Communicated on 18 February 2017
FOURTH SECTION
Application no. 5406/07
Igor Aleksandrovich KRIVOLAPOV
against Ukraine
lodged on 25 April 2007
STATEMENT OF FACTS
The applicant, Mr Igor Aleksandrovich Krivolapov, is a Ukrainian national, who was born in 1961 and lives in Kramatorsk.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background facts
In July 2001 a journalist Mr Igor Aleksandrov was beaten to death by unknown persons in the premises of the local television company which he headed, in Slovyansk. He was the author of a number of television programmes on corruption and organised crime in the region.
The above tragic event sparked a broad public outcry.
In August 2001 the police arrested a certain V. on suspicion of Mr Aleksandrov’s murder. V. was homeless and had no means, being fresh from prison, where he had served a sentence for a theft. Although he confessed to the incriminated crime many times, his statements lacked coherence. Eventually, he mentioned that he had entered into an agreement with a certain B., a former convict too, who had promised him a car and an apartment in exchange for his confession to the journalist’s murder. B. himself had been acting upon the instructions from some law‑enforcement officials. He had assured V. that the latter would be taken due care of in prison and that his imprisonment term would be minimal.
It appears that B. went missing starting from October 2001.
In May 2002 the first-instance court acquitted and released V. In July 2002 he died, supposedly of a heart failure. Subsequently, criminal investigation was launched on suspicion of V.’s poisoning. Its outcome is not clear from the case-file materials.
On an unspecified date criminal proceedings were initiated on the supposed murder of B., although his body had not been found (see below).
At the time of the events the applicant held the post of the deputy head of the Kramatorsk City Police Department.
2. Criminal proceedings against the applicant
On 28 January 2004 criminal proceedings were instituted against the applicant on suspicion of abuse of office having led to grave consequences. Namely, he was suspected of having falsified the criminal case against V. According to the prosecution, the applicant, aiming at avoiding responsibility for the failure to uncover the journalist’s murder, had instructed B. to find a vulnerable person who would agree to confess to the crime in question for remuneration. As a result, B. convinced V. to play that role. The applicant was also suspected of having instructed his subordinates to either bribe or coerce a taxi driver into committing a perjury with a view to creating a witness basis against V.
On 10 February 2004 the applicant was arrested as a suspect. He maintained that he had not even had access to the case file regarding the investigation of the journalist’s murder and had not therefore been in a position to falsify the related case against V.
On 13 February 2004 the Kyiv Pecherskyy District Court (“the Pecherskyy Court”) remanded the applicant in custody pending trial. His pre-trial detention was subsequently extended on many occasions.
On various dates in 2004 further criminal cases were opened against the applicant and some other persons on suspicion of: several counts of kidnapping and aggravated murder and another episode of abuse of office (selling a car, which was impounded as material evidence). Furthermore, a criminal case was opened against the applicant on suspicion of B.’s murder (see above). All the cases in question were joined to the one initiated earlier.
During his questioning on 8 November 2004 the applicant confessed to having falsified, together with another police officer, the criminal case against V., as well as to having been involved in V.’s poisoning and to having murdered B.
On 28 November 2004 the applicant retracted his statements of 8 November 2004 and complained to the Prosecutor General’s Office that he had been coerced into self-incrimination under psychological pressure.
On 5 April 2005 the Supreme Court extended the term of the applicant’s pre-trial detention to eighteen months (until 10 August 2005) given the particular complexity of the proceedings.
As stated in the information note on the criminal proceedings against the applicant (issued at his request by the trial court in 2011), on 8 July 2005 the pre-trial investigation was declared completed and the applicant was given access to the case file. The above document specified that the applicant had been studying the case file from 14 July 2005 to 20 April 2006. According to the applicant, he had had no access to the case file before 14 July 2005.
On 5 August 2005 the Kyiv City Court of Appeal (“the Kyiv Court”) extended the applicant’s pre-trial detention to twenty months (until 10 October 2005) on the ground that the applicant and his lawyers had not finished studying the case file which consisted of over a hundred volumes. The applicant’s lawyer submitted that the extension was not justified as, in any event, they had not received access to all the case-file materials. His argument was dismissed. The court based its ruling on Articles 156 and 165‑3 of the Code of Criminal Procedure (see “Relevant domestic law” below).
