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SHALIMOV v. UKRAINE - 20808/02 [2010] ECHR 289 (4 March 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/289.html
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[2010] ECHR 289
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FIFTH
SECTION
CASE OF SHALIMOV v. UKRAINE
(Application
no. 20808/02)
JUDGMENT
STRASBOURG
4 March 2010
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 Shalimov 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,
Zdravka Kalaydjieva, judges,
Mykhaylo
Buromenskiy, ad hoc judge,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 26 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 20808/02) 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 Ukrainian national, Mr Sergey Vasiliyevich
Shalimov (“the applicant”), on 8 May 2002.
The
applicant was represented by Mr A.A. Kristenko, a lawyer practising
in Kharkiv. The Ukrainian Government (“the Government”)
were represented by their Agent, Mr Yu. Zaytsev, from the Ministry of
Justice.
On
25 November 2008 the Court declared the application partly
inadmissible and decided to communicate the complaints concerning
refusal of family visits (Article 8), excessive length of pre-trial
detention (Article 5 § 3), failure of the courts to consider his
complaints about the unlawfulness of his detention (Article 5 §
4), length and fairness of the criminal proceedings (Article 6 §§ 1
and 3 (c) and (d)) and lack of effective remedies for his complaints
under Articles 6 and 8 (Article 13) to the Government. It also
decided to examine the merits of the application at the same time as
its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1968 and is currently in detention.
According
to the applicant, on 26 October 1998 he found a small-bore rifle and
cartridges. He checked whether the rifle worked and then practised
shooting. While doing this he was accompanied by his friend T. At one
moment the applicant needed to go to the toilet and went over to some
bushes near the road. Behind the bushes he came face to face with two
strangers, later identified as E. and D., who allegedly behaved
aggressively towards him. According to the applicant, one of the
strangers was holding an object in his hand which the applicant took
for a gun. Fearing for his life, he fired at one of them in
self-defence and left. Soon he joined T., who was waiting for him at
some distance. The applicant told T. that he had fired into the
river.
Later
the same day the applicant separated the breechblock from the rifle
and threw them both into the river.
On 27
October 1998 E. and D. were found shot dead and criminal proceedings
were instituted.
On
30 October 1998 the applicant was arrested on suspicion of the murder
of E. and D. The applicant confessed to firing at D. in self-defence.
On
31 October 1998 investigating prosecutor Z. conducted a videotaped
on-site reconstruction of the events. During the reconstruction the
applicant asked to be represented by a lawyer. This request was
rejected by prosecutor Z.
On
2 November 1998 the Yenakiyevo Prosecutor ordered the applicant's
pre-trial detention on the ground that he was suspected of having
committed a crime punishable by imprisonment and that he might
abscond. The applicant's detention was extended on several occasions
by the prosecutors: to three months on 21 December 1998, to five
months on 25 January 1999 and to six months on 25 March 1999,
without indicating any grounds for the detention.
On
4 November 1998 K. was appointed as the applicant's lawyer.
Between
2 November 1998 and 27 April 1999 the investigation conducted several
different forensic examinations and questioned several witnesses. In
ordering a medical examination, the investigator requested the expert
to check whether the findings of the examination corresponded to the
applicant's statements as to the circumstances of the crime.
On
27 April 1999 the applicant requested that Ms P. be appointed his
lawyer. This request was granted.
From
27 April to 1 July 1999 the applicant and his lawyer were given time
to study the case file materials. On several occasions they requested
extension of the period of access to the case file.
On
1 July 1999 the bill of indictment was completed by the investigation
and referred to the Donetsk Court of Appeal (the Donetsk Court),
acting as a first-instance court.
On
15 July 1999 the applicant was committed for trial. The Donetsk Court
also continued to remand him in custody having decided to
leave the chosen preventive measure without changes.
On
10 December 1999 the court ordered two additional forensic
examinations in respect of the victims and the weapon which had been
used to commit the crime.
An
additional forensic medical examination in respect of the victims was
concluded on 14 June 2000.
An
additional ballistic examination was concluded on 5 January 2001.
On
1 March 2001 the judicial examination of the applicant's case was
resumed. The Donetsk Court also continued to remand the applicant in
custody without indicating any grounds.
In
September 2001 the Vice-President of the Donetsk Court of Appeal, in
reply to a complaint from the applicant that he was not being allowed
family visits, informed him that the hearing in his case had been
fixed for 14 January 2002 and that he would be allowed a family visit
after his case had been decided.
On
14 to 17 January 2002 the Donetsk Court held hearings in the case and
questioned several witnesses. Witnesses T. and K. failed to appear
before the court.
On
21 January 2002 the Donetsk Court decided to refer the criminal case
for further investigation on the grounds that prosecutor Z., who had
been in charge of the investigation, did not have legal power to
conduct the investigation; that the investigators had not located the
breechblock of the rifle; that it had not been proved beyond doubt
that the applicant had intentionally killed E. and D.; and that the
investigators had not fully checked the circumstances of the
applicant's confession. The court also continued to remand the
applicant in custody without indicating any grounds.
