CASE OF SHAGIN v. UKRAINE
Violation of Article 6 - Right to a fair trial
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
5. The applicant, Mr Igor Igorevich Shagin, is a Russian national who was born in 1970 and lives in Kyiv. 6. On an unspecified date criminal proceedings were initiated on the suspicion that a network of private commercial enterprises, “Top-Service”, directed by the applicant, organized an armed group with conspiracy to kill State officials and businessmen who were allegedly obstructing its business. 7. On 28 April 2000 the Podilskyy District Court of Kyiv sanctioned the applicant for forcefully resisting police and placed him under twelve days' administrative arrest. 8. During the period of 28 April to 10 May 2000 the applicant was questioned and participated in a number of investigative activities as a witness in the criminal proceedings (see paragraph 6 above). 9. On 10 May 2000 the applicant was arrested as a suspect and on the following day he had his first meeting with lawyers. 10. On 19 May 2000 the Kyiv Prosecutor's Office charged the applicant with banditism. Namely, he was charged with having created a gangster group suspected of having committed eight counts of murder, attempted murder and infliction of serious bodily injuries. 11. On 18 April 2001 the pre-trial investigation was declared completed and the applicant was given access to the case file. 12. On 26 June 2001 the investigation was resumed and new charges were brought against the applicant: in addition to banditism, they included infringement on the life of a law-enforcement official and incitement to murder for profit, related to the victims' official duties and committed repeatedly by an organised group following orders. 13. On the same day the applicant's lawyer complained to the Kyiv Prosecutor's Office (“the Kyiv prosecutor”) that by reopening the investigation the investigator had in fact unlawfully prolonged the term of the applicant's detention and had violated his right to defence. 14. On 27 June 2001 the Kyiv prosecutor rejected the above complaints, having noted, in particular, that the reopening of the investigation had been necessitated by the need for additional investigative activities and that the applicant would be given the opportunity to study the case file again after the completion of the investigation. 15. On 29 January 2002 the Kyiv prosecutor found unsubstantiated the applicant's complaints that, inter alia, he had not had access to the schedule for studying the case-file and to certain documents, as he had signed a statement to the contrary. 16. On 13 February 2002 a new indictment was brought against the applicant. He was charged with additional counts of incitement to murder. 17. From 13 to 15 February 2002 the applicant, at his own request, submitted in writing his statements in respect of the new charges, in which he alleged that he himself had been a victim of banditism. However, on 15 February 2002 the investigator proposed that he answer his questions instead, as he claimed that the applicant's statements did not relate to the essence of the charges against him. The applicant explained that he would answer the questions as soon as he had finished writing his statements and asked not to be prevented from using that possibility fully. On the same day the investigator declared the investigation completed, having found the applicant's statements to be of no relevance for the investigation at issue. The applicant's lawyer complained about that to the Kyiv prosecutor, who upheld the investigator's actions. 18. On 30 September 2002 the case was referred to the Kyiv City Court of Appeal (“the Kyiv Court of Appeal”) for trial. The applicant continued to be represented by at least two professional lawyers. 19. The proceedings in the Kyiv Court of Appeal, which acted as a first-instance court, lasted from 4 November 2002 until 16 March 2004. As the case had attracted public attention and no court room was big enough for all those wishing to attend, a cinema hall was rented by the court for this purpose. 20. However, on 23 May 2003 the court decided to hold hearings in camera, stating as follows: “... The hearing is constantly attended by a person, who, according to him, on the orders of Mr Shagin, audiotapes [the proceedings]. This person does not react to the repeated remarks of the Presiding Judge in this respect. Furthermore, this person has a pistol on him. The Court, bearing in mind the number of charges, with a view to avoiding disclosure of the statements of witnesses and victims, and in order to safeguard the security of the trial participants, according to the recommendations of Section 6 of Resolution No. 10 of the Plenary of the Supreme Court of Ukraine of 18 June 1999 “On Application of the Law 'On the State Protection of Judges, Employees of Courts and Law Enforcement Bodies and Trial Participants', Articles 7 and 16 of the Law 'On the Protection of the Security of Persons Participating in Criminal Trials'”, RULED: to hold further hearings of the criminal case against Shagin Igor Igorevich and others in camera.” 21. In accordance with the procedural legislation this ruling was not subject to appeal. The applicant, who denied having instructed anyone to audiotape the hearings, unsuccessfully called for an investigation into the incident and requested the bench to reconsider its decision. 22. The hearings continued in camera in the cinema. 23. As it follows from a letter of the Kyiv Court of Appeal to the local bar commission of 20 November 2003 on an unrelated issue, the security measures for the trial included the presence of at least seventy guards. 