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European Court of Human Rights |
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You are here: BAILII >> Databases >> European Court of Human Rights >> Sergey Ivanovich DOVZHENKO v Ukraine - 36650/03 [2009] ECHR 1485 (22 September 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/1485.html Cite as: [2009] ECHR 1485 |
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FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no.
36650/03
by Sergey Ivanovich DOVZHENKO
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 22 September 2009 as a Chamber composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Rait
Maruste,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
Mykhaylo
Buromenskiy, ad
hoc judge,
and
Claudia Westerdiek, Section
Registrar,
Having regard to the above application lodged on 11 October 2003,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Sergey Ivanovich Dovzhenko, is a Ukrainian national who was born in 1972 and is currently serving a life sentence in prison.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Criminal proceedings against the applicant and related issues
On 19 May 2002 the applicant was arrested on suspicion of having committed a series of murders.
Following his arrest the applicant was placed in the Mariupol Temporary Detention Centre (“the Mariupol ITT”) where he was allegedly regularly beaten up by police officers with the aim of extracting confessions to the crimes.
According to the applicant, the conditions of his detention in the Mariupol ITT were the following: the cell was dimly lit, cold and damp; it was not equipped with a washstand and a toilet; the applicant had to sleep on the wooden floor infested with pests and fleas; soap, toothpaste and shampoo were not available; food was served once a day; physical exercise outside the cell was not allowed.
On 29 May 2002 the Ordzhonekidzivskyy District Court of Mariupol authorised the applicant’s pre-trial detention and ordered that he be transferred to the Mariupol no. 7 Pre-Trial Detention Centre (“the Mariupol SIZO”).
On 25 June 2002 the applicant was removed to the Mariupol SIZO. The same day the applicant was inspected by the medical staff of the Mariupol SIZO who revealed and documented haematomas on his left thigh and around his right eye.
On an unspecified date the applicant was transferred to the Donetsk no. 5 Pre-Trial Detention Centre (“the Donetsk SIZO”). According to the applicant, during his detention in that facility he was not provided with sufficient food or medical assistance.
On 8 September 2003 the Donetsk Court of Appeal (“the Court of Appeal”), acting as a first-instance court, found the applicant guilty of seventeen murders and other less serious crimes committed by him between 1999 and 2002 and sentenced him to life imprisonment with confiscation of property. The judgment was based, inter alia, on the applicant’s confessions given during the pre-trial investigation, including his statements made in the course of reconstruction of events; self-incriminatory statements given by the applicant during the trial; a number of experts’ opinions; documentary and material evidence; and witness statements.
During the pre-trial investigation and the trial before the Court of Appeal the applicant was represented by a legal-aid lawyer, Mr. N.; no complaints in respect of Mr N. were made by the applicant during that time. Neither did he make any complaints that he had not had sufficient time to study the case file. According to the applicant, his request for audio recording facilities during the trial was ignored by the Court of Appeal.
On 16 September 2003 the applicant was beaten up in the Donetsk SIZO. According to the applicant, he was beaten by a number of police officers, with the aim either of killing him or at least discouraging him from appealing against the judgment of 8 September 2003.
On 17 September 2003 the applicant was admitted to the intensive care department of Donetsk Central Town Hospital where numerous injuries to his body were identified and he was provided with medical treatment.
On 18 September 2003 the applicant was taken to the hospital at the Donetsk SIZO where he continued medical treatment.
On 2 October 2003 the applicant lodged a short version of his cassation appeal against the judgment of 8 September 2003.
In October 2003 the applicant was transferred to the high-security wing of the Donetsk SIZO where he was subjected to a more severe detention regime.
In November 2003 the applicant dismissed Mr N., giving the reason that the latter had not represented him properly but had assisted the prosecuting authorities in staging the trial. The applicant further requested that his brother, who was an advocate, be appointed as his lawyer. In reply the Court of Appeal allegedly rejected the request, for the reason that the applicant’s brother had been questioned as a witness in the case. According to the applicant, he further asked for any other lawyer to represent him in the proceedings, but to no avail.
On 23 January 2004 the applicant was provided with the minutes of the hearings at the Court of Appeal.
On 28 January 2004 the applicant submitted an objection to the minutes, alleging that they had been totally falsified as regards his comments and replies to questions. He further requested that he be provided with the case file to prepare for the proceedings before the Supreme Court.
