Communicated on 7 January 2015
FIFTH SECTION
Application no. 20963/08
Tatyana Anatolyevna BOYETS
against Ukraine
lodged on 18 April 2008
STATEMENT OF FACTS
The applicant, Ms Tatyana Anatolyevna Boyets, is a Ukrainian national, who was born in 1955 and lives in Kharkiv.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
At the time of the events the applicant worked as a passport registration officer (паспортист) in one of the municipal housing and public utilities’ offices (КПЖРЕП) in Kharkiv.
1. First set of the criminal proceedings against the applicant
According to the applicant, on 6 February 2004, when she had finished her work and had locked her office, a visitor (whom the applicant would later know as Ms M.) asked her for an appointment without being more specific. While walking along the corridor, the applicant replied that the visitor should come on the following day during working hours.
On 7 February 2004 Ms M. made a statement to the Kyivskyy District Police Department in Kharkiv. She submitted that the applicant had claimed a bribe of 100 US Dollars from her for speeding up the issuance of a passport for the son of Ms M. who had reached the age of sixteen. Ms M. signed the statement and confirmed that she was aware of the criminal liability for knowingly making a false report about a crime. She also indicated her address in Kharkiv. Her statement was registered in the respective record book at about 5 p.m. According to the explanations subsequently given by the police in the course of the applicant’s trial, it was an error and the statement had actually been received at 9 a.m. on 7 February 2004.
On the same day a detective officer of the aforementioned police department put a special luminescent fluid on a banknote of USD 100 (apparently provided by Ms M.) in the presence of two attesting witnesses and gave that note to Ms M. In the absence of any document to that effect in the case file or of any reference to such a document, it is not clear how the decision to carry out the operation in question was authorised or documented.
As described by the applicant, on 7 February 2004 (Saturday), when she was about to leave having terminated her work at 1 p.m., Ms M. entered the office. She brought some documents with a view to getting a passport for her son. The applicant informed her that certain documents were still missing. The applicant also clarified that she would be working in a different office starting from Monday, 9 February 2004. While collecting her papers and belongings before leaving, the applicant noticed that Ms M. had thrown something on the table and had run out of the office. The applicant saw that it was a banknote of USD 100. She took it and tried to get an explanation from Ms M. However, the latter had already left. When the applicant looked out in the corridor, she saw only a man waiting there. As it would later turn out, it was Mr T., one of the attesting witnesses (see below). Given that on the following working day different persons would be working in that office and being aware of the absence of her management, the applicant decided to keep the banknote with a view to returning it to Ms M. later.
Within a few minutes after Ms M. left, the detective officer together with two attesting witnesses entered the applicant’s office and invited her to hand out the money received from Ms M. The applicant did so. The detective officer drew up a report, according to which from 1 to 4 p.m. he conducted an on-site inspection of the applicant’s office. According to that report, the applicant admitted having accepted the bribe from Ms M. The officer checked the applicant’s hands with a special device and found the traces of the luminescent liquid. They were wiped off with cotton pads, which were then packed and sealed as material evidence. Such traces were also found on the banknote of USD 100 in the applicant’s wallet and on the wallet itself.
On 11 February 2004 an investigator of the Kyivskyy District Police Department opened a criminal case in respect of the applicant on suspicion of incitement to bribery.
On 28 February 2004 a charge of fraud was added against the applicant.
On the same day the investigator returned the USD 100 banknote to Ms M., in confirmation of which she wrote a receipt. She also undertook to keep the banknote till the end of the proceedings.
On an unspecified date thereafter Ms M. changed her place of residence without informing the investigator of her new address. On 1 March and 23 December 2004 the Kharkiv Regional Address Information Bureau informed the police that she was no longer registered in the region.
On 10 November 2004 the Kyivskyy District Court of Kharkiv (“the Kyivskyy Court”) found the applicant guilty of fraud (having dropped the charge of the incitement to bribery), but relieved her of the criminal liability given that she was of no social danger.
Following the applicant’s appeal, on 14 April 2005 the Kharkiv Regional Court of Appeal quashed the above decision and remitted the case to the same first-instance court for a fresh examination by a different panel.
On 16 February 2006 the Kyivskyy Court found the applicant guilty of fraud and incitement to bribery and sentenced her to a fine of 5,000 Ukrainian hryvnias (UAH, then equivalent to about EUR 830). Although the applicant pleaded innocent, the court considered her guilt to be proved by the totality of evidence. It relied on the statements of Ms M. made during the pre-trial investigation. She had been summoned several times, but to no avail. It appeared impossible to establish her whereabouts. Furthermore, the Kyivskyy Court relied on the statements of one of the attesting witnesses who had been present at the on-site inspection of the applicant’s office on 7 February 2004 (other than Mr T.), the report on that inspection, the reports of the examination of the material evidence, as well as the order on the applicant’s appointment to the position of passport registration officer. It was noted in the verdict that the applicant had initially confessed to the incriminated criminal offence, but had later retracted her confession. Her initial statement was considered, however, more plausible. The court ruled to keep the preventive measure in respect of the applicant (an undertaking not to leave the town of residence) unchanged.
The applicant appealed. She submitted, in particular, that the verdict was based only on the statements of Ms M., whom the applicant had had no possibility to question. She also argued that the first-instance court had wrongly relied on her initial confession which had been dictated to her by the police before any criminal proceedings against her had been instituted.
On 25 April 2006 the Kharkiv Regional Court of Appeal upheld the judgment of the Kyivskyy Court of 16 February 2006. It considered that the applicant had initially made a confession of her free will and that she had failed to give any convincing explanation to the subsequent change in her position. Furthermore, the appellate court noted that the whereabouts of Ms M. could not be established. Nonetheless, there were no reasons to question her initial statements made during the pre-trial investigation. In sum, the appellate court did not discern any violations of the law of criminal procedure, which would warrant quashing the verdict. With the pronouncement of the ruling of the Court of Appeal, the applicant ceased to be under the earlier imposed undertaking not to leave the town of residence.
