FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 25486/03
by Aleksandr Vladimirovich SHAVEL
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 8 January 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrJ. Borrego Borrego,
MrsR. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 3 July 2003,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Aleksandr Vladimirovich Shavel, is a Ukrainian national who was born in 1985 and lives in the city of Khmelnitskiy, Ukraine. He is represented before the Court by Mrs N. Vagina, a lawyer practising in Khmelnitskiy.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 12 July 2001 the applicant was apprehended on suspicion of aggravated murder. During the preliminary investigation he confessed that he and the other suspects killed Mr B.
On 15 July 2001 the Khmelnitskiy City Court (hereinafter – the City Court) ordered the applicant’s arrest.
On 20 July 2001 the Khmelnitskiy Regional Court of Appeal (hereinafter – the Court of Appeal) upheld this ruling.
On 11 September 2001 the City Court extended the period of the investigation and the applicant’s detention to four months.
On 17 September 2001 the Court of Appeal upheld this ruling.
On 9 November 2001 the City Court extended the period of the investigation and the applicant’s detention to five months and on 11 December 2001 to six months.
On 9 January 2002 the investigation was completed and the applicant was given access to the case-file.
On 27 March 2002 both the applicant and his lawyer finished consulting the case-file.
On 5 June 2002 the case was referred to the Court of Appeal.
On 2 August 2002 the court rejected the applicant’s motion for his release. According to the applicant, the court refused to examine the applicant’s complaint about the unlawfulness of his detention on remand between 27 March and 5 June 2002.
On 27 November 2002 the Court of Appeal remitted the case for additional pre-trial investigation. The court refused to change the applicant’s preventive measure.
On 11 February 2003 the Supreme Court upheld this ruling.
On an unspecified date the additional investigation was completed and the case was referred to the Court of Appeal.
On 26 October 2004 the Court of Appeal remitted the case for additional pre-trial investigation. The court also changed the applicant’s preventive measure and released him under the obligation not to leave his place of residence.
During the period from 26 October 2004 and till the present time the investigative authorities six times terminated the criminal proceedings against the applicant for lack of evidence (on 30 March 2005, 19 May 2005, 25 July 2005, 25 September 2005, 25 January 2006 and 2 April 2006). All these rulings were subsequently quashed by the Khmelnitskiy Regional Prosecutor.
The proceedings are still pending.
B. Relevant domestic law
Code of Criminal Procedure of 28 December 1960 (as amended on 21 June 2001)[1]
Article 120
The terms of the pre-trial investigation
“The pre-trial investigation in criminal cases shall last no longer than two months. This term shall commence from the moment the criminal proceedings were initiated up to the point of their being sent to the prosecutor with:
An indictment or a resolution concerning the committal of the case to the court in order to decide on applicable measures of compulsory medical treatment or terminating the proceedings in the criminal case. In the event of impossibility to terminate the proceedings this term shall be extended by up to three months by the district, city, military prosecutor of the army, fleet, military districts (commands), garrisons and the prosecutors of equal rank. The time it takes for the accused and his representatives to familiarise themselves with the materials in the criminal case-file shall not be included in the calculation of the period of the pre-trial investigation.
In especially complicated cases the term of the pre-trial investigation, established by part 1 of this Article, can be extended on the basis of the reasoned resolution of the investigator up to six months, to be approved by the prosecutor of the Autonomous Republic of the Crimea, prosecutors of regions, the prosecutor of Kyiv, the military prosecutor of the military district (command), fleet and the prosecutors of equal rank or their deputies.
Further continuation of the term of the pre-trial investigation shall only be approved by the Prosecutor General of Ukraine or by his deputies.
Where the case was remitted for an additional investigation, or if the terminated case was re-opened, the term of additional investigation shall be established by the prosecutor who supervises the investigation, and shall not be more than one month from the moment of the re-initiation of the proceedings in the case. Further continuation of this term shall be enacted on a general basis.
The rules enshrined in this Article, shall not be applicable to criminal proceedings where it has not been established who committed the crime. The running of the term of the investigation in such cases shall commence from the date of identifying the person who committed a crime.”
(On 30 January 2003 the Constitutional Court of Ukraine interpreted this provision and held that the maximum deadline for investigating criminal cases cannot be fixed. It decided that the time allowed for investigation should be reasonable, and referred to Article 6 of the Convention.)
