FOURTH SECTION
DECISION
Application no. 45494/10
Irina Viktorivna TOKAR
against Ukraine
The European Court of Human Rights (Fourth Section), sitting on 26 February 2019 as a Committee composed of:
Paulo Pinto de Albuquerque, President,
Faris Vehabović,
Carlo Ranzoni, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 30 July 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Irina Viktorivna Tokar, is a Ukrainian national, who was born in 1968 and lives in Kyiv. She was represented before the Court by Ms O.O. Richko and Ms Y.V. Zayikina, lawyers practising in Kharkiv.
2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna, from the Ministry of Justice.
3. On 28 November 2017 notice of the application was given to the Government.
4. The Government objected to the examination of the application by a Committee, but provided no reasons. After having considered the Government’s objection, the Court rejects it (see, for similar approach, Nedilenko and others v. Ukraine [Committee], no. 43104/04, § 5, 18 January 2018; Lada v. Ukraine [Committee], no. 32392/07, § 4, 6 February 2018; and Geletey v. Ukraine [Committee], no. 23040/07, § 4, 24 April 2018).
The circumstances of the case
5. The facts of the case, as submitted by the parties, may be summarised as follows.
1. First set of proceedings and the applicant’s conviction
6. On 27 March 2009 criminal proceedings were instituted against the applicant on suspicion of having stolen a safe with 480,000 United States dollars (USD) and 40,000 euros inside from P., the applicant’s ex-partner.
7. On the same date the applicant was arrested. According to her, a lawyer engaged by her mother tried to get a meeting with her on that day but was told that she had waived her right to counsel. The arrest record available in the file suggests that the applicant was informed of her right to legal assistance when arrested but did not make any statement in this connection. She also signed a separate document indicating that her procedural rights had been explained to her.
8. At 6 p.m. on the same date the applicant was questioned as a suspect without a lawyer present. She denied any involvement in the crime.
9. On 30 March 2009 the applicant confessed to the theft. According to the applicant, police officers threated members of her family and ordered her to draft a “statement of voluntary surrender and confession to the police” (явкy з каяттям). She obeyed the officers’ demand. She confirmed her confession during the subsequent questioning as a suspect in the absence of a lawyer.
10. On 31 March 2009 a reconstruction of the crime was carried out in the absence of a lawyer during which the applicant repeated her confession. According to the applicant, she agreed to participate in the reconstruction under threats from police officers and in her testimony she followed the instructions given by the investigator in advance.
11. On the same day the applicant was taken to the bank and ordered to withdraw USD 200,000 from her bank account. As soon as it was noted that the police officers did not have a seizure order, they were not allowed to enter the bank. The applicant, now in the presence of the bank manager and two witnesses and not being observed by the police, drafted a statement that she had been forced to confess to the crime and that P. and the police officers had extorted money from her. Later, the applicant was taken to the police station where a record of the seizure of the money was drawn up.
12. Twice on 3 April 2009 the applicant was questioned as an accused in the absence of a lawyer. She confirmed her confessions made on 30 March 2009 (see paragraph 9 above).
13. On the same day the applicant was questioned by a prosecutor following her complaint of ill-treatment and extortion by the police (see paragraph 11 above). No lawyer was present as, allegedly, the applicant had decided to give evidence in his absence. The applicant informed the prosecutor that her initial confession and other statements given during the investigation had been made of her own free will and that since her arrest she had not wished to be legally represented. The applicant alleged before the Court that she had been afraid of testifying against the police officers while in detention.
14. On 4 April 2009 the applicant was released from custody and on 6 April 2009 she hired a lawyer, Z., to represent her in the criminal proceedings.
15. On 22 April 2009, following a request by the applicant of the same date, Z. was admitted to the proceedings. Since then she was always represented in the proceeding by this lawyer or another of her own choosing.
16. On 28 July 2009 criminal proceedings were instituted against the applicant in respect of another incident of theft from P. and joined to the first proceedings against her.
17. On 17 August 2009 the applicant retracted her self-incriminating statements given earlier and submitted that they had been made under police duress.
18. On 14 April 2010 the Kyivo-Svyatoshynskiy District Court of Kyiv (“the District Court”) convicted the applicant on both counts of theft and sentenced her to nine years’ imprisonment. The court referred, along with other evidence, to the applicant’s confession.
