CEDH · CASELAW;COMMUNICATEDCASES;ENG — 23 septembre 2019

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .sDAD2B73A { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s76334B44 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .sB853CD26 { font-family:Arial; font-size:8pt } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sCC3B9D73 { letter-spacing:-0.2pt } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .sC6C7C49B { margin-left:7.35pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-weight:normal; font-style:italic } .sA2548810 { margin-top:14pt; margin-bottom:0pt; text-align:center; page-break-after:avoid; font-size:10pt } .s718D1C37 { margin-top:0pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s71EEDCF9 { margin-top:0pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s30C8A987 { width:4.78pt; font:7pt 'Times New Roman'; display:inline-block } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .sE5273FBD { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .sC79167A { margin-top:14pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4E0353E8 { width:4.23pt; font:7pt 'Times New Roman'; display:inline-block } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s12C7C643 { margin-top:14pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } Communicated on 23 September 2019   FIFTH SECTION Application no. 54806/18 Dmitriy Grigoryevich SHABELNIK against Ukraine lodged on 13 November 2018 STATEMENT OF FACTS 1.     The applicant, Mr Dmitriy Grigoryevich Shabelnik, is a Ukrainian national, who was born in 1979 and is in detention in Zhytomyr, Ukraine. He was represented before the Court by Mr M. O. Tarakhkalo, a lawyer practising in Kyiv, Ukraine. The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. Criminal proceedings against the applicant 3.     In October 2001 Ms K. was found murdered in her flat. In December 2001 Ms S., a minor, was kidnapped and murdered. 4.     On 10 December 2001 the applicant was arrested on suspicion of kidnapping S. in order to extort money from her parents and of S.’s murder. On 17 December 2001 the applicant was provided with a lawyer in connection with those charges. 5.     On 15 February 2002, purportedly at his own request, the applicant, was questioned as a witness about the circumstances of K.’s death. During the questioning, which took place without a lawyer, the applicant confessed to K.’s murder. Next day, still acting as a witness, the applicant participated without a lawyer in an on-site reconstruction of the attack on K. On 18 and 22 February 2002 he was again questioned, without a lawyer, about the attack. 6 .     On 25 February 2002 the investigating prosecutor instituted criminal proceedings against the applicant for the K.’s murder and joined them with the criminal case concerning the kidnapping and murder of S. 7 .     The applicant stood trial at the Zhytomyr Regional Court of Appeal, which was competent to act as a trial court (“the trial court”) because the applicant was accused of aggravated murder, a crime carrying a potential life sentence.   In the course of the trial the applicant stated that he was innocent of both murders but pleaded guilty to kidnapping S. He stated that on the day of K.’s murder he had met an old childhood acquaintance, M., in the street. M. had told him that he had killed K. To check M.’s story the applicant had gone to K.’s flat and had seen her dead body there. He had had nothing to do with the robbery and murder. 8 .     On 11 July 2002 the trial court convicted the applicant of kidnapping, extortion and the murder of S. He was also convicted of the robbery and murder of K. The court classified his actions with respect of K. as robbery under Article 187   §   4 and wilful murder committed to conceal robbery under Article 115   §   2 (9). The court further classified his actions with respect of S. as an abduction of person with grave consequences under Article 146   §   3, as taking S. as a hostage under Article 147   §   2, as extorting with threat of murder under Article 189   §   4, as a wilful murder of a minor under Article 115 §   2 (2), as a wilful murder of a hostage under Article   115   §   2 (3), as a murder based on mercenary motives under Article   115 §   2 (6), as a murder committed by a person who has previously committed a murder under Article 115 §   2 (13). The court sentenced him to life imprisonment for murders under Article 115 §   2 (2), (3), (6), (9),   (13) with punishments for less severe crimes ranging between 10 to 15 years of imprisonment being absorbed by the life sentence. The court further allowed the civil claim of S.’s father and awarded him damages. 9.     On 10 October 2002 the Supreme Court of Ukraine upheld the decision of the appellate court. The applicant’s first case before the Court 10.     On 2 April 2003 the applicant lodged an application with the Court (no. 16404/03), alleging that his conviction for the murder of K. had been based on incriminating evidence that had been obtained in violation of his right to remain silent and the privilege against self-incrimination and that he had been hindered in the effective exercise of his right to defence when questioned at the pre-trial stage of the proceedings. 11.     On 19 February 2009 the Court declared the application partly admissible and found a violation of Article   6   §§ 1 and 3 of the Convention ( see , Shabelnik v. Ukraine, no. 16404/03, 19 February 2009). 12.     The Shabelnik judgment (cited above) became final on 19   May 2009. Re-examination of the applicant’s case following the Shabelnik judgment 13.     