24. In the course of the trial some fifty-five witnesses and fifteen co-defendants gave evidence. The court examined the written statements of about one hundred witnesses who had been questioned during the pre-trial investigation but failed to attend the trial, as well as self-incriminating statements by the co-defendants obtained during the pre-trial investigation. The court further reviewed videotapes of several reconstitutions of events. It also examined a large quantity of written evidence and experts' opinions, which included: the registration and statutory documents of all the companies within the network; their contracts with other enterprises throughout the business chain; findings of the related investigation undertaken in Russia, Belarus, Latvia and Estonia under the inter-State legal aid scheme; findings of the investigation by Interpol; and numerous other documents. 25. During the trial the co-defendants withdrew their self-incriminating statements and pleaded innocent. They alleged that they had been forced to incriminate themselves and the applicant. The court examined their allegations of ill-treatment in police custody (of which the applicant did not complain) and found them unsubstantiated, having referred, inter alia, to the results of medical examinations they had undergone and the lack of any complaints on their part during the investigation. 26. In the course of the trial the applicant requested the court to summon certain witnesses: namely, one of the cofounders of the companies led by the applicant, Mr F., who had allegedly possessed more information than he had disclosed during the pre-trial investigation; certain customs officials; and the manager of one of the Russian companies, who could allegedly confirm his business relationship with the applicant. The court allowed his request concerning Mr F. and rejected the others. Mr F. was summoned by the court several times, but failed to appear. 27. The trial court established that the applicant had managed a network of companies involved in fraudulent financial activities and that he had created a gangster group for the protection of its business interests. 28. On 15 March 2004 it found the applicant guilty of having formed a criminal organisation, three counts of incitement to murder, as well as incitement to inflict serious bodily injuries on a law-enforcement official and infringement on the life of a law-enforcement official, and sentenced him to life imprisonment. 29. The applicant's subsequent appeal in cassation challenged the above judgment on a number of points: the admissibility of the evidence admitted by the court, a lack of conclusive evidence for each count, the refusal of the investigator to continue questioning the applicant, and the court's failure to summon or to ensure attendance of certain witnesses. The applicant also complained that the high-ranking prosecution officials had publicly declared him guilty even before his first questioning as a suspect and that the court had also presumed him guilty from the outset. 30. On 14 December 2004 the Supreme Court of Ukraine, following a public hearing, upheld the applicant's conviction, having heard the arguments of the prosecution and the defence and having assessed the case file materials. Its ruling did not address any of the specific issues raised by the applicant in his cassation appeal. According to the applicant, the Supreme Court held only one hearing, which lasted for about four hours. 31. On 10 May 2000, immediately following the applicant's arrest as a suspect in the criminal investigation, the Kyiv Prosecutor's Office organised a press conference, which received broad coverage in the media. 32. On 12 May 2000 the Segodnia daily newspaper published an article entitled “A gang of killers has been arrested in the capital (sensation)”, which contained the following statements: “The Kyiv Prosecutor Y. G., his first deputy V. S. and Deputy Head of the Kyiv Department of the Ministry of the Interior told journalists about the arrest of fourteen members of a gang which has been engaged in criminal activities in the city since 1997. ... According to the law-enforcement authorities, the director of one of the “Top-Service” structures, Igor Shagin, is suspected of being a principal inciter. He is charged with eight incitements, including incitement to murder ... Shagin paid about 100,000 US dollars in cash to his accomplices to carry out the crimes. ... The Kyiv Prosecutor stressed that “the officials were persecuted by the gangsters exclusively on account of the scrupulous performance of their duties, which had interfered with the plans of the structure headed by Shagin ...” 33. On the same day the Fakty I Kommentarii daily newspaper published an article entitled “For the first time an organized group of killers, which executed murders of state officials, was arrested in Kyiv”. The article contained the following statements: “During yesterday's briefing, the Kyiv Prosecutor Y. G. told journalists that a series of ordered murders and attempted murders had been uncovered ... Fourteen members of the gang involved in the commission of those crimes have been arrested: six killers, three intermediaries, four inciters and one arms supplier. The head of the gang is also among the arrestees – it's Igor Shagin, one of the directors of a well-known trading company, “Top-Service”. The killers confessed that it was he who had incited the murders ...” 