FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 1282/03
by Sergey Nikolayevich ARTSYBASHEV
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 4 December 2006 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrJ. Borrego Borrego, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 26 October 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Sergey Nikolayevich Artsybashev, is a Ukrainian national who was born in 1971 and is currently detained in the Dnepropetrovsk Penitentiary No. 89, Ukraine. He is represented before the Court by Mr A.N. Levchenko, a lawyer practicing in Donetsk, Ukraine.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 25 August 1997 the applicant was arrested on suspicion of having committed an aggravated murder. He was detained on remand.
On 8 December 1997 the investigation was completed and the case was referred to the Chervonogvardeyskiy District Court of Makeyevka (hereinafter – the District Court).
On 19 March 1998 the District Court remitted the case to the investigative authorities for additional investigation.
On 31 August 1998 the additional investigation was terminated and the case was referred to the District Court.
On 21 May 1999 the District Court convicted the applicant of aggravated murder and sentenced him to eleven years’ imprisonment.
On 20 July 1999 the Donetsk Regional Court quashed the judgment and remitted the case for additional pre-trial investigation.
On 15 December 1999 the additional investigation was terminated and the case was referred to the District Court.
On 2 June 2000 the District Court remitted the case for additional investigation, which was terminated on an unspecified date and the case was referred back to the District Court.
On 27 October 2000 the District Court again remitted the case for additional investigation.
On an unspecified date the additional investigation was terminated and the case was referred to the Donetsk Regional Court of Appeal (hereinafter – the Court of Appeal), acting as a first instance court.
On 24 July 2001 the Court of Appeal convicted the applicant of aggravated murder and sentenced him to fourteen years’ imprisonment.
On 11 July 2002 the Supreme Court upheld the judgment.
B. Relevant domestic law
The texts of Article 120 of the Code of Criminal Procedure of 1960 (terms of pre-trial investigation) and Article 281 (remittal of a case for additional investigation) are summarised in the judgment Merit v. Ukraine (no. 66561/01, judgment of 30 March 2004, Relevant domestic law and practice).
COMPLAINTS
The applicant complained under Article 5 §§ 1 (c) and 3 about unlawfulness and the excessive length of his detention on remand.
The applicant further complained under Article 6 §§ 1 and 3 (d) about the length and outcome of the criminal proceedings against him. He maintained that he had not had a fair trial and that the domestic courts had erred in assessment of evidence and application of law. He also complained that the investigative authorities had failed to examine witnesses S., M., and A.
THE LAW
1. The applicant complained about unlawfulness and the excessive length of his detention on remand. He relied on Article 5 §§ 1 (c) and 3 of the Convention.
The Court reiterates that according to its well-established case-law that – for the purposes of the Convention – detention while an appeal against a conviction by a first-instance court is pending is to be considered as detention "after conviction" within the meaning of Article 5 § 1 (a) of the Convention, even if the detention continues to be considered as detention on remand under domestic law (see, B. v. Austria, judgment of 28 March 1990, Series A no. 175, pp. 14-16, §§ 35-40; and Saez v. the Netherlands (dec.), no. 51197/99, 25 May 2004). Consequently, the six months’ time-limit under Article 35 § 1 of the Convention must be taken as having started on 24 July 2001, when the Court of Appeal convicted and sentenced the applicant. Since the application was not lodged until 26 October 2002, this part of the application has been submitted out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
2. The applicant further complained that the criminal proceedings against him had lasted unreasonably long. He relied on Article 6 § 1 of the Convention, which provides so far as relevant as follows:
“In the determination ... criminal charge against him, everyone is entitled to a ... hearing within a reasonable time..”
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.
3. The applicant finally complained about the unfairness and outcome of the proceedings. He invoked Article 6 §§ 1 and 3 (d) of the Convention.
In the light of all the material in its possession, and insofar as the matters complained of are 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. The applicant has been convicted following adversarial proceedings in the course of which he was represented by a lawyer of his choice and was given ample opportunity to state his case, to challenge the evidence against him and to submit whatever he found relevant for the outcome.
It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning the excessive length of the proceedings;
Declares the remainder of the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy