CASE OF ANDREY ZAKHAROV v. UKRAINE
Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)
André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
4. The applicant was born in 1954 and is serving his prison sentence in Gorodyshche Town. Before his arrest he lived with his partner Te. in a privately owned house located in the Rusanovskiye Sady District of Kyiv. 5. The police received intelligence information that a group of people were detaining a man in a privately owned house in Rusanovskyie Sady, and were illegally selling apartments owned by third parties. 6. On 9 February 2004 police officers B., T., and S. entered the applicant’s house and asked whether or not he had any firearms. The applicant showed them a gun and some ammunition which a certain Va. had brought round to his house earlier. The police took the applicant to the police station. The applicant’s arrest was recorded on video. Before the Court the applicant stated, without providing any further details, that during and after his arrest police officers B., T., and S. had subjected him to physical and psychological ill-treatment. 7. According to the Government’s version of events, on the same day the applicant voluntarily, in the presence of investigator Ch., gave a written statement saying that from July to August 2003 he had kept a certain Mr N. in his house at the request of Kr. and Ko. In September 2003 Kr. and Ko. brought Mr V. and Ms Sh. to his house and asked to keep them in the basement. The applicant agreed in return for payment. In November 2003 V. and Sh. died in the basement because of cold. The applicant buried them in his backyard and thoroughly cleaned the basement. 8. In his first letter to the Court, the applicant stated, without providing further details, that police officers T. and B. and investigator Ch. had forced him into making the above self-incriminating statement by means of physical and psychological pressure. In his application form, the applicant stated that he had not written the above statement and did not know who had written it. 9. On 10 February 2004, during reconstruction of events which was conducted by investigator Ch. and recorded on video, the applicant showed where he had buried V. and Sh., and the police sent their bodies for forensic examination. The experts established that the victims had died of cold in November 2003. 10. On the same day investigator Ch. ordered the applicant’s detention, and instituted criminal proceedings against him on suspicion of having illegally stored a firearm and concealed the deprivation of liberty and death of two people. The applicant’s defence rights were explained to him, and he expressed a wish to have a lawyer. 11. On 11 February 2004 investigator Ch. appointed a lawyer, R., under legal aid scheme to act as the applicant’s defence counsel. Upon being questioned by Ch. on 11 and 12 February 2004 in the presence of that lawyer, the applicant confirmed his previous statements. He also said that he had been aware that V. and Sh. had been put in his basement in order to prevent them from hindering the illegal sale of their apartments. 12. On 13 February 2004 the Dniprovskyy District Court of Kyiv ordered the applicant’s detention pending trial. On the same date a medical doctor examined the applicant and found no injuries on his body. The applicant did not raise any complaints of ill-treatment or his health condition. 13. On 20 February 2004 investigator Ch. charged the applicant with murdering Sh. and V. 14. On the same date the applicant was questioned in the presence of lawyer R. and confirmed his previous statements. 15. On 17 May 2004 the applicant had a formal confrontation with Kr. in the presence of R. The applicant confirmed his previous statements. 16. On 3 June 2004 investigator Ch. appointed another lawyer, K., under legal aid scheme as the applicant’s defence counsel instead of R. The latter was no longer able to perform his duties as a defence lawyer because of illness. 17. On the same date the applicant was questioned in the presence of lawyer K. and denied all the statements he had given earlier. He stated that he had given self-incriminating statements previously because he had been in a state of “shock”. 18. On 6 July 2004 investigator Ch. instituted criminal proceedings against the applicant for having participated in the fraudulent sale of the apartments belonging to Sh. and V. 19. On an unspecified date the applicant complained to Ch. that during and after his arrest he had been ill-treated by police officers B., T., and S. It is unclear whether the applicant provided any details about such ill-treatment because a copy of the complaint available to the Court is unreadable. 20. On 11 July 2004 investigator Ch. questioned B., T., and S., who denied that they had put the applicant under any pressure. 21. On 13 July 2004 Ch. refused to institute a criminal investigation into the applicant’s allegations of ill-treatment and the applicant did not appeal against that decision. A copy of the decision is available to the Court, but is unreadable. On the same date Ch. refused the applicant’s request to have a formal confrontation with his girlfriend, Te. Later that day, the applicant absconded from the detention facility where he was being held, but was found by the police and brought back to the facility on the same date. 22. On the same day, the police instituted criminal proceedings against the applicant for absconding. 23. On an unspecified date the police questioned Pl., who worked as a doctor in a hospital in the town of Svetlovodsk. Pl. said that N. had been admitted to the hospital in the autumn of 2003. N. had told Pl. that he had been the victim of fraud, and that his apartment in Kyiv had been sold without his knowledge or consent. 