On
28 January 2002 the Donetsk Regional Prosecutor's Office lodged an
appeal against the decision of 21 January 2002.
On
14 March 2002 the Supreme Court quashed the decision of the Donetsk
Court of 21 January 2002 and remitted the case to it for examination.
The court noted that the prosecutor did have power to conduct the
investigation, and that the investigators had searched for the
breechblock of the rifle but that after three years it was not
possible to remedy the situation with regard to the missing item. The
court further noted that the first-instance court should have
verified the circumstances of the applicant's confession in the trial
proceedings. The court maintained, lastly, that the issue as to
whether there was sufficient evidence on which to convict the
applicant should be decided by the first-instance court during the
examination of the case on the merits.
On
15 April 2002 the applicant was committed for trial. The Donetsk
Court also continued to remand the applicant in custody without
indicating any grounds.
By
a letter of 12 September 2002, the Acting President of the Donetsk
Court, in reply to the applicant's complaint, informed him, among
other things, that due to the illness of Judge S., who had originally
dealt with his case, the case had been transferred to Judge D. on 1
March 2001 and was scheduled for examination on 14 January 2002.
Following the remittal of the case to the court on 4 April 2002 the
case was scheduled for 5 August 2002 and then, due to the
illness of Judge D., postponed to 9 September 2002.
On
24 September 2002 the Donetsk Court found the applicant guilty of two
murders motivated by hooliganism and sentenced him to fifteen years'
imprisonment. The court found that both victims had been killed by
the same weapon, which could have been the rifle used by the
applicant (conclusive identification was not possible without the
missing breechblock). The court established, inter alia, that
no other gun had been found at the site of the crime or elsewhere in
the neighbourhood, that T. had heard several shots while the
applicant had been behind the bushes and that the applicant had
behaved normally immediately after the incident and had not shown any
signs of agitation. The court further examined the procedural
shortcomings of the pre-trial investigation and disregarded the
pieces of evidence, including the videotaped reconstruction of events
of 31 October 1998, which had been obtained in violation of
the applicant's right to defence.
The
applicant appealed against the judgment of 24 September 2002
challenging, among other things, the testimonies of witness K. and
interpretation of evidence by the court.
By
a separate ruling of the same day, the Donetsk Court brought to the
attention of the Donetsk Regional Prosecutor's Office the procedural
violations committed by prosecutor Z. during the pre-trial
investigation, including refusing the applicant a lawyer during the
videotaped reconstruction of events. As a result of that ruling,
prosecutor Z. was found disciplinarily liable.
Following
the applicant's conviction, he was allowed to see his mother and his
wife. He had in total thirteen family visits between 25 September
2002 and 30 October 2003.
On
4 February 2003 the Donetsk Court gave a ruling rejecting the
applicant's request for access to the audio records of the hearings.
The applicant appealed.
On
26 February 2003 the Donetsk Court examined the applicant's
complaints concerning the records of the hearings and dismissed them.
On
15 May 2003 the Supreme Court quashed the rulings of 4 and
26 February 2003.
On
7 August 2003 the Donetsk Court rejected the applicant's challenge of
the court and his request for access to the audio records. The court
also examined the applicant's objections to the minutes of the
hearings and dismissed them.
On
2 October 2003 the Supreme Court upheld the judgment of 24 September
2002.
In
2002-2003 the applicant and his representative made number of
requests to the Donetsk Court of Appeal for receiving copies of the
documents from his criminal case file. In reply, they were informed
that only copies of the court judgment and respective decisions by
the higher courts on his appeal were furnished to the defendant. As
to other documents, the court informed that the applicant or his
representative could have access to the case file and could copy the
documents from it.
On
16 January 2004 the Debaltsevo Prosecutor's Office refused to
institute criminal proceedings against prosecutors Z. and N.
following a complaint by the applicant that his right to defence on
31 October 1998 had been violated and that the prosecutors had
claimed bribes from him in return for closing the case against him.
It was established that prosecutor Z. had been subject to
disciplinary sanctions for the above violation of the applicant's
right to defence. As to the allegations of proposed bribes, the
investigator rejected this complaint as unsubstantiated.
By
letters of 29 October 2004 and 8 September 2005, the Supreme Court
informed the applicant that there were no grounds for an
extraordinary review of his case.
II. RELEVANT DOMESTIC LAW
A. Pre-trial detention
39. The Code
of Criminal Procedure 1960 (prior to 21 June 2001) provided:
Article 236-3
Appeal against the prosecutor's arrest warrant
“The detainee, his defender or legal
representative may appeal against the prosecutor's arrest warrant to
the relevant district (city) court...
The appeal may be lodged directly with the court or
through the administration of the pre-trial detention centre, which
must send the appeal to the relevant court within twenty-four hours
of its receipt.”
Article 263
Rights of the defendant during the trial
“In the court proceedings the defendant has the
right:
...3) to lodge requests...”
Article 273
Procedure for rendering rulings in the court sittings
“In all matters decided by the court during the
trial, the court gives a ruling. Rulings on ... selection, change or
cancellation of a preventive measure ... decided by the court in
camera and drawn in form of a separate document signed by all judges.