On 6 October and 8 December 2005, as well as on 6 March and 7 April 2006, the Kyiv Court extended the applicant’s pre-trial detention, respectively, to twenty-two, twenty-five, twenty-six and twenty-seven months (until 10 May 2006) on the same grounds as before (see above).
On 28 April 2006 the case file was sent to the Supreme Court for determining the court, which would conduct the trial.
On 23 May 2006 the Supreme Court referred the case to the Zaporizhzhya Regional Court of Appeal (“the Zaporizhzhya Court”).
On 12 September 2006 the Zaporizhzhya Court held a preparatory hearing.
On 18 June 2008 the trial court allowed the prosecutor’s request for severing the charge against the applicant (and another person) on B.’s murder, into a separate set of proceedings. That part of the case was sent to the Prosecutor General’s Office for additional investigation. There is no information on any further developments in those proceedings.
On 17 December 2008 the trial court severed into a separate set of proceedings another charge against the applicant, this time on abuse of office having led to grave consequences (falsification of the criminal case against V.), and remitted it to the prosecution authorities for additional investigation.
On 19 February 2009 the Zaporizhzhya Court found the applicant guilty of abuse of office on account of having sold the evidence and sentenced him to five years and nine months’ imprisonment. Given that the applicant had already served that term, he was released in the court room. In so far as the other charges were concerned (excluding those severed on 18 June and 17 December 2008 – see above), the applicant was acquitted for the lack of evidence of his guilt.
On the same date the trial court issued a separate ruling with a view to bringing to the attention of the Prosecutor General’s Office certain shortcomings in the pre-trial investigation, which it considered superficial and inadequate. The court also noted that, throughout 2005-2008 the investigator in charge had been giving numerous interviews to various television and printed media depicting the applicant and the other co‑accused as guilty, without changing their names. The Zaporizhzhya Court held that such behaviour was in breach of the accused’s right to presumption of innocence and had amounted to pressure on the court.
On 29 October 2009 the Supreme Court quashed the lower court’s decision of 17 December 2008, as well as both the judgment and the separate ruling of 19 February 2009. It criticised the Zaporizhzhya Court, in particular, for not having made any specific recommendations for improving the investigation. As regards the separate ruling, the Supreme Court noted that it could have been issued following the pronouncement of a verdict, but not in respect of the part of the proceedings remitted for additional investigation. The criminal case was remitted for fresh examination by a first-instance court. Pursuant to a decision of the President of the Supreme Court, the case was referred to the Lugansk Regional Court of Appeal (“the Lugansk Court”).
On 25 January 2012 the Lugansk Court ordered the applicant’s pre-trial detention upon the prosecutor’s request. The applicant did not submit a copy of that decision.
On 6 February 2012 the trial court severed the charge of abuse of office (concerning the illegal sale of evidence) into a separate set of proceedings and remitted it to the prosecution authorities for additional investigation.
On 20 March 2012 the Lugansk Court found the applicant guilty of abuse of office having led to grave consequences (concerning the falsification of the case file in respect of V.) and sentenced him to seven years’ imprisonment, with no right to hold public posts for three years. It also found the applicant guilty of perjury and sentenced him to four years’ imprisonment. As regards the perjury charge, the court held that the prosecution had become time-barred and the applicant was not therefore to serve that part of the sentence. By the same judgment, the trial court acquitted the applicant of the other charges (creating a gang group, as well as several counts of kidnapping and aggravated murder) for want of evidence. It decided to keep the applicant in detention as a preventive measure until the verdict became final.
On 12 December 2012 the Higher Specialised Court for Civil and Criminal Matters (“the Higher Specialised Court”) modified the above judgment. It held that the applicant’s criminal prosecution on the abuse-of-office charge had become time-barred as well. Accordingly, the applicant was absolved from serving the sentence.
The applicant, however, continued to be detained as a preventive measure pending his trial on the charge of abuse of office concerning the illegal sale of material evidence.
On 24 January 2013 the Rubizhne Town Court of the Lugansk Region discontinued the criminal proceedings against the applicant on the above charge as time-barred, in allowing his request to that effect. The applicant was released in the court room.