The applicant’s lawyer lodged an application with the Supreme Court for a review of the applicant’s criminal case in view of the first Shabelnik judgment (cited above). He asked the Supreme Court to quash the trial court’s judgment and its own 2002 decision upholding the original conviction. He asked that he and the applicant be present during the examination of the request. 14.     The prosecutor’s office also applied to the Supreme Court for a review. It asked the court to amend the trial court’s judgment and the Supreme Court’s 2002 decision by striking out references to the records of the questioning of the applicant as a witness about K.’s murder and the result of the on-site reconstruction of that murder. 15 .     On 30 April 2010 the Supreme Court allowed the above applications in part, quashed its own 2002 decision and remitted the case to a panel of three judges of the Supreme Court for a fresh examination in cassation proceedings. 16 .     On 9 September 2010 the Supreme Court examined the case in the absence of the applicant but in the presence of his lawyer and a prosecutor. The Supreme Court excluded the applicant’s original confessions from the body of evidence, but found that the rest of the evidence in the case file was sufficient to support the trial court’s finding that the applicant had murdered K. while trying to cover up an attempted robbery. The applicant’s second case before the Court 17.     On 28 February 2011 the applicant lodged his second application with the Court (no. 16404/03), alleging that the Supreme Court, in the course of re-examining his case in cassation proceedings, had breached a number of provisions of Article 6 of the Convention. 18.     On 1 June 2017 the Court declared the application admissible and found a violation of Article   6   § 1 of the Convention. The Court found in particular that “ the Supreme Court’s reasoning and the procedure it followed did not meet the requirements of fairness inherent in Article 6   §   1 of the Convention ” and thus there had been a violation of Article 6 § 1 of the Convention (see Shabelnik v. Ukraine (no. 2) , no. 15685/11, §§ 54 and 55, 1   June 2017). It further stated that “56.     In view of the above conclusions the Court considers that ... only a full retrial could have provided, in the particular circumstances of the case, an appropriate forum for an adequate examination of the impact of the exclusion of the applicant’s confessions on the conclusiveness of the remaining evidence about the attack on K.” ( Shabelnik (no. 2), cited above ). 19.     The Shabelnik (no. 2) judgment (cited above) became final on 1   September 2017. Re-examination of the applicant’s case following the Shabelnik (no.   2) j udgment 20.     On 5 December 2017 the applicant’s lawyer lodged an application with the Supreme Court for a review of the applicant’s criminal case in view of the Shabelnik (no. 2) judgment. The applicant’s representative requested the full review of the judgment of the Zhytomyr Regional Court of Appeal of 11 July 2002 and the decision of the Supreme Court of 9 September 2010 on the ground that those judicial decisions were rendered as a result of an unfair trial. The lawyer further requested to replace the applicant’s detention with a less strict preventive measure. 21.     On 28 January 2018 Judge B. of the Grand Chamber of the Supreme Court of Ukraine initiated proceedings into the application of 5 December 2017. 22.     In April 2018 the applicant requested the court to examine his case in his absence but in the presence of his lawyer. 23.     On 16 May 2018 the Grand Chamber of the Supreme Court, composed of 16 Judges, held the hearing in the applicant’s case with participation of the applicant’s lawyer and a prosecutor. During the hearing the applicant’s lawyer confirmed that the applicant did not wish to be present at the hearing. Having reiterated the circumstances of the applicant’s case and the findings of the domestic courts and of this Court in its judgments of Shabelnik and Shabelnik (no. 2) (cited above), it allowed the application of 5 December 2017 in part. 24.     The Grand Chamber of the Supreme Court considered that in order to comply with the judgments of the Court in the applicant’s cases, it was called to take additional individual measures with a view to the execution of judgments of Shabelnik and Shabelnik (no.   2) . Such individual measures in the applicant’s case could be in the form of full review of his criminal case in part concerning K’s murder Therefore, the court quashed the judgment of the Zhytomyr Regional Court of Appeal of 11 July 2002 and the decision of the Supreme Court of 9   September 2010 in so far as it concerned the episode of K’s murder. 25.     In respect of the other episode - the kidnapping and murder of minor S. – the Grand Chamber of the Supreme Court noted that the res judicata principle required that the finality of the judicial decisions were challenged only in exceptional situations. It further noted that all investigative actions in the criminal case about K’s murder had been conducted before it had been joined with the criminal case about S’s murder. It also pointed to the fact that the Court had found no violation in respect of the episode concerning the kidnapping and murder of S. It concluded that there were no grounds for review of the criminal case against the applicant in part concerning S. 26.     