CASE OF UMNIKOV v. UKRAINE
No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6-3-c - Defence in person);No violation of Article 6 - Right to a fair trial (Article 6-3-d - Witnesses);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev
4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. Before his arrest the applicant lived in Odessa region with his mother. 6. In April 2004 the applicant sustained a serious knee injury. 7. On 16 August 2004 a medical commission found that as a result of the knee injury, the applicant’s knee and thigh joints had become deformed. He was certified as third-degree disabled, the lowest category. 8. On 21 April 2005 the police arrested the applicant on suspicion of having raped a seven-year-old boy, P. They took him to a police station where, according to the applicant, he was beaten. In his initial application to the Court the applicant stated that a police officer “hit him once in the right side of his body” and after that several police officers started beating him. In his written observations submitted to the Court on 23 February 2012 in reply to those of the Government, the applicant’s lawyer stated that police officers had “wrung the [applicant’s] hands and feet and hit him on the body, including the areas of his liver and kidneys, and on [his] arms and legs”. The lawyer further stated that the applicant “was beaten in turn by two pairs of police officers until about midnight on 21 April 2005”. On 22 April 2005 the applicant was taken to the Kominternivskyy Police Temporary Detention Centre (“the ITT”) where he was held for the following twenty-eight days. According to the applicant, the conditions of detention in that facility were inhuman. 9. On 22 April 2005 the police questioned the applicant who said that he knew P. but had not raped him. 10. On 23 April 2005 P. told the police that the applicant had raped him on several occasions in the applicant’s apartment and near a pond. Once P. had come to a bank of the pond and had seen A. fishing there. The applicant had been fishing on the opposite bank of the pond. P. had approached the applicant who had taken him to some bushes and raped. During the rape P. had seen A. and E. passing by the bushes. 11. On 25 April 2005 the police questioned A. who said that on 10 April 2005 in the afternoon he and his brother E. had been fishing from the bank of the pond. The applicant had been fishing from the opposite bank of the pond. A. had seen that P. had approached the applicant and they had gone into some bushes. Later on A. and E. had been passing by the bushes and had seen the applicant raping P. 12. In April 2005 charges under paragraph 3 of Article 153 of the Criminal Code (see paragraph 45 below) were brought against the applicant. 13. On 12 and 18 May 2005, respectively, the applicant was examined by a doctor and a TB specialist. Both doctors noted that the applicant was fit for detention in the ITT. No injuries were discovered on his body and the applicant did not raise any complaints about his state of health. 14. On 19 May 2005 the applicant was transferred to a SIZO (a pre-trial detention facility). On the same date and the following day he was medically examined and did not raise any complaints of ill-treatment or health problems. The doctors established that he was suffering from the consequences of a knee injury sustained before his arrest. 15. In June 2005 the applicant studied the indictment which indicated that he had been accused of having raped P. on 10 April 2005 and on unspecified dates between September 2004 and April 2005. 16. The applicant’s case was referred to the Kominternovskyy District Court of Odessa for trial. In July 2005 that court held the first hearing. 17. On 26 July 2005 the applicant asked the authorities to appoint him a lawyer. On 30 August 2005 he was assigned a lawyer under legal aid scheme. 18. On 15 August 2005 the applicant asked the Kominternovskyy District Court of Odessa to appoint his mother as his representative in the proceedings. This request was granted on an unspecified date still in August 2005. 19. During one of the hearings the trial court questioned the victim, P., who stated, without indicating the exact dates, that the applicant had raped him several times between September 2004 and April 2005. P. provided very detailed information about the circumstances of the rapes and about the events which had taken place before and after them. P. said that the applicant had raped him in his bedroom while the applicant’s mother and sister were in the adjacent room. He said that he had been raped only by the applicant and not by other persons. 20. The court questioned M., the applicant’s friend, who stated that on 9 and 10 April 2005 from 10 a.m. to 4 or 5 p.m. he and the applicant had sawn wood together. 21. Witness A. told the court that he had seen the applicant raping P. on 10 April 2005 in some bushes near the pond. 22. P.’s friends stated before the court that P. had talked to them about the rapes. The applicant’s mother was questioned during the trial and said that P. had never come to the apartment where she and the applicant lived. 23. P.’s mother and teacher stated that P.’s moods and behavior had changed since autumn 2004. P.’s mother also said that on 8 April 2005 P. had told her that on the same date the applicant had raped him near the pond. P.’s mother also said that the applicant’s mother had told her that P. had come to the apartment where the applicant lived and the applicant’s grandmother had ousted him. P.’s teacher said that P. had told her that the applicant had raped him. 24. All of those witnesses were questioned by the trial court in the presence of the applicant and his lawyer. The lawyer and the applicant were allowed to question the witnesses and ask for explanations regarding the facts of the case. During the trial the applicant did not complain of ill-treatment by the police. 25. Before the court the applicant pleaded not guilty. 26. On 3 January 2006 a surgeon examined the applicant’s knee and prescribed treatment for the knee joint deformation. 27. On 25 January 2006 the Kominternivskyy Court, in the presence of the applicant’s lawyer and mother, convicted the applicant of several counts of rape (gratification of unnatural sexual desires in respect of a person under fourteen years of age), committed on unspecified dates between autumn 2004 and April 2005 and notably on 10 April 2005. It sentenced him to ten years’ imprisonment under paragraph 3 of Article 153 of the Criminal Code (see paragraph 45 below). The applicant was absent from that hearing. The court based his conviction mainly on the victim’s statements but also on the statements of P.’s friends, mother, teacher, and witness A. and on a report drawn up by a psychiatrist who had examined P. and concluded that he could not have made up his account of the rapes. 