Rulings rendered by the court during the trial shall be
pronounced... “
Article 274
Selection, termination or change of a preventive
measure in court
“During the court proceedings, if there are any
grounds to do so, the court may by its ruling change, cancel or
select a preventive measure in respect of the defendant ...”
The
above-mentioned Article 236-3 was excluded from the CCP on the basis
of the Code of Criminal Procedure Amendment Act of 21 June 2001.
By the Amendment Act, the new procedure of ordering and maintaining
detention at the pre-trial stage has been introduced:
Article 165
General provisions on the procedure of application,
cancellation and change the preventive measure
“A custodial preventive measure shall be applied
only by motivated judge order or court ruling...”
Article 165-2
Procedure for the selection of a preventive measure
“...In the event that the investigating body or
investigator considers that there are grounds for selecting a
custodial preventive measure, with the prosecutor's consent he shall
lodge an application with the court. The prosecutor is entitled to
lodge an application to the same effect. In determining this issue,
the prosecutor shall be obliged to familiarise himself with all the
material evidence in the case that would justify placing the person
in custody, and to verify that the evidence was received in a lawful
manner and is sufficient for charging the person.
The application shall be considered within seventy-two
hours of the time at which the suspect or accused is detained.
In the event that the application concerns the detention
of a person who is currently not deprived of his liberty, the judge
shall be entitled, by means of an order, to give permission for the
suspect to be detained and brought before the court under guard.
Detention in such cases may not exceed seventy-two hours; and in the
event that the person is outside the locality where the court is
situated, it may not exceed forty-eight hours from the moment at
which the detainee is brought within the locality.
Upon receiving the application, the judge shall examine
the material in the criminal case file submitted by the investigating
bodies or investigator. A prosecutor shall question the suspect or
accused and, if necessary, shall hear evidence from the person who is
the subject of the proceedings, shall obtain the opinion of the
previous prosecutor or defence counsel, if the latter appeared before
the court, and shall make an order:
(1) refusing to select the preventive measure
if there are no grounds for doing so;
(2) selecting a preventive measure in the
form of taking of a suspect or accused into custody.
The court shall be entitled to select for the suspect or
accused a non-custodial preventive measure if the investigator or
prosecutor refuses to select a custodial preventive measure for him
or her.
The judge's order may be appealed against to the court
of appeal by the prosecutor, suspect, accused or his or her defence
counsel or legal representative, within three days from the date on
which it was made. The lodging of an appeal shall not suspend the
execution of the judge's order.”
Relevant
parts of articles 263, 273 and 274 of the Code remained unchanged
after the amendments of 21 June 2001.
Other
relevant domestic law concerning pre-trial detention and
investigation is summarised in the cases of Solovey and Zozulya
v. Ukraine (nos. 40774/02 and 4048/03, § 43, 27
November 2008) and Shavel v.Ukraine ((dec.), no. 25486/03, 8
January 2007).
B. Family visits
Under
section 12(1) of the Pre-Trial Detention Act 1993, permission for
relatives to visit a detainee (in principle, once a month for one to
two hours) can be given by the authorities of the place of detention,
but only with the written approval of an investigator or a court
dealing with the case depending on whether it is the investigation or
the trial stage.
Relevant
provisions of the Code of Criminal Procedure 1960 read as follows:
Section 162
Visiting a detainee
“Visits of relatives or other persons to a
detainee can be allowed by a person or an institution that deals with
the case. The duration of the visit shall be fixed from one to two
hours. The visit can be allowed, as a rule, not more than once a
month.”
Section 345
Granting relatives permission to visit a convicted
person
“Prior to entry of the judgment into force, the
presiding judge or the president of the relevant court shall be
obliged to grant close relatives of a convicted person, upon their
request, permission to visit the detained convicted person.”
THE LAW
I. SCOPE OF THE CASE
In
his reply to the Government's observations, the applicant submitted
new complaints under Article 5 §§ 1 (c) and 3 and Article 6
§§ 1 and 3 (c) of the Convention, alleging that his
pre-trial detention was unlawful, that he was not brought promptly
before the judge, that he had no access to the audio records of the
hearings and that his lawyer had not been allowed to visit him during
the pre-trial detention. The Court notes that these new belated
complaints are not an elaboration of the applicant's original
complaints on which the parties have commented. The Court considers,
therefore, that it is not appropriate now to take these matters up
separately (see, mutatis mutandis, Piryanik v. Ukraine,
no. 75788/01, § 20, 19 April 2005).
II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
The
applicant complained that the duration of his pre-trial detention was
excessive and that he had been unable to bring court proceedings to
contest the lawfulness of his pre-trial detention. He invoked Article
5 §§ 3 and 4 of the Convention, which provides, in so far
as relevant, as follows:
“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.”
A. Length of the applicant's pre-trial detention
1. Admissibility
The
Court notes that this complaint 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.
