BATIKYAN v. UKRAINE

Communicated on 23 October 2020

Published on 9 November 2020

FIFTH SECTION

Application no. 57252/14
David Batikovich BATIKYAN
against Ukraine
lodged on 10 August 2014

STATEMENT OF FACTS

1.  The applicant, Mr David Batikovich Batikyan, is an Armenian national, who was born in 1965 and is currently serving a life sentence in Kryvyy Rig. He is represented before the Court by Mr M. Tarakhkalo, a lawyer practising in Kyiv.The circumstances of the case

2.  The facts of the case, as submitted by the applicant and as established on the basis of the documents provided by him, may be summarised as follows[1].Background information regarding the applicant’s identity[2]

3.  Until December 2009 the applicant had been identifying himself as Levin David Borisovich, a Russian national, in accordance with his ID documents. However, a check of his fingerprints through the automated centralised fingerprint identification system of the Russian Federation, which was undertaken on 14 December 2009, showed their complete match with those of Batikyan David Batikovich, an Armenian national, who had been convicted of double murder and sentenced to ten years’ imprisonment in Armenia in 1990 and who had escaped from prison in 1992. The investigation established that subsequently the applicant had unlawfully obtained a Russian passport and had been living in Russia and England. In 2002 he had been convicted of financial fraud and sentenced to nine years in prison in England. In May 2009 he had been put on the Interpol’s wanted list at the request of the USA on account of counterfeiting US Dollars, drug dealing and membership in a criminal gang.Events of 2 October 2009

4.  On 2 October 2009, at about 2.30 p.m., shooting broke out at the entrance to the shopping centre “F.” in Kyiv, during which a co-owner of that shopping centre Sh.A. and his two bodyguards were shot to death and one of the centre’s employees, K.Ch., was wounded.

5.  On the same date a criminal investigation was opened into the shooting. Numerous bullets shot from “Glok-17” and “Glok-19” pistols were extracted from the victims’ bodies. The police learned from the eye witnesses of the incident and the inspection of the site that the victims had been shot by two men, who had approached the entrance of the shopping centre in a blue car. One of them, wounded by shots fired by Sh.A.’s bodyguards, had fled in that same car. The other had pursued the escaping Sh.A. inside the shopping centre and had fired numerous shots at him inside the building. Afterwards, he had also escaped in a car passing by, having threatened its driver with a pistol.

6.  Later on the same date a blue Chevrolet crashed into a residential building. That car bore traces of firearm shots. A.O., an Armenian national, who was inside, had several firearm wounds. He was taken to a hospital where he died soon afterwards. A “Glock-19” pistol and a number of bullets and cartridge cases were taken from the car.

7.  The police established A.O.’s address and found out that he had been sharing a rented flat with the applicant and the latter’s common-law wife R.N.

8.  Late in the evening on 2 October 2009 the applicant and R.N. went on a visit to the latter’s relative living in the Zhytomyr region, about 100 km from Kyiv.Alleged ill-treatment of the applicant and domestic investigation into the matter

9.  During the night of 3 to 4 October 2009 the police apprehended the applicant and R.N. in the Zhytomyr region and took them to the Kyiv Temporary Detention Facility (“the Kyiv ITT”), a police-run detention facility designated for a short stay of detained suspects.

10.  They both were allegedly subjected to ill-treatment and threats with a view to extracting the applicant’s confession to the triple murder and coercing R.N. into incriminating him. According to the applicant, R.N. was kept in unrecorded detention for ten days. Scared for himself and for his common-law wife, the applicant eventually agreed to confess and instructed R.N. to give whatever testimonies the police would expect from her.

11.  The applicant was detained in the Kyiv ITT until 2 November 2009. During the entire period of his detention there he was allegedly subjected to continuous ill-treatment consisting in blows in the head and kidneys, as well as strangulation with a plastic bag.

12.  On 7 October 2009 an ambulance was called for the applicant, allegedly following his strangulation with a plastic bag. The case file as it presently stands does not contain a copy of the relevant ambulance record. According to the applicant, it contained untruthful information that he had been diagnosed with a drug withdrawal syndrome. He relied on the expert examination report of 12 November 2009 as evidence proving that he was not a drug addict (see paragraph 48 below).

13.  On 15 October 2009, the applicant confessed to the crimes incriminated to him (see paragraph 40 below).

14.  On 2 November 2009, after he had been transferred from the Kyiv ITT to the Kyiv Pre-Trial Detention Centre (“the Kyiv SIZO”), he retracted those confessions as obtained under duress and complained of his ill‑treatment to the investigator (see also paragraph 47 below).

15.  From 8 to 17 November 2009 the applicant was again detained in the Kyiv ITT, where he allegedly suffered from further ill-treatment and threats. According to him, his repeated placement in that detention facility was aimed at dissuading him from raising any complaints and at coercing him into maintaining his initial confession.

16.  On an unspecified date in 2013 the applicant found out that his allegation of ill-treatment had been separated from his own criminal case for further verification and that the Kyyevo-Svyatoshynskyy District Prosecutor’s Office (“the District Prosecutor’s Office”) had found no grounds for opening a criminal investigation in that regard.

