5.  The applicant was born in 1962. Before his arrest he lived in Berezna, a village in Chernigiv Region. Mr. Y. (hereinafter also referred to as the “victim”) lived in the same town, a short distance from the applicant’s house.
6.  In the evening of 27 February 2007 Y., who was drunk, was involved in a fight with Do. Ty., O. and Sh. were present. After the fight, at about 9.25 p.m., Y. went to a local café where he saw K., the café’s employee.
7.  At about 11 p.m. the applicant walked into the café, saw Y., bought chocolates and left.
8.  At about 1 a.m. on 28 February 2007 Y. left the café. He was walking home along a dark street when suddenly a man approached him and shot him in the abdomen. Y. went home and told his girlfriend that he had been shot by a tall man. He then went to a hospital where doctors established that he was heavily drunk and had eight gunshot wounds in the abdomen. Y. was operated on, but the projectiles were not found (see the surgeon’s evidence at paragraph 23 below).
9.  On 1 March 2007 the police arrested the applicant on suspicion of having shot Y. On the same date they searched the applicant and found on him a black revolver with a white stripe on its grip. A subsequent expert examination revealed that that was a flare gun and that it would be impossible to injure someone by firing it.
10.  On 3 March 2007 the police searched the applicant’s flat in the presence of the applicant and attesting witnesses. During the search the police found another gun, a gas pistol modified so as to be able to fire live ammunition, bullets and explosive material.
11.  On 6 March 2007 the police questioned Y., who was undergoing treatment in hospital. He stated that he had met Do., Sh., Ty. and O. between 9 p.m. and 10 p.m. on 27 February 2007. After that he had gone to a café where he had seen a small man about forty years of age wearing a light-coloured leather coat. Y. had seen the man several times before, because he lived near Y.’s house. Y. left the café at about 1 a.m. on 28 February 2007 and was heading home when that man shot him with a small revolver with a white stripe. Y. stated that he would be able to recognise the person who had shot him.
12.  On the same day the investigator carried out an identification parade. The applicant, who was forty-five years old and wearing a light-coloured leather coat, was invited to sit next to T., who was fifty-nine years old and wearing a dark-coloured leather coat, and G., thirty years old and wearing a black coat. The applicant sat between T. and G., and the investigator invited Y. into the room. The latter immediately approached the applicant and asked him “Why did you shoot me?” This was recorded in a police report, which the applicant signed without raising any objections.
13.  On 13 March 2007 the police carried out a face-to-face confrontation between Y. and the applicant. The victim confirmed that the applicant had shot him. The parties have not submitted to the Court the record of that confrontation. In his subsequent appeal (see paragraph 28 below) the applicant’s lawyer alleged that there was a discrepancy between the victim’s original statement and his statements at the confrontation in that at the confrontation the victim claimed that he had seen the applicant only once before the attack.
14.  On 5 May 2007 Y. committed suicide for unknown reasons.
15.  On 1 June 2007 the applicant asked the investigator to question Sh. (see paragraph 6 above), to extract the bullets from Y.’s body and to establish whether they had been fired from the pistol found in his flat (see paragraph 10 above).
16.  The investigator refused the applicant’s request, stating that the police had made an attempt to question Sh., but he had refused to give evidence, relying on his privilege against self-incrimination, and that it was impossible to extract the bullets from the victim’s body because the victim’s mother had not permitted the exhumation of his body.
17.  The applicant’s case was submitted to the Mena Court (“the trial court”) for trial. The indictment stated that the applicant had shot Y. with the pistol which had been found in his flat.
18.  At the first hearing the trial court granted the applicant’s request to summon and question Sh. The court also decided of its own motion to summon and question O. (see paragraph 6 above).
19.  At the same hearing the court questioned Ty. (see paragraph 6 above) in the presence of the applicant and his lawyer. Ty. stated that in the evening of 27 February 2007 he had been with O., Sh. and Do. Y. had turned up and had had a fight with Do. After the fight O. had been covered with blood and had repeated, “I’ll do it to him”. At around 9.25 p.m. Y. had left. The applicant and his lawyer did not challenge the accuracy of Ty.’s statements and did not ask him any questions.
20.  The applicant’s lawyer subsequently lodged further requests, insisting on the questioning of O. and Sh. On 15 October 2007 the court ordered the police to bring those individuals to the next hearing. However, O. and Sh. did not appear, for unknown reasons.
21.  On an unspecified date the trial court questioned K., the café employee (see paragraph 6 above). She stated that at around midnight on 27 February 2007 she saw the applicant standing near the café and observing the victim.
22.  The forensic expert, Z., stated that the revolver found on the applicant (see paragraph 9 above) was a flare gun and that it was impossible to injure someone by firing it. The bullets found in the applicant’s flat fitted into the pistol found in the same flat (see paragraph 10 above). The possibility that the gun and the bullets had been used to injure Y. could not be excluded. The revolver and the gun were of approximately the same size and colour; the revolver had a white stripe on the grip, whereas the pistol did not. Whether a person would be able to distinguish between them depended on the person’s perceptiveness. The trial court also examined both weapons: it noted that both weapons were small, fully fitting into the hand, were the same colour (black) and that the only difference between them was that the revolver had a revolving cylinder while the pistol had a magazine.
