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FIFTH
SECTION
CASE OF ZHUK v. UKRAINE
(Application
no. 45783/05)
JUDGMENT
STRASBOURG
21 October
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Zhuk v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Ganna Yudkivska, judges,
and
Claudia Westerdiek, Section Registrar,
Having
deliberated in private on 28 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 45783/05) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Viktor Yevgenyevich
Zhuk (“the applicant”), on 1 December 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- The
applicant alleged, in particular, that his conviction had been
unlawful under Article 6 § 1 of the Convention because, inter
alia, the Supreme Court of Ukraine had examined his appeal on
points of law in his absence, in breach of the principle of equality
of arms.
- On
1 September 2009 the President of the Fifth Section decided to give
notice of the above complaint to the Government. It was also decided
to rule on the admissibility and merits of the application at the
same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1958 and lives in Kyiv.
A. Criminal proceedings against the applicant
- According to the applicant, on 16 September 2001 he was
assaulted by officers of the Anti-Drug Police Unit at the entrance to
his apartment. When he lost consciousness the police allegedly
planted evidence on him, putting a wrap of
heroin into his pocket. Later, the police conducted a search
of his apartment. As a result, some more wraps of drugs (allegedly
also planted), a gun and chemical equipment were discovered. The
applicant alleges that certain property items (for example, money and
jewellery) were unlawfully taken during this search.
- After the search the applicant was taken to the police
station, where he remained until 25 September 2001 when the
Shevchenkivsky District Court of Kyiv (“the District Court”)
remanded him in custody. The applicant further contends that he had
no means (namely that he lacked stationery) to appeal against the
court detention order and that subsequently, although he sent an
appeal, it was not examined and allegedly was lost.
- The applicant was provided with a lawyer through the
legal aid scheme on 21 September 2001 and the latter’s
performance was allegedly poor and of little help to his defence. In
particular, notwithstanding the applicant’s requests that the
lawyer visit him more frequently and consult on his case, that lawyer
allegedly visited him only on 24 September and 12 December 2001;
furthermore, the lawyer allegedly did not attend the court hearings
on 25 September and 19 November 2001 when the court remanded the
applicant in custody. During the trial, the applicant was legally
represented but it is not clear whether this representation was
undertaken by another lawyer or by the same lawyer that the applicant
claims was deficient.
- According to the applicant, he requested on several
occasions that the trial court summon K., his partner, but the court
rejected his requests.
- On 18 November 2003 the District Court found the
applicant guilty of drug dealing and sentenced him to six years’
imprisonment. In doing so, the court relied on evidence seized during
the search on 16 September 2001, forensic examinations and witnesses’
testimonies.
- The applicant appealed, challenging, inter alia,
the lawfulness of the search and the evidence produced against him as
a result of it. On 11 June 2004, the Kyiv City Court of Appeal
allowed the applicant’s appeal in part and reduced his sentence
to four years. It found that the search was lawful as the applicant
had consented to it and that the conviction was not based solely on
evidence produced as a result of the search.
- The applicant, who was no longer legally represented,
appealed to the Supreme Court of Ukraine, challenging his conviction
on points of law. He also expressed his wish to be present at the
hearing.
- On 5 April 2005, in the presence of the public
prosecutor but in the absence of the applicant, a panel of three
judges of the Supreme Court of Ukraine considered the appeal on
points of law submitted by the applicant. Having heard the
prosecutor, who maintained that the appeal was unsubstantiated, the
panel found that there were no grounds for the cassation review of
the case and dismissed the applicant’s appeal. In doing so it
nevertheless examined the case on the merits. According to the
applicant, he was not informed of the date of the hearing at the
Supreme Court of Ukraine. He was notified of the Supreme Court’s
decision on 2 June 2005.
B. Proceedings against the police
- On 29 September 2001 the applicant complained to the
local prosecutor about the actions of the police on 16 September
2001.
