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SHAGIN v. UKRAINE - 20437/05 [2009] ECHR 2055 (10 December 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/2055.html
Cite as:
[2009] ECHR 2055
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FIFTH
SECTION
CASE OF
SHAGIN v. UKRAINE
(Application
no. 20437/05)
JUDGMENT
STRASBOURG
10
December 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Shagin v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a
Chamber composed of:
Peer Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
judges,
Mykhaylo
Buromenskiy, ad
hoc judge,
and
Claudia Westerdiek, Section
Registrar,
Having deliberated in private on 17 November 2009,
Delivers the following judgment:
PROCEDURE
The case originated in an application (no. 20437/05)
against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Russian national, Mr
Igor Igorevich Shagin (“the applicant”), on 1 June 2005.
The applicant was represented by Ms Y. Lysak, a lawyer
practising in Kyiv. The Ukrainian Government (“the Government”)
were represented by their Agent, Mr Yuriy Zaytsev..
The applicant alleged, in particular, that his trial
had not been public and that certain statements by high-ranking
public officials published in the media concerning his case had been
incompatible with the principle of the presumption of innocence.
On 27 March 2007 the Court decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3). The Russian Government did not wish to
exercise their right to intervene under Article 36 § 1 of
the Convention
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant, Mr Igor Igorevich Shagin, is a Russian
national who was born in 1970 and lives in Kyiv.
A. The pre-trial investigations
On an unspecified date criminal proceedings were
initiated on the suspicion that a network of private commercial
enterprises, “Top-Service”, directed by the applicant,
organized an armed group with conspiracy to kill State officials and
businessmen who were allegedly obstructing its business.
On 28 April 2000 the Podilskyy District Court of Kyiv
sanctioned the applicant for forcefully resisting police and placed
him under twelve days’ administrative arrest.
During the period of 28 April to 10 May 2000
the applicant was questioned and participated in a number of
investigative activities as a witness in the criminal proceedings
(see paragraph 6 above).
On 10 May 2000 the applicant was arrested as a suspect
and on the following day he had his first meeting with lawyers.
On 19 May 2000 the Kyiv Prosecutor’s Office
charged the applicant with banditism. Namely, he was charged with
having created a gangster group suspected of having committed eight
counts of murder, attempted murder and infliction of serious bodily
injuries.
On 18 April 2001 the pre-trial investigation was
declared completed and the applicant was given access to the case
file.
On 26 June 2001 the investigation was resumed and new
charges were brought against the applicant: in addition to banditism,
they included infringement on the life of a law-enforcement official
and incitement to murder for profit, related to the victims’
official duties and committed repeatedly by an organised group
following orders.
On the same day the applicant’s lawyer
complained to the Kyiv Prosecutor’s Office (“the Kyiv
prosecutor”) that by reopening the investigation the
investigator had in fact unlawfully prolonged the term of the
applicant’s detention and had violated his right to defence.
On 27 June 2001 the Kyiv prosecutor rejected the above
complaints, having noted, in particular, that the reopening of the
investigation had been necessitated by the need for additional
investigative activities and that the applicant would be given the
opportunity to study the case file again after the completion of the
investigation.
On 29 January 2002 the Kyiv prosecutor found
unsubstantiated the applicant’s complaints that, inter alia,
he had not had access to the schedule for studying the case-file and
to certain documents, as he had signed a statement to the contrary.
On
13 February 2002 a new indictment was brought against the applicant.
He was charged with additional counts of incitement to murder.
From
13 to 15 February 2002 the applicant, at his own request, submitted
in writing his statements in respect of the new charges, in which he
alleged that he himself had been a victim of banditism. However, on
15 February 2002 the investigator proposed that he answer
his questions instead, as he claimed that the applicant’s
statements did not relate to the essence of the charges against him.