17.  The applicant unsuccessfully tried to obtain a copy of the relevant ruling of the District Prosecutor’s Office.

18.  He also complained of his ill-treatment to various authorities in 2013 and 2014, but to no avail.Criminal proceedings against the applicant and related events

19.  On 3 October 2009 the police questioned some eyewitnesses of the shooting. As follows from the questioning reports available in the case file before the Court, O.T., one of the security guards of the shopping centre, and M.M., a friend of Sh.A. who had happened to be there at the time of the events, submitted that they had clearly seen the incident and provided a description of Sh.A.’s murderer.

20.  On the same day Sh.Ar., one of the members of the Armenian community living in Kyiv, was questioned. He submitted that in August 2009 his relative had asked him to help a certain David, who was planning to go to Kyiv, with buying a car. Sh.Ar. provided David’s description and told the police that he had seen him on several occasions in August 2009. On an unspecified date thereafter Sh.Ar. recognised the applicant as the above-mentioned David.

21.  On an unspecified date, presumably 3 October 2009, the police questioned S.M., the driver who had given a lift to one of the perpetrators under threats with a pistol. According to the applicant, the investigator in charge of the case at the time, T.S., had showed some photographs to S.M., on which the latter had recognised the perpetrator who was not the applicant. The applicant further alleged that the report of that questioning, as well as the photographs in question, had eventually disappeared from the case file.

22.  The police apprehended the applicant and R.N. during the night of 3 to 4 October 2009 (see also paragraph 9 above). Shortly thereafter, from 4 a.m. to 6 a.m., a search was carried out in the applicant’s home, in the presence of R.N., on the basis of an urgent search warrant issued by the head of the Kyyevo-Svyatoshynskyy police unit earlier that night. The police seized numerous documents of A.O., numerous sim-cards’ packages, two photos of a man appearing to be of the Caucasus-region origin, a hat, several bags and a GPS.

23.  Later on 4 October 2009, at 5.17 p.m., the police conducted “an inspection of the scene of events” at the applicant’s home, having previously made him sign a written permission to that end. According to the applicant, he signed it under duress. This time the police found and seized a metal pipe-shaped object (later identified as a pistol silencer) and several items of male clothing (later identified as worn by the person who had killed Sh.A. and his bodyguards). The above-mentioned inspection was carried out by the investigator in the presence of two “specialists”.

24.  Also on 4 October 2009 the applicant gave his written consent, allegedly under duress, for his personal search, which was carried out in the presence of two attested witnesses. The police seized seven mobile telephones and thirteen sim-cards.

25.  On the same date, at 9.55 p.m., a report on the applicant’s arrest was drawn up. It stated that he was suspected of having murdered three persons, including two police officers (the two bodyguards were considered policemen in service). The applicant wrote in the report that he wished to be represented by a lawyer. He also wrote that he had not shot anybody.

26.  At some point on 4 October 2009 criminal proceedings were instituted against the applicant on suspicion of aggravated murder (namely, multiple murder, including murder linked to the victims’ official duties and committed in collusion with another person).

27.  Still on 4 October 2009 a cleaner of the shopping centre, O.P., was questioned. He stated that a man appearing to be of the Caucasus-region origin had been enquiring about Sh.A.’s presence in the centre, as well as about the number of the latter’s bodyguards and the location of his office.

28.  On 5 October 2009 a report on the explanation to the applicant of his procedural rights of a suspect was drawn up. He wrote therein that he wished to have a lawyer and that it would be his lawyer who would decide whether or not the applicant should give statements.

29.  On the same date, during his questioning as a suspect, the applicant refused to give any statements in the absence of a lawyer.

30.  On an unspecified date ballistic experts traced some of the bullets fired at the entrance of the shopping centre to the gun seized from the blue Chevrolet (see paragraph 6 above). Traces of shots fired in the car and bullets found in A.O.’s body, in their turn, were traced to the gun seized by the police from one of Sh.A.’s killed bodyguards.

31.  Also an expert finding was made that one fingerprint on a shell found in the shopping centre belonged to the applicant.

32.  Furthermore, on 6 October 2009 an expert conclusion was issued that one of the cartridge cases found in the Chevrolet bore a fingerprint of the applicant.

33.  On the same day the investigator, referring to the fact that the criminal offences imputed to the applicant were potentially punishable by a life sentence, appointed lawyer O.V. for him.

34.  On 7 October 2009 an employee of the local public utilities service in charge of the common areas’ cleaning in the building in which the applicant had rented a flat, handed to the police a “Glock-17” pistol which, according to her, she had found in the garbage disposal unit of that building on 3 October 2009. She explained the delay by the fact that she had initially entrusted the pistol to one of the inhabitants who had been supposed to bring it to the police but had not had time for doing that.

35.  Ballistic experts traced numerous bullets fired in the shopping centre to the above-mentioned pistol. Furthermore, an expert conclusion was issued that its trigger had on it isolated epithelial parts the genetic characteristics of which matched with those of the applicant. One of the bullets in the magazine contained his fingerprint.

36.  On 8 October 2009 an identification parade was carried out, during which S.M. recognised the applicant as the person who had threatened him with a pistol and to whom he had given a lift. According to the applicant, S.M. was not conclusive in his statements: he had allegedly initially stated that the perpetrator had a dark stain on his right wrist, but had subsequently “recognised” the applicant by a scar on his left hand.

37.  The case file contains the identification parade reports of 8 October 2009 stating that O.T. and M.M. recognised the applicant as the person who had shot at Sh.A., whereas O.P. recognised him as the person who had been enquiring about Sh.A. and the latter’s security arrangements (see paragraphs 19 and 27 above).