Having concluded that it had competence to quash the previous decisions in the applicant’s criminal case in part, the Grand Chamber of the Supreme Court addressed the issue of criminal legal classification of the applicant’s actions. It noted that the applicant had been convicted for cumulation of criminal offences under Articles 115   §   2 (2), (3), (6), (9), (13), 146   §   3, 147   §   2, 187   §   4 and 189   §   4 of the Criminal Code with an aggravated circumstance of murdering an elderly person. In so far as the murder of minor S. with prior demand of ransom from her parents was concerned, those facts had been established by the first instance court and classified under 115   §   2 (2), (3), (6), 146   §   3, 147   §   2, and 189   §   4 of the Criminal Code without aggravating circumstances. The Grand Chamber of the Supreme Court decided, taking into account that the episode of murder of K. was quashed and sent for full retrial, the applicant’s actions in the other episode should be classified under 115   §   2 (2), (3), (6), 146   §   3, 147   §   2, and 189   §   4 of the Criminal Code. Thus, in comparison with classifications given to the applicant’s actions in respect of S. in the original judgment (see para. 8 above), the classification of his actions as a murder committed by a person who has previously committed a murder under Article 115 §   2 (13) was taken away. 27.     The Grand Chamber of the Supreme Court decided that the intentional murder of a minor with mercenary motives demonstrated that the applicant was particularly dangerous to the society and concluded that life sentence would be an adequate punishment for the committed crime. 28.     Three judges of the Grand Chamber of the Supreme Court wrote a separate opinion in which they disagreed with the majority as to the separation of the punishments. They noted that the first-instance court in the original judgment mentioned that the applicant being unsuccessful in obtaining money from the robbery of K. planned a new crime, namely extortion of money from the parents of S. According to the dissenting judges the above conclusion demonstrated the link between the two crimes and therefore the applicant had mercenary motives in respect of both crimes. They also considered that the applicant’s situation was worsened as he had been originally convicted for two murders, for murdering an elderly person as an aggravating circumstance and for mercenary motives. Given that multiple murder and the aggravated circumstance were excluded and the mercenary motives concerned both crimes and could not be split, they considered that the criminal case against the applicant required full review in its totality. Relevant domestic law Criminal Code of Ukraine, 2001 Article 12 Classification of criminal offenses “1. Depending on the gravity, criminal offenses shall be classified as minor offenses, medium grave offenses, grave offenses, or especially grave offenses. ... 5. An especially grave offense shall mean an offense that foresees as a main punishment ... an imprisonment of ten to fifteen years or a life sentence.” Article 33 Cumulation of criminal offenses 1. The cumulation of criminal offenses shall mean the commission, by one person, of two or more offenses created by different articles or different paragraphs of the one article of the Special Part of this Code, where that person has not been convicted of any of these offenses. The offenses with regard to which the person was discharged from criminal liability on grounds prescribed by the law shall not be taken into account. 2. In case of cumulation of criminal offenses, each of them shall be classified under appropriate article or paragraph of an article of the Special Part of this Code. Article 49 Discharge from criminal liability due to limitation period “1. A person shall be discharged from criminal liability if the following periods have elapsed from the date of the criminal offense to the effective date of the judgment: ... (5) fifteen years where an especially grave offense has been committed. 4. Where a person has committed an especially grave offense punishable by life imprisonment, the issue of limitation shall be decided by a court. Where a court rules out the possibility to apply a period of limitation, a sentence of life may not be imposed and is commuted to an imprisonment for a determinate term...” Article 67 Circumstances aggravating punishment “1. For the purposes of imposing a punishment, the following circumstances shall be deemed to be aggravating: ... (6) the commission of an offense against an elderly person...” Article 115 Murder “1. Murder, that is wilful unlawful causing death of another person, shall be punishable by imprisonment for a term of seven to fifteen years. 2. Wilful murder...(2) of a young child...; (3) of a hostage; ... (6) based on mercenary motives; ...(9) committed to conceal or facilitate another crime; ... (13) committed by a person who has previously committed a murder ... shall be punishable by imprisonment for a term of ten to fifteen years, or life imprisonment with forfeiture of property in the case provided for by subparagraph 6 of paragraph 2 of this Article.” Article 146 Illegal confinement or abduction of a person “1. Illegal confinement or abduction of a person shall be punishable by restraint of liberty for a term up to three years, or imprisonment for the same term. 2. The same acts committed in regard of a minor, or for mercenary purposes, or in regard of two or more persons, or by a group of persons upon their prior conspiracy, or by a method dangerous to the victim’s life or health, or causing bodily suffering to him or her, or with the use of weapons, or within a lasting period of time, shall be punishable by restraint of liberty for a term up to five years, or imprisonment for the same term. 3. Any such acts as provided for by paragraph 1 or 2 of this Article, where committed by an organized group, or where they caused any grave consequences, shall be punishable by imprisonment for a term of five to ten years.” Article 147 Hostage taking “1. Taking or holding a person as a hostage with the intent to induce relatives of the hostage, any government agency or other institution, business or organization, any natural person or any official to make or refrain from any action as a condition for release of the hostage shall be punishable by imprisonment for a term of five to eight years. 