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URL: http://www.bailii.org/eu/cases/ECHR/2009/1361.html
Cite as: [2009] ECHR 1361

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FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31240/03
by Andrey Vasilyevich ZHUKOVSKIY
against Ukraine and Russia

The European Court of Human Rights (Fifth Section), sitting on 8 September 2009 as a Chamber composed of:

Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Rait Maruste,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 13 September 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Andrey Vasilyevich Zhukovskiy, is a Ukrainian national who was born in 1979 and is currently detained in the Zhytomyr Prison No. 8.

The circumstances of the case

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

In 1996 the applicant moved from Ukraine to the Sakha Republic in the Russian Federation.

On 21 June 1998 the applicant witnessed a murder in the house in which he lived in Yakutsk, Russia. According to the applicant, he did not participate in the murder, but later under threat assisted in transporting and hiding the corpse. Being afraid for his life and the life of his girl-friend he informed the police about the murder only after some delay and showed them the place in which the corpse had been hidden.

On 14 September 1998 the police charged him with failure to report a crime and placed him in custody. He spent more than five months in detention. He maintains that he was constantly beaten by the police who tried to coerce him to confess, but to no avail.

On 12 February 1999 the applicant was released and told to go to the place of his permanent residence in Ukraine. According to the case-file material he was released under an obligation not to abscond, but fled from justice.

In March 1999 the applicant returned to Ukraine.

From 2 to 28 April 1999 the applicant was detained by the Ukrainian police, allegedly for vagrancy.

From 6 June 1999 to 2 July 1999 he was detained without judicial scrutiny, upon an extradition request of the Russian law-enforcement bodies.

On 2 December 1999 the General Prosecutor’s Office of the Russian Federation requested the General Prosecutor’s Office of Ukraine under the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters 1993 (“the Minsk Convention”) to prosecute the applicant for the crime committed on the territory of the Russian Federation, given that the applicant, being a Ukrainian national, could not be extradited to Russia.

On 4 April 2001 the applicant was arrested and on 31 July 2001 the Chornobayivsky Local Court sentenced the applicant to six months’ imprisonment for another, unrelated offence. On 25 September 2001 the Cherkassy Court of Appeal upheld that judgment.

On 4 October 2001, under the request of 2 December 1999, the applicant was charged with murder committed on the territory of the Russian Federation.

On 18 December 2001 the Cherkassy Regional Court of Appeal held its first hearing in the criminal case against the applicant. No witnesses had appeared and the court summoned them from Russia.

On 22 February 2002 the court repeatedly requested the appearance of witnesses or alternatively the recording of their testimonies together with the obligatory appearance of the principal witness and the accomplice, who had been sentenced in Russia, in the court.

According to the applicant, the court received records of testimonies of only some witnesses.

On 29 July 2003 the Cherkassy Regional Court of Appeal, sitting as a first-instance court, found the applicant guilty of murder and sentenced him to 14 years’ imprisonment. The court also made a separate ruling noting the unlawfulness and irregularities of certain periods of the applicant’s detention.

On 18 November 2003 the Supreme Court upheld the decision of the Court of Appeal. In its decision, it stated that the applicant and his representatives had been aware of the difficulty of obtaining the attendance of witnesses from Russia and had agreed to the proposal to send a request to a Russian court to have them questioned in that country, but that they had not expressed any interest in attending the questioning.

On 10 December 2003 the “Vechirni Cherkassy” newspaper published a front-page article entitled “The tormentor who came from hell” in which the applicant, under his real name, was described as a bloodthirsty and pathologically cruel person who had been escaping serious punishment for his crimes until finally convicted for murder in July 2003.

COMPLAINTS

In his first letter of 13 September 2003 the applicant generally complained that his trial in Ukraine had been unfair and his conviction unlawful. He specified this complaint later (see point 4 below).

In his application form dated 21 January 2004 and sent to the Court on 13 March 2004, the applicant stated his complaints against the Russian Federation (point 1) and Ukraine (points 2 to 9) as follows:

under Articles 3 and 4 of the Convention - about ill-treatment by the Russian law-enforcement authorities during his detention in September 1998 – February 1999 and about conditions of this detention;

under Article 5 §§ 1 (c) and 3 of the Convention - that his detention on the territory of Ukraine had been unlawful and had not been reviewed by the courts;

under Article 6 § 1 of the Convention about the length of the criminal proceedings against him and lack of impartiality on the part of the courts;

under Article 6 §§ 1, 2, and 3 (b) and (d) of the Convention - that the criminal proceedings against him had been unfair and that the courts had based his conviction on the testimony of witnesses whom he had not been allowed to question;

under Article 8 of the Convention – that after his return from Russia he had lived a normal family life with his mother in Cherkassy until the Ukrainian law-enforcement authorities unlawfully interfered with it by arresting him in April 1999;

under Article 8 of the Convention – about a newspaper article published in December 2003, in which he was described as a monster;

under Article 13 of the Convention – about a lack of effective remedies in his case;

under Article 17 of the Convention – about the misinterpretation of the international legal assistance instruments in his case by the Supreme Court;

under Article 4 of Protocol No. 7, claiming that the position of the Supreme Court in his case left no hope for a successful extraordinary review of his case.

THE LAW

The applicant complained under Article 6 §§ 1, 2, and 3 (b) and (d) of the Convention that the criminal proceedings against him had been unfair and that he had not been given an opportunity to examine or have examined any of the witnesses in his case. The Court considers that among the provisions of Article 6 invoked by the applicant, Article 6 §§ 1 and 3 (d) are relevant to these complaints of the applicant. These provisions read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him...”

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.

The Court has examined the remainder of the applicant’s complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

Accordingly, it rejects this part of the application in accordance with Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints that his trial was unfair and that he was not able to examine witnesses, under Article 6 § 1 and 3 (d) of the Convention;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President