CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 25 novembre 2008

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .sE48D1F9B { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify; font-size:8pt } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sCA1CD81B { width:182.29pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIFTH SECTION PARTIAL DECISION AS TO THE ADMISSIBILITY OF Application no. 20808/02 by Sergey Vasiliyevich SHALIMOV against Ukraine The European Court of Human Rights (Fifth Section), sitting on 25   November 2008 as a Chamber composed of:   Rait Maruste, President,   Karel Jungwiert,   Volodymyr Butkevych,   Mark Villiger,   Isabelle Berro-Lefèvre,   Mirjana Lazarova Trajkovska,   Zdravka Kalaydjieva, judges, and Claudia Westerdiek, Section Registrar , Having regard to the above application lodged on 8 May 2002, Having deliberated, decides as follows: THE FACTS The applicant, Mr Sergey Vasiliyevich Shalimov, is a Ukrainian national who was born in 1968 and is currently in detention. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 26 October 1998 the applicant, who was a former police officer, 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 Mr 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 held an object in his hand which the applicant took for a gun. Fearing for his life, he shot at one of them in self-defence and left. Soon he joined Mr T., who was waiting for him at some distance. The applicant told Mr T. that he had shot into the river. Later the same day the applicant separated the breechblock from the rifle and threw them both into the river. On 30 October 1998 the applicant was arrested on suspicion of having murdered E. and D. The applicant confessed to shooting at D. in self-defence. On 31 October 1998 the investigating prosecutor Z. conducted a video-taped 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 Yenakievo Prosecutor (Прокурор міста Єнакієво) ordered the applicant’s pre-trial detention on the ground that he was suspected of having committed a crime punishable by imprisonment and might abscond. The applicant’s detention was extended on successive 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. On 1 July 1999 the bill of indictment was completed by the investigation and referred to the Donetsk Court of Appeal, acting as a first-instance court. On 15 July 1999 the applicant was committed for trial. The court also maintained the applicant’s detention. 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 examination in respect of the victims was concluded on 14 June 2000. A ballistic examination was concluded on 5 January 2001. In September 2001 the Vice-President of the Donetsk Court of Appeal, in reply to a complaint from the applicant, 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 was decided. On 21 January 2002 the Donetsk Court of Appeal, acting as a first-instance 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 maintained the applicant’s detention during the trial without giving 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 of Ukraine quashed the decision of the first-instance 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 on the merits. On 24 September 2002 the Donetsk Court of Appeal, acting as a first-instance court, found the applicant guilty of two murders motivated by hooliganism and sentenced him to fifteen years’ imprisonment. The court found that Mr E. and Mr D. 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 Mr 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 video-taped reconstruction of events of 31 October 19998, which had been obtained in violation of the applicant’s right to defence. By a separate ruling of the same day, the Court of Appeal 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 video-taped reconstruction of events. As a result of that ruling, prosecutor Z. was found disciplinarily liable. On 2 October 2003 the Supreme Court upheld the judgment of 24   September 2002. By letter of 18 February 2003, the Constitutional Court informed the applicant that it was not competent to review his criminal case. On 16 January 2004 the Debaltsevo Prosecutor Office refused to institute criminal proceedings against prosecutors Z. and N. following a complaint by the applicant about a violation of his right to defence on 31 October 1998 and about the fact that the prosecutors had claimed bribes from the applicant 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 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. COMPLAINTS The applicant complained under Article 3 that he had been denied the right to see his family during his lengthy detention during the judicial proceedings, which he considered to amount to psychological pressure on the part of the investigating authorities. Under Article 5 § 3, the applicant complained about the length of his detention during the judicial proceedings. He complained under Article 5 § 4 of the Convention that the domestic courts had failed to review the reasonableness of his detention. The applicant also complained, under Article 6 § 1 of the Convention, that the domestic courts had not been impartial and independent because they had falsified the case-file materials against him. He also complained about the length of the proceedings. The applicant maintained that, in violation of Article 6 § 2, after his arrest [unnamed] newspapers had published reports that he had committed several crimes. Under Article 6 § 3 (c) the applicant complained about 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 applicant complained under Article 6 § 3 (d) of the Convention that the investigators had concealed the testimonies of defence witnesses and had tried to discredit these witnesses. He also maintained that his representative and witnesses had been intimidated by the investigator. He complained that he had had no effective remedies to challenge the unlawful actions of the State authorities in his case, contrary to Article 13 of the Convention. He referred, lastly, to Articles 1, 10, and 17 of the Convention without any further specification. THE LAW 1.     The applicant complained that he had not been allowed to see his family for four years while he was in detention during the judicial proceedings. He considered it to be a violation of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Court notes that, in the light of the materials in its possession and the explanations given by the applicant, this complaint is not sufficiently substantiated to raise an arguable claim under Article 3 of the Convention. However, the Court, which is master of the characterisation to be given in law to the facts of the case, considers that this complaint of the applicant may raise an issue under 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.” The applicant also complained that the criminal proceedings were unfair and unreasonably long. He complained that his right to defence and his right to have examined witnesses were 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...” In addition, the applicant complained of the lack of 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 applicant complained of the excessive duration of his detention during the judicial proceedings. He invoked Article 5 § 3 of the Convention, 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 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.” The applicant also complained that he had been unable to bring court proceedings to contest the lawfulness of his detention during the judicial proceedings. He relied on Article 5 § 4 of the Convention, which is worded as follows: “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.” 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. 2.     The Court has examined the remainder of the applicant’s complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of were 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 Convention or its Protocols. Accordingly, it rejects this part of the application in accordance with Article   35 §§ 3 and 4 of the Convention as being manifestly ill-founded. For these reasons, the Court unanimously Decides to adjourn the examination of the applicant’s complaints concerning the refusal of family visits (Article 8), the excessive length of his detention during the judicial proceedings (Article 5 § 3), the failure of the courts to consider his complaints about the unlawfulness of his detention (Article 5 § 4), the length and fairness of the criminal proceedings (Article 6   §§   1 and 3 (c) and (d)) and the lack of effective remedies for his complaints about the length of the proceedings and the refusal of family visits (Article 13); Declares the remainder of the application inadmissible.   Claudia Westerdiek   Rait Maruste   Registrar   President