The applicant further appealed on points of law. She argued that the inquiry operation of 7 February 2006 had been unlawful, because it had not been duly authorised, had taken place in the absence of any criminal proceedings against her and even prior to the formal registration of the statement of Ms M. The applicant also complained that her rights under Article 6 § 3 (d) of the Convention had been violation on account of her inability to question Ms M. and Mr T.
On 18 October 2007 the Supreme Court rejected the applicant’s appeal on points of law and upheld the lower courts’ decisions. It gave a general reasoning that no violations of the law of criminal procedure had been established.
2. Second set of the criminal proceedings against the applicant
On 27 March 2009 the Kyivskyy District Prosecutor’s Office of Kharkiv opened a criminal case in respect of the applicant for her failure to comply with the judgment of 16 February 2006.
According to the summary of the events given in the decision of the Kyivskyy Court of 17 May 2013 (see below), the pre-trial investigation actually started on 20 October 2009 and the applicant was notified thereof on 1 November 2009. It was also noted in the aforementioned decision that she had been under the undertaking not to leave the town from 10 to 20 November 2009.
On 7 December 2009 the criminal proceedings were terminated on the ground that there was no corpus delicti in the applicant’s actions.
On 11 December 2009 that decision was, however, quashed and the case was remitted for additional investigation.
The case file does not contain any documents regarding the preventive measure which was then applied to the applicant. According to the applicant, she was bound by an obligation not to leave the town of her residence from 10 November 2009 to 12 October 2012. She has submitted to the Court a letter from the investigator of 22 June 2012, in which he wrote to the applicant that her requests of 12, 15 and 18 June 2012 for permission to travel outside Kharkiv could not be granted, because she had not provided any address or other details as regards the trip planned.
On 5 July 2012 the proceedings were discontinued again.
On 7 July 2012 the investigation was resumed.
On 12 October 2012 the investigator terminated the criminal proceedings against the applicant for the lack of corpus delicti in her actions. It was concluded that she had not evaded from paying the fine, but that it had been physically impossible for her to pay it given the low amount of her pension. By the same ruling, the preventive measure in respect of the applicant was lifted (without further details being mentioned).
On 20 November 2012 the new Code of Criminal Procedure entered into force. Instead of opening a criminal case, it provided for initiation of investigation by way of making a respective entry in the Unified Register of Pre-trial Investigations.
On 8 April 2013 criminal investigation into the applicant’s failure to comply with the judgment of 16 February 2006 was launched again, as that case was registered in the Unified Register of Pre-trial Investigations.
There is no information on any further developments.
3. Claim for damages brought by the applicant
On 26 February 2013 the applicant lodged a claim against the State Treasury seeking compensation for the non-pecuniary damage in respect of the second set of the criminal proceedings against her and the inherent undertaking not to leave the town, by which she had been bound for more than three years.
On 17 May 2013 the Kyivskyy Court rejected the applicant’s claim. It noted, inter alia, that the applicant had been under the undertaking not to leave the town only from 10 to 20 November 2009.
The applicant appealed. She reiterated, in particular, her earlier argument about the lengthy duration of the obligation not to leave the town, which had been imposed on her. The applicant referred in that connection to the investigator’s letter of 22 June 2012 rejecting her requests for leave to travel outside Kharkiv (see above). Furthermore, she observed that it transpired from the ruling of 12 October 2012 that the impugned preventive measure had been lifted only on that date.
On 18 June 2013 the Kharkiv Regional Court of Appeal upheld that decision. It noted, without responding to the aforementioned arguments of the applicant, that she had not proved the application of the preventive measure to her for over three years.
On 22 July 2013 the Higher Specialised Court for Civil and Criminal Matters rejected the applicant’s request for leave to appeal on points of law.
COMPLAINTS
The applicant complains under Article 6 §§ 1, 2 and 3 (c) and (d) of the Convention of the unfairness of the criminal proceedings against her. More specifically, she complains that the operation of 7 February 2004 was unlawful and that the report of the on-site inspection of that date, on which the courts relied, should have been declared as inadmissible evidence. She further complains in this connection that she was not able to question Ms M., who had acted as an agent-provocateur and whose statements made during the pre-trial investigation were taken by the courts at face value. The applicant next complains that, likewise, she was not able to question Mr T., the attesting witness who could have clarified that Ms M. had left the applicant’s office alone and in a precipitated manner.
The applicant also complains, in substance, that the undertaking not to leave the town imposed on her in the second set of the criminal proceedings was a disproportionate and lengthy restriction on her freedom of movement and that she did not have an effective domestic remedy in that regard.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charge against her, in accordance with Article 6 § 1 of the Convention, as regards the first set of the criminal proceedings?
In particular, was the inquiry operation of 7 February 2004 accompanied by adequate and sufficient safeguards against arbitrariness?
Furthermore, was the applicant able to examine witnesses Ms M. and Mr T., as required by Article 6 § 3 (d) of the Convention? What efforts were made to secure the presence of those witnesses in the court?
2. Has there been a restriction on the applicant’s right to liberty of movement, guaranteed by Article 2 § 1 of Protocol No. 4, on account of the obligation not to leave the town of residence, which was imposed on her within the second set of the criminal proceedings? What was the period, during which the impugned restriction was applicable? Was it in accordance with the law and necessary in terms of Article 2 § 3 of Protocol No. 4?
3. Did the applicant have at her disposal an effective domestic remedy for her complaint under Article 2 of Protocol No. 4, as required by Article 13 of the Convention?
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