Case of European Court of Human Rights, February 19, 2019 (case GARBUZ v. UKRAINE)

Defense:UKRAINE
Resolution Date:February 19, 2019

FOURTH SECTION

CASE OF GARBUZ v. UKRAINE

(Application no. 72681/10)

JUDGMENT

STRASBOURG

19 February 2019

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Garbuz v. Ukraine,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Paulo Pinto de Albuquerque, President,Ganna Yudkivska,Vincent A. De Gaetano,Egidijus Kūris,Carlo Ranzoni,Georges Ravarani,Marko Bošnjak, judges,and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 8 January 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in an application (no. 72681/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Mykola Andriyovych Garbuz (“the applicant”), on 2 December 2010.

  2. The applicant, who had been granted legal aid, was represented by Mr T.O. Kalmykov, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.

  3. The applicant alleged, in particular, that he had not been allowed to examine certain witnesses in criminal proceedings against him and that another witness had been examined with a considerable delay, and that those proceedings had been unreasonably lengthy.

  4. On 10 October 2017 the application was communicated to the respondent Government.

  5. On 3 April 2013 the applicant died. On 12 August 2017 his wife, Ms Valentyna Fedorivna Garbuz, expressed her wish to pursue the application in his stead.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  6. The applicant was born in 1952 and died in 2013.

  7. On 21 February 2002 P., a businessman, contacted the police complaining that the applicant, who was then the director of a municipal housing management agency, was demanding money from him in exchange for permission to use some premises managed by his agency. The applicant had allegedly assured P. that some of the money would be used to bribe representatives of any supervising authorities who might enquire into the use of the premises.

  8. On the same day the police, in the presence of two attesting witnesses, gave P. several banknotes marked with a luminescent substance only visible in special lighting to be given to the applicant as the bribe, and an audio recorder.

  9. Later that day P. went into the applicant’s office and then came out saying that he had delivered the money.

  10. The police went in to arrest the applicant. The same attesting witnesses followed. In their presence, the luminescent substance was discovered on the applicant’s hand and pocket. The marked banknotes were discovered in one of the rooms adjoining his office. These investigative steps were video recorded.

  11. On the same day the applicant wrote and signed a statement confessing to having accepted the money from P. He subsequently retracted the confession, claiming that it had been extracted under “physical and psychological pressure” from the police.

  12. The applicant was charged with fraud, apparently because he actually had no statutory authority to let the premises in question.

  13. In the course of the pre-trial investigation a certain T.V.S., who was apparently an employee of the applicant’s agency, stated that, on an unspecified date, apparently prior to P.’s complaint to the police, the applicant had asked her to show the premises in question to P.

  14. The attesting witnesses made formal statements to the investigating authority describing the events of 21 February 2002 which they had observed. They stated, in particular, that they had entered the applicant’s office after the police and, when they entered, two police officers were already holding the applicant.

  15. In the bill of indictment the victim, the attesting witnesses and T.V.S. were identified as witnesses to be summoned in the course of the trial.

  16. In the course of the trial the applicant pleaded not guilty and argued that the banknotes had been planted on the agency premises by the police, who had also smeared his hand and pocket with the luminescent substance to frame him. The traces of the substance on his hand could come from shaking P.’s hand.

  17. According to the Government, P. testified in the course of the trial on two occasions in April 2004. It appears that he repeated the substance of his statements to the police (see paragraphs 7 and 9 above).

  18. The attesting witnesses were repeatedly summoned to testify at the trial but failed to appear as they could not be found at the home addresses they had given to the authorities. The court records submitted to the Court show that the hearings were adjourned and rescheduled on at least thirty-three occasions due to the “witnesses’ failure to appear” (судовий розгляд відкладено у зв’язку з неявкою свідків) and that the trial court repeatedly requested the help of police and of the prosecutor’s office in locating and escorting the witnesses to the hearings. It appears that those measures concerned both the attesting witnesses and T.V.S. However, despite those efforts, those witnesses failed to appear and their pre-trial statements were read out at the trial.

  19. On 5 October 2009 the Kharkiv Kominternivsky District Court convicted the applicant of fraud and sentenced him to two years’ detention in a semi-open penal institution, but waived enforcement of the sentence as it had become time-barred (see paragraph 24 below). In convicting the applicant, the court relied on: the statements of P., the attesting witnesses and T.V.S.; audio and video evidence; police reports documenting the delivery of the marked banknotes to P. and their subsequent discovery, as well as the discovery of the luminescent substance on the applicant’s hand and pocket; statements of the police officers who had organised the investigative actions in question; the results of expert analysis confirming the discovery of the luminescent substance from the same source on the banknotes, on the applicant’s hand and in his pocket; and the applicant’s confession. The court dismissed the applicant’s allegation that his confession had been extracted under duress as unsubstantiated.

  20. The applicant appealed, arguing in particular that P., the attesting witnesses and T.V.S. had not been examined in the course of the trial as they failed to appear at the trial (“которые уклонились от явки в суд первой инстанции”).

  21. On 4 February 2010 the Kharkiv Regional Court of Appeal upheld the conviction, stating that there was sufficient evidence of the applicant’s guilt. There was no reason to distrust the statements of the victim and the witnesses which were corroborated by the other evidence in the file, including audio and video evidence. The court perceived no reason for the witnesses to falsely testify against the applicant.

  22. In his appeal on points of law to the Supreme Court the applicant stated that the witnesses had ignored summons to appear at the trial and the trial court had failed to ensure their presence. The attesting witnesses had stated that, when they entered the office, the police officers already held the applicant (see paragraph 14 above). This showed that the police were behaving in a violent way towards the applicant and it was comprehensible why he could be intimidated and falsely confess under such pressure.

  23. On 9...

To continue reading

Request your trial