According to the applicant, he was given access to the case file two or three times a month. Each session lasted from one to four hours, which allowed the applicant to study on average about forty pages per session. The case file consisted of twenty-three volumes, each volume numbering from three hundred to five hundred pages.
On 22 July 2004, in reply to the applicant’s complaint of lack of time to study the case file, the Donetsk Regional Council of Judges informed the applicant that it had not been feasible to familiarise him with the whole case file due to the busy schedule of other detainees’ studying their case files.
During his pre-trial detention the applicant also requested the authorities to provide him with the copy of the whole file of his criminal case but was refused for the reason that his request was not substantiated.
On 7 April 2005 the Supreme Court held a hearing in the applicant’s case. In his submissions before the Supreme Court the applicant requested that the confessions made by him during the pre-trial investigation, and other evidence obtained by the police authorities as a result of the applicant’s ill-treatment, be excluded. He complained that Mr N. had not represented him properly and requested that his brother be admitted to the proceedings as his lawyer. The applicant further submitted that he had not yet had a chance to study thirteen volumes of his criminal case file and had not reviewed any of the video material enclosed in it.
The same day the Supreme Court in the presence of the prosecutor and the applicant, who had not been represented by a lawyer, found that the applicant’s guilt had been established by multiple pieces of evidence, including his own explanations given in the course of the trial before the Court of Appeal. It further noted that there was no evidence that the applicant had made his confessions under duress and dismissed the applicant’s appeal in cassation as unsubstantiated.
On 25 April 2006 the applicant was served with a copy of the decision of the Supreme Court.
On 14 February 2007, when the applicant was escorted to the Khmelnytsk Pre-Trial Detention Centre, the military guard handcuffed him and allegedly caused injuries to his wrists.
On 6 March 2007, following the applicant’s complaint of ill-treatment by the escort officer, the Khmelnytsk Garrison Military Prosecutor’s Office, having made preliminary inquiries, refused to institute criminal proceedings on this account. The applicant failed to state whether he had appealed against that decision.
2. The reporting of the criminal proceedings against the applicant in the mass media
On 8 June 2002 a local newspaper, P.R., published an interview with the Head of the Mariupol Police Department, Mr. K. In the interview Mr K. opined in particular that the next victims of the applicant could be police officers as well as other persons. He further added:
“But in this respect we can only trust in the words of the criminal ... And I doubt many of his statements...”
On 11 December 2002 the same newspaper cited the following opinion of the Head of the Donetsk Regional Police Department, which had been given by him in an official press release:
“Dovzhenko is just one member of a criminal group which committed a series of murders...”
In his submissions before the Supreme Court the applicant complained that the presumption of his innocence had been affected by multiple newspaper articles reporting on the proceedings in his case, specifying further that in the above articles State officials had clearly indicated that he had committed the murders, despite the fact that the proceedings were pending.
3. The applicant’s correspondence
According to the applicant, in 2003 and 2004 the applicant’s correspondence with the Court and his lawyer was monitored by the officials of the Donetsk SIZO.
On 5 November 2004 the Court of Appeal referred the case file to the Supreme Court, following which the applicant was refused by the officials of the detention facilities to send correspondence. The refusals were based on the fact that the written permit for the applicant’s correspondence, issued by the Court of Appeal, was no longer valid, while a new one had not been issued by the Supreme Court, which became responsible for the applicant’s case.
On 2 February 2005 and 1 March 2005 the applicant lodged two applications with the Supreme Court asking for this permit, but to no avail. On 28 June 2005 the applicant still could not dispatch any correspondence.
4. The investigation of the applicant’s allegations about ill-treatment in the Mariupol ITT
On 26 June 2002 the Mariupol ITT sent to the Illichivsk District Prosecutor’s Office of Mariupol (“the District Prosecutor’s Office”) the materials concerning the applicant’s injuries revealed on 25 June 2002 by the medical staff.
On 18 November 2005 the applicant requested the authorities to institute criminal proceedings in respect of the alleged ill-treatment.
On 28 November 2005 the Mariupol Prosecutor’s Office rejected the applicant’s request. It found that the materials dispatched by the Mariupol ITT on 26 June 2002 had never reached the District Prosecutor’s Office for unknown reasons and the copies thereof could not be obtained from the Mariupol ITT since their retention period had expired. It further noted that at that time there had been no evidence that the injuries could have been inflicted by police officers.