The applicant explained that he would answer the questions as soon as
he had finished writing his statements and asked not to be prevented
from using that possibility fully. On the same day the investigator
declared the investigation completed, having found the applicant’s
statements to be of no relevance for the investigation at issue. The
applicant’s lawyer complained about that to the Kyiv
prosecutor, who upheld the investigator’s actions.
On
30 September 2002 the case was referred to the Kyiv City Court of
Appeal (“the Kyiv Court of Appeal”) for trial. The
applicant continued to be represented by at least two professional
lawyers.
B. The trial
The
proceedings in the Kyiv Court of Appeal, which acted as a
first-instance court, lasted from 4 November 2002 until 16 March
2004. As the case had attracted public attention and no court room
was big enough for all those wishing to attend, a cinema hall was
rented by the court for this purpose.
However,
on 23 May 2003 the court decided to hold hearings in camera,
stating as follows:
“... The hearing is constantly attended by a
person, who, according to him, on the orders of Mr Shagin, audiotapes
[the proceedings]. This person does not react to the repeated remarks
of the Presiding Judge in this respect. Furthermore, this person has
a pistol on him.
The Court, bearing in mind the number of charges, with a
view to avoiding disclosure of the statements of witnesses and
victims, and in order to safeguard the security of the trial
participants, according to the recommendations of Section 6 of
Resolution No. 10 of the Plenary of the Supreme Court of Ukraine of
18 June 1999 “On Application of the Law ‘On the State
Protection of Judges, Employees of Courts and Law Enforcement Bodies
and Trial Participants’, Articles 7 and 16 of the Law ‘On
the Protection of the Security of Persons Participating in Criminal
Trials’”,
RULED:
to hold further hearings of the criminal case against
Shagin Igor Igorevich and others in camera.”
In
accordance with the procedural legislation this ruling was not
subject to appeal. The applicant, who denied having instructed anyone
to audiotape the hearings, unsuccessfully called for an investigation
into the incident and requested the bench to reconsider its decision.
The
hearings continued in camera in the cinema.
As
it follows from a letter of the Kyiv Court of Appeal to the local bar
commission of 20 November 2003 on an unrelated issue, the security
measures for the trial included the presence of at least seventy
guards.
In
the course of the trial some fifty-five witnesses and fifteen
co-defendants gave evidence. The court examined the written
statements of about one hundred witnesses who had been questioned
during the pre-trial investigation but failed to attend the trial, as
well as self-incriminating statements by the co-defendants obtained
during the pre-trial investigation. The court further reviewed
videotapes of several reconstitutions of events. It also examined
a large quantity of written evidence and experts’
opinions, which included: the registration and statutory documents of
all the companies within the network; their contracts with other
enterprises throughout the business chain; findings of the related
investigation undertaken in Russia, Belarus, Latvia and Estonia under
the inter-State legal aid scheme; findings of the investigation by
Interpol; and numerous other documents.
During
the trial the co-defendants withdrew their self-incriminating
statements and pleaded innocent. They alleged that they had been
forced to incriminate themselves and the applicant. The court
examined their allegations of ill-treatment in police custody (of
which the applicant did not complain) and found them unsubstantiated,
having referred, inter alia, to the results of medical
examinations they had undergone and the lack of any complaints on
their part during the investigation.
In
the course of the trial the applicant requested the court to summon
certain witnesses: namely, one of the cofounders of the companies led
by the applicant, Mr F., who had allegedly possessed more information
than he had disclosed during the pre-trial investigation; certain
customs officials; and the manager of one of the Russian companies,
who could allegedly confirm his business relationship with the
applicant. The court allowed his request concerning Mr F. and
rejected the others. Mr F. was summoned by the court several
times, but failed to appear.
The
trial court established that the applicant had managed a network of
companies involved in fraudulent financial activities and that he had
created a gangster group for the protection of its business
interests.
