FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 66338/09
by Oleksandr Volodymyrovych YAREMENKO
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 21 September 2010 as a Chamber composed of:
Peer Lorenzen, President,
Rait Maruste,
Mark Villiger,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva,Ganna Yudkivska, judges,and ,
Having regard to the above application lodged on 8 December 2009,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Oleksandr Volodymyrovych Yaremenko, is a Ukrainian national who was born in 1976 and is currently serving a prison sentence in the city of Zhytomyr, Ukraine. He is represented before the Court by Mr A.P. Bushchenko, a lawyer practising in Kharkiv.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1.  Background of the case
On 20 November 2001 the Kyiv City Court of Appeal, acting as a first-instance court, convicted the applicant and S. of two murders committed in 1998 and 2001 respectively and sentenced them to life imprisonment. On 18 April 2002 the Supreme Court of Ukraine upheld the judgment.
On 13 August 2002 the applicant lodged an application with this Court, alleging that he had been subjected to ill-treatment in police custody and that his complaints in that regard had not been given due consideration; that he had been deprived of legal assistance of his own choosing during part of the proceedings; that he had been forced to incriminate himself and that the above violations had resulted in an unfair trial.
By a decision of 13 November 2007, the Court declared the application admissible.
On 12 June 2008 the Court found a violation of Article 3 and Article 6 §§1 and 3 (c). The Court established in particular that:
“78.  Notwithstanding the Government's arguments that the applicant's right to silence was protected in domestic law, the Court notes that the applicant's lawyer was dismissed from the case by the investigator after having advised his client to remain silent and not to testify against himself. This reason was clearly indicated in the investigator's decision. It was also repeated twice in the prosecutors' replies to the lawyer O. Kh.'s complaints. In one of those replies (dated 19 February) it was also noted that the lawyer had breached professional ethics by advising his client to claim his innocence and to retract part of his previous confession.
79.  Moreover, the Court finds it remarkable that the applicant and Mr S, over two years later, gave very detailed testimonies which according to the (sic.) investigator contained no discrepancies or inconsistencies. This degree of consistency between the testimonies of the applicant and his co-accused raise suspicions that their accounts had been carefully coordinated. The domestic courts however considered such detailed testimonies as undeniable proof of their veracity and made them the basis for the applicant's conviction for the 1998 crime, despite the fact that his testimony had been given in the absence of a lawyer, had been retracted immediately after the applicant was granted access to the lawyer of his choice, and had not been supported by other materials. In those circumstances, there are serious reasons to suggest that the statement signed by the applicant was obtained in defiance of the applicant's will.
80.  In light of the above considerations and taking into account that there was no adequate investigation into the allegations by the applicant that the statement had been obtained by illicit means (see paragraphs 67-70), the Court finds its use at trial impinged on his right to silence and privilege against self-incrimination.” (Yaremenko v. Ukraine, no. 32092/02, 12 June 2008.)
The judgment became final on 12 September 2008.
2.  The re-trial proceedings
On 30 December 2008 the applicant lodged a request with the Supreme Court of Ukraine for review of his criminal case under the extraordinary procedure under Article 400-4 of the Code of Criminal Procedure and Article 10 of the Law of Ukraine “On execution of judgments of the European Court of Human Rights”. The request was based on the judgment of this Court in which violations of Articles 3 and 6 had been found. The applicant also asked to be present during the examination of his request.
The Deputy Prosecutor General also lodged a request for review of the applicant's case with the Supreme Court. In his request he asked the court to exclude as evidence the applicant's original confessions to the murder committed in 1998 and maintained that otherwise the judgment had been lawful and well-founded. According to the applicant, his lawyer learnt about the content of the prosecutor's request only at the hearing.
On 31 July 2009 the Supreme Court examined the case in the absence of the applicant but in the presence of his lawyer and of the prosecutor. The court excluded as evidence the applicant's original confessions which had been obtained in the absence of a lawyer, but maintained the original sentence. The court considered that other pieces of evidence, like the applicant's confessions during the on-site reconstruction of the crime and the testimonies of his co-defender S., served as sufficient basis for proving him guilty of the murder and there was no evidence that the applicant had been forced to confess.
By letter of 3 September 2009 the decision of the Supreme Court was sent to the applicant's representative.
B.  Relevant domestic law
1.  Code of Criminal Procedure, 1960
Article 400-4 of the Code provides that the grounds for extraordinary review of judicial decisions which have taken effect are the newly discovered circumstances or incorrect application of criminal law and serious violations of procedural law, which have substantially affected the outcome of the proceedings.
2.  Law on execution of judgments and application of case-law of the European Court of Human Rights, 2006
Article 10 of the Law provides for additional individual measures with a view to the execution of judgments of the Court, including review of the case by a court and reopening of judicial proceedings.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention that the Supreme Court, instead of referring the case to a trial court for fresh consideration, had reassessed the facts and evidence in his case, although it had no jurisdiction to do so. The applicant further complained under the same provision that his right to remain silent and his right to defence had been violated anew, given that the Supreme Court had excluded some of the evidence obtained in breach of these rights but had relied on other pieces of evidence obtained in the same manner. The applicant also complained under Article 6 § 3 (a-d) that the re-trial proceedings had been conducted in his absence, that he had had no adequate facilities to prepare his defence as he had not been informed of the evidence on which the prosecution had intended to rely if his initial confessions had been excluded, and that the exclusion of some evidence from his case had changed the situation to the extent that it had required questioning of witnesses anew, but this had not been done.
The applicant finally complained that the domestic authorities had failed to execute the judgment of this Court in his previous case, Yaremenko v. Ukraine(cited above).
THE LAW
1.  The applicant complained that the retrial proceedings had been unfair, that his case had been examined by an incompetent court and that his procedural rights had been violated. He refered to Article 6 §§ 1 and 3 (a-d) of the Convention, which provide, in so far as relevant, as follows:
“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:
(a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b)  to have adequate time and facilities for the preparation of his defence;
(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;
(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”
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 of a violation of Article 46 of the Convention in that the Supreme Court had not referred his case to the lower courts for a fresh trial and had openly disagreed in its decision with the Court's findings in the judgment of Yaremenko v. Ukraine(cited above) concerning the effectiveness of the investigation into the applicant's allegations of ill-treatment. Article 46 provides, in so far as relevant, as follows:
“1.  The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.”
As far as the applicant complained that Ukraine had failed to comply with the Court's judgment, the Court reiterates that it has no jurisdiction to examine complaints as to whether a High Contracting Party has complied with its obligations under a judgment given by it, the supervision of the execution of judgments being entrusted to the Committee of Ministers by virtue of Article 46 § 2 of the Convention (see Fischer v. Austria (dec.), no. 27569/02, ECHR 2003‑VI). It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaints concerning the fairness of the re-trial proceedings, the alleged incompetence of the court and the alleged procedural violations under Article 6 §§ 1 and 3 of the Convention;
Declares the remainder of the application inadmissible.
	Claudia Westerdiek	Peer Lorenzen
	Registrar	President