CASE OF TRETYAKOV v. UKRAINE
Violation of Art. 5-1-c;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1
Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger
5. The applicant was born in 1971 and lives in Kharkiv. 6. On 22 November 2001 B.’s body affected with injuries was found in his apartment. On the same date the Dzerzhinsky District Police of Kharkiv instituted a criminal investigation into the incident. 7. On 23 November 2001 A. reported to the police that he had witnessed the applicant beating B. on the head with a frying pan at a party in B.’s apartment. He further confessed that after B. had fallen to the floor unconscious, he and the applicant had taken valuables and left. 8. On 26 November 2001 the police drafted a bill of indictment charging the applicant with B.’s murder. Unable to establish the applicant’s whereabouts and question him, they subsequently put him on the “wanted” list. 9. On 5 December 2001 the investigation obtained a decision to remand the applicant in custody from the Dzerzhinsky District Court of Kharkiv (hereafter “the District Court”). In its decision, the court referred to the gravity of the charges against the applicant, his recent criminal record and his disappearance after the incident with B. 10. On 8 December 2001 the investigating authorities added to the case file a letter of confession addressed by the applicant to the President of the District Court and dated 26 November 2001. In this letter the applicant explained, in particular, that he had partied with A. and B. in B.’s apartment and a fight had started between A. and B., during which the applicant had escaped. 11. On 4 February 2002 the applicant was arrested. On the same date he signed the arrest record (протокол), stating that he had been detained pursuant to the decision of the District Court of 5 December 2001, on suspicion of murder. According to the applicant, he was not apprised of the content of the decision of 5 December 2001. He presented no documents in evidence that he had lodged any relevant requests or complaints before the commencement of the trial. 12. On 18 February 2002 the applicant was presented with a new bill of indictment drafted on that day, according to which he was charged with murdering B. and theft from his apartment. 13. On 28 February 2002 the case was transferred to the District Court for trial. 14. On 1 March 2002 the Dzerzhinsky District Prosecutors’ Office of Kharkiv modified the indictment, having substituted the murder charge with that of infliction of grievous bodily injuries resulting in death. 15. On 7 March 2002 the District Court held a preparatory hearing and scheduled the case for trial for 17 April 2002. According to the Government, at the preparatory hearing the District Court upheld the decision to keep the applicant in custody, having found no grounds for his release. The copy of the decision taken by the District Court on that date provided by the parties contains no reference to any ruling concerning the applicant’s release or continuing detention. 16. Between March 2002 and February 2003 the District Court scheduled some nine hearings; however, none of them took place. On five occasions the hearings were rescheduled on account of the judge’s inability to hear the case (sickness, vacations or being occupied in other proceedings). On other occasions the hearings were adjourned to accommodate procedural requests made by the parties or on other grounds. 17. On 17 and 18 February 2003 the District Court held the first hearings and adjourned the proceedings until 18 March 2003 in order for the expert who had examined B.’s corpse to be summoned. 18. Between March 2003 and June 2004 the court scheduled some ten hearings. Seven of them were adjourned or rescheduled on various grounds, including failure of the prosecutor or the witnesses to appear; failure of the detention-facility authorities to bring the defendants to the hearings; granting of the parties’ motions for additional time to study the case-file; and ordering further investigative activities and an expert assessment. 19. On 14 June 2004 the District Court remitted the case for additional investigation, referring to various procedural and substantive shortcomings in the pre-trial investigation. The court further ordered, without providing any reasoning, that the applicant remain in custody. 20. On 12 October 2004 the Kharkiv Regional Court of Appeal (hereafter “the Court of Appeal”) annulled this decision and remitted the case back to the trial court. The court further ordered that the applicant remain in custody, without expounding on the reasons for his detention. 21. On 7 February 2005 the District Court allowed the applicant’s request for additional time to familiarise himself with the case-file materials and established a schedule for him to do so. It rejected the applicant’s request to be provided with photocopies of the case-file materials. 22. On 22 March 2005 the applicant requested that the case be transferred to another judicial panel, alleging numerous procedural irregularities in the conduct of the proceedings. In particular, he complained that the present panel had ignored the fact that his detention had been in breach of applicable law. Namely, the decision to place the applicant in custody had been taken in his absence and following his arrest he had not been brought before a judge to present his case, in contravention of the provisions of Article 165-2 of the Code of Criminal Procedure of Ukraine (hereafter “the CCP”). Further, contrary to the requirements of Article 165-1 of the CCP, he had not been provided with a copy of the decision to remand him in custody, and had not been afforded an opportunity to appeal against it. In addition, according to Article 148 of the CCP, the investigative authorities had to either present him with an indictment by 14 February 2002 or release him on that date. However, the bill of indictment in the applicant’s respect had only been drawn up on 18 February 2002. From 14 February 2002 onwards the applicant had therefore been held in custody arbitrarily. The applicant also complained that the District Court had refused to provide him with photocopies of various case-file materials at his request. 