On
15 March 2004 it found the applicant guilty of having formed a
criminal organisation, three counts of incitement to murder, as well
as incitement to inflict serious bodily injuries on a law-enforcement
official and infringement on the life of a law-enforcement official,
and sentenced him to life imprisonment.
The
applicant’s subsequent appeal in cassation challenged the above
judgment on a number of points: the admissibility of the evidence
admitted by the court, a lack of conclusive evidence for each count,
the refusal of the investigator to continue questioning the
applicant, and the court’s failure to summon or to ensure
attendance of certain witnesses. The applicant also complained that
the high-ranking prosecution officials had publicly declared him
guilty even before his first questioning as a suspect and that the
court had also presumed him guilty from the outset.
On
14 December 2004 the Supreme Court of Ukraine, following a public
hearing, upheld the applicant’s conviction, having heard the
arguments of the prosecution and the defence and having assessed the
case file materials. Its ruling did not address any of the specific
issues raised by the applicant in his cassation appeal. According to
the applicant, the Supreme Court held only one hearing, which lasted
for about four hours.
C. The press conference of 10 May 2000 and its media
coverage
On
10 May 2000, immediately following the applicant’s arrest as a
suspect in the criminal investigation, the Kyiv Prosecutor’s
Office organised a press conference, which received broad coverage in
the media.
On
12 May 2000 the Segodnia daily newspaper published an article
entitled “A gang of killers has been arrested in the capital
(sensation)”, which contained the following statements:
“The Kyiv Prosecutor Y. G., his first deputy V. S.
and Deputy Head of the Kyiv Department of the Ministry of the
Interior told journalists about the arrest of fourteen members of a
gang which has been engaged in criminal activities in the city since
1997. ... According to the law-enforcement authorities, the director
of one of the “Top-Service” structures, Igor Shagin, is
suspected of being a principal inciter. He is charged with eight
incitements, including incitement to murder ... Shagin paid about
100,000 US dollars in cash to his accomplices to carry out the
crimes. ... The Kyiv Prosecutor stressed that “the officials
were persecuted by the gangsters exclusively on account of the
scrupulous performance of their duties, which had interfered with the
plans of the structure headed by Shagin ...”
On
the same day the Fakty I Kommentarii daily newspaper published
an article entitled “For the first time an organized group of
killers, which executed murders of state officials, was arrested in
Kyiv”. The article contained the following statements:
“During yesterday’s briefing, the Kyiv
Prosecutor Y. G. told journalists that a series of ordered murders
and attempted murders had been uncovered ... Fourteen members of the
gang involved in the commission of those crimes have been arrested:
six killers, three intermediaries, four inciters and one arms
supplier. The head of the gang is also among the arrestees –
it’s Igor Shagin, one of the directors of a well-known trading
company, “Top-Service”. The killers confessed that it was
he who had incited the murders ...”
The
article also quoted the First Deputy of the Kyiv Prosecutor V. S. as
follows:
“30 year old Igor Shagin ... was the inciter of
eight out of twelve episodes established by us. ... Shagin paid the
killers a total of about 100,000 US dollars to carry out his orders
...”
On
the same day the Den daily newspaper published an article
under the headline “The criminal leader has been identified
(eight crimes against Kyiv public officials are attributed to him)”,
which contained the following:
“Kyiv Prosecutor Y.G. reported yesterday at the
press-conference that the director of “Top-Service”, the
Russian national Igor Shagin, had incited eight crimes against State
officials between 1997 and 2000...”
On
the same day the Kievskie Vedomosti daily newspaper published
an article entitled “Murderous Top-Service”, in which it
quoted the First Deputy of the Kyiv Prosecutor, V. S., as follows:
“According to our calculations, Shagin paid the
killers a total of about 100,000 US dollars in cash to carry out his
orders. ... In fact, Shagin was the leader of that group. His orders
[to murder] were of a systematic nature.”
The
aforementioned quotations of the First Deputy of the Kyiv Prosecutor
V. S. also appeared on 16 May 2000 in the Vecherniye
Vesti newspaper’s article “Who is behind the
killers”.
