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FIFTH SECTION

Application no. 273/06
by Feofan Akimovich SALYUK and Valentina Fedorovna SALYUK
against Ukraine
lodged on 7 December 2005

STATEMENT OF FACTS

THE FACTS

Mr Feofan Akimovich Salyuk (“the first applicant”) and Ms Valentina Fedorovna Salyuk (“the second applicant”) are Ukrainian nationals who were born in 1947 and 1948 respectively. They are represented before the Court by Ms Elena Feofanovna Salyuk, a lawyer practising in Odessa.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

On an unspecified date the Odessa Regional Court of Appeal (“the Court of Appeal”) authorised the Security Service of Ukraine (special police force charged with issues of national security) to intercept communications between the applicants. The details of the authorisation are unknown.

According to the applicants, on 28 June 2003 unspecified police investigators arrested them and their son S. and beat them up, in order to extract their confession to a murder. There is no indication that the applicants or S. sustained any injuries during the alleged beating. On an unspecified date the Court of Appeal remanded the applicants in custody. The second applicant was released two months later. On an unspecified date the court decided to keep her in custody again; this is, however, not supported by any document.

On 28 December 2004 a panel of the Court of Appeal, consisting of two professional and three lay judges, and acting as a first-instance court, convicted the applicants, in the presence of their lawyers, of murder and fraud. According to the second applicant, before this judgment was delivered, the Court of Appeal, at the prosecutor’s request and without any explanation, seized notes that she had made during the trial with the assistance of her lawyer.

The Court of Appeal sentenced the first applicant to life imprisonment and the second applicant to fifteen years’ imprisonment. It also ordered the confiscation of all their property. In its judgment the court referred, in particular, to its letter concerning the authorisation of “special technical measures” to be undertaken by the Security Service of Ukraine in respect of unspecified persons; it did not indicate when or for which period the “measures” were authorised. The court also referred to the audio recording of the applicants’ conversations made during phone-tapping, their verbatim record and relevant expert reports in that respect. The court disregarded the applicants’ assertion that, despite being required by law, the phone-tapping report had not been drawn up.

Having questioned seven police investigators, the court also found unsubstantiated the defendants’ allegations that their confession to crimes had been made under duress. The court considered and responded to the arguments put forward in the applicants’ defence, and based its judgment on eight oral and four read-out statements of independent witnesses, ten oral testimonies of police and prosecution investigators, three testimonies of other State employees, the statements of two expert witnesses, thirteen expert reports, including an initial and three follow-up forensic medical experts’ reports, and a variety of other documentary and material evidence.

On 14 June 2005 the Supreme Court, following an appeal by the applicants on points of law, upheld their conviction, but commuted their sentences to fifteen and thirteen years’ imprisonment respectively. It held that the Court of Appeal had, on the whole, thoroughly examined the evidence and had duly reasoned its findings. The Supreme Court found unsubstantiated the complaint that the applicants and S. had incriminated themselves under duress at the beginning of the pre-trial investigation. As to the phone-tapping at issue, the court concluded that it had been authorised by the Court of Appeal and had been carried out lawfully. The phone records made during the tapping, the court found, had been examined by the experts, who had found no reason to doubt their authenticity. Those records corroborated, moreover, other evidence in the case. The court also found that the seizure of the second applicant’s notes, though contrary to Article 300 of the Code of Criminal Procedure, had not rendered necessary the quashing of the conviction as “it had been done at the end of the second applicant’s oral examination [by the Court of Appeal], [the notes’] content had not differed from the court’s records, and [they] might not have influenced the correctness of the conviction”. The court lastly found that the applicants had had an opportunity to put questions to K., another defendant, before the Court of Appeal had removed him from the courtroom for disorderly conduct.

On 24 January 2006 the Supreme Court rejected a request by the applicants for the institution of extraordinary review proceedings.

During the proceedings the applicants requested that a further forensic examination to be conducted by a different institution from the one which had drawn up the initial forensic medical expert report. The examination which was ultimately ordered, despite the applicants’ request, determined the time and reasons for the death of a certain L., without taking into account the findings of another expert report. The applicants did not have an opportunity to resolve all the contradictions in the evidence by questioning the medical experts during the trial. There is no indication of any other requests concerning expert examinations having been made by the applicants to the courts.

B.  Relevant domestic law

1.  Code of Criminal Procedure of 1 April 1961, as amended

Article 187
Interception of ... communications

“Communications may be intercepted only if there are sufficient grounds to believe that ...[ the information exchanged by] a suspect or accused with other persons or vice versa ... contains facts about a crime that has been committed or documents and items that have evidentiary value and if these facts cannot be obtained by other means.