- On 29 October 2001 the prosecutor refused to institute
criminal proceedings because of the lack of evidence that a crime had
been committed. In particular, he found that the applicant had
attempted to flee and had resisted the policemen.
- According to the applicant, he challenged this
decision before the District Court, which upheld the initial decision
on 26 September 2003. The applicant made a further appeal but,
according to him, the court found that the latter decision was not
subject to appeal. He also raised this issue during his trial and in
appeals against his conviction. In a judgment of 18 November
2003 the District Court upheld the conclusions of the impugned
prosecutor’s decision; the higher courts did not expressly
address this issue.
C. Proceedings concerning the seized property items
- In 2003 the applicant instituted civil proceedings in
the District Court seeking return of his property that was allegedly
subject to unlawful seizure. By a decision of 23 May 2003, the court
rejected the claim as a result of procedural shortcomings (for
instance, failure to indicate the defendant, to pay the court fee and
so on). It appears that the applicant did not appeal against this
decision.
II. RELEVANT DOMESTIC LAW
- The relevant provisions of the Ukraine Code of
Criminal Procedure (“the Code”) (as worded at the
material time) read as follows:
Article 383
Court decisions that may be reviewed in cassation
proceedings
“The following decisions may be reviewed in
cassation proceedings:
1) judgments, rulings and resolutions of an
appellate court rendered by it as a court of first instance; and
2) judgments and resolutions of an appellate
court rendered by it in appeal proceedings.
Judgments and resolutions of district (city) courts,
inter-district (circuit) courts and garrison military courts may be
also reviewed in cassation proceedings, as well as rulings of
appellate courts rendered with regard to those judgments and
resolutions.”
Article 394
Examination of a case by a court of cassation
“Cassation appeals and petitions against court
decisions referred to in part one of Article 383 of this Code shall
be examined and notice of that examination served on the prosecutor
and the persons referred to in Article 384 of this Code.
Cassation appeals and petitions against court decisions
referred to in part two of Article 383 of this Code shall be examined
within thirty days of receipt by the court of cassation, which shall
be composed of three judges with the participation of a prosecutor.
The court shall either assign the case for examination, and must
notify the persons referred to in Article 384 of this Code
accordingly, or dismiss it.
A case assigned for examination, with notice served on
the prosecutor and the persons referred to in Article 384 of this
Code, shall be examined by the court of cassation, which shall be
composed of three judges with the participation of a prosecutor, in
accordance with the procedure provided for by parts one, two and
three of Article 362 of this Code.
The deliberations of the court of cassation’s
judges shall be conducted in accordance with the requirements
provided for by Articles 322 and 325 of this Code.”
- Other
provisions of the Code concerning examination of a case by a court of
cassation are set out in Arkhipov v. Ukraine ((dec.), no.
25660/02, 18 May 2004).
- On
12 January 2006 Article 394 § 2 of the Code was
amended to remove the prosecutor from involvement in preliminary
hearings before a court of cassation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION (EQUALITY OF ARMS)
- The
applicant complained that the Supreme Court of Ukraine had examined
his appeal on points of law in his absence, in breach of the
principle of equality of arms. He relied on Article 6 § 1
of the Convention which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government pleaded that there had been no violation of Article 6 § 1
of the Convention. In particular, they contended that the hearing at
issue had been a preliminary one, with the aim of deciding whether
the appeal on points of law was sufficiently well-founded as to be
arguable and that Article 394 § 2 of the Code did not provide
for such a hearing in an appellant’s and/or his or her lawyer’s
presence. In this regard, they drew an analogy between the present
case and Stepenska v. Ukraine ((dec.), no. 24079/02, 12 June
2006) where the Supreme Court of Ukraine, sitting in camera, rejected
the applicant’s request for leave to appeal in cassation,
having found that there were no grounds for referring the case to the
Civil Chamber of the Supreme Court. In the Stepenska case, the
applicant’s complaint about the lack of a fair hearing had been
dismissed and the Government invited the Court to do so in the
present case.