2. Merits
The
Government maintained that the domestic authorities had grounds for
holding the applicant in custody, given that he was suspected of a
serious crime and could abscond from justice and obstruct
investigation. They considered that the domestic authorities
conducted the investigation with due diligence given the complexity
of the case and number of forensic examinations and other
investigative actions to be conducted.
The
applicant disagreed. He considered that the domestic authorities had
not acted with due diligence in his case and that the decisions on
maintaining his detention contained no reasoning.
The
Court recalls that the issue of whether a period of detention is
reasonable cannot be assessed in abstracto. This must be
assessed in each case according to its special features, the reasons
given in the domestic decisions and the well-documented facts
mentioned by the applicant in his applications for release. Continued
detention can be justified in a given case only if there are specific
indications of a genuine requirement of public interest which,
notwithstanding the presumption of innocence, outweighs the rule of
respect for individual liberty (see, among others, Labita v. Italy
[GC], no. 26772/95, § 153, ECHR 2000 IV).
The
Court notes that the applicant's pre-trial detention lasted for three
years and almost eleven months. It observes that the seriousness of
the charges against the applicant and the risk of his absconding had
been advanced in the initial order on the applicant's detention.
Thereafter, the prosecutors and the courts did not advance any
grounds whatsoever for maintaining the applicant's detention, simply
stating that the previously chosen preventive measure was correct.
However, Article 5 § 3 requires that after a certain
lapse of time the persistence of a reasonable suspicion does not in
itself justify deprivation of liberty and the judicial authorities
should give other grounds for continued detention (see Jabłoński
v. Poland, no. 33492/96, § 80, 21 December 2000,
and I.A. v. France, no. 28213/95, § 102, Reports
of Judgments and Decisions 1998-VII). Those grounds, moreover,
should be expressly mentioned by the domestic courts (see Iłowiecki
v. Poland, no. 27504/95, § 61, 4 October 2001). No such
reasons were given by the courts in the present case. Furthermore, at
no stage did the domestic authorities consider any alternative
preventive measures instead of detention.
The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of Article 5 § 3 of the
Convention.
B. Lack of review of the lawfulness of the detention
The
Government noted that the domestic courts reviewed the lawfulness of
the applicant's detention throughout the court proceedings. They
further noted that the applicant did not challenge any of the
prosecutor's detention orders before the courts. During the judicial
proceedings the courts ordered the applicant's continued detention
due to the seriousness of the crime and risk of absconding.
The
applicant did not dispute the fact that he had not challenged the
prosecutor's detention order to the courts, but claimed that such a
challenge had no relevance to the possibility of periodic review of
lawfulness of his detention for the purposes of Article 5 § 4.
He maintained that he had lodged a number of applications for release
with the investigator and that he had had no access to the court
prior to 8 December 1999, when he was first brought before a judge.
He also claimed that during the court hearings he raised the issue of
lawfulness of his detention on many occasions but to no avail.
The Court reiterates that the purpose of Article 5 §
4 is to secure to persons who are arrested and detained the right to
judicial supervision of the lawfulness of the measure to which they
are thereby subjected (see, mutatis mutandis, De Wilde,
Ooms and Versyp v. Belgium, judgment of 18 June 1971,
Series A no. 12, § 76). A remedy must be made available during a
person's detention to allow that person to obtain speedy judicial
review of the lawfulness of the detention, capable of leading, where
appropriate, to his or her release. The existence of the remedy
required by Article 5 § 4 must be sufficiently certain, not only
in theory but also in practice, failing which it will lack the
accessibility and effectiveness required for the purposes of that
provision (see, mutatis mutandis, Stoichkov v.
Bulgaria, no. 9808/02, § 66 in fine, 24
March 2005, and Vachev v. Bulgaria, no. 42987/98, § 71,
ECHR 2004-VIII (extracts)). The accessibility of a remedy implies,
inter alia, that the circumstances voluntarily created by the
authorities must be such as to afford applicants a realistic
possibility of using the remedy (see, mutatis mutandis, Čonka
v. Belgium, no. 51564/99, §§ 46 and 55, ECHR
2002 I).
The
Court notes that in the instant case the applicant did not provide
any details or documents and did not substantiate otherwise that he
had lodged any formal application for release with a court during his
pre-trial detention. Furthermore, it is not persuaded by the
applicant's arguments that he did not have access to the court during
the investigation stage, given that the applicant was represented by
a lawyer as from 4 November 1998, which was the fifth day of his
detention.
The
Court also notes that according to the relevant domestic law there
were remedies that were effective at least in theory as the applicant
was entitled to institute such proceedings for review of detention
and the courts were competent to order his release by replacing
pre-trial detention with another preventive measure. Given that the
applicant had failed to use these remedies, the Court cannot
speculate whether or not the applicant's application for release
would be considered to be in compliance with the requirements of
Article 5 § 4, and accordingly it is not in a position to assess
the effectiveness of existing remedies in practice in the
circumstances of the present case. It follows that this complaint is
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
II. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
The
applicant complained that the criminal proceedings against him were
unfair and unreasonably long. He also complained that his right to
defence and his right to have witnesses examined had been violated.