38.  On 12 October 2009 the applicant expressed his wish to be represented by lawyer L.B. contracted by his relatives.

39.  On 13 October 2009 the investigator refused to admit L.B. in the proceedings as the applicant’s lawyer on the grounds that she was aware of certain information of relevance for the investigation and was to be questioned as a witness. L.B. was however never questioned as a witness and there is no indication in the case-file materials as to what information she might have possessed according to the investigator’s initial considerations. She was admitted in the proceedings as the applicant’s advocate more than three months later (see paragraph 49 below). In 2013 the applicant tried, without success, to bring the investigator to criminal liability for the above-mentioned refusal.

40.  On 15 October 2009 the applicant was questioned as an accused in the presence of lawyer O.V. He confessed that he and his friend A.O. had shot Sh.A. and the latter’s bodyguards. The applicant submitted that those killings had not been premeditated. According to him, A.O. had only intended to scare Sh.A. or even kidnap him[3] with a view to making him repay a considerable debt to some people in Moscow and the applicant had agreed to help his friend. The shooting had allegedly been started by the bodyguards of Sh.A., when the applicant and A.O. had approached them at the entrance to the shopping centre and when the applicant had ordered Sh.A. and the bodyguards not to move. As the applicant explained, he and A.O. had not expected any armed resistance. However, once the bodyguards had reached for their arms, the applicant had been obliged to shoot.

41.  On 16 October 2009 the applicant reiterated the same version of events during a reconstruction of the crime, which was conducted in the presence of lawyer O.V. This time the applicant added that he had thrown the gun into the garbage disposal unit in the multi-flat block where he rented a flat.

42.  On various dates several of Sh.A.’s relatives informed the police that they suspected their relative M.S. of having ordered the murder. They submitted that since 2008 M.S. had been in conflict with Sh.A. concerning their joint business and that M.S. had repeatedly threatened to kill Sh.A. unless the latter would transfer part of his share in the shopping centre to M.S. After Sh.A.’s death, M.S. had allegedly reiterated his demands to transfer part of the share to him.

43.  On an unspecified date in October 2009 the applicant’s common-law wife R.N. testified that the applicant had met M.S. in Moscow in July 2009, after which the former had had considerable amount of money and had told her that they would need to go to Kyiv “to do some job”. They had rented a flat in Kyiv, where a friend of the applicant, A.O., had joined them. R.N. further submitted that she had seen two pistols at home and that the applicant had told her that M.S. had contracted him to kill Sh.A. According to her, the applicant and A.O. had often gone to the “F.” shopping centre. Early September 2009 they had bought a blue Chevrolet. After a telephone call from an employee of the shopping centre at about 2 p.m. on 2 October 2009, the applicant and A.O. had left. At about 2.40 p.m. the applicant had come back alone. He had told her that Sh.A. and two bodyguards had been killed and that A.O. had been wounded and had had a car accident. The applicant had also told her that they should leave Kyiv as soon as possible. He had suggested that they go to R.N.’s relatives in the Zhytomyr region. He had then made a telephone call, supposedly to M.S., and had said: “Everything is fine. The only problem is that the secretary has stayed behind. I’ve got the papers signed and sealed.”

44.  R.N. recognised M.S. on a photograph as the person with whom the applicant had had the meeting in Moscow. Furthermore, during a reconstruction of events she stated that, when the applicant had come back home on 2 October 2009, she had heard some noise which, as he had allegedly explained to her, had been caused by his throwing of the pistol in the garbage disposal unit.

45.  On 20 October 2009 additional charges of murder for profit and contract killing were brought against the applicant. It appears that around that time criminal proceedings were instituted against M.S. on suspicion of having ordered the murder.

46.  On the following day an additional questioning of witness Sh.Ar. was carried out. In addition to his initial statement (see paragraph 20 above), he submitted that on 2 October 2009, in the afternoon, the applicant had asked him for a lift and for some money. The applicant had allegedly told Sh.Ar. that A.O. had been taken to the police and needed help. After Sh.Ar. had loaned some money to the applicant, the latter and R.N. had left by a taxi.

47.  On 2 November 2009, after the applicant was transferred to the Kyiv Pre-Trial Detention Centre (“the Kyiv SIZO”), the investigator conducted his additional questioning as an accused, without a lawyer. When asked as to whether he had known Sh. A., the applicant submitted that his acquaintance A.O. had told him that Sh.A. had had a considerable debt vis-à-vis somebody in Moscow. This time the applicant denied his involvement in the shooting. He submitted that his initial confession had been extracted from him through physical ill-treatment and psychological pressure. The applicant refused to answer a number of questions about his biography and as to whether he had changed his name. He denied knowing or having met M.S. When asked when he would be prepared to answer all the outstanding questions, the applicant stated that he would consider doing so when represented by a lawyer of his choice.

48.  On 12 November 2009 a report was issued on the applicant’s forensic psychiatric examination, which was called to assess his mental fitness to stand trial. It stated that the applicant had refused on-the-record communication with the experts on the grounds that he had not been provided with a lawyer of his choice. Likewise, he refused to state whether he had any complaints. At the same time, the applicant specified that this should not be interpreted as suggesting that he had none. The experts noted the absence of any clinical signs of drug addiction or alcoholism.

