European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2011/1119.html
Cite as: [2011] ECHR 1119
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FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no.
30144/04
by Vyacheslav Vasilyevich GANDRABURA
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 28 June 2011 as a Chamber composed of:
Dean
Spielmann, President,
Karel
Jungwiert,
Boštjan
M. Zupančič,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Ann
Power,
Angelika
Nußberger, judges,
and
Claudia Westerdiek, Section
Registrar,
Having regard to the above application lodged on 7 August 2004,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Vyacheslav Vasilyevich Gandrabura, is a Ukrainian national who was born in 1975 and is currently serving a life prison sentence.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On an unspecified date criminal proceedings were instituted on the suspicion that a network of private commercial enterprises called Top-Service organised an armed group and conspired to kill State officials and businessmen who were allegedly obstructing its business. The alleged crimes were committed between July 1997 and November 1999.
The applicant was suspected of having participated in that armed group. In particular, he was suspected of being involved in attempts to kill two State officials in April and August 1999.
On 5 May 2000 police officers arrested the applicant in a street in Kyiv on the ground that he was swearing in a public place (an administrative offence). The applicant was immediately detained pending the consideration of the administrative case by the court. On 6 May 2000 the Zhovtnevyy District Court of Kyiv found the applicant guilty of that offence and sentenced him to fifteen days’ administrative detention.
According to the applicant, following his arrest he was beaten by police officers in order to make him confess to participating in the organised criminal group and committing a number of crimes, including murders. His requests to be provided with a lawyer were rejected.
On 7 May 2000 the investigator of the local prosecutor’s office issued an arrest order authorising the applicant’s detention as a suspect in the criminal case. The applicant’s defence rights were explained to him, following which he signed a waiver of the right to a lawyer. According to the applicant, he was forced to sign the waiver. During the questioning, which was held on the same day, the applicant made self-incriminating statements and confessed to an attempted murder.
On 10 May 2000 the applicant was placed in custody as a suspect. On the same day the applicant participated in the reconstruction of events in the course of which he continued to incriminate himself.
On 11 May 2000 the applicant’s wife complained to the local prosecutor claiming that the applicant had been forced to waive his right to legal assistance. She requested that the applicant be given access to the lawyer she had hired for him.
On 15 May 2000 the applicant underwent a forensic medical examination. He told the expert that on 5 May 2000 police officers punched and kicked him. After the assessment the medical expert issued a report stating that the applicant had sustained two bruises to his left eye and right ear, five abrasions to his left forearm and both wrists, and three abrasions to both knees and left shin. The injuries had been inflicted by blunt objects; they could have been sustained on 5 May 2000.
On 16 May 2005 the applicant was given access to the lawyer. On an unspecified date the applicant dismissed that lawyer for lack of funds. Another defence counsel was admitted to the proceedings.
The applicant complained to the Kyiv Prosecutor’s Office claiming that after his arrest of 5 May 2000 he had been ill-treated by police officers.
On 12 April 2001 the investigator refused to open an investigation into the alleged ill-treatment noting that the allegations were refuted by the collected evidence. In particular, the police officers explained that the applicant’s injuries, as reported by the medical expert, had been sustained by the applicant when he had attempted to escape and collided with a moving car. The police officers also stated that they had arrested the applicant as they suspected him of having attempted to kill a State official.
Later during the investigation, the applicant continued to incriminate himself in the presence of his defence counsel.
On 4 November 2002 the Kyiv Court of Appeal, acting as a first-instance court, commenced the trial of the applicant and the other co-defendants. During the trial the applicant and other defendants pleaded innocent. The applicant complained that he had been forced to incriminate himself by the police, subjected to ill-treatment and unlawful administrative detention, and that he had had no access to a lawyer.
On 15 March 2004 the Kyiv Court of Appeal found the applicant and a number of other defendants guilty of participation in an armed organised criminal group which had committed serious economic crimes and murders. With respect to the applicant, the court established that he had participated in eleven crimes, two of which had resulted in the victims’ deaths and four of which were attempted murders. It sentenced the applicant to life imprisonment with confiscation of property. The judgment was based on expert opinions and documentary, oral and material evidence, including the applicant’s self-incriminating statements given at the pre-trial stage of the proceedings.
