European Court of Human Rights

FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 25725/02
by Sergey Vasilyevich BORISENKO
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 27 March 2007 as a Chamber composed of:

Mr P. Lorenzen, President,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr J. Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 20 June 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Sergey Vasilyevich Borisenko, is a Ukrainian national who was born in 1967 and lives in the village of Novotroitskoye, Donetsk region, Ukraine.

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 18 July 1999 the applicant was allegedly detained on remand in the course of the criminal proceedings on robbery instituted against him.

On 30 December 1999 the Voroshylovskyy District Court of Donetsk sentenced the applicant to four years’ imprisonment for robbery. The court ordered that the term of imprisonment had to be calculated from 18 July 1999.

On an unidentified date at the end of 2000 – beginning of 2001 another criminal case on a charge of burglary was instituted against the applicant. Criminal proceedings on the same charges were instituted against nine more persons.

On 5 January 2001 the applicant was transferred from the Correctional Labour Colony No. 57 (ВТК № 57), where he was serving the sentence of 30 December 1999, to the Temporary Detention Unit No. 5 (СІЗО № 5 м. Донецьк).

According to the applicant, on 12 January 2001 police officers drove him to the forest where he was beaten in order to force him to confess.

At the end of February 2001 the applicant was provided with a lawyer.

In June 2001 the criminal case against the applicant was transferred to the court.

On 26 November 2003 the Dokuchayevskyy Town Court rejected the applicant’s request to remit the case for additional investigation.

On 17 August 2004 the same court, following the requests of other accused, remitted the case for additional investigation. On an unidentified date, the Court of Appeal quashed this decision and remitted the case back to the Town Court.

On 1 June 2005 the Dokuchayevskyy Town Court convicted the applicant of burglary and sentenced him to seven years, five months and 17 days’ imprisonment. The other nine co-accused were sentenced to different terms of imprisonment from three to eleven years.

On 20 January 2006 the Donetsk Regional Court of Appeal upheld the applicant’s sentence.

On 9 October 2006 the applicant was conditionally released.

On 14 November 2006 the Supreme Court of Ukraine rejected the applicant’s appeal in cassation against the judgment of 1 June 2005.

COMPLAINTS

The applicant complained under Article 3 of the Convention that he had been tortured by the police officers.

The applicant further complained under Article 5 §§ 3 and 4 of the Convention about the length of his detention on remand and about the refusal to release him pending trial.

The applicant complained under Article 6 § 1 of the Convention about the length of proceedings in his case. He further complained that the criminal proceedings concerning the charge of burglary had been unlawful. In particular, the applicant complained about the insufficient time provided to prepare his defence, about the failure of the officially appointed lawyer to defend him and about numerous procedural violations during the consideration of his case.

The applicant complained under Articles 7 § 1 and 17 of the Convention that his sentence was unlawful.

The applicant further complained under Article 13 of the Convention that his complaints about the criminal proceedings against him had not been considered properly.

The applicant complained under Article 34 of the Convention that the court had failed to provide him with copies of the relevant documents and that the court hearings in his case had not been recorded.

THE LAW

A.  Article 5 § 3 and Article 6 § 1 of the Convention

The applicant complained under Article 5 § 3 of the Convention about the length of his detention on remand.

Moreover, he complained under Article 6 § 1 of the Convention about the length of proceedings in his case.

The Articles invoked provide as follows:

Article 5 § 3

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

Article 6 § 1

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.

B.  Other complaints

The Court, having examined the remainder of the applicant’s complaints, considers that, in the light of all the materials in its possession and in so far as the matters complained of were within its competence, they did not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the complaints concerning the length of the applicant’s detention on remand (Article 5 § 3 of the Convention) and the length of the proceedings (Article 6 § 1 of the Convention).

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President