On
15 May 2000 the Svoboda (“Freedom”) newspaper
published an article entitled “Bloody business”, where it
announced that:
“Sensational reports on the arrest of a large
gangster group were disclosed yesterday by the Head of the State Tax
Administration of Ukraine M. A. and Kyiv Prosecutor Y. G.
According to the Deputy Minister of the Interior V. M., the twelve
arrestees, including six professional killers, have a long record of
notorious crimes ... Heads of the law-enforcement bodies assured that
the ... governmental employees ... had become victims of the business
appetites of Igor Shagin, who was the head of Kyiv “Top-Service”
Ltd. Do you remember a nice commercial on TV “Oh,
‘Top-Service’, oh ‘Top Service’, people are
nice here ...”? That nice man Shagin incited others to kill
those who prevented him from implementing his plans.”
On
18 May 2000 the Yuridicheskaya Praktika (“Legal
Practice”) weekly newspaper published an article under the
headline “Ukrainian-style presumption of innocence”, in
which it expressed a view that the statements made by the public
officials concerning the applicant’s case were incompatible
with the principle of the presumption of innocence. The article
contained the following quotations of the Kyiv Prosecutor Y. G.:
“The killers are testifying that Shagin ordered
several attempted murders”; “These crimes can be
considered resolved even though the investigation is still going on”.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Public nature of the trial
Article
129 of the Constitution of Ukraine guarantees the public nature of a
trial as one of the fundamental principles of the administration of
justice.
Article
9 of the Law “On the Judiciary”, in so far as relevant,
reads as follows:
“The courts shall examine cases publicly, with the
exceptions envisaged by the procedural legislation. (...) In camera
hearings are possible upon a court’s ruling in the cases
envisaged by the procedural legislation.”
The
Code of Criminal Procedure, in its relevant part, provides as
follows:
“Article 20. Public nature of court proceedings
Judicial examination in all courts shall be public,
unless the interests of security of the state or other secrets
protected by law require otherwise.
Hearing in camera can also be allowed by a
reasoned court ruling in cases of crimes by minors, in cases of
sexual crimes, and in other cases with a view to avoiding disclosure
of the private information of the trial participants, or in cases
when it is necessary for the security of persons under protection.
...”
The
Law “On Protection of the Security of Persons Participating in
Criminal Trials” provides for hearings in camera as a
security measure (Article 7). Pursuant to its Article 16, hearings in
camera may take place if ordered by a reasoned court ruling in
cases where it is necessary for the security of persons under
protection.
Section
6 of Resolution No. 10 of 18 June 1999 of the Plenary of the Supreme
Court of Ukraine “On Application of the Law ‘On the State
Protection of Judges, Employees of Courts and Law Enforcement Bodies
and Trial Participants’” reads as follows:
“In order to avoid
disclosure of incriminating statements of victims and witnesses,
where there is a real danger of infringement on their life, home or
property, courts may hold hearings in criminal cases (especially in
cases of organized crime) in camera.”
B. Presumption of innocence
The
principle of the presumption of innocence is enshrined in
Article 62 of the Constitution of Ukraine, which can be
found in the judgment of Grabchuk v. Ukraine, no. 8599/02,
§ 26, 21 September 2006.
Article
2 of the Criminal Code, in so far as relevant, reads as follows:
“A person shall be presumed innocent of committing
a crime and shall not be subjected to criminal punishment until his
or her guilt is proved in compliance with the legally established
procedure and established by a court’s verdict of guilty”.