Article 156
Periods of detention during an investigation
“Detention during pre-trial investigations shall not exceed two months. In cases in which it is impossible for the investigation of the case to be completed within the period provided for by Part One of this Article and there are no grounds for discontinuing the preventive measure or substituting a less restrictive measure, the period of detention may be extended:
(1) to four months - on an application approved by the prosecutor who supervises compliance with the laws by bodies of inquiry and pre-trial investigation or by the prosecutor who, or a judge of the court which, issued the order for the application of the preventive measure;
(2) to nine months - in cases of serious and especially serious crimes, on an application approved by the Deputy Prosecutor General of Ukraine, the Prosecutor of the Autonomous Republic of Crimea, the prosecutor of the regions, the prosecutor of the cities of Kyiv and Sevastopol and the prosecutors of equal rank, or submitted by the same prosecutor for consideration to a judge of an appellate court;
(3) to eighteen months - in particularly complex cases involving especially serious crimes, on an application by the Prosecutor General of Ukraine or his Deputy, or submitted by the same prosecutor for consideration to a judge of the Supreme Court of Ukraine;...
...The period of detention during pre-trial investigations shall expire on the day the court receives the case-file; however, the time it takes for the accused and his representatives to familiarise themselves with the materials in the criminal case-file shall not be included in the calculation of the period for which the accused has been detained as a preventive measure...
...In the event that the case is returned by the court to the Prosecutor for a supplementary investigation the period of detention shall be calculated from the moment the case is received by the Prosecutor and shall not exceed two months. The period specified shall be further extended by taking into account the time the accused was held in detention before the referral of the case to the court, in accordance with the procedure and within the time-limit prescribed by Part Two of this Article.
Save where the period has been extended pursuant to the procedure established by this Code, in the event of the expiry of the maximum period for detention as a preventive measure allowed by Parts One and Two of this Article, the body of inquiry, the investigator, or the prosecutor shall be obliged to release the person from custody without delay.
Governors of pre-trial detention centres shall promptly release from custody any accused in respect of whom a court order extending the period of detention has not been received by the time the period of detention allowed by Parts One, Two and Six of this Article expires. They shall notify the person or body before whom the case is pending and the prosecutor supervising the investigation”
Article 281
Remittal of the case for additional investigation
“The court, on its own initiative or on an application by the parties to the proceedings, may refer the case back for additional investigation on account of the incompleteness or incorrectness of the preliminary investigation only where such incompleteness or incorrectness cannot be rectified in the course of the hearing.
After an additional investigation the case shall be referred to the court under the ordinary procedure.
The ruling (or resolution) on remittal of the case for additional investigation cannot be appealed against, but the public prosecutor may lodge a separate application against it.”
COMPLAINTS
The applicant alleged that his detention had been unreasonably long and unlawful. He relied on Article 5 §§ 1 (c) and 3 of the Convention.
He also complained under Article 6 § 1 of the Convention of the length of the criminal proceedings against him.
The applicant further invoked Article 3 complaining about ill-treatment and detention conditions in the custody.
The applicant finally complained under Article 6 § 3 (c) about ineffectiveness of the officially appointed counsel. Under the same provision he complained that his conversations with his lawyers had been eavesdropped.
THE LAW
1. The applicant complained that his detention on remand had been unlawful. He also complained about the length of his detention on remand. He invoked Article 5 § 1 (c) and, in substance, Article 5 § 3 of the Convention, which read, as 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;
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
The Court considers that it cannot, on the basis of the case-file, determine the admissibility of these complaints 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.
2. The applicant further complained that the criminal proceedings lasted unreasonably long. He relied on Article 6 § 1 of the Convention, which reads, as far as relevant, as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
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 further complained under Article 3 of the Convention about ill-treatment and detention conditions in the custody. He finally complained under Article 6 § 3 (c) about lack of effective legal representation at the initial stage of the proceedings. Under the same provision he complained that his conversations with his lawyers had been eavesdropped.
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.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning the unlawfulness and excessive length of the pre-trial detention, and the excessive length of the proceedings;
Declares the remainder of the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
[1]. These amendments entered into force on 29 June 2001.
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