49.  On 24 February 2010 advocate L.B. (see paragraphs 38 and 39 above) started representing the applicant.

50.  According to the applicant, the investigator visited him in the detention facility for “informal questionings”, without the lawyer being present, on the following dates: 21 May, 3 August, 24 September and 25 November 2010, and 25 January, 4 February, 20 October and 26 December 2011. During those meetings no records were kept and the investigator was allegedly putting pressure on the applicant with a view to ensuring his confessing statements.

51.  On 4 April 2011 a bill of indictment was approved. In addition to the evidence summarised above, it referred to the police questioning, on an unspecified date, of K.Ch., the employee of the “F.” shopping centre who had sustained a gunshot wound in the left leg in the course of the shooting on 2 October 2009. He submitted having witnessed the arrival to the entrance of the Chevrolet with two men appearing to be of the Caucasus‑region origin, who had starting the shooting. When K.Ch. had tried to run away, he had realised that he had been wounded. K.Ch. showed how all that happened in the course of a reconstruction of events. It is not known whether the applicant or his photo was ever presented to him for identification.

52.  As further indicated in the bill of indictment, on an unspecified date A.G., the chief engineer of the “F.” shopping centre was questioned. He stated having witnessed the shooting. It was suggested that eventually A.G. had recognised the applicant. Apart from the bill of indictment, no other case-file materials refer to A.G. or any investigation measures with his participation. According to the applicant, A.G. and M.M. (see paragraph 19 above) was the same person.

53.  The bill of indictment additionally referred to police questioning of V.G., a security officer, who had stated that, when the shooting had started, he was with O.T. in the showroom on the ground floor and that he had witnessed Sh.A.’s pursuit and murder. It was suggested that at a certain point during the pre-trial investigation V.G. recognised the applicant as the perpetrator.

54.  There was also a reference to statements by three salespersons renting some space in the “F.” shopping centre, who had submitted having witnessed the shooting and had reportedly recognised the applicant as the murderer. Two other employees had submitted having seen an armed man pursuing and killing Sh.A. It was not, however, specified in the bill of indictment whether the applicant or his photo had been shown to them and whether they had recognised him.

55.  After the completion of the pre-trial investigation, in April 2011 the applicant received access to the case file. According to him, he had five occasions, each time for no more than two hours, to study fifteen volumes (3,800 pages in total) of the case file.

56.  Around that time the applicant replaced L.B. by a different lawyer of his choice. Subsequently he contracted several more lawyers.

57.  On 30 May 2011 a forensic psychological assessment report was issued in respect of the applicant’s verbal and non-verbal behaviour as observed in the video of his questioning on 12 April 2011 as a witness within the criminal proceedings against M.S. (no further details are available regarding that questioning). The expert held that there was no indication of pressure on the applicant.

58.  On 1 June 2011 the investigator ordered, also within the criminal proceedings against M.S., a forensic psychological assessment of the applicant’s behaviour as observed in the video of the reconstruction event with his participation of 14 October 2009. On 17 June 2011 an expert conclusion was issued stating that the applicant’s behaviour in the mentioned video did not disclose any indication of pressure on him.

59.  On 12 October 2011 the applicant’s case was joined to that of M.S. As a result, further twenty-six volumes were added to the case file.

60.  On 19 October 2011 the court started the trial.

61.  The applicant’s requests for additional time for studying the case file were rejected. The trial court ruled that the applicant and his lawyers should be given access to the case file during breaks between hearings.

62.  On 9 November 2011 the court decided to hold the trial in camera at the request of Sh.A.’s relatives, who submitted that the public hearing might encroach upon their safety and private life.

63.  According to the applicant, on the hearing dates he had to wake up at 6 a.m. and, after having been taken out of his cell, was locked up for several hours in a small unfurnished waiting room accommodating several dozen detainees waiting for transportation. The room had no ventilation and was full of cigarette smoke. The applicant was not supplied with any food or drink on the hearing dates. As the hearings often lasted until 10 or 11 p.m., by the end of the day he was starving and exhausted. Furthermore, during the trial he was held in a metal cage, which was not furnished with a desk or other facilities enabling him to take notes or use documents. The distance between the cage and the he applicant’s lawyer was approximately four to five metres, which significantly obstructed his ability to confer with the latter. He needed to raise his voice to be heard.

64.  On 22 February 2012 R.N. was questioned in court. Based on the file, it appears that at some point during that hearing she alleged that her earlier testimony inculpating the defendants had been false and extorted by the investigative authorities by way of ill-treatment. However, on the very same day she also submitted a written declaration that she was afraid of the defendants and wished to be questioned in their absence. The trial court ruled to question R.N. without the applicant being present (M.S. had earlier been removed from the court room for improper behaviour). The applicant’s lawyers left the hearing room at that moment. According to the applicant, they did so in an act of protest. The file as it stands at present does not enable to establish fully the exact nature of R.N.’s submissions and other relevant events surrounding R.N.’s questioning on the aforementioned date.

65.  On 23 February 2012 R.N. complained to the trial court that the applicant and his lawyer had been putting pressure on her with a view to making her retract her incriminating testimonies given during the pre-trial investigation.

66.  On 14 March 2012 R.N. submitted a written statement to the trial court that she was wishing to “give truthful testimonies” on the case, from which she had been prevented until then by the police pressure. More specifically, she alleged that police officials had threated to change her procedural status from a witness to an accused if she did not cooperate. R.N. requested the court to consider her earlier submissions incriminating the applicant and M.S. as invalid. She stated that she would not mind being questioned in the presence of the applicant and M.S.