Resolution
No. 5 of the Presidium of the Supreme Court of Ukraine of
20 February 2004 “On the situation with the
administration of justice in 2003 and 2004” contained the
following paragraph:
“There have been numerous publications in the
media in breach of Article 62 of the Constitution concerning
persons not yet found guilty of having committed crimes by a court’s
verdict. Those included the publication of statements aimed at
prejudging cases in favour of certain persons.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE TRIAL IN CAMERA
The
applicant complained that his right to a public hearing had been
violated as a result of the allegedly unjustified exclusion of the
public from the proceedings by the Kyiv Court of Appeal from
23 May 2003 onwards. He relied on Article 6 § 1
of the Convention, which reads, in so far as relevant, as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... public hearing ...”
A. Admissibility
The
Government contended that this part of the application was
inadmissible as being submitted outside the six-month time-limit,
which, according to them, had started running on 23 May 2003,
when the trial court had ruled to hold further hearings in camera.
The
applicant disagreed.
The Court underlines that, in accordance with Article
35 § 1 of the Convention, it may only examine complaints which
have been submitted within six months from the date of the “final”
domestic decision.
It
notes that the present complaint concerns an alleged violation of one
of the elements of the right to a fair trial, in a trial which was
completed by the final ruling of the Supreme Court on
14 December 2004.
Accordingly,
the Court considers that the applicant complied with the six-month
time-limit and dismisses the Government’s objection.
The
Court notes that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
The
Government did not make any submissions on the merits of the case.
The
applicant maintained his complaint.
The
Court reiterates that the holding of court hearings in public
constitutes a fundamental principle enshrined in Article 6 § 1.
This public character of proceedings protects litigants against the
administration of justice in secret with no public scrutiny; it is
also one of the means whereby confidence in the courts can be
maintained. Administration of justice, including trials, derives
legitimacy from being conducted in public. By rendering the
administration of justice transparent, publicity contributes to
fulfilling the aim of Article 6 § 1, namely a fair trial, the
guarantee of which is one of the fundamental principles of any
democratic society, within the meaning of the Convention (see
Belashev v. Russia, no. 28617/03, § 79,
4 December 2008, with further references).
The
Court notes, however, that the requirement to hold a public hearing
is subject to exceptions. This is apparent from the text of
Article 6 § 1 itself, which contains the
provision that “the press and public may be excluded from all
or part of the trial in the interests of ... national security in a
democratic society, ... or to the extent strictly necessary in the
opinion of the court in special circumstances where publicity would
prejudice the interests of justice”. Thus, it may on occasion
be necessary under Article 6 to limit the open and public nature of
proceedings in order, for example, to protect the safety or privacy
of witnesses, or to promote the free exchange of information and
opinion in the pursuit of justice (see B. and P. v. the
United Kingdom, nos. 36337/97 and 35974/97, § 37, ECHR
2001 III, with further references).
The Court also observes that there is a high
expectation of publicity in ordinary criminal proceedings, which may
well concern dangerous individuals, notwithstanding the attendant
security problems (see Campbell and Fell v. the United Kingdom,
28 June 1984, § 87, Series A no. 80). Moreover,
security problems, although being a common feature of many criminal
proceedings, rarely justify excluding the public from a trial (see
Riepan v. Austria, no. 35115/97, § 34, ECHR 2000 XII).
Furthermore, the Court underlines the importance of a
public hearing before the first-instance court in criminal
proceedings where the scope of any subsequent review by the appellate
court is limited; and thus even if the examination of the case on
appeal is public, this will not necessarily remedy the lack of
publicity during the trial (see, mutatis mutandis,
Riepan, cited above, § 37).
Turning
to the facts of the present case, the Court notes that initially the
Kyiv Court of Appeal implemented unusual measures in order to ensure
the attendance of the press and public – it rented a big hall
where open hearings took place for the first six months, until it was
decided on 23 May 2003 to exclude the public. The trial
continued in camera for almost ten months.
The
Court’s task in the present case is to establish, first of all,
whether the exclusion of the public from the hearings before the Kyiv
Court of Appeal, acting as a trial court, was justified for the
purposes of any of the exceptions to the rule of the public hearing
under Article 6 § 1 of the Convention. If no such justification
is found, it will remain to be seen whether the lack of a public
hearing before the trial court could have been remedied by its public
examination by the Supreme Court.