He relied on Article 6 §§ 1 and 3 (c) and (d) of the
Convention, which reads, in so far as relevant, as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair...
hearing within a reasonable time by [a] ... tribunal...”
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
(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...”
A. Admissibility
1. Right to defence
The
applicant complained of a violation of his right to defence during
the videotaped on-site reconstruction of the events on
31 October 1998, when the investigator rejected his request
for representation by a lawyer.
The
Government maintained that the violation of the applicant's right to
defence, of which he had complained before this Court, had been
acknowledged and remedied at the domestic level and therefore the
applicant could no longer claim to be a victim of a violation of
Article 6 § 3 (c) of the Convention.
The
applicant contested the Government's objections, claiming that the
videotaped on-site reconstruction of the events on 31 October 1998
obtained in breach of his right to defence had been used indirectly
in medical forensic examinations and that the results of the said
examinations were not excluded from the body of evidence.
The
Court notes that, according to the case file materials, the applicant
was represented by a defence lawyer during the investigation. The
episode of which the applicant complained before this Court was
carefully examined by the domestic courts and they decided not to
include as evidence the above-mentioned videotaped on-site
reconstruction of the events for this very reason: violation of the
applicant's right to defence. Furthermore, the investigator was
subjected to disciplinary sanctions for this violation of the
applicant's right to defence. As to the applicant's argument that the
results of the forensic medical examination had been linked to the
excluded piece of evidence, it appears that the investigator among
other things requested the experts to establish whether the actual
data that would be obtained corresponded to the applicant's
testimonies. The Court considers that this complaint, as worded by
the applicant, was adequately addressed at the domestic level (see
paragraphs 27 and 29 above) and the applicant can no longer claim to
be a victim of the alleged violation. It follows that this complaint
is incompatible ratione personae with the provisions of the
Convention within the meaning of Article 35 § 3 and
must be rejected in accordance with Article 35 § 4.
2. Right to summon witnesses
The
Government contended that the applicant had not raised his complaints
about refusal to summon witnesses K. and T. in his cassation appeal
and therefore had not exhausted remedies available to him under
domestic law.
The
applicant maintained that he had made several requests of the
first-instance court to have witnesses K. and T. summoned, and in his
cassation appeal he questioned the credibility of the testimonies of
witness T. and challenged the assessment of testimonies of witnesses
by the first-instance court. Therefore, in his opinion, he had
implicitly suggested that it was necessary to question these
witnesses again.
The
Court is not persuaded by the applicant's arguments and finds that
the applicant did not formulate in his cassation appeal the complaint
about the failure of the trial court to summon particular witnesses.
It follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention, for non-exhaustion of
domestic remedies.
3. Fair trial
The
applicant complained that the proceedings were unfair, that the
domestic courts were not impartial and independent, and that they had
falsified the case file materials against him and misinterpreted the
evidence in the case.
The Court notes that it is not its task to act as a
court of appeal or, as is sometimes stated, as a court of fourth
instance, in respect of the decisions taken by domestic courts. It is
the role of the domestic courts to interpret and apply the relevant
rules of procedural or substantive law. Furthermore, it is the
domestic courts that are best placed for assessing the credibility of
witnesses and the relevance of evidence to the issues in the case
(see, among many other authorities, Vidal v. Belgium, judgment
of 22 April 1992, Series A no. 235-B, p. 32, § 32, and
Edwards v. the United Kingdom, judgment of 16 December 1992,
Series A no. 247-B, pp. 34-35, § 34).
Having
regard to the materials submitted by the applicant, the Court finds
that the applicant has failed to substantiate any claim that the
procedural guarantees contained in Article 6 were breached in his
case.
As
to the applicant's complaint of lack of impartiality of the courts,
the mere fact that the court decided against the applicant is not
sufficient to conclude that it was not impartial.
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.
4. Length of proceedings
The
Government considered that the length of the criminal proceedings
against the applicant was reasonable.
The
applicant disagreed.
The
Court notes that this complaint 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 considered that the length of the criminal proceedings
against the applicant was reasonable, having in mind the complexity
of the case. Furthermore, there were thirteen witnesses, two victims
and one expert involved in the proceedings at the investigation stage
and nineteen witnesses, two victims and one expert at the judicial
stage. The Government further contended that the applicant and other
persons had contributed to the length of the proceedings. In
particular, the applicant and his lawyer had made several requests
for postponement of the date for examination of the case file. They
had also challenged the judges and asked for additional witnesses to
be summoned, which had contributed to the delays. The Government
further noted that eight expert examinations had been conducted in
the case.
The
applicant considered that only short delays could be attributed to
him and noted that there had been long periods of inactivity during
the judicial examination of his case.
The
Court reiterates that the reasonableness of the length of these
proceedings must be assessed in the light of the circumstances of the
case and with reference to the criteria laid down in the Court's
case-law, in particular the complexity of the case, the applicant's
conduct and the conduct of the competent authorities (see, among many
other authorities, Pélissier and Sassi v. France [GC],
no. 25444/94, § 67, ECHR 1999-II, and Lugovoy v.