67.  On the same day, in the course of the hearing, R.N. felt unwell and said that she was unable to testify. At her request an ambulance was called and she was taken to a hospital.

68.  Also on 14 March 2012 the trial court instructed the District Prosecutor’s Office to investigate both R.N.’s declarations (allegation of pressure by the police, as well as her allegation of pressure by the applicant and his lawyer).

69.  On 16 March 2012 R.N. submitted another declaration to the court suggesting that she had been under pressure from the applicant, as well as his friend and lawyer, to give false exculpating evidence and that her testimony given at the pre-trial stage had been correct. She alleged that a friend of the applicant had isolated her in a rented flat, had withdrawn her mobile telephone and had contracted two bodyguards to accompany her at all times. R.N. also claimed that the applicant had telephoned her from the SIZO and had threatened that he would find her anywhere if she did not cooperate. Furthermore, his lawyer had allegedly imposed a lawyer on R.N. at the applicant’s instruction. Accordingly, R.N. maintained, she had had been too scared on 14 March 2012 (see paragraph 66 above).

70.  On 21 March 2012 R.N. gave further testimony in court. As appears from the summary of this testimony made by the Kyiv Regional Court of Appeal (“Court of Appeal”) in its ruling of 22 April 2013 (see paragraph 87 below), during that questioning she submitted, in particular, that prior to Sh.A.’s murder, the applicant had been collecting extensive data concerning the hours of his habitual presence in the “F.” shopping centre, the building plan and location of Sh.A.’s office, arrangements for his security and various other similar data. R.N. also noted that on the day of the shooting the applicant had left home in the morning together with A.O. and had returned alone, having told her that A.O. had had a car accident. He had also requested her to wash up his clothes and to pack hers.

71.  On the same day the trial court ruled to exclude one of the applicant’s lawyers from the proceedings for disregarding the court’s orders, breaking the law, submitting manifestly unfounded requests and motions in an apparent attempt to protract the proceedings, and exercising undue influence on witness R.N. The applicant was also removed from the hearing for a breach of public order. His remaining lawyer who was present in the hearing left the court room. As a result, the trial court adjourned its hearing.

72.  On 16 May 2012 the District Court instructed the police to verify the residence address of witness M.M. and to ensure his presence in the court hearing. On 22 June 2012 the police replied that security measures had been applied to that witness and that, if the court wished so, the relevant documents could be provided to it.

73.  On many occasions between May and September 2012 the trial court instructed the police to establish the whereabouts and to ensure attendance of several other witnesses, including Sh.Ar. and O.T. It also summoned T.S. among others. O.P. sent a telegram to the court submitting that he fully maintained his earlier testimonies and that he could not appear in the court hearings because of health-related problems. T.S. sent a written declaration that she could not attend hearings owing to her pregnancy-related hospitalisation. As regards Sh.Ar. and O.T., the police informed the trial court that they were no longer living at their earlier addresses and that it was impossible to establish their whereabouts.

74.  On 1 July 2012 the District Prosecutor’s Office issued a ruling refusing to institute criminal proceedings against the investigator on account of R.N.’s allegations of pressure (see paragraphs 66 and 68 above) as unfounded. It is not clear from the file whether any decision was taken in respect of her declaration alleging that she had experienced pressure from the applicant and his entourage.

75.  In August 2012 R.N. filed two further declarations with the court indicating that her testimonies inculpating the applicant in the shooting were false and extorted from her as a result of ill-treatment and illegal pressure. The declarations were written in the territory of the Russian Federation, one in the presence of a lawyer, and the other one in the presence of a notary. R.N. explained in those declarations that she had moved to live in Russia in order to avoid unlawful influence from the investigative authorities and Sh.A.’s family and that she was ready to provide further testimonies, but only in Russian territory. She stated that in order to extort her first testimony in October 2009, the police authorities had held her in unrecorded detention for several weeks and had ill-treated her (she had allegedly been handcuffed to a radiator, threatened and beaten). Subsequently, on 14 March 2012, when she had come to court with the intention to give a truthful testimony, the investigator and his colleagues had met her in the corridor of the court building and had pressured her not to do so. She had been so distressed that she felt unwell and requested an ambulance. She had then been taken to a hospital, where the investigator and his colleagues had visited her and continued to put her under pressure to maintain her previous submissions.

76.  From 30 July to 30 August 2012 an expert of the Main Bureau of Forensic Medical Expert Examinations of the Public Health Ministry analysed the video records of the shooting and those of various investigation measures with the applicant’s participation, as well as examined the applicant in person, with a view to establishing, at the trial court’s instruction, whether the man with a pistol pursuing and killing Sh.A. on the video records could be identified as the applicant. In his conclusion of 30 August 2012, the expert held that the quality of the video records from the shopping centre was too poor to allow clear identification of the perpetrator’s face. Overall facial and body proportions were, however, identifiable. The expert was also able to establish the height of the perpetrator and the length of his limbs. The applicant’s visual inspection confirmed that his height, facial and body proportions corresponded to those of the person on the video record of the shooting. Furthermore, as also confirmed by the video records of the investigative measures of 5 and 14 October 2009, the applicant and the person in the shopping centre had the same receding hairlines and the same hair style. It was highly plausible that the person on the video record from the shopping centre was the applicant. The expert noted that a more precise conclusion was not possible because of the poor resolution of the video.