The
Court observes that the Kyiv Court of Appeal advanced the following
two reasons for the exclusion of the public from the hearings in its
ruling of 23 May 2003: the privacy of the witnesses and
victims and the security of the trial participants. The only
explanation given as to what had caused those concerns was a
reference to the presence of an unidentified individual in the
audience, who was allegedly armed and who had allegedly been
audio-recording the hearings on the applicant’s instruction and
in disregard of the judges’ remarks.
Given
the nature and scope of the charges against the applicant and other
co-defendants, as well as the broad media coverage of the criminal
proceedings at issue, the Court is satisfied that this case was a
matter of substantial interest to the public.
The
Court further observes that the venue for the trial was well-suited
to accommodate a large audience (see paragraph 19 above) and
that adequate security measures seem to have been taken for ensuring
order in the court room (see paragraph 23 above).
The
Court reiterates that security concerns may, if only rarely, justify
excluding the public from a trial (see paragraph 58 above). However,
any such security matters would have to be of substantial weight and
fully explained. The only specific justification given by the trial
court in the present case for excluding the public was the presence
of a particular individual who was taping the proceedings and who was
armed. However, it is not apparent why the presence of one individual
called for exclusion of the public: any security issues raised by the
individual could have been less far-reaching measures, such as
removing him from the court-room. The trial court’s other
comments, a reference to the need to avoid disclosure of the
statements of witness and victims and a general reference to the
security of participants, were not put in context or otherwise
explained either by the domestic courts or by the Government in the
proceedings before the Court. The Court finds that no reasons have
been given which could justify the exclusion of the public from the
entirety of the first-instance proceedings.
The
Court does not consider that the public examination of the case by
the Supreme Court remedied its lack before the trial court. Thus, in
practice its review was incomparably more limited than that of the
first-instance trial, as there was no rehearing or examination of
witnesses and only one hearing was held at that stage of the
proceedings (see paragraphs 19, 24 and 30 above).
Having
regard to these considerations, the Court concludes that there has
been a violation of Article 6 § 1 of the Convention owing to the
lack of a public hearing in the applicant’s case.
II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
The applicant complained that public officials had
made statements to the mass media asserting his guilt prior to his
conviction by a court, thus influencing public opinion and prejudging
the case against him. He relied on Article 6 § 2 of the
Convention, which provides as follows:
“Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.”
A. Admissibility
1. Exhaustion of domestic remedies
The
Government submitted that the applicant should have brought a civil
action against the public officials involved seeking damages for his
alleged defamation, which was in their opinion an effective remedy to
pursue in the circumstances.
The
applicant contested that view.
71. The
Court reiterates that the presumption of innocence, like the
safeguards provided by Article 6 § 3, is viewed as a
specific guarantee of a fair trial in the determination of a criminal
charge against an individual (see paragraph 81 below). The Court
observes that in the present case the applicant could and did raise
this complaint before the courts dealing with his criminal case (for
the facts, see paragraph 29 above; and for the case-law, see, a
contrario, Ksenzov
v. Russia (dec.), no. 75386/01,
27 January 2005, and Koval
v. Ukraine (dec.), no. 65550/01, 10 December 2002).
72. The
Court does not exclude that the avenue advanced by the Government
could have been an effective domestic remedy. However, where
several remedies are available, the applicant is not required to
pursue more than one (see Karakó v. Hungary,
no. 39311/05, § 14, 28 April 2009, with further
references).
It
follows that the complaint cannot be declared inadmissible for
non-exhaustion of domestic remedies.
2. Compliance with the six-month time-limit
The
Government asserted, alternatively to their non-exhaustion objection,
that the applicant had introduced this complaint out of the six-month
time-limit. The latter disagreed.