3. Media coverage of the criminal proceedings against the applicant
In 2005 a thirty minutes’ long documentary “The deadly agreement” («Смертельна угода») was issued at one of the national television channels, STB. As indicated therein, it was created with the support of the Security Service of Ukraine and the Ministry of the Interior (in particular, its Main Department for the Organised Crime Combatting). It was about the agreement between V. with the law-enforcement officials, and the subsequent murder of V. and B. The applicant was indicated as that agreement’s author and as B.’s murderer. The programme comprised, in particular, micro feature films, in which the roles of the applicant and the other persons concerned were played by professional actors. One of such episodes depicted the applicant murdering B. Furthermore, there were numerous interviews given by the investigator in charge, as well as several officials of the Security Service. They shared their vision of the situation as described above, in the form of what appeared factual statements, without specifying at what stage the proceedings were at the time. The unfortunate destiny of V. was described with a lot of emotion. The programme also contained extracts from the applicant’s questioning of 8 November 2004, during which he confessed to having falsified the criminal case against V. and to having murdered B (see above).
The above programme was transmitted on STB at least twelve times between 2005 and 2008, and possibly later.
In addition, the investigator in charge of the applicant’s case gave numerous interviews (of the same contents as in the aforementioned programme) to various printed media.
4. Conditions of the applicant’s detention in the Lugansk SIZO
On an unspecified date after 29 October 2009 (the date of the case referral by the Supreme Court to the Lugansk Court for trial), the applicant was transferred to the Lugansk Pre-Trial Detention Centre (“the Lugansk SIZO”). According to him, the conditions of his detention there were appalling: the cells were extremely small and lacked proper ventilation, the sanitary conditions were very poor, the toilet was not separated from the living area and the applicant was obliged to take meals in its close vicinity, the bed was infested with bedbugs. Furthermore, the applicant was often deprived of a daily hour-long outdoor walk envisaged by law.
The applicant’s health deteriorated in detention. In December 2012 he was placed in the SIZO hospital on account of a hypertensive crisis. Although doctors recommended his transfer to a civil hospital, no steps were taken to organise this.
5. Compensation proceedings brought by the applicant
The applicant lodged a civil claim against the State Treasury seeking compensation for non-pecuniary damage in respect of his unlawful criminal prosecution and detention under the Compensation Act (see “Relevant domestic law” below).
The courts of three levels of jurisdiction (the Kramatorsk City Court on 10 December 2013, the Donetsk Regional Court of Appeal on 17 January 2014 and the Higher Specialised Court on 17 February 2014) rejected his claim as being without basis. They held that the Compensation Act did not provide for compensation in the applicant’s situation because he had been acquitted only in part.
B. Relevant domestic law
The relevant provisions of the 1960 Code of Criminal Procedure, as worded at the material time, read as follows:
Article 156. Duration of pre-trial detention.
“Detention during a pre-trial investigation shall not last more than two months.
When it is impossible to complete the investigation within the period provided for in part 1 of this Article and there are no grounds for discontinuing the preventive measure or replacing it with a less restrictive measure, the term of pre-trial detention may be extended:
(1) for up to four months – upon a request approved by the prosecutor supervising the compliance with the laws of the bodies of inquiry and investigation, or at the same prosecutor’s request, by a judge of the court which ordered the application of the preventive measure;
(2) for up to nine months – upon a request approved by the Deputy Prosecutor General of Ukraine, the Prosecutor of the Autonomous Republic of Crimea, regional prosecutors, Kyiv and Sevastopol prosecutors, and prosecutors of equal rank, or on the same prosecutor’s request in cases concerning serious and particularly serious crimes, by a judge of the court of appeal;
(3) for up to eighteen months - upon a request approved by the Prosecutor General of Ukraine and his Deputy, or at the same prosecutor’s request in particularly complex cases concerning particularly serious crimes, by a judge of the Supreme Court of Ukraine.
... After the completion of the investigation the case file shall be presented to the detained accused and his defence not later than a month before the expiry of the pre-trial detention time-limit set under paragraph 2 of this Article.
If the time-limit for providing the accused and his defence with the case file is not complied with ... the accused shall be released immediately after the expiry of the maximum term of detention set by part 2 of this Article. In such a case, the accused and his defence shall continue to be entitled to familiarise themselves with the case file.