- The
applicant disagreed. He argued, in particular, that, unlike the
prosecutor, he had been unable to make oral submissions before the
Supreme Court. In his view, the analogy drawn by the Government was
not appropriate because the proceedings in Stepenska v. Ukraine
had been of a civil nature whereas in his case the proceedings had
been criminal.
- The
Court reiterates that the principle of equality of arms – one
of the elements of the broader concept of a fair trial –
requires each party to be given a reasonable opportunity to present
his case under conditions that do not place him at a substantial
disadvantage vis-à-vis his opponent. This implies, in
principle, the opportunity for the parties to a trial to have
knowledge of and comment on all evidence adduced or observations
filed, even by an independent member of the national legal service,
with a view to influencing the court’s decision (see Kress
v. France [GC], no. 39594/98, §§ 72 and 74, ECHR
2001 VI).
- Moreover,
Article 6 of the Convention, taken as a whole, guarantees that a
person charged with a criminal offence should, as a general
principle, be entitled to be present and participate effectively in
the hearing concerning the determination of criminal charges against
him. This right is implicit in the very notion of an adversarial
procedure and can also be derived from the guarantees contained in
sub-paragraphs (c), (d) and (e) of paragraph 3 of Article 6 (see
Sejdovic v. Italy [GC], no. 56581/00, § 81, ECHR 2006 II
with further references).
- In
this context, importance is to be attached to, inter alia, the
appearance of the fair administration of justice and to the increased
sensitivity of the public to the fair administration of justice (see
Borger v. Belgium, 30 October 1991, § 24 in fine,
Series A no. 214 B). Here, as in other aspects of Article 6, the
seriousness of what is at stake for the applicant will be of
relevance to assessing the adequacy and fairness of the procedures
(see A.B. v. Slovakia, no. 41784/98, § 55, 4 March
2003).
- In
addition, the Court reiterates that a State which institutes courts
of appeal or cassation is required to ensure that persons amenable to
the law shall enjoy before these courts the fundamental guarantees
contained in Article 6 (see, for example, Delcourt v. Belgium,
17 January 1970, § 25, Series A no. 11).
- Turning
to the facts of the present case, the Court observes that the
proceedings against the applicant were of a criminal nature. The
applicant, who, had been convicted of drug-dealing and sentenced to
four years’ imprisonment (taking the reduction of sentence on
appeal into account – see paragraph 11 above) and who was
no longer assisted by a lawyer, challenged his sentence on points of
law. Hence, given that his liberty was at stake, the Court considers
that the examination of the applicant’s appeal on points of law
was of considerable importance for him.
- The
Court notes that the role of the prosecutor in the instant case was
primarily that of presenting the case before the
domestic courts on charges brought against the applicant and acting
as the applicant’s adversary (cf. Borgers v. Belgium,
cited above, § 25, and Kress v. France, cited above,
§§ 67-68, in which the relevant State counsels were
variously argued not to be parties to the proceedings or the
adversaries of any party or that their role was limited to that of an
amicus curiae). The prosecutor’s role, as defined above,
is not disputed by the respondent State.
- The
Court further observes that, in compliance with the domestic law
(namely Article 394 § 2 of the Code – see paragraph 18
above), the Supreme Court held a preliminary hearing which aimed to
decide whether the appeal before it was sufficiently well-founded for
its examination in a public hearing in the presence of all necessary
parties. Thus, the applicant’s chance to be present and,
accordingly, to make oral submissions at the hearing depended on
whether his appeal passed the sifting-out procedure.
- The
Court has held on several occasions that proceedings concerning leave
to appeal and proceedings solely involving questions of law, as
opposed to questions of fact, may comply with the requirements of
Article 6, even though the appellant was not given an
opportunity of being heard in person by the appeal court or court of
cassation, provided that a public hearing was held at first instance
and that the higher courts did not have the task of establishing the
facts of the case, but only of interpreting the legal rules involved
(see, for example, Hermi v. Italy [GC], no. 18114/02, §
61, ECHR 2006 XII with further references).
