CASE OF SHAGIN v. UKRAINE
(Application no. 20437/05)
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:
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:
I. THE CIRCUMSTANCES OF THE CASE
A. The pre-trial investigations
B. The trial
“... 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’”,
to hold further hearings of the criminal case against Shagin Igor Igorevich and others in camera.”
C. The press conference of 10 May 2000 and its media coverage
“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 ...”
“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 ...”
“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 ...”
“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...”
“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.”
“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.”
“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
“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.”
“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. ...”
“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
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”.
“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.”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE TRIAL IN CAMERA
“In the determination of ... any criminal charge against him, everyone is entitled to a ... public hearing ...”
II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
1. Exhaustion of domestic remedies
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).
2. Compliance with the six-month time-limit
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Other alleged violations of Article 6 of the Convention
B. Alleged violations of other provisions of the Convention
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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;
Done in English, and notified in writing on 10 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Westerdiek Peer Lorenzen