CEDH · CASELAW;COMMUNICATEDCASES;ENG — 14 février 2012

.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 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .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 } .sA36B60A1 { font-family:Arial; font-style:italic } .s4070A5A6 { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-after:avoid } FIFTH SECTION Application no. 2775/07 by Sergey Vladimirovich RUDNICHENKO against Ukraine lodged on 4 December 2006   STATEMENT OF FACTS THE FACTS The applicant, Mr Sergey Vladimirovich Rudnichenko, is a Ukrainian national who was born in 1981 and is currently serving a prison sentence in Sukhodilska Prison no. 36 in the Lugansk Region. He is represented before the Court by Mr S. A. Zayets, a lawyer practising in Sevastopol. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 22 October 2005 two people attempted to break into a car belonging to a certain Mr K., who impeded them and caught one of the intruders, Mr   B. On 6 January 2006, at about 6 p.m., the applicant broke into a car belonging to a Mr N. and tried to dismantle some equipment therein. Mr N. caught him and handed him over to the police. On the same date one of the arresting officers wrote a report to his superior in the Sevastopol Police Department about the aforementioned incident, referring to the car burglary, the complaint by Mr N. in that regard and the applicant’s apprehension and arrest. It was mentioned in the report that the applicant had been drunk and had had to be handcuffed. On 7 January 2006 the Leninskyy District Court of Sevastopol (“the Leninskyy Court”), by a final ruling, placed the applicant under administrative detention for three days for being drunk in a public place at 6   p.m. on 6 January 2006. On 9 January 2006 an investigator of the Leninskyy District Police Department, having referred to the events of 6 January 2006, arrested the applicant on suspicion of robbery. On 12 January 2006 the Leninskyy Court remanded the applicant in custody (for two months), allowing the investigator’s application to that effect. It was noted in the ruling that it could be appealed against within three days. On an unspecified date in the meantime Mr K. recognised the applicant as the second offender who had tried to break into his car. Mr B. also identified the applicant as his accomplice. On 7 February 2006 the Leninskyy Court found Mr B. guilty of robbery with regard to the events of 22 October 2005 and sentenced him to three years and six months’ imprisonment. According to the applicant, he did not participate in those proceedings. On 1 March 2006 the applicant requested that the investigator consider replacing his detention with a less restrictive preventive measure. On the same date the investigator rejected that request. He noted that the applicant had an extensive criminal record (four convictions), that his pre-trial detention was based on a reasoned court decision, and that, having been legally represented from the day after the delivery of the impugned decision of 12 January 2006, he could have, but had not, appealed. On 7 March 2006 the applicant was indicted on two counts of robbery (of Mr K. and Mr N.). On 9 March 2006 the case was sent to the Leninskyy Court for trial. On 10 March 2006 the applicant’s lawyer, relying on Article   5   §§ 1 and 5 of the Convention, complained to the Leninskyy Court about the alleged unlawfulness of his client’s detention from 6 to 12 January 2006 and claimed compensation for it. He requested the court to summon Mr N. and the police officers who had arrested the applicant on 6 January 2006. Those witnesses could allegedly confirm that the applicant had in fact been detained on suspicion of having committed a crime, but not an administrative offence. On the same date the applicant’s lawyer lodged an administrative claim against the Governor of the Simferopol Pre-Trial Detention Centre (SIZO) with the Zaliznychnyy District Court of Simferopol (“the Zaliznychnyy Court”), alleging that the applicant’s detention after 6 March 2006 (that is, after the expiry of the two months’ pre-trial detention calculated from 6   January 2006) was without basis. Relying on Article 5 § 4 of the Convention, the lawyer requested the immediate examination of his complaint and the applicant’s release. On 21 March 2006 the applicant’s lawyer again requested the SIZO administration to release his client immediately. On the same date he complained to the President of the Zaliznychnyy Court about the delay in the examination of his claim of 10   March 2006. On 21 March 2006 a judge of the Leninskyy Court rejected the applicant’s request to summon witnesses with a view to determining the lawfulness of his detention on 6 January 2006 as without legal basis. On 29 March 2006 the Leninskyy Court rejected the applicant’s complaint about the alleged unlawfulness of his detention from 6 to 12   January 2006. The