13 October 2008

FIRST SECTION
Application no. 33780/04
by Yuriy Georgiyevich KONONENKO
against Russia
lodged on 4 July 2004

STATEMENT OF FACTS
THE FACTS
The applicant, Mr Yuriy Georgiyevich Kononenko, is a Russian national who was born in 1970 and lived until his arrest in Barnaul, the Altay Region. He is currently serving a sentence of imprisonment in penitentiary establishment KTB-12 of Barnaul (лечебно-профилактическое учреждение КТБ-12 УФСИН РФ по Алтайскому краю).
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1.  Applicant’s arrest and detention
On 14 September 2003 the applicant was arrested on suspicion of murder and taken to the police station.
On 15 September 2003 the record of the applicant’s arrest was prepared.
The applicant challenged the lawfulness of his detention at the police station from 14 September to 15 September 2003 to the Prosecutor’s Office. Having examined the applicant’s complaint, the Prosecutor’s Office acknowledged that prior to 15 September 2003 the applicant’s detention had not been in accordance with the law.
On 17 September 2003 the Oktyabrskiy District Court of Barnaul decided to remand the applicant in custody pending investigation. The decision was not appealed against and entered into force on 22 September 2003.
On 24 September 2003 the charges of murder were brought against the applicant. The applicant was put to the remand prison IZ-22/1 of Barnaul.
On 13 November 2003 the Oktyabrskiy District Court extended the applicant’s detention until 15 December 2003.
On 25 November 2003 the Oktyabrskiy District Court set the time-limit until 27 November 2003 for the applicant to study the material of the case file. The applicant did not appeal against this decision.
On 27 November 2003 the Altay Regional Court upheld the decision of 13 November 2003 on appeal.
On 27 November 2003 the investigation was completed and the case was referred to the Oktyabrskiy District Court for trial.
2.  Applicant’s trial
On several occasions following the applicant’s requests the trial was adjourned because of the failure of the key prosecution witness – Mr Sh. – to appear.
On 17 December 2003 the Oktyabrskiy District Court held that the custodial measure in respect of the applicant should remain unchanged. On 8 January 2004 the Altay Regional Court upheld the above decision on appeal.
After the failed attempts to establish the whereabouts of Mr Sh. and despite the applicant’s objections the court considered it possible to continue without the latter.
On 19 February 2004 the Oktyabrskiy District Court of Barnaul convicted the applicant of murder and sentenced him to nine years’ imprisonment. The court relied on written statements by Mr Sh., who submitted as follows:
“On 14 September 2003 in the flat No. 59 situated [the address] the [applicant], the [victim] and myself were at the kitchen. The [applicant] had a confrontation with the [victim] because his money gone missing. They started fighting and moved towards the window. During the fight one of them broke the window. Afterwards the [applicant] grabbed a knife and started brandishing it in front of the [victim]. The latter was pushing the [applicant] away pressing himself against the broken window. Then I saw that the [applicant] grabbing the [victim] by his foot and pushing him out of the window.”
The court further relied on the evidence by Ms P., who submitted as follows:
“On 13-14 September 2003 together with G., the [victim], Z., the [applicant] and Sh. in the above flat we were drinking alcohol. ... On 14 September 2003 around 6 p.m. myself and G. went to the bedroom to sleep. Sh., the victim and the [applicant] remained in the kitchen. When I slept I heard the sound of breaking glass, but I did not react. I was awoke couple of hours later by Sh. and [the applicant]. The [applicant] was holding a knife, he demanded G. to return his money. [The applicant] threw himself on G., cut his face; then G. knocked the knife out. Afterwards I went to the kitchen, saw the blood, saw the money under the chair and told the [applicant] about it. The [victim] was not in the kitchen; the window was broken; I asked about the [victim], and the [applicant] replied that the latter had his nose broken. Frightened, I left the flat. ...”
The court relied also on the statements of Mr G., analogous to the above statement of Ms P.
The applicant appealed against his conviction. In his appeal he complained, inter alia, that at no stage of the proceedings he had been given an opportunity to examine Mr Sh. whose statements were determinative for the court’s finding of guilt.
On 20 February 2004 the applicant went on a hunger strike until 5 March 2004.
On 29 April 2004 the Altay Regional Court upheld the conviction on appeal.
On the same day the applicant renewed his hunger strike.
On 17 June 2004 the applicant was transferred to prison UB-14/10 of Rubtsovsk, the Altay Region for serving his sentence.
COMPLAINTS
1.  The applicant complained under Article 3 of the Convention that he had been beaten up by the police officers upon his arrest. He complained about conditions of his transport from remand prison IZ-22/1 of Barnaul to prison UB-14/10 of Rubtsovsk on 17 June 2004. The applicant contended, in particular, that, being on a hunger strike at the time, he should have been accompanied by a medic. He further complained that in protest against his prosecution he had gone on a three months’ hunger strike, which affected substantially his state of health.
2.  The applicant complained under Article 5 that he had not been informed of the reasons for his arrest until 15 September 2003. He complained under the same head about the alleged unlawfulness of his detention at the police station from 14 September to 15 September 2003. The applicant further complained that the decision of 17 September 2003 which authorised his detention had been unreasoned and unlawful.
3.  The applicant complained under Article 6 §§ 1 and 3 (b), (c) and (d) that the proceedings against him had been unfair. In particular, he complained that he had not been given adequate time to prepare his defence and that at no stage of the proceedings he had been afforded an opportunity to examine Mr Sh. – the key prosecution witness. The applicant further complained that he had been tried by the same judge who had taken the decision on application of the custodial measure.
QUESTIONS TO THE PARTIES

Did the applicant have an opportunity to examine the prosecution witness Mr Sh. in the proceedings leading up to his conviction? If not, did this fact give rise to a breach of Article 6 § 3 (d) of the Convention?