CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 24 mars 2009

.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 } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .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 } .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 DECISION AS TO THE ADMISSIBILITY OF Application no. 8883/02 by Vyacheslav Viktorovich KIRICHENKO against Ukraine The European Court of Human Rights (Fifth Section), sitting on 24   March 2009 as a Chamber composed of:   Rait Maruste, President,   Karel Jungwiert,   Renate Jaeger,   Mark Villiger,   Isabelle Berro-Lefèvre,   Zdravka Kalaydjieva, judges,   Stanislav Shevchuk, ad hoc judge, and Claudia Westerdiek, Section Registrar , Having regard to the above application lodged on 4 February 2002, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Vyacheslav Viktorovich Kirichenko, is a Ukrainian national who was born in 1964 and lives in Kyiv. He was represented before the Court by Mr A. Y. Gerasymiv, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs I. Shevchuk and Mr Y. Zaytsev, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 10 January 2001 the applicant was arrested by police officers from the Darnytsky District Police Department of Kyiv on suspicion of accepting a bribe from Mr P. The applicant alleges that he was beaten by the officers at the police station. On 11   January 2001 the applicant was released. The same day a medical expert established that the applicant had suffered a head wound which was classified as a minor bodily injury. On 12 January 2001 the Darnytsky District Prosecutor’s Office instituted criminal proceedings against the applicant for accepting a bribe. On 13 January 2001 the applicant was hospitalised with concussion and remained in hospital until 21 January 2001. On 22 January 2001 the applicant lodged a complaint with the Darnytsky District Prosecutor’s Office against the police officers concerning the alleged beating at the police station. On 23 March 2001 the Darnytsky District Prosecutor’s Office issued its decision refusing to institute criminal proceedings against the police officers. The applicant did not appeal this decision to the relevant court. He did, however, raise the refusal to institute proceedings as an issue in the course of the criminal proceedings against him. On 14 June 2001 the Kyiv City Court, in the presence of the applicant and his representative and following the examination of a wide range of documentary and oral evidence, convicted the applicant of bribery and sentenced him to three years and six months’ imprisonment. The court found no evidence that the applicant had been ill-treated by police officers. The court also noted in its decision that the parties could appeal against the judgment within seven days of its pronouncement and that the applicant could appeal within seven days of receiving a copy of the judgment. On 20 September 2001 the Supreme Court, in the presence of the applicant and his two representatives, rejected the cassation appeals lodged against the judgment of 14 June 2001 but changed the sentence from imprisonment to a fine as provided for by changes in the criminal legislation. The court found no evidence that the applicant had been ill-treated. COMPLAINTS The applicant complained under Articles 2 and 3 of the Convention that he had been ill-treated in police custody with the aim of extracting a confession. He also alleged that the domestic courts had erred in their assessment of the facts and in the application of the law in convicting him. He alleged that the Kyiv City Court hearing his case was not independent and impartial within the meaning of Article 6 § 1 of the Convention. He also complained that the court’s decision was given to him twenty days after the operative part of the judgment was pronounced by that court, so that he did not have sufficient time to prepare a proper appeal in cassation to the Supreme Court within the time-limit for appeals in cassation (seven days). The applicant further complained that he had no effective remedies for his complaints concerning ill-treatment, contrary to Article 13 of the Convention. THE LAW 1.     The applicant complained that he was beaten by the police and that his complaints concerning ill-treatment had not been properly investigated. He referred to Articles 2, 3 and 13 of the Convention. Article 2 “1.     Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law... Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “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 maintained that the final decision in the applicant’s case concerning the allegations of ill-treatment had been given by the prosecutor on 28 March 2001 and that this was more than six months before the applicant had submitted his application to the Court. The Government submitted that the applicant had failed to exhaust domestic remedies as he had not challenged the decision of the Prosecutor’s Office of 28 March 2001 not to institute criminal proceedings, in respect of the alleged ill ‑ treatment, before the competent court. The applicant maintained that he had raised the question of ill ‑ treatment before the court which had tried the criminal case against him. Therefore, he had exhausted all available remedies and the six-month period should run from the decision of the Supreme Court in the criminal case of 20   September 2001. The Court first notes that the applicant’s reference to Article 2 of the Convention is not supported by any explanation or evidence and his complaint that he was beaten by the police should be considered under Article 3 of the Convention. The Court further notes that the factual and legal circumstances of the present case are similar to those already examined by the Court in the judgment of Yakovenko v. Ukraine (no.   15825/06, §§ 69-73, 25 October 2007). The Court sees no reasons which would justify a departure from its previous case-law and finds, therefore, that the applicant’s complaints concerning the alleged ill-treatment by the police must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 § 1 of the Convention. For the same reasons the applicant’s complaint under Article 13 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 2.     The applicant further complained that the trial against him was unfair, that the City Court had been biased and had treated the witnesses for the prosecution and their testimonies more favourably. He also claimed that the investigators and one of the judges of the City Court had decided the question of guilt prior to pronouncement of the judgment. He further maintained that he had not been given enough time to prepare his cassation appeal. He relied on Article 6 §§ 1 and 3 (b) of the Convention which read, in so far as relevant, as follows: Article 6 “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... an independent and impartial tribunal established by law. Judgment shall be pronounced publicly... 3.     Everyone charged with a criminal offence has the following minimum rights: ... (b)     to have adequate time and facilities for the preparation of his defence...” The Government considered that the procedural guarantees of Article 6 had been respected in the applicant’s case. The Government considered the applicant’s allegations to be unsubstantiated and not supported by the case-file materials. They further maintained that under the relevant domestic law the time-limit for a detainee to lodge an appeal started running from the date on which he or she received a copy of the court’s decision and not from the date of pronouncement - as for the other parties to the proceedings - and that this rule did not depend on the applicant’s presence before the court during the pronouncement. They noted that the applicant had submitted his appeal even before the time-limit had officially started running. The applicant did not make any comments in reply. The Court reiterates that it is not its task to act as a court of appeal or, as is sometimes said, as a court of fourth instance, from the decisions of domestic courts. It is the role of the latter to interpret and apply the relevant rules of national procedural and substantive law. Furthermore, the domestic courts are best placed to assess the credibility of witnesses and the relevance of evidence to the issues in the case (see, amongst many authorities, Vidal v.   Belgium , 22   April 1992, § 32, Series   A no.   235-B, and Edwards v. the United Kingdom , 16   December 1992, §   34, Series A no. 247-B). In the light of all the material in its possession, the Court finds that these complaints are not supported by any evidence and the available materials do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.     It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Claudia Westerdiek   Rait Maruste   Registrar   President