Having
regard to its findings in paragraphs 71 and 73 above,
the Court considers that the six-month time-limit, for the purposes
of Article 35 § 1 of the Convention, started
running for the applicant with the final determination of the
criminal charge against him by the Supreme Court
on 14 December 2004.
The
Court observes that the applicant introduced his application with the
Court on 1 June 2005, which was within the time-limit.
Accordingly,
the Court dismisses this objection by the Government as well.
The
Court further notes that this part of the application is not
manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
Having raised the aforementioned objections as to the
admissibility of this complaint, the Government did not make any
submissions on its merits.
The
applicant maintained his complaint.
The Court reiterates that the presumption of innocence
enshrined in Article 6 § 2 of the Convention is one of the
elements of a fair criminal trial guaranteed by Article 6 § 1
(see Allenet de Ribemont v. France, 10 February 1995,
§ 35, Series A no. 308). It does not only prohibit the
premature expression by the tribunal itself of the opinion that the
person “charged with a criminal offence” is guilty before
he has been so proved according to law, but also covers statements
made by other public officials about pending criminal investigations
which encourage the public to believe that the suspect is guilty and
prejudge the assessment of the facts by the competent judicial
authority (for a recapitulation of the relevant case-law, see, for
example, Khuzhin and Others v. Russia, no. 13470/02, § 93,
23 October 2008). It suffices, even in the absence of any
formal finding, that there is some reasoning to suggest that the
official regards the accused as guilty (see Böhmer v.
Germany, no. 37568/97, § 54, 3 October 2002). In this
regard the Court has emphasised the importance of the choice of words
by public officials in their statements before a person has been
tried and found guilty of a particular criminal offence (see Daktaras
v. Lithuania, no. 42095/98, § 41, ECHR
2000-X). Thus, a fundamental distinction must be made between a
statement that someone is merely suspected of having committed a
crime and a clear declaration, in the absence of a final conviction,
that an individual has committed the crime in question (see Ismoilov
and Others v. Russia, no. 2947/06, § 166, 24 April
2008). Whether a statement by a public official is in breach of the
principle of the presumption of innocence must be determined in the
context of the particular circumstances in which the impugned
statement was made (see Daktaras, cited above, § 43).
Moreover,
in determining whether an impugned statement by a public official
amounts to a violation of Article 6 § 2, the Court does not
attach crucial importance to the nature or outcome of any subsequent
judicial proceedings. Thus, the Court held that there had been a
violation of Article 6 § 2 of the Convention even
in cases where the national courts had discontinued the criminal
proceedings as time-barred, where the applicant had been acquitted,
and where the domestic courts had not had to determine the question
of guilt at all (see Allenet de Ribemont, cited above, §
35).
The
Court underlines that Article 6 § 2 of the Convention cannot
prevent the authorities from informing the public about criminal
investigations in progress, which would run counter to the principles
of the freedom of expression enshrined in Article 10 of the
Convention. However, it requires that they do so with all the
discretion and circumspection necessary if the presumption of
innocence is to be respected (see Allenet de Ribemont, cited
above, § 38). At the same time, the investigation and
police authorities cannot be held responsible for the actions of the
media (see Y.B. and Others v. Turkey, nos. 48173/99 and
48319/99, § 48, 28 October 2004).
Turning
to the facts of the present case, the Court observes that some
high-ranking prosecution, police and tax administration officials
made statements concerning the criminal proceedings against the
applicant at the very initial stage of those proceedings and in a
context independent of them, namely at a press-conference organised
by the Kyiv Prosecutor’s Office.
As
to the content of the impugned statements, and in the absence of any
explanations from the Government, the Court can only base its
judgment on a number of publications in the press, having in its
possession neither the transcript of the aforementioned press
conference nor any press releases which could have been issued by its
organisers. In order to avoid mistaking the journalists’
interpretations for the authentic statements of the public officials
concerned, the Court will limit its assessment to the statement of
the First Deputy of the Kyiv Prosecutor V. S., which was
consistently quoted in three different newspapers (see paragraphs 34,
36 and 37 above). It was as follows: “According to our
calculations, Shagin paid the killers a total of about 100 thousand
US dollars in cash to carry out his orders. ... In fact, Shagin was
the leader of that group. His orders [to murder] were of a systematic
nature”.
