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FIFTH SECTION

Application no. 8865/06
Grygoriy Ivanovych LOBODA
against Ukraine

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Grygoriy Ivanovych Loboda, is a Ukrainian national who was born in 1952 and lives in Borzna.

A.  The circumstances of the case

On 3 May 2001 the Borznyanskiy District Prosecutor instituted criminal proceedings against the applicant on suspicion of the fraudulent appropriation of twenty concrete slabs owned by a private company, K.

On 6 June 2001 investigator, V.K., invited the applicant for questioning as a witness in connection with the above proceedings.

The applicant’s lawyer, V.B., on arriving at V.K.’s office to participate in the questioning at the applicant’s request, was ordered to leave the room since the applicant was being questioned as a witness only and the lawyer’s participation was considered unnecessary. V.K. also failed to apprise the applicant of his constitutional right not to testify against himself, only questioning him generally concerning various transactions between his farm, K., and D. (another private company), without explaining the exact grounds for suspecting him of criminal conduct.

On 5 July 2001 the applicant was officially indicted of the fraudulent appropriation of twenty concrete slabs for use on his farm.

On 13 September 2003 the Borznyanskiy District Court convicted the applicant as charged and sentenced him to a fine of 550 hryvnias but granted him an amnesty releasing him from the punishment.

On the same date the court issued a separate ruling (?????? ?????????) in which it drew the attention of the Borznyanskiy District Prosecutor to the non-compliance of the investigation with certain procedural time-limits and to a breach of the applicant’s right to defence. In particular, the court noted that the applicant’s questioning of 6 June 2001 as a witness rather than a suspect within the framework of criminal proceedings instituted against him, and without an explanation of his procedural rights, had violated due process. As a result, the court was bound to exclude the applicant’s testimony given during the questioning from the body of evidence. The court invited the prosecutor to take individual and general measures in response to this incident and inform it within the statutory time-limit about the action taken.

On 23 October 2003 the Chernigiv Regional Court of Appeal upheld that judgment on appeal.

The applicant lodged a further appeal in cassation in which he stated that he was innocent of any crime and he had acquired the disputed concrete slabs in good faith. In particular, K. had been in debt to D., while D. had been in debt to the applicant’s farm, and the three parties had entered into an agreement stating that the concrete slabs would be given to the applicant as part of the payment of the debt to him. Although there had been a delay in the recording of these transactions, eventually the parties had settled all the issues and there was neither an injured party nor a civil claimant in the case. Therefore, no fraud had taken place and no criminal conviction was warranted. The applicant further complained that his right to defence had been breached in the course of the pre-trial investigation and that the statements given by him in the course of his questioning as a witness had been de facto incorporated in the body of evidence against him.

On 28 October 2004 the Supreme Court of Ukraine examined the applicant’s appeal in cassation in the presence of a prosecutor. The applicant and his lawyer had not been informed of the date of the examination of the case.

The Supreme Court rejected the applicant’s cassation appeal on the same date, finding that the lower courts had correctly assessed the facts and applied the law. In particular, the acquisition of the concrete slabs had been regularised by the applicant only after the institution of the criminal proceedings and there was no evidence that his initial intent had been benign. The court did not address the issue of the right to defence in the text of its ruling.

A copy of the Supreme Court’s ruling was sent to the applicant by post on 29 August 2005 and, according to him, was received on 29 September 2005.

On 12 April 2006 the applicant requested the President of the Borznyanskiy District Court to inform him what measures, if any, had been taken against the investigator V.K. following its separate ruling of 13 September 2003.

On 14 April 2006 the President of the Borznyanskiy District Court invited the applicant to contact the prosecutor’s office on the matter in issue.

At various times the applicant attempted to institute criminal proceedings against V.K. for having breached his procedural rights. He also instituted an administrative action against Judge O.S., alleging that he had unlawfully permitted S.Sh., a nominal director of D., to withdraw K.’s financial record book, joined to the case-file as an evidence item, before the resolution of the case. All these attempts were unsuccessful.

B.  Relevant domestic law

The relevant provisions of the Code of Criminal Procedure concerning the participation of the prosecutor in cassation proceedings have been summarised in the Court’s judgment in the case of Zhuk v. Ukraine (no. 45783/05, §§ 18-20, 21 October 2010).

COMPLAINTS

The applicant complains that his initial questioning took place in breach of the procedural guarantees against self-incrimination and of the right to defence.

He further complains that the equality of arms principle was breached by the Supreme Court, as the case was examined in the presence of the prosecutor, but not of the applicant.

He also complains that he was not apprised of the accusations against him in good time, that the judicial authorities incorrectly assessed his conduct as criminal, and that the proceedings were excessively lengthy.

The applicant invokes Article 6 § 1 of the Convention in respect of the above complaints.

In addition, the applicant refers to Article 2 of Protocol no. 7 and complains, without reference to any Convention provisions, that the proceedings concerning his administrative complaint about the withdrawal of an item of evidence were unfair.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular:

(a)  Was the applicant’s right not to incriminate himself and to defend himself through legal assistance of his choosing respected, regard being had to the fact that on 6 June 2001 he was questioned as a witness in criminal proceedings against him and was neither notified of his procedural rights, not given an opportunity to consult a lawyer before and during the questioning?

The Government are invited to comment in particular on whether the applicant’s testimony given on that date was included in the body of evidence forming the basis for his conviction.

(b)  Was the principle of equality of arms respected as regards the proceedings before the Supreme Court, which were held in the absence of the applicant and his lawyer, but in the presence of the prosecutor?