AS TO THE ADMISSIBILITY OF
by Aleksey Aleksandrovich MOSKALENKO
The European Court of Human Rights (Fifth Section), sitting on 26 May 2009 as a Chamber composed of:
Peer Lorenzen, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 5 October 2004,
Having deliberated, decides as follows:
The applicant, Mr Aleksey Aleksandrovich Moskalenko, is a Ukrainian national who was born in 1982 and is apparently detained in the Donetsk no. 5 Pre-Trial Detention Centre, Ukraine.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Criminal proceedings against the applicant
On 7 July 2003 the local prosecutor instituted criminal proceedings against the applicant, a minor at that time, and a certain S., suspecting them of having murdered G. In his decision the prosecutor noted that the suspects had absconded at that time.
On 10 July 2003 the investigator formally charged the applicant and S. with, inter alia, aggravated murder and robbery. It appears that the applicant was informed of that decision after his arrest only.
The next day the investigator sought the applicant’s remand in custody. He stated that the applicant had been charged with serious crimes and, given the applicant’s unknown whereabouts, could flee from prosecution. The same day the applicant and S. were put on the wanted list.
On 15 July 2003 the police conducted a search of the apartment where the applicant lived with his parents. However, the applicant was absent at the time. According to the applicant’s father, the police informed him that his son was suspected of having committed murder.
The next day the applicant and his father went to the police station and the applicant was arrested.
It appears from the applicant’s submissions that he was represented from the very beginning by a lawyer appointed through a legal aid scheme; however, that representation was, in the applicant’s view, purely formal. A few days later he hired another lawyer. Due to alleged incompetence and ineffectiveness the applicant changed lawyers several times.
On 19 July 2003 the Maryinka District Court upheld the reasons stated in the investigator’s request for detention and remanded the applicant in custody. According to the applicant, neither he nor his representative was present at that hearing.
By November 2003 the pre-trial investigation was completed and the case was transferred to the Donetsk Regional Court of Appeal for examination.
On an unspecified date the applicant requested the court to replace his detention with a non-custodial preventive measure. He also requested the court to discontinue the proceedings against him for lack of proof of his guilt. On 10 August 2004 the court dismissed the requests, referring, inter alia, to the seriousness of the crimes of which he was suspected. The same request was lodged with the court on 28 February 2005 but the decision on it is not known.
On 9 December 2004 the Donetsk Regional Court of Appeal remitted the case for additional investigation.
On 3 March 2005 the case was transferred back to the court.
On 21 March 2005 the Donetsk Regional Court of Appeal remitted the case for additional investigation.
On 23 May 2005 the applicant challenged his detention order of 19 July 2003 before the Donetsk Regional Court of Appeal. On 27 May 2005 the court found that the appeal had been lodged out of the statutory time-limit; as the applicant did not explain the cause of his belated appeal the court dismissed it. The decision was not subject to any appeal.
On 1 November 2006 the Donetsk Regional Court of Appeal found the applicant guilty of the crimes he was charged with and sentenced him to fifteen years’ imprisonment.
On 14 February 2008 the Supreme Court, ruling on appeals by the prosecutor and the applicant, quashed the judgment and remitted the case for retrial.
Apparently the proceedings against the applicant are still pending.
2. Other proceedings
The applicant’s father requested the police to institute criminal proceedings against the lawyers he had hired to represent the interests of his son in the criminal proceedings, charging them with fraud. By a letter of 22 November 2007 he was informed that the criminal proceedings had not been instituted due to lack of corpus delicti in the lawyers’ acts and that he should pursue a private prosecution. Disciplinary proceedings against the lawyers were also unsuccessful.
He also sought prosecution of the local prosecutor but in vain.
The applicant’s father also instituted several sets of civil and administrative proceedings against the judge of the Donetsk Regional Court of Appeal who had examined the charges against the applicant and the local Prosecutor’s Office, seeking to have abuse of power acknowledged on their part. These claims were either dismissed for procedural shortcomings (decisions of 18 January, 1 February and 24 April 2007) or are apparently still under consideration.
Relying on Articles 6 § 1 and 13 of the Convention the applicant complains:
that his arrest on 16 July 2003 and further detention were unlawful;
that the decision of 19 July 2003 was unlawful;
that there had been no opportunity for him to appeal against the decision of 19 July 2003 since he had neither been present at the hearing nor had he been informed of that decision in timely fashion;
that the conditions of his detention had been “inhuman”, without any further specification;
that his lawyers’ performance had been poor;
that he had had no opportunity to bring proceedings against those responsible for the alleged violations (for example, lawyers, prosecutors, judges);
that his pre-trial detention had been lengthy; and
that the criminal proceedings against him had been unfair.
A. The length of the applicant’s pre-trial detention
The applicant complained, without relying on any provision of the Convention, about the length of his pre-trial detention. The Court considers that this complaint should be examined under Article 5 § 3 of the Convention, which is the relevant provision and which provides, in so far as relevant, as follows:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
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 the Court, to give notice of this part of the application to the respondent Government.
B. Other complaints
The Court has examined the remainder of the applicant’s complaints and considers that, in the light of all the materials in its possession and in so far as the matters complained of are within its competence, they do 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 applicant’s complaint under Article 5 § 3 of the Convention concerning the length of the applicant’s pre-trial detention;
Declares the remainder of the application inadmissible.
Claudia Westerdiek Peer Lorenzen