AS TO THE ADMISSIBILITY OF
by Yevgeniy Vladislavovich PLESHKOV
The European Court of Human Rights (Fifth Section), sitting on 7 July 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
Stanislav Shevchuk, ad hoc judge,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 8 October 2005,
Having deliberated, decides as follows:
The applicant, Mr Yevgeniy Vladislavovich Pleshkov, is a Ukrainian national who was born in 1960 and lives in Belgorod.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The pre-trial investigation
On 29 May 2003 the Kharkiv regional police instituted criminal proceedings against the applicant, along with some other persons, on suspicion of trafficking in human beings.
In June 2003 the investigation continued in Saint-Petersburg by the joint efforts of Ukrainian and Russian police.
On 21 June 2003 the Saint-Petersburg police refused to institute criminal investigations into an allegation of filming and distribution of pornographic material, having found that there was no case to be examined. According to the applicant, the above decision concerned the trafficking charge against him.
On 21 November 2003 the Kharkiv Regional Prosecutor’s Office sent the case to the Kyivskyy District Court of Kharkiv (“the Kyivskyy court”).
2. The applicant’s detention on remand
(a) The first period
On 30 May 2003 the applicant was apprehended by the Kharkiv regional police on suspicion of trafficking in human beings, with no further details available.
On 25 July 2003 the Kyivskyy court ordered his release under an undertaking not to abscond. According to the applicant he was, however, detained again shortly afterwards on the court’s premises.
On 30 July 2003 the court again ordered his release.
(b) The second period
On 25 May 2004 the Kyivskyy court, which had commenced a trial on the case on 10 December 2003, sitting as one judge, allowed the prosecutor’s motion to remand the applicant in custody on account of his alleged influencing of witnesses, who had changed their testimonies, and given the seriousness of the charges. The above ruling did not establish any time-limits for the detention. It contained a note that it was final and could not be appealed against. The applicant was arrested in the hearing room.
(c) The applicant’s requests for release and related complaints
The applicant repeatedly and unsuccessfully requested to be released under an undertaking not to abscond.
On 24 September 2004 the Kyivskyy court, having considered his arguments (such as lack of evidence of his guilt, absence of any previous criminal record, permanent place of residence, having elderly parents to take care of, deterioration of his health in the SIZO, and having some governmental awards), rejected his request for release of unspecified date. The court supported the prosecutor’s opinion, which referred to the serious nature of the charges against the applicant and an inherent risk of his absconding. The court noted in its ruling: “The court considers that the issue of changing the preventive measure is premature. The issue of the penalty will be resolved with pronouncement the verdict on the case convicting or acquitting [the applicant].” The above ruling contained a note that it was final and could not be appealed against.
On 13 and 15 April, 31 May and 5 December 2005 the Kyivskyy court again rejected the applicant’s requests for release. The reasons were similar to those given on 24 September 2004. It was noted, however, in these rulings: “The issue of the preventive measure will be resolved with pronouncement the verdict on the case convicting or acquitting [the applicant]” (with the exception of the ruling of 5 December 2005, which referred to “the issue of the penalty”). The above rulings did not establish any time-limits for the detention. They also contained a note that they were final and could not be appealed against.
On 20 and 31 May 2006 the Deputy President of the Kharkiv Regional Court of Appeal (“the Kharkiv Court of Appeal”), in reply to the applicant’s attempts to appeal against the refusal of the first-instance court to release him, informed him, with a reference to Article 347 of the Code of Criminal Procedure, that as his detention on remand had been ordered by a trial court, such decision could be appealed against only together with an appeal against the verdict once it had been pronounced.
The applicant unsuccessfully complained about his pre-trial detention to the Prosecutor General, the Supreme Court, the Ministry of Justice, Parliament and a number of other authorities.
On 13 February 2007 the Kharkiv Court of Appeal released him under an undertaking not to abscond (see below).
3. Conditions of detention in SIZO-27
While being held in Kharkiv SIZO-27, the applicant allegedly contracted some dermatological diseases and his health generally deteriorated. According to him, he was held in a cold, poorly lit and overcrowded cell lacking basic hygienic facilities, without adequate nutrition, and was subjected to “repression” for his unspecified political views.
4. The trial
On 10 December 2003 the Kyivskyy court held a preliminary hearing, followed by some sixty hearings.
According to the applicant, he attended all the hearings while being under an undertaking not to abscond from 30 July 2003 to 25 May 2004.
On 21 April 2005 the court rejected the applicant’s request to hold hearings without interruptions on the ground that there was a set schedule for the escorted delivery of detainees, which had to be respected.