In
the Court’s view, the wording chosen indicates that the speaker
considered it to be an established fact that the applicant had been
ordering and paying for murders, while the only issue about which he
was less confident was the exact amount paid for the killings.
Accordingly, this statement, which had been made long before the
applicant’s indictment, amounted to a declaration of his guilt,
which, first, encouraged the public to believe him to be guilty and,
secondly, prejudged the assessment of the facts by the competent
judicial authority.
There
has therefore been a breach of Article 6 § 2 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Other alleged violations of Article 6 of the
Convention
The
applicant also complained under Article 6 § 1 of
the Convention that his trial had not been truly adversarial and that
his conviction had been largely based on evidence not examined during
the hearings. He also complained, relying on Article 6 § 3
(a), (b), (c) and (d) of the Convention, that he had not been
promptly informed about the charges against him, that he had not had
access to a lawyer at the initial stages of the investigation, that
he had been restricted in presenting his arguments to the
investigator and in his study of the case file, and that he had not
been able to examine some witnesses in court.
However, in the light of all the material before it,
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 provisions the
applicant relied on.
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.
B. Alleged violations of other provisions of the
Convention
The
applicant complained under Article 3 of the Convention that he had
been ill-treated in police custody following his arrest on
28 April 2000.
The
Court notes that this complaint was never raised before the domestic
authorities in compliance with the procedural legislation and it
therefore rejects it for non-exhaustion of domestic remedies pursuant
to Article 35 § 1 of the Convention.
The
applicant next complained under the same provision about the
conditions of his detention between 28 April and 7 May 2000.
Even
assuming, to the applicant’s benefit, that he had had no
effective remedies to pursue in regard of this complaint, the Court
notes that the application was introduced about five years after the
situation complained of had ceased to exist. It therefore rejects
this complaint under Article 35 §§ 1 and 4 of the
Convention as being out of the six-month time-limit.
Lastly,
the applicant complained under Article 5 §§ 1 (c) and 4 of
the Convention about the alleged unlawfulness and lack of judicial
review of his detention during the period of 28 April to
10 May 2000.
The Court notes that the applicant was convicted by
the first-instance court on 15 March 2004. Thereafter for the
purposes of the Convention he was a person convicted by a competent
court, pursuant to Article 5 § 1 (a) of the Convention
and, consequently, ceased to be detained pending investigation and
trial under Article 5 § 1 (c) (see Ivakhnenko v. Russia
(dec.), no. 12622/04, 21 October 2008, with further
references). The application was lodged with the Court on 1 June
2005, that is, more than six months after the applicant’s
detention pending trial, including that during the aforementioned
period, had ended.
It
follows that this complaint has been introduced out of time and must
be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed EUR 200,000 in respect of non-pecuniary
damage.
The
Government contested that claim.
The
Court considers that the applicant must have suffered non-pecuniary
damage, in particular for the violation of the presumption of
innocence, which cannot be sufficiently compensated by the finding of
a violation alone. Ruling on an equitable basis, it awards him EUR
2,000 under that head.
B. Costs and expenses
The
applicant made no claim for costs and expenses. Accordingly, the
Court makes no award.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints concerning the
applicant’s trial in camera and the alleged breach
of his right to the presumption of innocence admissible and the
remainder of the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention on account of the lack of a public
hearing;
Holds that there has been a violation of Article
6 § 2 of the Convention;
Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 2,000 (two thousands euros) in respect of
non-pecuniary damage plus any tax that may be chargeable, to be
converted into the currency of the respondent State at the rate
applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