Ukraine, no. 25821/02, § 33, 12 June 2008).
The
Court notes that the criminal proceedings against the applicant
lasted from 30 October 1998 until 2 October 2003, that is, four
years, eleven months and three days. The Court also notes that there
were periods when no or very little action was taken. It appears that
it took more than a year for the domestic authorities to conduct
additional medical and ballistic examinations in the case: from 10
December 1999 to 5 January 2001. After the latter date the
preparatory hearing was conducted almost two months later and the
hearing in the case was scheduled for 14 January 2002, that is ten
and a half months later. No action appears to have been taken also
between the preparatory hearing of 15 April 2002 and the hearings on
the merits on 9 September 2002, that is almost five months. In the
Court's opinion such delays are attributed to the domestic
authorities and are not justified by the complexity of the case or by
the applicant's behaviour. Furthermore, special diligence was
required from the domestic authorities, given that the applicant was
in detention during the period in question.
The
foregoing considerations are sufficient to enable the Court to
conclude that the proceedings in the applicant's case were
excessively long. There has accordingly been a violation of Article 6
§ 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant further complained that he had not been allowed to see his
family for four years during his pre-trial detention. Article 8 of
the Convention, which reads, in so far as relevant, as follows:
“1. Everyone has the right to respect
for his ... family life...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
The
Court notes that this complaint 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 admitted that there was an interference with the
applicant's family life. However, they considered that such
interference was justified. They maintained that the issue of
allowing family visits was foreseen by the domestic law, namely
Article 162 of the Code of Criminal Procedure. The refusal to allow
such family visits during the investigation was in the interests of
public safety and was necessary in a democratic society. They further
noted that after the applicant's conviction he was allowed to see his
mother and his wife on numerous occasions.
The
applicant claimed that interference in his family life did not meet
the conditions set on in the second paragraph of Article 8.
1. Whether there has been an interference
It was not disputed by the parties that there was “an
interference by a public authority” within the meaning of
Article 8 § 2 of the Convention with the applicant's right to
respect for his family life guaranteed by paragraph 1 of Article 8.
2. Whether the interference was justified
The
cardinal issue that arises is whether the above interference is
justifiable under paragraph 2 of Article 8. In particular, if it is
not to contravene Article 8, the interference must be “in
accordance with the law”, pursue a legitimate aim and be
necessary in a democratic society in order to achieve that aim (see
Silver and Others v. the United Kingdom, judgment of 25 March
1993, Series A no. 61, p. 32, § 84, and Petra v. Romania,
judgment of 23 September 1998, Reports 1998-VII, p. 2853, §
36).
The
Court must first consider whether the interference was “in
accordance with the law”. This expression requires firstly that
the impugned measure should have some basis in domestic law; it also
refers to the quality of the law in question, requiring that it
should be accessible to the person concerned, who must moreover be
able to foresee its consequences for him, and be compatible with the
rule of law (see Kruslin v. France and Huvig v. France,
judgments of 24 April 1990, Series A no. 176-A, p. 20, § 27, and
Series A no. 176-B, p. 52, § 26, respectively).
In
contending that these requirements were met, the Government referred
in their written observations to the provisions of Article 162 of the
Code of Criminal Procedure which provides that a detainee may be
allowed family visits during pre-trial detention.
The
Court first notes that the applicant's complaint is limited to the
period of his pre-trial detention. The fact that the applicant had
family visits after his conviction is therefore of no relevance to
the present application, and they indeed are governed by different
provisions of the Code of Criminal Procedure, namely Article 345,
which obliges the court to grant family visits to the convicted
persons.
The
Court further notes that Article 162 of the Code of Criminal
Procedure and section 12(1) of the Pre-Trial Detention Act 1993
provide that an investigator or a judge can allow family visits
during pre-trial detention, but that these provisions do not indicate
with reasonable clarity the scope and manner of exercise of
discretion conferred on the public authorities in respect of
restrictions on detainees' contacts with family. Indeed the above
provisions do not require them to give any reasons for their
discretionary decision or even to take any formal decision that could
be appealed against, and therefore contain no safeguards against
arbitrariness or abuse. In the applicant's case the judge simply
mentioned that the applicant would be allowed to see his family after
consideration of the case on the merits, without any indication why
such visits could not be allowed earlier.
The
Court finds that in these circumstances it cannot be said that the
interference with the applicant's right to respect for his family
life was “in accordance with the law” as required by
Article 8 § 2 of the Convention (see, mutatis mutanids,
Ostrovar v. Moldova, no. 35207/03, §§ 107-108,
13 September 2005).
In
view of the above finding, the Court considers it unnecessary to
examine whether the interference in the present case was necessary in
a democratic society for one of the legitimate aims within the
meaning of Article 8 § 2 of the Convention.
There
has therefore been a violation of Article 8 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant further complained that there were no effective domestic
remedies in respect of his complaints relating to the refusal of
family visits and the length of the criminal proceedings. He invoked
Article 13, which reads:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The
Government argued that there had been no violation of Articles 6 and
8 of the Convention and therefore Article 13 was not applicable.
