FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 19906/04
by Igor Yevgenyevich PANASYUK
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 23 August 2011 as a Chamber composed of:
Dean Spielmann, President,
Elisabet Fura,
Karel Jungwiert,
Mark Villiger,
Isabelle Berro-Lefèvre,
Ann Power, judges,
Mykhaylo Buromenskiy, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 1 June 2004,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Igor Yevgenyevich Panasyuk, is a Ukrainian national who was born in 1971 and is currently serving a life sentence in prison. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In June 2001 the applicant and several other persons were arrested on suspicion of having committed a number of serious crimes including murders and robberies. According to the applicant, he was not provided with a lawyer at the initial stages of the investigation.
On 14 and 21 March 2002, a journalist D. published an article in the local newspaper M. concerning the criminal proceedings against the applicant. The article began by referring to the investigator in charge, who expressed the opinion that the applicant “was the head of the group and could have become a good manager in other circumstances”. Later on, the article reported on the criminal activity of the applicant and his accomplices in a confirmatory manner and without any reservation or qualification. The article referred to the applicant by his real name whereas the names of the other persons were changed. It finished with the words of the same investigator, who remarked that “the applicant’s gang” might have done much more if the applicant had not been arrested.
On 15 May 2003 the Zaporozhzhya Court of Appeal found, inter alia, that the applicant had organised an armed gang and participated in the perpetration of murders, robberies and other less serious crimes. The court sentenced him to life imprisonment with confiscation of property. The judgment was based on a number of expert opinions as well as on oral, documentary and material evidence.
On 23 June 2003 the applicant appealed in cassation, alleging, among other things, that his procedural rights had been violated as a result of the above article.
On 20 November 2003 the Supreme Court, acting as a court of cassation, upheld the judgment of 15 May 2003 as substantiated, finding that there had been no procedural irregularities in the proceedings in question. The decision of the Supreme Court was pronounced in the presence of the applicant and his lawyer.
B. Relevant domestic law
1. Constitution of 28 June 1996
Article 62 of the Constitution reads as follows:
“A person is presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved through the process of law and established by a court verdict of guilty. ...”
2. Code of Criminal Procedure of 28 December 1960
According to Article 344 of the Code, a copy of the judgment of the first-instance court shall be delivered to the convicted or acquitted person within three days after its pronouncement in the courtroom.
Article 377 of the Code provides requirements to the structure of the decision taken by the court of appeal.
According to Article 379 of the Code, the decision of the court of appeal shall be pronounced in the courtroom. If the preparation of the decision requires much time, the court may pronounce only operative part of the decision. In that case, the full text of the decision shall be prepared and pronounced to the participants of the proceedings during five days after the pronouncement of the operative part. The time of the pronouncement of the full text of the decision shall be indicated in its operative part which was prepared earlier.
Article 400-2 of the Code provides that the decision of the court of cassation shall be prepared and pronounced in accordance with the requirements of Articles 377 and 379 of the Code.
COMPLAINTS
1. The applicant complained under Article 6 § 2 of the Convention that his right to the presumption of innocence had been breached by the statements of the investigator published in the local press.
2. The applicant complained under Article 6 §§ 1 and 3 (d), Article 7 of the Convention that the courts, in dealing with his criminal case, had failed to assess the evidence properly, had applied the law incorrectly, and had failed to question the forensic medical expert in connection with one of the episodes.
3. On 21 July 2009 the applicant submitted an additional complaint alleging that he had not been provided with a lawyer at the initial stages of the investigation, in breach of Article 6 § 3 (c) of the Convention.
THE LAW
1. The applicant complained that statements of the investigator published in the local press constituted a violation of his right to the presumption of innocence. He relied on Article 6 § 2 of the Convention which reads as follows:
“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to the law.”
The Government submitted that the complaint was inadmissible. In their opinion, the applicant had failed to exhaust domestic remedies in so far as he had not lodged a civil suit claiming a violation of his honour and dignity by the impugned publication and seeking redress on this account. As examples of the practical efficacy of the civil remedy, the Government referred to the decisions of the domestic courts which had been analysed by this Court in the case of Vitrenko and other v. Ukraine (no. 23510/02, decision of 16 December 2008).
As an alternative, the Government maintained that the complaint was submitted belatedly. They contended that the six-month period had started to run as from 20 November 2003, when the Supreme Court rejected the applicant’s cassation appeal in the presence of the applicant. Given that the first letter to the Court was dated 1 June 2004, the complaint was out of six months.
The applicant failed to provide his observations in reply to the Government.
The Court has previously held that a complaint under Article 6 § 2 of the Convention cannot be rejected for the reason of non-exhaustion if an applicant raised that issue in the course of criminal proceedings against him (see Shagin v. Ukraine, no. 20437/05, §§ 71-73, 10 December 2009). In such circumstances, the six-month time-limit should be calculated from the moment of final determination of the criminal charge against an applicant (ibid., § 75).
The Court further recalls that where an applicant is entitled to be served ex officio with a written copy of the final domestic decision the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the written judgment (see Worm v. Austria, 29 August 1997, § 33, Reports of Judgments and Decisions 1997‑V). Where the domestic law does not provide for service of the decision, the Court considers it appropriate to take the date the decision was finalised as the starting-point, that being when the parties were definitely able to find out its content (see Papachelas v. Greece [GC], no. 31423/96, § 30, ECHR 1999‑II and Jakelaitis v. Lithuania (dec.), no. 17414/05, 16 December 2008).
In the instant case the Court notes that the applicant raised the substance of his complaint under Article 6 § 2 of the Convention in the course of the criminal proceedings against him. Accordingly, the present complaint cannot be rejected on non-exhaustion grounds.
As regards the compliance with the six-month rule, the Court notes that the Code of Criminal Procedure did not provide the applicant with right to be served ex officio with a written copy of the decision taken by the Supreme Court in his criminal case.
It further notes that the decision of the Supreme Court was adopted on 20 November 2003 and was pronounced in the presence of the applicant and his lawyer. The applicant did not contend that the Supreme Court had failed to pronounce the full text of the decision on that day and there is no indication to that effect in the case file.
In these circumstances the Court considers that the six-month period should be calculated from 20 November 2003. Given that the applicant’s first letter was submitted on 1 June 2004, the complaint should be rejected as having been submitted too late, pursuant to Article 35 §§ 1 and 4 of the Convention.
2. The Court has examined the remainder of the applicant’s complaints and considers that, in the light of all the materials in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Dean Spielmann
RegistrarPresident
Full & Egal Universal Law Academy