77.  On 8 November 2012 the District Court found the applicant guilty of aggravated murder (of several persons; committed in a manner dangerous for lives of many persons; committed for profit; related to the victims’ official duties; committed on contract; committed in collusion with others and repeatedly). In addition, the applicant was found guilty of murder threats, illegal arms handling and murder of law-enforcement officials. By the same verdict M.S. was found guilty of having ordered and organised the murder of Sh.A. and the latter’s bodyguards. Both defendants were sentenced to life imprisonment[4].

78.  In determination of the defendants’ guilt, the District Court referred, in particular, to the applicant’s confession statements given during the pre-trial investigation, as well as R.N.’s testimonies incriminating him. It dismissed as unfounded the allegations of their ill-treatment, with the reference to the investigation in the matter by the prosecution authorities.

79.  Furthermore, the trial court relied on: testimonies by six of Sh.A.’s relatives who submitted that M.S. had threatened to kill Sh.A. on a number of occasions and that following the latter’s death he had also attempted to convince them to write off part of the shopping centre to him; testimonies by ten of Sh.A.’s friends, associates, employees and former guards, who submitted that Sh.A. and M.S. had had a conflict regarding their joint business; and testimonies by several persons who attested that the applicant and M.S. had been acquainted and that in July 2009 M.S. had been helping the applicant to collect a debt from the latter’s former associates in Moscow. The verdict also mentioned the report on the reconstruction of events, in the course of which K.Ch. had shown how he had been injured.

80.  The copy of the verdict available in the case file before the Court does not contain any mentioning of statements by the eyewitnesses of the events of 2 October 2009 (see, in particular, paragraphs 19, 21, 27, 53 and 54 above).

81.  The District Court additionally relied on various ballistic and fingerprint expert reports and material evidence (see paragraphs 5-6, 23, 30-32 and 34-35 above). It also reproduced the findings of the expert reports of 30 May and 17 June 2011 (see paragraphs 57 and 58 above).

82.  Lastly, the trial court referred to telephone logs indicating that the applicant and M.S. had regularly been in contact and, in particular, on the day of Sh.A.’s murder shortly after the shooting.

83.  In January 2013 the applicant was provided with access to certain volumes of the case file at his request. As regards his request for access to certain video records, it was rejected on the grounds that all the video records had been investigated during the court hearings.

84.  The applicant’s lawyer lodged an appeal on his behalf. She submitted, in particular, that the expert had not been able to identify that person shown in the video records from the shopping centre with the applicant in an unequivocal manner, and that there was no conclusive evidence of the applicant’s guilt. The lawyer observed that the applicant had admitted having surveyed, at the request of M.S., Sh.A.’s son with a view to his possible kidnapping and thus forcing Sh.A. to repay a debt, but that he had denied any premeditated let alone contract killing.

85.  The applicant also lodged an appeal. He complained, in particular, that he and his common-law wife had suffered ill-treatment in the hands of the police and that his allegations in that regard had not been duly investigated. Furthermore, the applicant complained that he had been denied access to a lawyer at the early stages of the investigation, that numerous investigation measures had been conducted without his lawyer and even without any record-keeping. He also complained that he had not been able to use the assistance of L.B., the lawyer of his choice. The applicant further submitted that O.P., although being an important witness, had refused to appear before the court and no measures had been taken to ensure his attendance. The applicant next submitted that S.M., the driver whom one of the perpetrators had threatened with a pistol, had given contradictory statements and that the relevant case-file materials had been mislaid (see paragraphs 21 and 36 above). He criticised the trial court for not ensuring the presence in its hearings of T.S., the investigator who had questioned S.M. at the early stages of the investigation. The applicant further submitted that, when questioned in the court hearing, S.M. had refused to answer questions of the defence referring to his procedural status of a victim rather than a witness.

86.  According to the applicant, his lawyer received access to the video records of relevance only during the appellate examination of the case.

87.  On 22 April 2013, after a hearing during which the applicant, M.S. and their lawyers (at least two for the applicant) were present and gave oral submissions, the Court of Appeal upheld the judgment of the District Court. It held that the first-instance court had duly examined and dismissed as unsubstantiated the applicant’s arguments that he did not resemble the person shooting at Sh.A. on the video records of the incident. Likewise, the appellate court concluded that the applicant’s allegations of his and R.N.’s ill-treatment had been investigated and had rightly been dismissed.

88.  Furthermore, referring to the verbatim records of the hearings before the District Court, the Court of Appeal observed that S.M. had recognised the applicant as the perpetrator in a court hearing. It also noted that witnesses M.M. and O.T. had recognised the applicant and that they had confirmed in the course of the trial the statements made by them during the pre-trial investigation.

89.  The Court of Appeal further noted that, in addition to witness evidence, the conclusion on the applicant’s guilt was supported by material evidence and objective expert reports.

90.  It also held that the decision of the trial court to hold its hearings in camera had had an adequate legal basis and had been justified in the circumstances.

91.  The applicant and two lawyers acting on his behalf[5] lodged three separate appeals on points of law.

92.  According to the applicant, his lawyers were provided with access to the video records of the investigative measures with his participation of 15 and October 2009 (see paragraphs 40 and 41 above) only during the examination of the case on points of law. The applicant himself allegedly had no possibility to study those records.