On 1 February 2006 the Zhovtenvyy District Court of Mariupol quashed the decision of 28 November 2005 as unfounded and ordered further inquiry to be made.
On 8 February 2006 the Mariupol Prosecutor’s Office appealed against that decision. On an unspecified date the appeal was apparently dismissed.
On 27 April 2006 the relevant case file was referred to the Mariupol Prosecutor’s Office for further inquiry.
On 27 May 2006 the Donetsk Regional Prosecutor’s Office informed the applicant that the inquiry was still pending.
No further information has been provided concerning the proceedings in this case.
5. The investigation of the incident of 16 September 2003
On 24 September 2003 the investigative authorities refused to institute criminal proceedings in respect of the alleged ill-treatment for the reason that there had been no crime.
On 25 March 2005, following a further complaint by the applicant, the Voroshylovskyy District Prosecutor’s Office of Donetsk again decided not to institute criminal proceedings, for the reason that it could not be established that a crime had been committed. The decision was based, inter alia, on the medical conclusion, which read that the applicant had received light bodily injuries, and on the applicant’s explanations that he had obtained the injuries when falling on the floor.
On 8 April 2005 the Donetsk Regional Prosecutor’s Office instituted criminal proceedings in respect of the alleged ill-treatment, following which a set of investigatory actions was held: questioning of the applicant, other detainees, police officers and doctors; confrontations between the applicant and the police officers; and reconstruction of events with the participation of the applicant and the police officers.
On 26 May 2005 the Donetsk Forensic Medical Examination Bureau issued a conclusion stating that during the incident at question the applicant had been inflicted with grievous bodily injuries.
On 27 September 2006 the criminal proceedings were suspended for the reason that additional forensic medical examination was necessary in the case.
No information concerning further developments in this case has been provided.
B. Relevant domestic law
1. Constitution of Ukraine, 28 June 1996
The relevant provisions of the Constitution read as follows:
Article 59
“Everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose the defender of his or her rights.
In Ukraine, the advocacy acts to ensure the right to a defence against accusation, and to provide legal assistance in deciding cases in courts and other state bodies.”
Article 62
“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 legal procedure and established by a court guilty verdict. ...”
2. Code of Criminal Procedure, 28 December 1960
Article 61 of the Code provides, inter alia, that defence counsel shall not be admitted to the proceedings if he or she has participated in those proceedings as a witness.
3. The Pre-Trial Detention Act of 30 June 1993 (in the wording relevant at the material time)
Section 13 of the Act provides, inter alia, for persons remanded in custody to be able to correspond with relatives, other persons and legal entities with the written consent of the authority in charge of the criminal case against the detainee concerned.
COMPLAINTS
(i) he was convicted on the basis of the self-incriminatory statements which had been obtained by the investigative authorities as a result of ill-treatment; and
(ii) that his self-incriminatory statements before the first-instance court had been falsified in the respective part of the minutes of the hearings.
(i) he had not had an opportunity to study all the materials in the case file to prepare for the hearings before the first-instance court;
(ii) he had not had an opportunity to study all the materials in the case file to prepare for the hearing before the Supreme Court.
(i) the lawyer appointed by the State authorities had failed to represent him properly;
(ii) he had not been represented by a lawyer before the Supreme Court.
THE LAW
Article 6 (right to a fair hearing)
“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
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 the Court, to give notice of this part of the application to the respondent Government.
Article 6 (right to a fair hearing)
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(b) to have adequate time and facilities for the preparation of his defence; ... ”
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 the Court, to give notice of this part of the application to the respondent Government.
Article 6 (right to a fair hearing)
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ... ”
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 the Court, to give notice of this part of the application to the respondent Government.
The Court considers that this complaint should be examined under Article 8 of the Convention which provides the following:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence..
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
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 the Court, to give notice of this part of the application to the respondent Government.
It follows that this part of the application must be rejected 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 following applicant’s complaints:
- complaint under Article 6 § 2 of the Convention;
- complaint under Article 6 §§ 1 and 3 (b) of the Convention concerning lack of time to study the materials of the case-file to prepare for the hearing before the Supreme Court;
- complaint under Article 6 §§ 1 and 3 (c) of the Convention on account of proceedings before the Supreme Court held without the applicant’s lawyer; and
- complaint concerning denial by the authorities to dispatch the applicant’s correspondence during certain period of his detention.
Declares the remainder of the application inadmissible.
Claudia Westerdiek Peer Lorenzen
Registrar President