24. On an unspecified date the police questioned Ru., who said that in the summer of 2003 he had sold his house to a woman called Olya. N. had lived in that house and had told Ru. that he had been the victim of fraud. 25. The applicant asked the investigator if he could have a formal confrontation with a certain Ro., but this request was refused. 26. On 5 August 2004 the investigator appointed another lawyer, V., to act as the applicant’s defence counsel under legal aid scheme instead of lawyer K. The reason for that decision remains unknown. On 8 September 2004 the pre-trial investigation was completed, and the applicant studied all the material in the criminal file. 27. The indictment stated that a group of people, including Kr., had asked the applicant to keep N. in his house while N.’s apartment had been sold without his knowledge or consent. The applicant had agreed in return for payment, and had kept N. in his house for about a month. After that, the same group of people had asked the applicant to keep V. and Sh. in his basement in order to prevent them from hindering illegal sale of their apartments. V. and Sh. had died of cold in the basement, and the applicant had buried them in his yard. The apartments of N. and V. had been sold while they had been kept in the applicant’s house. The apartment belonging to Sh. had been sold before she had been brought to the applicant’s basement. According to the indictment, by holding N., V., and Sh. in his house, the applicant, acting jointly with others, participated in fraud entailing the illegal sale of the victims’ apartments. 28. On 2 February 2005 a TV channel transmitted a programme called “Black Square”. According to the applicant, in that programme an investigator dealing with his criminal case spoke about his arrest and “persuaded the public” that the applicant was guilty as charged. Neither a recording of that programme, nor any further information about its contents was made available to the Court. 29. On 3 February 2005 the Kyiv Court of Appeal, composed of two professional judges and three lay judges and acting as the first-instance court in the applicant’s case, commenced the trial. 30. On 8 February 2005 the court appointed Krav. as the applicant’s lawyer under legal aid scheme instead of lawyer V. The grounds for that decision remain unknown. 31. Before the court, the applicant stated that when he had been detained by the police “his head had not been working” because he had been drunk. After the arrest, he had drunk some vodka given to him by the police, and that was why he did not remember what he had said or done from 9 to 11 February 2004. He “was not sure” that he had written the self-incriminating statement on 9 February 2004. Investigator Ch. had promised to charge him with only the offence of concealment if he admitted that he had kept V. and Sh. in his basement. Actually, V., Sh., and N. had voluntarily stayed in his house and none of them had been forcefully held in the basement. In November 2003 Sh. and V. had drunk too much vodka, had fallen asleep in one of the rooms of his house, and had died of cold. He did not know that the victims’ apartments had been sold without their consent. He had been afraid of the police and for that reason he had not reported the deaths of V. and Sh. and had buried them in his yard. After his arrest the police officers had not beaten him. 32. The court questioned investigator Ch. in the applicant’s presence and the latter asked him questions. Ch. stated that the applicant had not been drunk on the day of his arrest and the police had not given him any alcohol from 9 to 11 February 2003. Ch. denied that he had subjected the applicant to any pressure or promised to charge him with only the offence of concealment. 33. The court questioned experts who had examined the bodies of V. and Sh. and the applicant’s lawyer asked them questions. The experts stated that they could not exclude the possibility that V. and Sh. had died of cold while they had been asleep in one of the rooms of the applicant’s house. They said that it was also possible that they had died in the basement. 34. On 17 March 2005 Ro. was questioned by the court in the applicant’s presence and stated that he had seen V., still alive, in the applicant’s basement, and had heard how V. had asked the applicant to release him. Later, Ro. had seen V.’s dead body in the applicant’s basement. Ro. had met N. in the applicant’s house on several occasions, and N. had told him that a group of people intended to “sell” him, and were keeping him in the applicant’s house. The applicant asked Ro. questions during the hearing and received answers. 35. Upon being questioned by the court, N. stated that in July 2003 certain “Olya” and “Volodya” had taken some of his documents, had brought him to the applicant’s house and had left him there until the end of August 2003. The applicant had not allowed him to leave the house and had told N. that he had had a gun. While N. had been staying in the applicant’s house he had observed the applicant, Olya, Volodya, and Kr., and had concluded that they had been acting as an organised group and had intended to sell his apartment without his consent. In August 2003 Olya had moved N. to the house which she had bought from Ru. In September 2003 Volodya and Olya had placed N. in a hospital in the town of Svetlovodsk. From there, N. had called his relatives in Kyiv and had learned that his apartment in Kyiv had been sold. He had then returned to Kyiv and had complained to the police. When N. had returned to the building where his apartment was located, the neighbours had told him that several people had been moving his furniture out of the apartment. They had described one of those people and N. had understood that it had been the applicant. The applicant was present during N.’s questioning by the court and asked him questions. 