FIFTH SECTION
Application no. 16025/06
Constantin Nikolayevich GEMU
against Ukraine
lodged on 7 April 2006
STATEMENT OF FACTS
The applicant, Mr Konstantin Nikolayevich Gemu, is a Moldovan national who was born in 1966 and currently serves his prison sentence at the Temnivska Correctional Colony.
On 18 June 2005 the applicant and another person were arrested by the police on suspicion of murder. On an unspecified date they were placed in the pre-trial detention centre (“the SIZO”) in Odesa. The applicant states that the SIZO authorities blocked his correspondence, did not give him access to his criminal case file and did not provide him with paper to write on.
After the completion of the investigation, the applicant and his accomplice were tried by the Odesa Regional Court of Appeal acting as a court of first instance. With the applicant’s consent, the trial was held in Russian. The applicant was represented by a lawyer appointed to him by the investigators in December 2005.
On 25 November 2005 the court found the applicant and his accomplice guilty of aggravated murder and robbery and sentenced the applicant to life imprisonment with confiscation of all his property. The court noted that both the applicant and his accomplice had confessed of having committed the crimes during the pre-trial investigation and at court hearings. The court also relied on the statements of an eyewitness which had been made at the pre-trial stage and subsequently examined at court hearings. Other evidence, on which the court relied, included several forensic reports, statements of the victims’ family member and objects, which the court found the applicant had purchased using the money he had stolen from the victims. Those objects, which included a house, were ordered to be transferred to the victims’ family member.
In January 2006 the applicant lodged with the Supreme Court a cassation appeal. Subsequently, he amended his cassation appeal on a number of occasions. The applicant initially challenged the severity of his sentence and argued that many of the objects seized from his home by the police belonged to his family members. In his amended appeals he complained that some of the statements of his accomplice and of the witnesses had not been true, that his lawyer had refused to translate or explain to the applicant the contents of case documents, that his confession had been extracted under torture, and that the first-instance court had erred in the application of criminal law. The applicant expressed the wish to take part in a hearing on his cassation appeal and also requested the Supreme Court to appoint a new lawyer to him and to invite an interpreter, stating that his lawyer had refused to help him in the preparation of his appeal.
On 16 May 2006 the Supreme Court heard the case in the presence of a prosecutor. The applicant was not taken to that hearing for unknown reasons. The Supreme Court upheld the findings of the Court of Appeal and found no procedural irregularities in the case sufficiently serious to form a basis for quashing the conviction. The Supreme Court also noted, without referring to any details, that the applicant’s allegations about the use of “unlawful methods of investigation” had been examined and rejected as unsubstantiated.
In December 2006 the applicant was transferred to the Temnivska Correctional Colony.
The applicant has suffered from a number of serious diseases, including tuberculosis and pancreatitis. The applicant alleges that during his detention at the SIZO no adequate medical assistance was provided to him. In 2006 the applicant went on a hunger strike and complained of the lack of medical assistance to various authorities, including the courts, though to no avail.
In order to substantiate his application, in particular as regards the complaints of unfair trial, the applicant submitted a number of requests to the Odesa Regional Court of Appeal to provide him with the possibility of obtaining copies of the amendments to his cassation appeal. Eventually, the applicant received copies of some of the required documents.
COMPLAINTS
The applicant complains under Article 3 of the Convention that he was not provided with adequate medical assistance in detention.
The applicant complains under Article 6 of the Convention that his trial was unfair. In particular, the applicant alleges that the court hearings were held in his absence, that he was not given the possibility to study the case file, and that he was not provided with the assistance of a lawyer or an interpreter, even though many of the case documents were in Ukrainian, which he did not understand.
The applicant complains under Article 34 of the Convention that he has been unable to obtain copies of all the documents he needed for substantiation of the application.
QUESTIONS TO THE PARTIES
1. Was the applicant subjected to inhuman and degrading treatment, in breach of Article 3 of the Convention, having regard to his complaint about the lack of adequate medical assistance in detention?
2. Did the applicant have a fair hearing in the determination of the criminal charges against him? In particular, having regard to the applicant’s complaints of unfair trial, did the authorities comply with the requirements of the first and third paragraphs of Article 6 of the Convention?
3. Has there been any hindrance by the State in the present case with the effective exercise of the applicant’s right of petition, as guaranteed by Article 34 of the Convention? In particular, did the applicant have the opportunity to obtain copies of the documents from his case file and to send them to the Court in order to pursue the application?
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