34. The article also quoted the First Deputy of the Kyiv Prosecutor V. S. as follows: “30 year old Igor Shagin ... was the inciter of eight out of twelve episodes established by us. ... Shagin paid the killers a total of about 100,000 US dollars to carry out his orders ...” 35. On the same day the Den daily newspaper published an article under the headline “The criminal leader has been identified (eight crimes against Kyiv public officials are attributed to him)”, which contained the following: “Kyiv Prosecutor Y.G. reported yesterday at the press-conference that the director of “Top-Service”, the Russian national Igor Shagin, had incited eight crimes against State officials between 1997 and 2000...” 36. On the same day the Kievskie Vedomosti daily newspaper published an article entitled “Murderous Top-Service”, in which it quoted the First Deputy of the Kyiv Prosecutor, V. S., as follows: “According to our calculations, Shagin paid the killers a total of about 100,000 US dollars in cash to carry out his orders. ... In fact, Shagin was the leader of that group. His orders [to murder] were of a systematic nature.” 37. The aforementioned quotations of the First Deputy of the Kyiv Prosecutor V. S. also appeared on 16 May 2000 in the Vecherniye Vesti newspaper's article “Who is behind the killers”. 38. On 15 May 2000 the Svoboda (“Freedom”) newspaper published an article entitled “Bloody business”, where it announced that: “Sensational reports on the arrest of a large gangster group were disclosed yesterday by the Head of the State Tax Administration of Ukraine M. A. and Kyiv Prosecutor Y. G. According to the Deputy Minister of the Interior V. M., the twelve arrestees, including six professional killers, have a long record of notorious crimes ... Heads of the law-enforcement bodies assured that the ... governmental employees ... had become victims of the business appetites of Igor Shagin, who was the head of Kyiv “Top-Service” Ltd. Do you remember a nice commercial on TV “Oh, 'Top-Service', oh 'Top Service', people are nice here ...”? That nice man Shagin incited others to kill those who prevented him from implementing his plans.” 39. On 18 May 2000 the Yuridicheskaya Praktika (“Legal Practice”) weekly newspaper published an article under the headline “Ukrainian-style presumption of innocence”, in which it expressed a view that the statements made by the public officials concerning the applicant's case were incompatible with the principle of the presumption of innocence. The article contained the following quotations of the Kyiv Prosecutor Y. G.: “The killers are testifying that Shagin ordered several attempted murders”; “These crimes can be considered resolved even though the investigation is still going on”. 40. Article 129 of the Constitution of Ukraine guarantees the public nature of a trial as one of the fundamental principles of the administration of justice. 41. Article 9 of the Law “On the Judiciary”, in so far as relevant, reads as follows: “The courts shall examine cases publicly, with the exceptions envisaged by the procedural legislation. (...) In camera hearings are possible upon a court's ruling in the cases envisaged by the procedural legislation.” 42. The Code of Criminal Procedure, in its relevant part, provides as follows: “Article 20. Public nature of court proceedings Judicial examination in all courts shall be public, unless the interests of security of the state or other secrets protected by law require otherwise. Hearing in camera can also be allowed by a reasoned court ruling in cases of crimes by minors, in cases of sexual crimes, and in other cases with a view to avoiding disclosure of the private information of the trial participants, or in cases when it is necessary for the security of persons under protection. ...” 43. The Law “On Protection of the Security of Persons Participating in Criminal Trials” provides for hearings in camera as a security measure (Article 7). Pursuant to its Article 16, hearings in camera may take place if ordered by a reasoned court ruling in cases where it is necessary for the security of persons under protection. 44. Section 6 of Resolution No. 10 of 18 June 1999 of the Plenary of the Supreme Court of Ukraine “On Application of the Law 'On the State Protection of Judges, Employees of Courts and Law Enforcement Bodies and Trial Participants'” reads as follows: “In order to avoid disclosure of incriminating statements of victims and witnesses, where there is a real danger of infringement on their life, home or property, courts may hold hearings in criminal cases (especially in cases of organized crime) in camera.” 45. The principle of the presumption of innocence is enshrined in Article 62 of the Constitution of Ukraine, which can be found in the judgment of Grabchuk v. Ukraine, no. 8599/02, § 26, 21 September 2006. Article 2 of the Criminal Code, in so far as relevant, reads as follows: “A person shall be presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved in compliance with the legally established procedure and established by a court's verdict of guilty”. 46. Resolution No. 5 of the Presidium of the Supreme Court of Ukraine of 20 February 2004 “On the situation with the administration of justice in 2003 and 2004” contained the following paragraph: “There have been numerous publications in the media in breach of Article 62 of the Constitution concerning persons not yet found guilty of having committed crimes by a court's verdict. Those included the publication of statements aimed at prejudging cases in favour of certain persons.”