- As
the competence of the Supreme Court in the present case was limited
to questions of law, the lack of a public hearing before it was not
in breach of Article 6 § 1 of the Convention per se (see,
for example, Sutter v. Switzerland, 22 February 1984,
§ 30, Series A no. 74 and Bulut v. Austria, 22
February 1996, § 42, Reports of Judgments and Decisions
1996 II).
- This
is true in so far as the pertinent court – as in the
above-mentioned cases – held a hearing in camera, which is not
the case here. By virtue of Article 394 § 2 of the Code, the
prosecutor had the advantage of being present at that preliminary
hearing, unlike any other party, and to make oral submissions to the
three judge panel, such submissions being intended to influence the
latter’s opinion. These submissions in fact were directed at
having the applicant’s appeal dismissed and his conviction
upheld. The Court considers that procedural fairness required that
the applicant should also have been given an opportunity to make oral
submissions in reply. The panel, having deliberated, dismissed the
applicant’s appeal on points of law at the preliminary hearing,
thus dispensing with a public hearing to which the applicant would
have been summoned and been able to take part. It is also noted that
the applicant had requested that the hearing be held in his presence
(see paragraph 12 above).
- In the light of these considerations, the Court finds
that the procedure before the Supreme Court of Ukraine did not enable
the applicant to participate in the proceedings in conformity with
the principle of equality of arms.
There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The applicant also complained under Article 3 of
the Convention that he had been beaten by the police on 16 September
2001. The applicant further complained under the same provision that
he had been detained until 13 July 2004 in poor conditions.
- The
applicant complained under Article 5 §§ 1 (c) and 3 of the
Convention that his arrest and detention from 16 to 25 September 2001
had been unlawful and that he had not been brought promptly before a
judge. He further complained under Article 5 § 4 of the
Convention that he could not appeal against the court detention
order.
- Referring
to Article 6 §§ 1 and 2 of the Convention, the
applicant submitted that the length of the proceedings against him
had been excessive, that his conviction had been unlawful (in
particular, because it had been based on unlawfully obtained
evidence) and that the domestic authorities had lacked impartiality.
Further, he complained under Article 6 § 3 (c) of the Convention
of poor performance on the part of his lawyer appointed through the
legal aid scheme. He added that the trial court had rejected his
requests for K. to be summoned, in breach of Article 6 § 3 (d)
of the Convention.
- The applicant complained under Article 8 of the
Convention that the search of his apartment had been unlawful.
- Lastly, he complained under Article 1 of Protocol No.
1 that certain property items (such as money and jewellery) had been
illegally taken during the search.
- In reply to the Government’s observations the
applicant also raised a complaint under Article 13 of the
Convention on account of his conviction.
- Having carefully considered the applicant’s
submissions in the light of all the material in its possession, the
Court finds that, 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.
- It follows that this part of the application must be
declared inadmissible as being manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLES 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed an amount within the range of 200,000 240,000
euros in respect of pecuniary and non-pecuniary damage.
- The
Government contested these amounts.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. As
to non-pecuniary damage, it considers that, in view of the violation
of Article 6 § 1, the applicant has suffered non-pecuniary
damage which is not sufficiently compensated by the finding of a
violation (cf. Matsyuk v. Ukraine,
no. 1751/03, § 36, 10 December 2009). Making its
assessment on an equitable basis, as required by Article 41 of the
Convention, the Court awards the applicant the sum of EUR 1,200 under
this head.
B. Costs and expenses
- The
applicant did not submit any claim under this head. The Court
therefore makes no award.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 6 § 1
of the Convention concerning infringement of the principle of
equality of arms admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,200 (one
thousand two hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into the national
currency of the respondent State at the rate applicable at the
date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 21 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