...

Communications may be intercepted for the prevention of crime before the opening of a criminal case.

If there are grounds, as set forth in paragraph 1 of this Article, an investigator, having obtained confirmation from a prosecutor, shall lodge an ... interception application with the President of the Regional Court of Appeal where the investigation is being conducted. The President or his deputy shall consider the application, study the case file, if necessary hear the investigator and prosecutor, and subsequently, depending on the grounds for such a decision, issue ...a warrant for the interception or reject the application. This decision may not be appealed against, nor may a prosecutor lodge an objection against it.

...

The interception warrant shall contain information about the criminal case and the grounds for the conduct of this investigative measure, the name, surname and patronymic and exact address of the person whose communications will be intercepted, the categories of communications, the duration of the interception, and the name of the organisation that will intercept the communications and inform of it the investigator.

The ... interception warrant shall be sent by the investigator to the head of the relevant organisation, in respect of which the warrant is compulsory.

...

... the interception shall terminate upon the expiry of [its] period of application as authorised by the warrant. The investigator ... shall terminate the interception when the application of [the measure] is no longer necessary, the criminal file is closed, or upon transmission of the file to a prosecutor ...

The interception warrant shall be issued in compliance with the confidentiality of pre-trial investigations or search and seizure activities.”

Article 300
Oral examination of a criminal defendant

“... A criminal defendant has the right to use [his or her] notes in a court hearing.”

2.  Search and Seizure Activities Act of 18 February 1992, as amended

Section 9
Guarantees of lawfulness during the conduct of search and seizure activities

“... The citizens of Ukraine ... have the right, as set forth in the legislation, to obtain written explanations concerning the restrictions of their rights and freedoms from the bodies that are authorised to conduct search and seizure activities and to appeal against [the restrictions].”

COMPLAINTS

1.  The applicants complain that without the second applicant’s notes which she made during the trial and which were subsequently seized by the Court of Appeal, contrary to the domestic law and Article 6 § 3 (b) of the Convention, she could not properly prepare her defence.

They also complain that the phone-tapping interfered unlawfully with their privacy, in contravention of Article 8 of the Convention.

2.  Relying on Article 3 of the Convention, the applicants further complain that police investigators beat them up after their arrest in order to extract their confession to a murder.

3.  Without relying on any particular provision of the Convention, the applicants complain that the second applicant’s second period of detention was arbitrary.

4.  Under Article 6 § 1 of the Convention, they complain that the domestic courts failed to correctly establish the facts and assess properly the evidence, including that obtained by the police investigators from S. under duress, or that gathered from the phone-tapping. They argue that the phone-tapping report was not drawn up, thus impairing their right to defend themselves, contrary to Article 6 § 3 (b) of the Convention. As regards their conviction for fraud, they allege that, contrary to Article 6 § 1 of the Convention, they were found guilty of this crime after the statutory time-limit had expired.

5.  Referring to Article 6 § 3 (d) of the Convention, the applicants complain that they were not allowed to examine K., who had testified against them. They also complain that the courts failed to order forensic examinations following their requests, and did not allow them to put all the questions they had to the expert witnesses.

6.  They finally complain under Article 6 § 2 of the Convention that the professional judges of the Court of Appeal sitting in their case adopted a discriminatory attitude towards them long before they were found guilty. In particular, the judges rejected their requests relating to the assessment of the evidence, arbitrarily ordered the second applicant’s second period of detention and made derogatory remarks about them.

QUESTIONS TO THE PARTIES

1.  Did the second applicant have a fair hearing in the determination of the criminal charges against her, in accordance with Article 6 § 1 of the Convention? In particular, was she afforded adequate facilities to prepare her defence, as required by Article 6 § 3 (b) of the Convention?

2.  Was there an interference with the applicants’ right to respect for their private life, within the meaning of Article 8 § 1 of the Convention, when phone-tapping was carried out in respect of them?

3.  If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention? In particular, was there statute law that contained necessary safeguards preventing abuses of power in respect of secret measures of surveillance (see, for example, Volokhy v. Ukraine, no. 23543/02, § 53, 2 November 2006 and Weber and Saravia v. Germany (dec.), no. 54934/00, § 95, ECHR 2006-XI).

The Government are requested to submit copies of documents related to the phone-tapping carried out in respect of applicants.