36. On 31 March 2005 the court questioned the applicant’s girlfriend, Te., in the applicant’s presence. She stated that N. had been living in the applicant’s house for about a month because he had been “having a rest” there. She further stated that a man and a woman had been locked in the basement of the applicant’s house against their will. The people who had brought N. to the applicant’s house had instructed Te. not to allow him to leave the house and not to talk to him about the apartment. She had been told that N.’s apartment was being sold in accordance with his wishes, but she had understood that, in fact, he had not known that the apartment was being sold. Once, the applicant had brought various pieces of furniture to the house and had explained Te. that the furniture belonged to N. Kr. had visited the applicant and had brought him food and money for feeding V., Sh., and N. 37. On 8 April 2005 the applicant asked the court to recall Te. as witness so that he could question her again. That request was granted, however, Te. did not appear before the court because the police could not find her at her permanent place of residence. 38. Kr. stated before the court that he had brought N., a man and a woman to the applicant’s house, where they had voluntarily stayed. In the autumn of 2003 the applicant had informed Kr. that the man and the woman had died in one of the rooms of his house and he had moved their bodies to the basement. Kr. had helped the applicant to carry two dead bodies from the basement to the yard and to bury them. 39. The applicant asked the court if he could call and question Pl. and Ru., because, according to him, their statements contradicted those of N. The request to call Pl. was granted but Pl. refused to appear before the court stating that he was too busy with his work in the Svetlovodsk hospital. The request to call and question Ru. was not granted by the court. The applicant requested (unsuccessfully) that the court order a forensic examination of his basement, such an examination being aimed at establishing whether or not V. and Sh. had indeed spent several weeks there. 40. On 25 May 2005 the Kyiv Court of Appeal convicted the applicant of having forcefully held N., V., and Sh. in his house, an action which led to the deaths of V. and Sh. The court also found the applicant guilty of absconding from detention facility, illegal storage of firearms and participating in the fraudulent sale of the apartments belonging to N. and V. The applicant was sentenced to fifteen years of imprisonment. On the same date the lawyer Krav. stopped representing the applicant for unknown reasons. In his observations submitted in reply to those of the Government, the applicant stated that he had unsuccessfully lodged requests for the appointment of a lawyer to represent him before the Supreme Court. The case file does not contain copies of any such requests. 41. On 11 August 2005 the applicant appealed against his convictions. He stated that the trial had not been objective or fair, and that the first-instance court had misinterpreted the facts of the case, and had refused to call witnesses proposed by him. Ru. and Pl. had not been questioned at a court hearing, although their statements contradicted those of N., while the statements of Te. and Ro. contained contradictory and false information. His request for examination of his basement had also been refused. 42. On 22 December 2005 the Supreme Court upheld the applicant’s convictions and sentence, having found no irregularities in the first-instance court’s decision. 43. On 7 June 2006 the applicant sent his first letter to the Court. On 29 August 2006 he submitted a duly signed and completed application form. On 29 September 2006 and 21 March 2007 the Court asked the applicant to provide a copy of his cassation appeal, and copies of his complaints concerning the alleged ill-treatment by the police. The applicant asked the Kyiv Court of Appeal to send those documents to him, but on 14 May 2007 that request was refused on the ground that the law did not empower the applicant to obtain copies of case documents after the conclusion of criminal proceedings. 44. On 24 January 2008 the Kyiv Court of Appeal sent the applicant the copies which he had requested (see paragraph 43 above). 45. In October 2011 the applicant requested the same court to send him various materials from his case file, in particular, all the courts’ decisions, reports of medical experts and copies of all the statements and requests which the applicant had made during the criminal proceedings. The applicant stated, without elaborating further, that he needed those documents to “substantiate his complaints” before the Court. On 18 November 2011 the Kyiv Court of Appeal refused the applicant’s request on the same grounds as on 14 May 2007. 46. Before the Court the applicant stated that the services provided to him by his lawyers had been of low quality. They were not interested in his case because he did not have any money to pay them. 47. According to the applicant, the conditions of his detention at the pre-trial detention facility (ITT) in which he was detained for three periods between 9 February and 27 July 2004 were inhuman and degrading.