23. On 31 March 2005 the District Court rejected the applicant’s request, having found that it had not been based on law. It further ruled, without providing reasoning in response to the applicant’s arguments, that there had been no reasons to release him from custody. On 19 April 2005 the court rejected a further analogous request from the applicant without expounding on his arguments concerning the lawfulness of his detention. 24. On 12 April 2005 the applicant requested the District Court to renew the time-limit for appealing against the decision of 5 December 2001 to remand him in custody, alleging that he had not been apprised of this decision within the time-limit normally allowed for the appeal. 25. On 21 April 2005 the applicant inquired with the District Court about the status of the consideration of his request and on 26 April 2005 re-lodged it anew. 26. By letter of 27 May 2005 G., the Judge presiding over the applicant’s case, notified him that his requests had been received and added to the case file and that they would be taken into account in adjudicating his case. 27. On 18 July 2005 the applicant’s advocate complained to the District Court that the applicant had been detained in violation of Article 165-1 of the CCP and requested his release. 28. On the same day the District Court ruled, without providing any reasoning, that there were no reasons for releasing the applicant. 29. Between November 2004 and July 2005 the District Court held some five hearings in the case and on 25 July 2005 convicted A. and the applicant of infliction of grievous bodily injuries on B. and theft from his apartment and sentenced the applicant to ten years’ imprisonment. 30. On 28 July 2005 T., the applicant’s mother and his defence in the criminal proceedings, complained to the Kharkiv Regional Qualification Commission of Judges about the unlawfulness of the applicant’s detention, the lack of a response to his relevant complaints by the District Court and its refusal to provide her with photocopies of documents from the applicant’s case file in order to submit a case to the Court. On 2 August 2005 she was informed that the Commission was not competent to consider her complaints. 31. On 12 October 2005 the District Court found that the applicant and his representatives had been protracting the consideration of the case on appeal by repeated requests to familiarise themselves with the case-file materials, and gave them five more days to finish. 32. On 16 November 2005 the applicant’s mother complained to the President of the District Court about the refusals to provide her with photocopies of documents to be submitted to the Court. She specified the particular pages of the case-file to be copied (some sixty pages in total) and expressed her willingness to pay for the copies made using the court’s equipment. As an alternative, she requested permission to take the case file off the court premises, if need be, in presence of a court employee, to order copies from a commercial copier. 33. On 2 December 2005 the President of the District Court informed the applicant’s mother that the applicable law did not entitle the parties’ representatives to obtain photocopies of case-file documents. 34. On 23 December 2005 G., the Judge presiding over the applicant’s case, advised him in a letter that he had been granted twenty more days to study the case file, following which the case would be transferred to the Court of Appeal. She noted that, according to the case-file materials, the applicant and his representatives had already had three rounds of familiarising themselves with the case-file. 35. On 9 January 2007 the Kharkiv Regional Court of Appeal quashed the judgment of 25 July 2005 and remitted the case for a fresh consideration, referring primarily to procedural omissions in announcing the modified charges to the defendants. 36. Between 9 February and 11 April 2007 the applicant and A. familiarised themselves with the case-file materials. On 11 April 2007 they signed affidavits specifying that they had familiarised themselves with the case-file in full. 37. On 30 March 2007 the applicant’s mother requested the District Court for permission to use portable equipment to photocopy material from the case-file. 38. On 5 April 2007 the District Court noted in a letter that a similar request had already been granted to her and that T. had already used the copying equipment as she had wished. It further confirmed that she could continue using the copying equipment to copy material from the case file as needed. 39. On 11 April 2007 the District Court rejected the applicant’s request to be released from custody pending trial lodged on 21 February 2007. The court found that this request had been premature, as the case had been at the preparatory stage following its remittal from the Court of Appeal, and that the applicant had not been precluded from re-lodging his request during the trial. 40. On 21 August 2007 the District Court rejected a further request by the applicant to be released, having found that his detention had been in compliance with Article 148 of the CCP. It further noted, referring to the same grounds as mentioned in its decision of 5 December 2001 (the gravity of the charges, the applicant’s prior criminal record and his absconding at the beginning of the proceedings), that there had been no reasons for releasing the applicant. 41. On 7 September 2007 the District Court convicted the applicant and A. of having inflicted grievous bodily injuries on B. and theft from his apartment, sentenced the applicant to five year seven month and three days’ imprisonment and immediately released him from custody, as he had already served the term to which he had been sentenced. 42. The text of the relevant provisions of the Constitution of Ukraine of 1996 (Article 29) and the Code of Criminal Procedure of Ukraine of 1960 (the CCP) can be found in the judgment in the case of Molodorych v. Ukraine (no. 2161/02, §§ 54 and 57, 28 October 2010).