court noted in its ruling: “The court has established that the pre-trial investigation authority was clearly aware of the fact that the applicant had been arrested immediately after having committed a criminal offence on 6 January 2006. Nevertheless his arrest [as a criminal suspect] took place only on 9 January 2006. Those circumstances disclose a violation by the pre-trial investigation authority of the provisions of the Code of Criminal Procedure ... concerning detention and would justify the delivery of a special ruling”. Nonetheless, the court made a general conclusion that there had been no significant violation of the criminal procedural legislation and rejected the complaint. On 7 April 2006 the Leninskyy Court held a preparatory hearing for the trial. It rejected the applicant’s request for release given, in particular, his criminal history and his lack of employment and a permanent place of residence. On 6 June 2006 the Sevastopol Court of Appeal (“the Court of Appeal”) upheld the 29 March 2006 ruling of the Leninskyy Court. It noted that the issue of the applicant’s administrative detention from 6 to 9 March 2006 was beyond the scope of the examination at hand, given the fact that he had failed to challenge it in due time. The subsequent detention was regarded to be in compliance with the law. As to the applicant’s unsuccessful request to have the witnesses of his arrest of 6   March 2006 summoned, the appellate court pointed out that it had no basis in the applicable provisions of the Code of Criminal Procedure. On 19 September 2006 the applicant requested the Leninskyy Court to release him subject to an undertaking not to abscond. He contended that there were no reasons to fear that he would abscond or impede the investigation if at liberty. The applicant provided his address and noted that before the arrest he had been working on a construction site. As to his past criminal convictions, they could not be relied on for justifying his pre-trial detention in the criminal proceedings at hand. On the same date the Leninskyy Court rejected the request. It noted that, in the light of all the circumstances, the applicant could not be trusted to cooperate with the investigation or not to commit further crimes. On an unspecified date thereafter the case was transferred to a different judge, R., in the Leninskyy Court. According to the applicant, judge R. unsuccessfully asked to be withdrawn from the case on the ground that she had delivered the judgment of 7 February 2006 in respect of Mr B. and thus had a preconceived opinion about the applicant’s case. On 14 November 2007 the Leninskyy Court, sitting in a single-judge formation (judge R.), found the applicant guilty of robbery of Mr K. committed following conspiracy with Mr B. and sentenced him to seven years’ imprisonment with confiscation of all his personal property. Referring to the judgment of 7 February 2006 in respect of Mr   B., which had not been challenged on appeal and had become final, the court relied on the testimonies Mr B. had given during his own trial. According to Mr B., he had first met the applicant on the day of their attempted burglary of Mr   K.’s car. He stated that it had been the applicant’s initiative to steal stereo equipment from cars, and that the applicant had undertaken to teach him how to do it. As to the incident with Mr N., the Leninskyy Court classified the applicant’s actions as attempted petty theft, an administrative (minor) rather than a criminal offence. Accordingly, the applicant was acquitted in that regard for lack of corpus delicti in his actions. Lastly, the Leninskyy Court stated that the imprisonment term was to be calculated from 9 January 2006. It also decided to leave the preventive measure unchanged. The applicant appealed. He submitted, in particular, that it was unacceptable to rely on the statements Mr B. had made in a trial in which the applicant himself had not participated. Alleging a breach of Article 6 §   3   (d) of the Convention, the applicant emphasised that Mr B. had not been summoned to the court in the framework of his own trial, and that therefore he had not had the possibility to contest Mr B.’s submissions or to question him as a key witness. The applicant further noted in this connection that judge R., who had dealt with both his and Mr B.’s case, had in fact admitted to having a preconceived opinion about the circumstances of the case and had asked to withdraw from sitting in it. The applicant further complained that his actions had wrongly been classified as robbery following conspiracy by a group. He contended that Mr K.’s presence in the car had been a surprise for himself and for Mr B., and that they could not possibly have planned to assault Mr.   