2. The same acts committed in respect of a minor, or by an organized group, or accompanied with threats to destroy people, or causing any grave consequences, shall be punishable by imprisonment for a term of seven to fifteen years.” Article 187 Robbery “1. An assault for the purpose of taking possession of somebody else’s property, accompanied with violence dangerous to life and health of an assaulted person, or with threats of such violence (robbery), shall be punishable by imprisonment for a term of three to seven years. ... 4. Robbery in respect of gross and especially gross amounts, or committed by an organized group, or accompanied with infliction of grievous bodily injury,   shall be punishable by imprisonment for a term of eight to fifteen years with the forfeiture of property.” Article 189 Extortion “1. Demand to transfer somebody else’s property or property title, or any other acts in respect of property under threats of violence against the victim or his/her close relatives, or restriction of their rights, freedoms or lawful interests, or damage or destruction of their property or the property entrusted to them or placed into their custody, or disclosure of information that the victim or his close relatives would like to keep secret (extortion),   shall be punishable by restraint of liberty for a term up to five years, or imprisonment for the same term. ... 4. Extortion that caused property damage in especially gross amount, or committed by an organized group, or accompanied with infliction of grievous bodily injury,   shall be punishable by imprisonment for a term of seven to twelve years with the forfeiture of property.” Code of Criminal Procedure 2012 (a)    Wording prior to amendments of 3 October 2017 Article 445 Grounds for review of the judicial decisions by the Supreme Court of Ukraine “1.     Grounds for review by the Supreme Court of Ukraine of the judicial decisions which came into force shall be: ... 4)     finding by an international judicial body, which jurisdiction is accepted by Ukraine, of a violation by Ukraine of its international obligations during the judicial examination of the case.” (b)    Wording with the amendments of 3 October 2017 Article 459 Grounds for conducting criminal proceedings upon newly discovered or exceptional circumstances “1.Court decisions which have taken legal effect may be reviewed upon newly discovered or exceptional circumstances. ... 3. The following shall be recognized as exceptional circumstances: ... 2) the establishment by an international judicial institution, whose jurisdiction is recognized by Ukraine, of a violation of Ukraine’s international obligations in resolving this case by a court...” Article   461 Time limit for lodging a request to review court decision upon newly discovered or exceptional circumstances “1. Request to review court decision upon discovery of new circumstances may be lodged within three month after the requester has learned or could have learnt of such circumstances. ... 5. An application for reviewing a court decision upon exceptional circumstances may be filed: ... 2) on the grounds provided for in subparagraph 2 of paragraph 3 of Article 459 of this Code, - by a person in whose favour the decision has been taken by an international judicial institution whose jurisdiction is recognized by Ukraine no later than thirty days from the day that such person learned or could learn that the decision is final...” Article 467 Court decision following criminal proceedings upon newly discovered or exceptional circumstances “1.     The court shall be entitled to quash the judgment or ruling and render a new judgment or make a ruling, or dismiss the request to review court decision upon newly discovered or exceptional circumstances. When making a new judgment, the court exercises powers of a court of the relevant instance. As a result of reviewing of a court decision upon newly discovered or exceptional circumstances, the Supreme Court may also quash a court decision (court decisions) in whole or in part and transfer the case for a new consideration to the court of the first or appellate instance, (Second part of paragraph1 of Article 467 was amended by an Act that was adopted on 7 December 2017 and came into force one 06 February 2018). Execution of Judgments of the European Court of Human Rights Act, 2006 29.     Section 10 of the Law provides for additional individual measures with a view to the execution of judgments of the Court, including the review of a case by a court and the reopening of judicial proceedings. COMPLAINTS The applicant complains under Article 7 of the Convention that the Grand Chamber of the Supreme Court of Ukraine by its decision of 16 May 2018 imposed a new punishment on him for the crime committed seventeen years earlier despite the fact that the statute of limitation under the law for such crimes was fifteen years. He further complains that the Grand Chamber of the Supreme Court of Ukraine ignored this issue completely in its decision and did not analyse the applicability of the statute of limitation in the applicant’s criminal case.     QUESTIONS TO THE PARTIES 1.     Has the Supreme Court by its decision of 16 May 2018 imposed a new punishment on the applicant for the crime committed against S. in 2001, that is seventeen years earlier?   2.     If so, was such punishment provided by law within the meaning of Article 7 of the Convention given the statute limitation of fifteen years provided by law for such type of crimes?