FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 17277/03
by Dmitriy Alekseyevich FEDKO
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,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 15 May 2003,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Dmitriy Alekseyevich Fedko, is a Ukrainian national who was born in 1972 and lives in Uman, Ukraine.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was the head of a law firm. In July 2000 his client, Mr Z., was robbed. The police established the identity of the robbers and found Mr Z.’s stolen belongings. During investigation of this case, one of the accused offered Mr Z. compensation for pecuniary and non-pecuniary damage, as a precondition for terminating the criminal proceedings. After negotiations about the sum of compensation, Mr Z. was accused of provocation of bribery and fraud. According to the prosecution, he requested money to bribe police officers, but was going to embezzle them.
On 27 July 2000 the investigator of the Uman Prosecutor’s Office instituted criminal proceedings against Mr Z. The applicant represented Mr Z. in these proceedings.
On an unspecified date between July and September 2000 the applicant was accused of having participated in the bribery and fraud by Mr Z. The proceedings against the applicant and Mr Z. were joined.
In October 2000 the investigation was completed and the case was referred to the Uman Town Court (hereinafter – Town Court).
On 6 February 2001 the Town Court ordered the applicant’s detention on remand.
On 9 November 2001 the Town Court convicted the applicant of fraud and bribery, sentenced him to four years’ imprisonment and amnestied him. On the same day the applicant was released.
On 15 January 2002 the Cherkassy Regional Court of Appeal (hereinafter – Court of Appeal) quashed the judgment and remitted the case for a fresh consideration.
On 8 June 2003 the Town Court convicted the applicant of fraud and bribery, sentenced him to three years’ imprisonment and amnestied him.
On 28 December 2003 the Court of Appeal quashed the judgment and remitted the case to the Cherkassy Regional Prosecutor’s Office for additional investigation. The court found that the pre-trial investigation in respect of the applicant had been conducted unlawfully as the criminal proceedings had been never formally instituted against him.
On 1 July 2004 the applicant was informed that the criminal proceedings against him and Mr Z. had been joined with the criminal proceedings on robbery where Mr Z. was a victim. He was also informed that the criminal proceedings were suspended in accordance with Article 206 § 3 of the Code of Criminal Procedure.
The case is still pending before the Prosecutor’s Office.
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).
According to Article 206 § 3 of the Code of Criminal Procedure, pre-trial investigations should be suspended if the person who committed crime is not established. According to Article 210 of the Code, suspended investigation can be resumed. Article 211 § 1 of the Code provides that suspended investigations should be terminated when becomes time-barred.
COMPLAINTS
The applicant complained under Article 5 §§ 1 and 4 about the unlawfulness of his detention on remand.
The applicant further complained under Article 6 § 1 about the length of the criminal proceedings against him. He also maintained that he had not had a fair trial and that the domestic courts had erred in assessment of evidence and application of law.
THE LAW
1. The applicant complained about the unlawfulness of his detention on remand. He relied on Article 5 §§ 1 (c) and 4 of the Convention, which provides so far as relevant as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
4. 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 reiterates that, according to the established case-law of the Convention organs, in cases where no domestic remedy is available the six-month period runs from the date of the act alleged to constitute a violation of the Convention; however, where it concerns a continuing situation, the period of six-month runs from the end of the situation concerned (see, among other authorities, Antonenkov and Others v. Ukraine, no. 14183/02, § 32, 22 November 2005).
The Court notes that the applicant’s detention on remand ended on 9 November 2001, when he was released. The applicant introduced his application to the Court on 15 May 2003, i.e. more than six months later. It follows that this part of the application is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
2. The applicant further complained about the excessive length and unfairness of the criminal proceedings against him. He relied on Article 6 § 1 of the Convention, which provides so far as relevant as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing ... by [a] ... tribunal...”
a) Length of the proceedings
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.
b) Alleged unfairness of the proceedings.
The Court notes that the proceedings in the applicant’s case are still pending. The applicant’s complaints are therefore premature, the fairness having to be assessed on the basis of the proceedings as a whole. This part of the application must therefore be rejected as manifestly ill-founded under 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