93.  In their appeals on points of law, the applicant and his lawyers reiterated the allegation of ill-treatment of the applicant and R.N. by the police and the absence of an effective investigation in that regard, as well as the complaints about the restrictions of his right to legal defence, insufficient time for studying the case file and the allegedly unjustified decision to examine the case in camera. Furthermore, they complained about the restrictions on the right of the defence to question witnesses. It was noted that the defence had had no possibility to question twenty-two of twenty-nine witnesses listed in the bill of indictment. The applicant pointed out an error in the appellate court’s ruling in so far as it had referred to the questioning of witness O.T. in the court hearings: according to the applicant, O.T. had never appeared before the court. The applicant also alleged that witness M.M. was an invented person who had never existed. He also reproached the lower-level courts for not having ensured attendance of T.S., the investigator in charge of the case at the early stages (see paragraph 21 above).

94.  On 13 February 2014 the Higher Specialised Court for Civil and Criminal Matters (“the Higher Specialised Court”), having held a hearing during which the applicant and M.S., represented by lawyers, were personally present and gave oral submissions, rejected their appeals on points of law. The court reiterated the findings of the Court of Appeal and noted, in particular, that, insofar as those appeals concerned the impossibility to question certain witnesses in court, there were always good reasons for their absence. In addition, the majority of the absent witnesses had informed the District Court in writing that they maintained their previous testimonies given during the pre-trial stage. In any event, all such testimonies were supported by real and other evidence.

95.  As regards the applicant’s complaint that his right to legal defence had been restricted, the Higher Specialised Court noted that a lawyer had been appointed for him immediately after his arrest in compliance with legal requirements. More than thirteen lawyers, both appointed and contracted, had represented him, with at least two lawyers at all times.

96.  The Higher Specialised Court further held that the applicant’s allegations of ill-treatment had been duly dismissed as unfounded.

97.  According to the applicant, during the hearings before the Higher Specialised Court, he remained in handcuffs and was held in a glass cabin separating him from his lawyers and the rest of the participants. Those arrangements made it impossible for him to confer with his lawyers.Conditions of detention in the Kyiv SIZO

98.  From early December 2013 to 14 February 2014 the applicant was detained in the Kyiv SIZO.

99.  According to him, the conditions of detention there were inacceptable. He described them as follows. A cell of 7 to 10 sq.m. accommodated four inmates. There was virtually no natural light or ventilation. The only source of artificial light was a dull electric bulb over the door switched on day and night. The toilet was separated from the living area only by a one-meter-tall partition. There were no table or chairs in the cell, and the applicant was obliged to store food and to take meals on the floor. Nor was he able to take notes or study documents.

100.  The applicant submitted four colour photographs of what he claimed to be his cell in the Kyiv SIZO. All the photographs were taken by day from the same angle and showed a small cell with two double-level beds separated by space of visibly no more than one metre. There was a rather large window in the middle, the lower one third of which was covered by a non-transparent shield, whereas the remaining part was covered by metal grids letting in light. Against the window, there was a shelf for storing food. As additional space for storing food the inmates seemed to use one of the four beds which was apparently unoccupied.Relevant domestic law

101.  Under Article 115 § 2 of the Criminal Code of 2001, aggravated murder (in particular: of two or more persons (1); committed in a manner dangerous for lives of many persons (5); committed for profit (6); related to official or public duties of the victim or his/her close relative (8); committed on contract (11); committed in collusion with others (12), or committed repeatedly (13)) was punishable by imprisonment for a term of ten to fifteen years, or life imprisonment.

102.  Article 45 of the Code of Criminal Procedure of 1960 (repealed with effect from 19 November 2012) provided that legal representation during an inquiry, pre-trial investigation and trial before a first-instance court was mandatory if, inter alia, the possible penalty was a life sentence. It further specified that in such a case, legal representation should be provided from the time of the arrest or the bringing of charges against the person.

COMPLAINTS

103.  The applicant complains under Article 3 of the Convention that he was subjected to physical ill-treatment and psychological pressure in police custody and that there was no effective domestic investigation into the matter.

104.  He also complains under Article 6 § 1 of the Convention that the decision of the trial court to hold its hearings in camera was unjustified and therefore in breach of his right to a public hearing.

105.  The applicant further complains under the same provision that his conviction was mainly based on his confessions and R.N.’s statements incriminating him, which had been obtained under duress.

106.  He next complains under Article 6 § 3 (b) that he and his lawyers were not provided with sufficient time for studying the case file. He also complains under this provision that his lawyers received access to the video records of relevance only during the appellate examination of the case or, in so far as the video records of the investigative measures with the applicant’s participation of 15 and 16 October 2009 were concerned, at the stage of the case examination on points of law. Furthermore, the applicant complains about the inability to have confidential contacts with his lawyers and to participate effectively in the proceedings owing to: the measures of confinement in the courtroom (in a cage and, before the Higher Specialised Court, in a glass box); the applicant’s permanent handcuffing during the hearings and the lack of a table; the applicant’s exhaustion because of poor arrangements on the hearings days, lack of sufficient sleep and no access to food and water during the hearings which sometimes lasted till 10 p.m.