A. Lack of remedies for the complaint concerning the
length of the criminal proceedings
The Court finds that this
complaint is linked to the complaint about the length
of the proceedings.
It considers that it is not manifestly ill-founded or indeed
inadmissible on any other ground cited in Article 35 of the
Convention. It must therefore be declared admissible.
The Court reiterates that
Article 13
guarantees an effective remedy before a national authority for an
alleged breach of the requirement under Article 6 § 1
to hear a case within a reasonable time (see Kudła
v. Poland [GC], no. 30210/96, §
156, ECHR 2000-XI). The Court further refers to its finding in the
Merit
case about lack of an effective and accessible remedy under domestic
law for complaints in respect of the length of criminal proceedings
(see Merit
v. Ukraine,
no. 66561/01, §§ 78-79, 30 March 2004).
The
Court does not find any reasons to depart from this case-law in the
present case.
There has, therefore, been a violation of Article 13
of the Convention.
B. Lack of remedies for the complaint concerning
interference with family life
The
Court finds that this complaint is linked to the complaint under
Article 8 of the Convention above and must therefore likewise
be declared admissible.
The
Court notes that it appears that the Ukrainian legal system entitles
the persons in pre-trial detention to family visits but does not
offer any procedure that would enable to verify whether the
discretionary powers of the investigation and the courts in this
matter are exercised in good faith and whether the decisions to
grant or refuse all family visits are well reasoned and justified.
However, it recalls that Article 13 cannot be interpreted
as requiring a remedy against the state of domestic law, as otherwise
the Court would be imposing on Contracting States a requirement to
incorporate the Convention (see Appleby and Others v. the United
Kingdom, no. 44306/98, §
56, ECHR 2003-VI; Ostrovar v. Moldova, no. 35207/03, §
113, 13 September 2005). In so far, therefore, as no remedy
existed in domestic law in respect of the quality of Article 162 of
the Code of Criminal Procedure and section 12(1) of the Pre-Trial
Detention Act 1993, the applicant's complaint is inconsistent with
this principle. In these circumstances, the Court finds no breach of
Article 13 of the Convention.
V. 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 50,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government considered this claim unsubstantiated.
The Court considers that the applicant suffered
non-pecuniary damage which cannot be compensated by the mere
finding of
a violation of his Convention rights. Having regard to the
circumstances of the case and ruling on an equitable basis, as
required by Article 41, it awards him EUR 3,000 in respect of
non-pecuniary damage.
B. Costs and expenses
The
applicant also claimed EUR 2 000 for the costs and expenses
incurred before the Court.
The Government contended that the claim was
unsubstantiated as the applicant failed to present the requisite
supporting
documents.
The
Court observes that the applicant has not provided any evidence in
support of his claims for costs and expenses. It therefore decides
not to award any sum under this head.
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
Declares unanimously the complaints concerning
the length of the applicant's pre-trial detention and of the criminal
proceedings against him, the refusal of family visits and the lack of
effective remedies for the above complaints admissible;
Declares by a majority the remainder of the
application inadmissible;
Holds unanimously that there has been a
violation of Article 5 § 3 of the Convention;
Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention in respect of
length of the proceedings;
Holds unanimously that there has been a
violation of Article 8 of the Convention;
Holds unanimously that there has been a
violation of Article 13 of the Convention in respect of length of the
proceedings;
Holds unanimously that there has been no
violation of Article 13 of the Convention in respect of refusal of
family visits;
Holds 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 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Ukrainian
hryvnyas 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 unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 4 March 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Judge
Kalaydjieva is annexed to this judgment.
P.L.
C.W.
DISSENTING Opinion of
Judge Kalaydjieva
I
fully share the views of my esteemed colleagues on the unnecessary
length of the detention and of the criminal proceedings against the
applicant. They are especially striking in a case like the present
one, where the applicant reported himself to the police and made
confessions. Following the investigation, the applicant remained in
custody and was deprived of contacts with his family for almost three
years (1999-2002) - a period necessary for the domestic authorities
to prepare three additional expert reports.
I
share the view that the “delays (in the proceedings) are
attributed to the domestic authorities and are not justified by the
complexity of the case or by the applicant's behaviour” and
that “[f]urthermore, special diligence was required from the
domestic authorities, given that the applicant was in detention
during the period in question” (§ 77).
The Court was unanimous (§ 51)
that in holding their rulings of 15 July 1999, 1 March 2001, 21
January 202 and 15 April 2002 (see paragraphs 15, 19, 22 and 25),
“the domestic courts did not advance any grounds whatsoever
for maintaining the applicant's detention, simply stating that the
previously chosen measure was correct” and that “at
no stage did the domestic authorities consider any alternative
preventive measures instead of detention” (paragraph
50). Although reached separately in Article 6 § 1 and 5 §
3, both conclusions are equally pertinent to the question whether the
applicant was “entitled to trial within a reasonable time or
to release pending”. They are of relevance to the findings
of the majority under Article 5 § 4 of the Convention, with
which I disagree.