The applicant unsuccessfully complained about the length of the trial to the Council of Judges of Ukraine, to the Kharkiv Court of Appeal and to various other authorities. He was informed in reply that it was caused by the complexity of the case (the case-file consisting of twelve volumes), the large number of victims (over fifty), as well as by the need to handle numerous motions and petitions from the applicant.
On 1 August 2006 the Kyivskyy court pronounced its verdict.
On 13 February 2007 the Kharkiv Court of Appeal quashed it and remitted the case to the same first-instance court for fresh examination. It also ordered the applicant’s release under an undertaking not to abscond.
On 13 March 2007 the Kharkiv Court of Appeal decided to examine the case itself as a court of first instance.
On 12 April 2007 it remitted the case to the Kharkiv Regional Prosecutor’s Office for additional investigation.
On 10 July 2007 the Supreme Court quashed the above ruling.
On 27 September 2007 the Kharkiv Court of Appeal started the examination of the case.
On 4 and 16 October 2007 the court adjourned hearings on account of the applicant’s failure to attend.
On 24 October 2007 it ordered the applicant’s detention on remand, the examination of the case being stayed until his whereabouts had been established.
5. The proceedings before the Court
After introducing his application with the Court in October 2005, the applicant alleged several times that he had not been provided with copies of all the documents which he considered relevant to his application.
On 27 June and 25 July 2006 the Registry of the Court wrote to the applicant that no additional documents had been requested from him.
B. Relevant domestic law
The relevant provisions of the Code of Criminal Procedure (CCP) are to be found in the judgments in the following cases: Nevmerzhitsky v. Ukraine, no. 54825/00, §§ 53-54, ECHR 2005 II (extracts), Kucheruk v. Ukraine, no. 2570/04, §§ 67-69, ECHR 2007 ..., and Sergey Volosyuk v. Ukraine, no. 1291/03, §§ 24-25, 12 March 2009.
According to Article 274 of the CCP, when deciding on remanding the defendant in custody, the trial court shall be guided by the provisions of Chapter 13 of the Code applicable to the pre-trial detention.
Article 1653 of the CCP (a part of Chapter 13) provides for a possibility to appeal against rulings of the court on prolongation of the pre-trial detention term within three days after their pronouncement.
Pursuant to Article 347 of the CCP, which contains a non-exhaustive list of court decisions subject to challenging on appeal, it is possible to appeal against verdicts, which have not become final.
The applicant complained under Article 5 §§ 1 and 3 of the Convention that his detention had been unlawful and unreasonably long. He further complained under Article 5 § 4 that the domestic courts had failed to review the lawfulness of his detention.
He also complained about the conditions of his detention in SIZO-27.
The applicant next complained under Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention that the criminal proceedings against him were unfair and had lasted unreasonably long. He also relied in this respect on Article 13 of the Convention.
Relying on Article 14 of the Convention, the applicant complained, without being specific, that the judge of the Kyivskyy court dealing with his case had been treating him in a discriminatory manner on the ground of his application to the Court.
Finally, the applicant complained under Article 34 of the Convention that he had not had access to copies of certain documents which he considered necessary to substantiate his application before the Court.
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...
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.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
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 Court, to give notice of this part of the application to the respondent Government.
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
The Court notes that the applicant ceased to be in police custody on 30 July 2003 and that his undertaking not to abscond was lifted on 25 May 2004. It finds that this complaint relates to events or decisions which intervened more than six months before the date of introduction of the application (see Koval v. Ukraine (dec.), no. 65550/01, 10 December 2002 and, as a more recent reference, Ryshkevich v. Ukraine (dec.), no. 35312/02, 13 December 2005).
It follows that this complaint was lodged out of time for the purposes of Article 35 § 1 of the Convention and must be dismissed pursuant to Article 35 § 4.
The above complaint falls to be examined under Article 5 § 1 (a) of the Convention (see, mutatis mutandis, Kudła v. Poland [GC], no. 30210/96, § 104, ECHR 2000 XI).
The Court underlines that on the question whether a detention – as opposed to a conviction – is “lawful”, including whether it complies with “a procedure prescribed by law”, the Convention refers back essentially to national law and states the obligation to conform to the substantive and procedural rules thereof (see Karl-Heinz Gruber v. Germany (dec.), no. 45198/04, 20 November 2007).
Turning to the facts of the present case, the Court notes that the applicant’s detention during the mentioned period was based on his conviction of 1 August 2006 and that he was convicted by a competent court.
Accordingly, this part of the application is manifestly ill-founded and must be rejected under Article 35 §§ 3 and 4 of the Convention.
The Court notes that it informed the applicant twice that there was no need for any additional documents.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning the lawfulness, length and lack of review of lawfulness of his detention from 25 May 2004 to 1 August 2006, and the length of the proceedings;
Declares the remainder of the application inadmissible.
Stephen Phillips Peer Lorenzen
Deputy Registrar President