19. On 23 June 2010 the Kyiv Regional Court of Appeal upheld the judgment. The court dismissed the applicant’s allegations that her defence rights had been breach, stating that the applicant had waived her right to a lawyer each time she had given incriminating evidence and also referring to her statement to the prosecutor on 3 April 2009 (see paragraph 13 above).
20. On 9 December 2010 the Supreme Court of Ukraine amended the judgment, excluding the second count of theft from the applicant’s charges and reducing her sentence to five years’ imprisonment.
2. Review of the judgment of 14 April 2010 in the light of newly‑discovered circumstances
21. On 7 November 2013 the applicant applied to the District Court to have her case reviewed in the light of newly discovered circumstances. She submitted, inter alia, that the results of the relevant expert examinations had confirmed that she had not been the author of the statement of voluntary surrender to the police of 30 March 2009 and the self-incriminating statements contained in the record of her questioning as a suspect of the same date (see paragraph 9 above) on which her conviction had been based.
22. In her reply of 11 July 2018 to the Government’s observations, the applicant informed the Court that on 24 June 2015, following rounds of proceedings, the District Court granted the request, quashed its judgment of 14 April 2010 (see paragraph 18 above), as upheld on 23 June 2010 (see paragraph 19 above) and amended on 9 December 2010 (see paragraph 20 above), and ordered a fresh examination of the case.
23. On 31 January 2017 the District Court returned part of the case – the episode concerning stealing a safe with money in it – to the prosecutor’s office for additional investigation, pointing to a number of shortcomings and inconsistencies in the initial investigation. The remaining count of theft was dropped from the charges against the applicant. The court also released the applicant’s property from the freeze imposed during the pre-trial investigation.
24. On 20 September 2018 the Government informed the Court that on 5 July 2018 the criminal proceedings against the applicant were discontinued for the reason that there had been no evidence of a crime in her actions. They provided a copy of the relevant decision and submitted that the applicant was informed of this decision on 17 July 2017. No comments followed from the applicant.
COMPLAINT
25. The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that she had been denied a fair trial in her criminal case in that the domestic courts had convicted her for a theft on the basis of her confessions made at the initial stage of the investigation under duress of the police and in the absence of a lawyer.
THE LAW
26. In their initial observations, the Government contended that the applicant had not complied with the requirement of exhaustion of domestic remedies in that she had failed to raise the complaint about a violation of her defence rights in her appeal on the points of law. They further stated that the complaint was, in any event, manifestly ill-founded as the applicant’s trial had been fair. In subsequent comments, the Government confined themselves only to a factual update as regards the quashing of the judgment by which the applicant had been convicted and the eventual discontinuance of the criminal proceedings against her (see paragraphs 22-24 above).
27. The applicant maintained her complaint and argued that the relevant arguments have been raised by her lawyer in the amended appeal to the Supreme Court.
28. The Court does not find it necessary to rule on the Government’s objections since the application is in any event inadmissible for the following reasons.
29. The Court cannot but note at the outset that while such an important change in the proceedings as the quashing of the applicant’s conviction occurred as far back as 2015, the Court was informed of it by the applicant only in 2018, after the case had been communicated to the Government (see paragraph 22 above). Such behaviour on the part of the applicant raises doubts as to whether the applicant has acted in good faith in the proceedings before the Court.
30. Be that as it may, the Court reiterates that a person may not claim to be a victim of a violation of his right to a fair trial under Article 6 of the Convention which, according to him or her, took place in the course of proceedings in which he or she was acquitted or which were discontinued (see, for example and amongst many other authorities, Józef Oleksy v. Poland (dec.), no. 1379/06, 16 June 2009, and Üstün v. Turkey, no. 37685/02, § 24, 10 May 2007, with further references).
31. It observes that, in the instant case, the applicant was convicted for theft (see paragraphs 18-20 above) following the allegedly unfair criminal proceedings. This conviction was eventually quashed in the light of newly discovered circumstances and the criminal proceedings were discontinued for the reason that there had been no evidence of a crime in the applicant’s actions (see paragraphs 22-24 above).
32. In these circumstances, the Court considers that the applicant may not claim to be a victim of the alleged unfairness of these proceedings (see, mutatis mutandis, Benyaminson v. Ukraine, no. 31585/02, §§ 94-95, 26 July 2007, and Yerilov v. Ukraine (dec.), no. 43478/07, 11 December 2012).
33. It follows that this application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 21 March 2019.
Andrea TamiettiPaulo Pinto de Albuquerque
Deputy RegistrarPresident
Full & Egal Universal Law Academy