Looking
at the circumstances in the case, one cannot avoid the impression
that once the applicant was detained at the pre-trial stage of the
proceedings, this measure was considered automatically and
unquestionably necessary until the proceedings ended. The long and
winding road to changing this concept with the value of personal
liberty as a principle is illustrated in a series of Bulgarian cases
(see Ilijkov v. Bulgaria, no. 33977/96, 26 July 2001, and
many subsequent cases). A similar concept of automatically presumed
necessity to deprive a person of his liberty is reflected in the
provisions of the Ukrainian Code of Criminal Procedure concerning the
continuation of detention at the same intervals and whenever a
permission for continuation of the time-limits for finalizing
investigation is granted as well as in the automatic continuation of
detention during the time necessary for the accused to acquaint
himself with the investigation file in the absence of any decision to
continue the measure of detention. Any concept of automatic
lawfulness of deprivation of liberty is incompatible with the
Convention principles and there is no doubt that Article 5 § 4
is the procedural guarantee and remedy against such detention.
The
brevity of the courts' rulings in the present case reflects the same
principle of automatism and of the limited competence of the courts
in performing their review on detention at the trial stage of the
proceedings. That “the national courts did not analyze the
circumstances for the justification of his detention” and
used “the standard formulation 'leave the preventive measure
without changes'” was a central issue in the applicant's
complaints under Article 5 § 4 of the Convention (§
53 of his Observations).
I
find myself unable to see what were the remedies which lead the
majority to believe that there were remedies “effective at
least in theory as the applicant was entitled to institute
proceedings for review of detention and the courts were competent to
order his release” (paragraph 56).
In
this regard the Government relied on the fact that “the
national courts repeatedly reviewed the lawfulness of the applicant's
detention (on 15 July 1999, 1 March 2001, 21 January
and 15 April 2002). Each time the court came to a conclusion that it
was the right preventive measure and that it was necessary to
continue his detention on remand.... The grounds for his
further detention were “relevant” and “sufficient”
in view of the existence of a reasonable suspicion and that he was
likely to abscond from investigation or court (§§ 90
and 91 of his Observations). The same rulings were criticized by the
Court under Article 5 § 3 in that the courts failed to “advance
any grounds whatsoever for maintaining the applicant's detention,
simply stating that the previously chosen measure was correct”.
In my view these conclusions are equally relevant for the applicant's
complaints of the formal character and limited scope of the performed
review. Article 274 of the 1960 CCP did not require the domestic
courts to provide any reasoning in “approving” the
initially determined measure. Its second paragraph limits the scope
of their review by referring it to the criteria applicable in the
process of the initial determination of the measure. In the
applicant's case they were considered several years ago and the
outlined scope of review could not involve any subsequent
circumstances such as the length of his detention up to this moment
and/or the authorities' diligence in this period. Having joined the
majority in the views on the formal nature and the limited scope of
the performed review in Article 5 § 3, I cannot see how the same
criticized rulings as the result of proceedings met the requirements
of Article 5 § 4 of the Convention.
The
respondent Ukrainian Government never argued that there existed other
available remedies, or that the applicant failed to file requests for
release at the trial stage of the proceedings. The question in the
present case is not whether the applicant requested to be released,
but whether any request or provision of the law effectively “entitled
him 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 never failed to note
that “the existence of a remedy must be sufficiently
certain, not only in theory but also in practice, failing which it
will lack the accessibility and effectiveness required for the
purposes of Article 5 § 4 (see Van Droogenbroeck v.
Belgium, judgment of 24 June 1982, Series A no. 50, p. 30, §
54; De Jong, Baljet and Van den Brink v. the Netherlands,
judgment of 22 May 1984, Series A no. 77, p. 19, § 39; and
Yağcı and Sargın v. Turkey, judgment of 8 June
1995, Series A no. 319 A, p. 17, § 42 and many
others). The general right of an accused “to lodge requests
and make observations on the requests of other parties to the
proceedings” under Article 263-3 of the CCP is not
comparable to the habeas corpus proceedings required under
Article 5 § 4. (paragraph 57) and it was not even argued
otherwise. Thus, it remains unclear for example which would have been
the competent court, what procedure it would have had to follow, what
were the time-limits or periods for the review and on the basis of
what criteria the court would have had to take its decision on a
request for review of the lawfulness of detention.
The
review undertaken in the present case demonstrates that in practice
“the domestic courts did not advance any grounds whatsoever
for maintaining the applicant's detention, simply stating that the
previously chosen measure was correct”. Furthermore “at
no stage did the domestic authorities consider any alternative
preventive measures instead of detention”. There is no
other provision of the applicable domestic law which establishes a
procedure whereby a person can apply to a court to review the
lawfulness of his or her detention and it is not entirely clear
whether a remedy satisfying the requirements of Article 5 § 4
existed even “in theory”. The respondent Government have
failed to establish or at even argue that there existed any practice
of the courts other than the one relied on and criticised by the
Court as part of its findings under Article 5.3.