As regards the allegations of ill-treatment the court noted that they had been examined by the investigative authorities and rejected as unfounded. It further had regard to the self-incriminating statements given by the applicant with the assistance of defence counsel throughout the investigation and to the submissions of the witnesses, participating in the investigatory actions, who stated that the law-enforcement officers had not exercised any form of pressure on the applicant and other defendants. On this basis the court concluded that the allegations of ill-treatment were groundless.
The court further did not find any irregularities in connection with the applicant’s administrative detention and right to legal assistance. It noted that the applicant’s detention as a criminal suspect was formalised on 7 May 2000 and that on that day he had signed a document refusing a lawyer.
The applicant appealed in cassation on a number of points. He claimed in particular that his guilt had not been proven; that his initial self-incriminating statements had been obtained by ill-treatment and during unlawful detention; that he had not initially been assisted by a lawyer and had been forced to sign a waiver of his right to legal assistance; that he had been sentenced to life imprisonment instead of fifteen years’ imprisonment, which – in his opinion – was the maximum penalty at the time of the crimes.
On 14 December 2004 the Supreme Court upheld the applicant’s conviction. It dismissed the applicant’s contentions noting that he had incriminated himself throughout the pre-trial investigation, that the injuries had been sustained in the accident, that his right to defence had not been impaired, and that the administrative arrest had not affected his procedural rights in the criminal proceedings. In sum, the conviction and sentence were lawful and appropriate.
B. Relevant domestic law
1. Constitution of 28 June 1996
Article 28 §§ 1 and 2 provide that everyone has the right to respect for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity.
Article 62 § 3 provides that an accusation cannot be based on illegally obtained evidence.
Article 152 § 2 provides that laws of the parliament and other legal acts or their provisions that have been declared unconstitutional shall be considered void from the date of the relevant decision of the Constitutional Court.
2. Criminal Code of 28 December 1960 (in force until 1 September 2001)
The relevant provisions of the Code provided as follows:
Article 93. Aggravated murder
Murder: (a) committed for profit; ... (c) committed because of the victim’s official or public activity;... (i) committed by a hired killer;... (j) committed premeditatedly by a group of persons or an organised group, –
shall be punishable by imprisonment of eight to fifteen years or by the death penalty and, in cases provided for by subparagraph (a), with confiscation of property.
On 29 December 1999 the Constitutional Court found the provisions of the Criminal Code concerning the death penalty to be unconstitutional. It noted that the unconstitutional provisions of the Criminal Code became void on the date of that decision. It further found that the parliament should bring the Criminal Code of Ukraine to conformity with the decision.
On 22 February 2000 the parliament adopted amendments to the Criminal Code by which the death penalty, as a punishment for some crimes, was replaced by life imprisonment.
3. Code of Criminal Procedure of 28 December 1960 (as worded at the material time)
The relevant provisions of the Code provide as follows:
Article 43-1. The suspect
“A person shall be considered a suspect if:
1) he or she has been arrested on suspicion of having committed a crime;
2) a preventive measure has been applied in his or her respect until a decision has been made to bring that person to the proceedings as an accused.
A suspect is entitled to know of what he or she is suspected; to give evidence or refuse to give evidence and answer questions; to have defence counsel and a meeting with him before the first questioning; to challenge the lawfulness of his or her arrest before the court...
It shall be stated in the arrest order or the decision to apply a preventive measure that the suspect has had his or her rights explained.”
Article 46 of the Code provided that a waiver by a suspect, accused or defendant of his or her right to defence counsel should not be accepted if a potential penalty was a life sentence.
COMPLAINTS
THE LAW
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
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 Court, to give notice of this part of the application to the respondent Government.
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... ”
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 Court, to give notice of this part of the application to the respondent Government.
The complaints fall under Article 6 §§ 1 and 3 (c) of the Convention which provide, in so far as relevant, as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
(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;”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
It follows that this part of the applications must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints under Article 3 (alleged ill-treatment by police), Article 5 § 1 (lawfulness of the administrative arrest and detention), Article 6 § 1 (use of evidence obtained against the applicant’s will and by alleged ill-treatment), and Article 6 §§ 1 and 3 (c) of the Convention (lack of access to legal assistance);
Declares the remainder of the application inadmissible.
Claudia Westerdiek Dean Spielmann
Registrar President