K. Lastly, the applicant pointed out several inconsistencies and changes in Mr B.’s statements. He noted, in particular, that he had not met Mr   B. on the day of the events, but that they had earlier served a sentence together in the same prison. That being said, the applicant denied that it had been his initiative to steal property from cars and that he had undertaken to teach Mr   B. anything in that domain given that the latter himself had a criminal conviction in respect of several counts of car burglary. On 28 July 2009 the Court of Appeal upheld the aforementioned judgment in general, although it invited the first-instance court to clarify the date from which the imprisonment term was to be calculated. While acknowledging that the Leninskyy Court had relied on statements Mr B. had made in the framework of a different trial, the Court of Appeal noted that those statements were in concordance with the other evidence and there were therefore no reasons to question their credibility. On 16 September 2009 the applicant, relying on the above-mentioned ruling, requested the Leninskyy Court to rectify the calculation of his imprisonment term from 6 January 2006. On 20   October 2009 his request was rejected as being without basis. On 30 December 2009 the applicant appealed in cassation against the judgment of 14 November 2007 and the ruling of 28 July 2009. On 14 January 2010 the Supreme Court rejected his request for leave to appeal in cassation. According to a letter of the Supreme Court to the applicant’s lawyer of 28   December 2010, sent in reply to the latter’s enquiry about the progress of the case, the aforementioned ruling had been sent to the applicant’s mother as his representative in the proceedings. According to the applicant, he never received the Supreme Court’s ruling and was unaware of its contents. B.     Relevant domestic law Under Article 187 of the Criminal Code, robbery is punishable by imprisonment for a term of three to seven years (paragraph 1). Robbery committed by a group of persons upon prior conspiracy is punishable by seven to ten years in prison, with confiscation of property (paragraph 2). Article 178 of the Code on Administrative Offences punishes public drunkenness, inter alia , by administrative detention for up to fifteen days. Other relevant legal provisions can be found in the judgment Nechiporuk   and Yonkalo v. Ukraine , no. 42310/04, §§ 121, 129-130 and   132, 21 April 2011). COMPLAINTS The applicant complains under Article 5 § 1 of the Convention about the alleged unlawfulness of his detention: from 6 to 9 January 2006 – as based on fictitious grounds (administrative detention instead of detention on suspicion of a criminal offence); and from 9 to 12 January 2006 – as not based on a judicial order. He also complains under Article 5 § 3 about the length of his pre-trial detention. Furthermore, the applicant complains under Article 5 § 4 that he could not obtain judicial review of the lawfulness of his detention from 6 to 9   January 2006. The applicant further complains under Article 6 § 1 of the Convention that the judge of the Leninskyy Court dealing with his case could not be regarded as independent or impartial given that she had already given her assessment to the circumstances of the case in the framework of a different trial (in respect of Mr B.) and had therefore had a preconceived opinion about them. In substantiation of this allegation, the applicant refers to the judge’s request to withdraw from sitting in the case, which was rejected. He also complains under Article 6 §§ 1 and 3 (d) that the judgment of 14   November 2007 was based on facts established in the framework of Mr   B.’s trial, and that he was not able to examine or have examined Mr B., as one of the key witnesses in his case, in the court proceedings. The applicant next complains under Article 6 that he was not given prompt access to the case file after the pronouncement of the judgment of 14   November 2007 for the purposes of preparing his appeal. He also complains under Article 6 § 1 about the severity of his punishment and the length of the criminal proceedings against him. Lastly, the applicant complains under Article 7 that he was convicted even though he had not committed a criminal offence. QUESTIONS TO THE PARTIES 1.     Was the applicant deprived of his liberty from 6 to 12 January 2006 in breach of Article 5 § 1 of the Convention?   2.     Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?   3.     Was judge R. sitting as the Leninskyy Court in the singe-judge formation which dealt with the applicant’s case impartial, as required by Article 6 § 1 of the Convention? In answering this question, the Government are requested to comment, in particular, on the judge’s self ‑ withdrawal application, her participation in the trial of Mr B. and her refusal to summon Mr B. as a witness in the applicant’s trial.   4.     Was the applicant able to obtain the attendance of Mr B. and to examine him as a witness in his trial, as required by Article 6 § 3 (d) of the Convention?