107.  The applicant also complains that there was a breach of his right to legal defence under Article 6 § 3 (c) on account of:

-          the denial of his access to a lawyer at the beginning of the investigation contrary to the domestic legal requirement on mandatory legal representation in cases where a life sentence was a possible penalty and in spite of his constant requests for a lawyer;

-          the allegedly arbitrary refusal of his request to be represented by the lawyer of his choosing (L.B.) from 13 October 2009 to 24 February 2010 and the alleged imposition on him of the lawyer appointed by the prosecutor (O.V.) on 6 October 2009; and

-          his subsequent numerous “informal” questionings by the investigator without his lawyer being present (in particular, on 21 May, 3 August, 24 September and 25 November 2010, and 25 January, 4 February, 20 October and 26 December 2011).

108.  The applicant further complains under Article 6 § 3 (d) that he was not able to question a number of key witnesses, in particular:

-          R.N., because the applicant was removed from the court room;

-          O.T., M.M., A.G., O.P., Sh.Ar., and T.S., whose presence in the court hearing was not ensured;

-          S.M., who refused to answer the applicant’s questions referring to his status of a victim rather than a witness.

QUESTIONS TO THE PARTIES

1.  Did the conditions of the applicant’s detention in the Kyiv SIZO amount to inhuman or degrading treatment, within the meaning of Article 3 of the Convention?

2.  Was the applicant subjected to torture, inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention?

3.  Having regard to the procedural protection from torture, inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

4.  Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention?

The parties are invited to comment, in particular, on the following matters:

(a)  Was the exclusion of the public in the present case “strictly necessary”, within the meaning of Article 6 § 1 of the Convention (see Yam v. the United Kingdom, no. 31295/11, § 54, 16 January 2020, with further case-law references)?

(b)  Having regard to the applicant’s complaints concerning the exhausting hearing-day arrangements, as well as his confinement in a metal cage during the first-instance proceedings and in a glass cabin during the hearings before the Higher Specialised Court, was the applicant afforded adequate facilities for the preparation of his defence, in compliance with Article 6 §§ 1 and 3 (b) and (c) (see Moiseyev v. Russia, no. 62936/00, §§ 224-25, 9 October 2008, and Razvozzhayev v. Russia and Ukraine and Udaltsov v. Russia, nos. 75734/12 and 2 others, §§ 248-55, 19 November 2019)?

(c)  Has there been a breach of Article 6 § 3 (c) of the Convention on account of:

-            the lack of legal assistance available to the applicant during the early stages of the investigation;

-            the refusal to admit lawyer L.B. to represent the applicant during the period from 12 October 2009 to 24 February 2010; and

-            the applicant’s numerous questionings by the investigator allegedly without a lawyer being present and without records being kept;

(d)  Was the applicant given an opportunity to examine the witness against him, namely R.N., O.T., M.M., A.G., O.P., Sh.Ar., T.S., and S.M., as required by Article 6 § 3 (d) of the Convention?

The Government are requested to submit copies of all the documents regarding the applicant’s ill-treatment allegation and its domestic investigation, as well as a complete and good-quality copy of the judgment of the District Court of 8 November 2012.

INDEX OF ABBREVIATIONS[6]:

A.O.

the applicant’s acquaintance with whom he had shared a rented flat and who died from gunshot wounds found to be sustained during the shooting in the “F.” shopping centre on 2 October 2009; as concluded by the investigation, one of the two perpetrators who killed Sh.A. and his bodyguards

A.G.

an eyewitness of the shooting; the chief engineer of the “F.” shopping centre; according to the applicant, A.G. and M.M. was the same person

K.Ch.

the employee of the “F.” shopping centre who was wounded in the course of the shooting on 2 October 2009

L.B.

the lawyer contracted by the applicant’s relatives; barred from representing him on 13 October 2009, but eventually admitted in the proceedings on 24 February 2010

M.M.

an eyewitness of the shooting; a friend of Sh.A. who had happened to be there at the time of the events

M.S.

a remote relative of Sh.A. who was found guilty of having ordered his murder

O.P.

a cleaner of the shopping centre, who had been asked, prior to the shooting, for information in respect of Sh.A. and the latter’s security arrangements

O.T.

an eyewitness of the shooting; one of the security guards of the shopping centre

O.V.

the lawyer appointed for the applicant by the investigator on 6 October 2009

R.N.

the applicant’s common-law wife at the time of the events

Sh.A.

a co-owner of the “F.” shopping centre, who was shot to death, together with his bodyguards, on 2 October 2009

Sh.Ar.

the applicant’s acquaintance who claimed to have helped him on several occasions prior to and immediately after the shooting

S.M.

the driver who, threatened with a pistol, gave a lift to one of the perpetrators immediately after the shooting

T.S.

the investigator in charge of the case at the early stage of the investigation

V.G.

an eyewitness of the shooting; one of the security guards of the shopping centre

[1] The summary of facts contains numerous references to abbreviated names. To facilitate reading, the index of abbreviations is provided at the end of this document.

[2] The applicant is referred to as “Levin David Borisovich” in some case-file materials.

[3] It appears that at a certain point later the applicant modified that statement and submitted that they had been considering kidnapping Sh.A.’s son (see paragraph 84 below).

[4] The quality of the copy of the verdict currently available in the case file is poor and does not allow verification of the pages’ order and numbering. While it contains extracts from the parties’ speeches, it does not refer to any evidence given by the eyewitnesses, either read out or received through their questioning in the court hearing. It is therefore not clear whether that copy is complete and accurate.

[5] In total, the applicant was represented by at least three lawyers of his choice then.

[6] In alphabetical order.

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