28. In February 2006 the applicant and his lawyer, B. appealed, arguing that the conviction was not based on sufficient evidence. In particular, the P., trial court had failed to establish on which dates P. had been raped, and the medical examination of the victim had revealed no injuries on the child’s body. The applicant also argued, without providing further details, that the police had beaten him on 21 April 2005. He stated that he could not rape P. on 10 April 2005 because on that day he had sawn wood with M. He also stated that A. had given false statements during the trial because he himself had raped P. The statements of P.’s mother were also false, the applicant had refused to give her money and she had wanted to take revenge. P. had made false statements during the trial because his mother had taught him to do so. The applicant submitted that A.’s statements concerning the date of the alleged rape near the pond contradicted the statements of P.’s mother (see paragraphs 21 and 23 above). He added that the trial court’s judgment had been unlawful because it contained excessive descriptions of the rape scenes. 29. Between May 2006 and March 2007 the applicant and his mother, acting on the applicant’s behalf, lodged ten complaints with the Prosecutor General’s Office which forwarded them to the Odessa Prosecutor’ Office. It remains unknown whether the complaints were examined. The copies of the complaints were not made available to the Court. In his application form the applicant stated, without elaborating further, that they concerned various “procedural violations” during the criminal proceedings. 30. On 9 October 2006 the applicant sent his first letter to the Court. 31. In November 2006 the Odessa Regional Court of Appeal (“Court of Appeal”) informed the applicant that it would hold a hearing in his case on 12 December 2006. 32. On 16 November 2006 the applicant requested the Court of Appeal to ensure his presence at that hearing. The court granted the request and ordered the bailiffs to bring the applicant to the court hearing. 33. On 12 December 2006 the applicant was taken to the court-house and kept there in a cell the entire day. In the evening he was taken back to the SIZO. It remains unknown why he was not brought to the court-room for the hearing. 34. In the meantime, on the same date the Court of Appeal, in the presence of the applicant’s lawyer, upheld the judgment of the first-instance court. On the basis of the findings made by the trial court, the Court of Appeal held that the arguments raised in the appeal by the applicant and his lawyer’s arguments were ill-founded because they had been refuted by evidential material in the applicant’s criminal case file. The trial court had fully and objectively assessed that material. The conclusions reached by the first-instance court had been supported by sufficient evidence, in particular the statements of P. and other persons questioned during the trial. The Court of Appeal did not question any witnesses; nor did it administer or assess any new evidence. 35. On 16 January 2007 the applicant and his lawyer, B., lodged two separate appeals in cassation with the Supreme Court, raising the same arguments as those raised before the Court of Appeal. They also complained that the applicant had not been taken to the appeal court hearing, despite his request. However, they did not specify how the applicant’s absence from the Court of Appeal had prejudiced his defence or the overall fairness of the proceedings. 36. According to the applicant, on the same date, after the cassation appeals had been sent to the Supreme Court, lawyer B. stopped representing him. The reason was not notified to the Court. The applicant did not seek the assistance of any other lawyer. 37. On 19 February 2007 the applicant lodged his application with the Court. He stated, in particular, that he had appealed in cassation, however did not provide a copy of his and his lawyer’s appeals in cassation. 38. On 2 April 2007 the Court requested the applicant to provide: (i) documentary evidence supporting his allegations of ill-treatment; (ii) copies of the complaints of ill-treatment lodged with the domestic authorities; (iii) copies of the applicant’s and his lawyer’s appeals in cassation, stamped by the Supreme Court to prove their receipt; and (iv) a copy of the Supreme Court’s decision as soon as it would be available. 39. On 25 June 2007 the applicant sent to the Supreme Court a supplement to his appeal in cassation together with a request for the said copies of documents without, however, indicating why he needed them. The Supreme Court received the request but did not reply to it for unknown reasons. The applicant did not follow up on the request. 40. On 6 September 2007 the applicant informed the Court that the Supreme Court had left his request for copies of documents unanswered. 41. On 15 November 2007 the Supreme Court dismissed the cassation appeals lodged by the applicant and his lawyer. Without referring separately to each argument raised in those appeals, the Supreme Court noted that the criminal proceedings against the applicant were not plagued by procedural violations which would justify quashing of the lower courts’ decisions. The conclusion concerning the applicant’s guilt had been sufficiently supported by evidence to which the trial court had referred in its judgment. The Supreme Court noted, in particular, that the applicant’s request to take part in the appeal hearing had been made after that hearing had been held. The applicant did not attend the hearing before the Supreme Court and had not asked for permission to do so. 42. On 27 November 2007 the Court asked the applicant to send to the Supreme Court a repeated request for copies of the same documents (see paragraphs 38 and 40 above), indicating that he needed them to support his application before the Court. The Court also asked the applicant to provide a copy of such request and a copy of the Supreme Court’s reply to it. The applicant did not follow the Court’s instructions and did not make any further attempts to obtain the copies. 43. In December 2007 the applicant received a copy of the Supreme Court’s decision and submitted it to the Court on 27 April 2008.