... If the accused and his defence received access to the case file [in due time as noted above], but that time appeared insufficient, the respective term may be extended by a judge of an appellate court at the request of the investigator approved by the Prosecutor General of Ukraine or his deputy, or at the request coming directly from the [aforementioned prosecutorial officials]. Where there are several co-accused held in pre-trial detention and if at least one of them finds [the term for the case file study] insufficient, a request [for its extension] may also be applicable to the other co‑accused who has/have completed his/their study of the case file, if his/their pre‑trial detention remains necessary and there are no grounds for changing that preventive measure. ...”
Article 165-3: Procedure for extending the term of pre-trial detention
“When there are no grounds for changing the preventive measure or if it is impossible to complete the investigation of the case in the part relating to proven charges, an investigator, upon the relevant prosecutor’s approval, or the same prosecutor, shall apply to the court with a request for an extension of the term of pre-trial detention. The request shall contain reasons, in connection with which it is necessary to extend the term, circumstances which must be examined, evidence that the detainee committed the crime [of which he or she is accused], and grounds for the necessity to maintain the preventive measure. ...
Having received the request, the judge shall examine the materials of the criminal case; if necessary, the judge shall question the accused, the investigator, hear the prosecutor, the defence counsel if the latter has appeared before the judge, following which the judge shall issue a resolution extending the term of pre-trial detention, if there are grounds for this, safe in the case envisaged in paragraph 7 of Article 156 of the Code, or shall refuse its extension.
The prosecutor, suspect, accused or his defence or legal representative may lodge an appeal against the resolution of the judge within three days of its delivery. Such an appeal shall not suspend the execution of the judge’s resolution. The resolutions issued by judges of a court of appeal and of the Supreme Court shall not be subject to an appeal.”
The relevant provisions of the Compensation Act (1994, with further amendments) are quoted in the Court’s judgment on the case of Yaroshovets and Others v. Ukraine, nos. 74820/10 et seq., §§ 62-63, 3 December 2015).
COMPLAINTS
The applicant complains under Article 3 of the Convention about the material conditions of his detention and the lack of proper medical care in the Lugansk SIZO.
He also complains under Article 5 § 1 of the Convention that his detention from 10 August 2005 to 19 February 2009 and from 25 January 2012 to 24 January 2013 was unlawful.
The applicant further complains under Article 5 § 3 of the excessive length of his pre-trial detention, in particular, from 25 January 2012 to 24 January 2013.
He next complains under Article 5 § 5 that he did not have an enforceable right to compensation in respect of his unlawful and lengthy detention.
The applicant also complains under Article 6 § 1 that the length of the criminal proceedings against him had been unreasonable.
Lastly, he complains under Article 6 § 2 of the Convention that public officials had been involved in the media campaign surrounding his case, asserting his guilt prior to his conviction by a court, thus influencing public opinion and prejudging the case against him.
QUESTIONS TO THE PARTIES
1. Were the material conditions of the applicant’s detention and the medical care arrangements afforded for him in the Lugansk SIZO compatible with the requirements of Article 3 of the Convention?
2. Did the applicant’s detention from 10 August 2005 to 19 February 2009 and from 25 January 2012 to 24 January 2013 comply with Article 5 § 1 of the Convention?
3. Was the length of the applicant’s pre-trial detention from 25 January 2012 to 24 January 2013 in compliance with the “reasonable time” requirement of Article 5 § 3 of the Convention, given the fact that he had previously spent time in custody pending trial (see Idalov v. Russia [GC], no. 5826/03, §§ 127-136, 22 May 2012)?
4. Did the applicant have an effective and enforceable right to compensation for his detention in alleged contravention of Article 5 §§ 1 and 3, as required by Article 5 § 5 of the Convention?
5. Was the length of the criminal proceedings in the present case in compliance with the “reasonable time” requirement of Article 6 § 1 of the Convention?
6. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case, given the media campaign surrounding the criminal proceedings against the applicant, in particular, the creation, with the support of the State authorities, and repeated broadcasting of “The deadly agreement” documentary, as well as the statements of the State officials made in its context?
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