that he was in charge of taking prisoners from the police detention facility to the District Court to carry out work, and that he knew I. well. However, in November 2007 the latter had not worked at the court. 19. The applicant’s father confirmed that he had bought the house and had had Sh. perform renovation works on it. He denied knowing I. 20. On 3 July 2009 the trial court, noting that I. had failed to appear despite the fact that summonses had been duly sent to him, ordered the police to escort I. to the next court hearing on 10 July 2009. 21. On 8 July 2009 the police reported that I. could not be found at his last known address in Radomyshl and that his whereabouts were unknown. His mother, niece and another neighbour had informed the police that I. had not been living at his usual address in Radomyshl for some time, having left to work in Kyiv. Although he visited briefly from time to time, they had no way of contacting him. 22. On 24 July 2009 the trial court asked the Zhytomyr regional prosecutor to establish the whereabouts of I. and Sh., and to escort them to the hearing scheduled for 17 September 2009. The prosecutor in turn asked the Security Service for assistance in establishing the whereabouts of those two individuals. On 4 September 2009 the Security Service reported essentially the same information as gathered by the police on 8 July 2009. They also stated that Sh. was not living at his address and his whereabouts were unknown. 23. On 17 September 2009 the trial court again ordered that the police bring I. to the next court hearing on 29 September 2009. The police could not locate I. at his last known address. His mother gave the same explanation for his absence. 24. On 29 September 2009 the trial court decided that as the presence of I. and Sh. could not be ensured, their statements should be read out and video recordings of their interviews shown. 25. According to the applicant, he met with I. several times and attempted to persuade him to testify, but I. refused, stating that officers of the Security Service had threatened him with imprisonment if he did. 26. On 5 November 2009 the trial court convicted the applicant and G. of abuse of office under the circumstances described in paragraph 6 above and sentenced each of them to five years’ imprisonment, suspended for three years. In convicting the applicant, the court relied on: (a) I.’s statements, including the one video-recorded, and Sh.’s statement; (b) evidence presented by the co-defendant G. and witnesses B., S. and P. (see paragraphs 14 to 18 above); (c) evidence that the applicant had had regular telephone contacts with Sh. at the relevant time; (d) expert evidence to the effect that it had been Sh. who had signed for I. in the register of prisoners taken out of the detention facility in April and November 2007 and evidence of police officers that Sh. had taken I. from the detention facility; (e) the statements of witnesses P.S. and I.A., who had been identified in the forged police report as witnesses to I.’s alleged disorderly conduct (see paragraph 6 above), to the effect that their statements had been forged. They stated that they did not know I., had not observed him committing the offence, and had not made any statements about it to the police. P.S. testified at the trial. I.A. gave video-recorded evidence in the course of the pre-trial investigation but did not testify at the trial; (f) expert evidence showing that the signatures attributed to P.S. and I.A. on the statements incriminating I. had in fact been made by certain police officers; and (g) the statements of other witnesses, primarily police officers, concerning the circumstances of I.’s arrest. 27. The applicant appealed in cassation to the Supreme Court. He argued that Sh.’s statement should not have been relied upon because Sh. had not signed it and had not been examined at the trial. The applicant also stated that the trial court had misstated I.’s evidence, in particular by ascribing to I. statements which were not in his video-recorded interview shown in the course of the trial. In that interview I. had also made other statements indicating that he had worked voluntarily. The applicant questioned the trial court’s decision to trust the statements given by I., a drunk who had a prior conviction for murder and who had failed to remember the content of the notarised statement he had signed just weeks before, which showed that he was susceptible to signing anything presented to him by the investigator. 28. On 22 April 2010 the Supreme Court held a hearing to examine the appeal. No representative for the defence was present. A prosecutor was present and made oral submissions in opposition to the appeal. At the close of the hearing the court ordered that references to Sh.’s statement be struck from the judgment, since he had not signed his pre-trial statement and thus his statement was inadmissible. The court listed the remaining evidence supporting the applicant’s conviction and considered that, other than Sh.’s statement, the evidence was admissible and sufficiently supported the verdict. The court upheld the remainder of the judgment.