23.  Dr N., the surgeon who had operated on the victim, stated that he had discovered no projectiles in the body in the course of the surgery, even though X-rays had shown small foreign objects in the victim’s tissues.
24.  The investigator who had organised the identification parade, and T., who had been in the identification line-up with the applicant (see paragraph 12 above) stated that during the identification parade they had seen Y. confidently identify the applicant as the perpetrator, approach the applicant and ask “Why did you shoot me?”.
25.  Y.’s mother stated that her son had told her that he had been shot by a man in a brown coat and a hat. His girlfriend reported Y.’s words after he had been shot (see paragraph 8 above).
26.  Before the trial court the applicant and his lawyer argued that the gun had been planted in the applicant’s flat by the police. They said that Y.’s statements concerning the gunman’s appearance and crime weapon were inconsistent. As the victim had been heavily drunk at the time, he could not have seen the gunman clearly enough to identify him later. The applicant admitted that in the evening on 27 February 2007 he had visited the café. He had been wearing a leather coat and a hat. The applicant and his lawyer requested the court to order a psychiatric examination to assess whether Y.’s state of mind would have allowed him to see and identify the person who had shot him. The court refused their request as irrelevant for the consideration of the case.
27.  On 16 November 2007 the trial court convicted the applicant of grievous bodily harm and sentenced him to five years’ imprisonment. The conviction was based, in particular, on:
(i)  the victim’s statements given during the pre-trial investigation, including in the course of the face-to-face confrontation with the applicant (see paragraph 13 above);
(ii   the results of the identification parade (see paragraph 12 above);
(iii)  the results of the examination and forensic expert analysis of the pistol and the revolver (see paragraph 22 above);
(iv)  the statements of Ty., K. (the café employee), of the participants in the identification parade, and the victim’s girlfriend and mother (see paragraphs 19, 21, 24 and 25 above).
The court held that the inconsistencies in the victim’s statements could be explained by the fact that he had been drunk at the time, had been suffering from serious injuries, and by the fact that the shooting had taken place at night on a dark street.
28.  The applicant’s lawyer appealed. He stated that Y. had been heavily drunk, so he could not have seen the gunman; the pistol and the bullets found in the applicant’s flat did not belong to him and had been planted by the police; the trial court had not given due consideration to the statements of Ty.; during the identification parade the applicant, T. and G. had been seated, therefore Y. had been unable to assess their height; during the same parade only the applicant had worn a light-coloured leather coat and had been in his forties, exactly like the gunman Y. had described. The applicant’s lawyer also pointed out an inconsistency between the victim’s original statement and his statement in the course of the confrontation with the applicant in respect of whether the victim had known the applicant before the attack (see paragraphs 11 and 13 above).
29.  In a judgment of 17 January 2008 the Chernigiv Regional Court of Appeal found that the applicant’s guilt had been sufficiently established on the basis of the victim’s statements and the forensic examinations. Just before the search, the applicant had opened the flat with his own keys and the search had been conducted in the presence of attesting witnesses, so the gun and the bullets could not have been planted. Before the trial court T. had confirmed that during the identification parade Y. had recognised the applicant as the gunman. The Court of Appeal pointed out that there were no reasons to doubt the truthfulness and reliability of the statements which Y. had given during the pre-trial investigation.
30.  The applicant and his lawyer appealed in cassation, raising the same arguments as those raised before the Court of Appeal (see paragraph 28 above). They also complained that neither Y. nor the witnesses proposed by the applicant (see paragraph 20 above) had been called and questioned by the trial court.
31.  On 4 June 2008 the Supreme Court dismissed the appeals in cassation.
32.  In February 2009 the applicant’s sister, who was representing the applicant before the Court at that time, asked the trial court to give her the police records of the questioning of Y. and his girlfriend, documents concerning the applicant’s search after his arrest, the minutes of the court hearings, and the police report concerning the identification parade. On 6 March 2009 the trial court replied that it was not legally empowered to give copies of documents after the termination of criminal proceedings.
33.  On 13 May 2009 the Court asked the applicant’s sister to provide copies of the applicant’s appeals, stamped by the Court of Appeal and the Supreme Court, to prove that they had been received by both courts.
34.  On 16 June 2009 the applicant’s sister requested the Mena Court, the Chernigiv Regional Court of Appeal and the Supreme Court to send her those documents.
35.  On 24 June 2009 the Supreme Court replied that it was not empowered to give copies of documents.
36.  The Chernigiv Regional Court of Appeal suggested that the applicant’s sister address the trial court with her request for the documents.
37.  The trial court replied that the applicant’s sister had already received a copy of the appeal lodged with the Court of Appeal and the trial court was not empowered to send her another copy. The trial court did not give her any information about the cassation appeals lodged with the Supreme Court.
38.  On 22 February 2012 the applicant was taken to the trial court and allowed to study the case file. For unknown reasons, it did not contain the appeals in cassation lodged by the applicant and his lawyer or the decision of the Supreme Court (see paragraphs 30 and 31 above).
39.  On 28 February 2012 Mr Tarakhkalo, the applicant’s new representative (see paragraph 2 above) asked the Supreme Court for a copy of the appeals in cassation lodged by the applicant and his lawyer. He received those copies and submitted them to the Court on 27 March 2012.