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FIFTH
SECTION
CASE OF PELEVIN v. UKRAINE
(Application
no. 24402/02)
JUDGMENT
STRASBOURG
20 May
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 Pelevin v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
Mykhaylo
Buromenskiy, ad
hoc judge,
and
Claudia Westerdiek, Section Registrar,
Having
deliberated in private on 27 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24402/02) 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 Mykola Mykolayovych
Pelevin (“the applicant”), on 21 May 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- The
applicant alleged that the Supreme Court’s initial refusal to
consider his appeal in cassation within the ordinary cassation review
proceedings violated his right to access to a court.
- On
8 April 2003 the Court decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
- The
applicant, Mr Mykola Mykolayovych Pelevin, is a
Ukrainian national who was born in Rostov-on-Don in 1938 and who
currently resides in L’viv.
I. THE CIRCUMSTANCES OF THE CASE
- On
22 July 1999 a private dispute arose between the applicant and M.M.E.
(a private person) over access to the attic of a building. As a
result the applicant inflicted bodily injury on M.M.E. with an axe.
- On
18 August 1999 M.M.E. instituted a private prosecution (приватне
обвинувачення)
against the applicant before the Zaliznychny District Court of L’viv
and claimed compensation for non-pecuniary damage.
- On
7 June 2000 the applicant sought to institute criminal proceedings
against M.M.E. before the Zaliznychny District Court of L’viv
for inflicting minor bodily injury.
- On
13 July 2000 the Zaliznychny District Court of L’viv, in
particular Judge U.P.F., instituted criminal proceedings against the
applicant. He also decided that M.M.E. should be granted victim
status in these proceedings.
- On
9 June and 3 August 2000 and 27 April 2001 the applicant applied to
the President of the Zaliznychny District Court of L’viv,
seeking the withdrawal of Judge U.P.F. from his case. The applicant
submitted, inter alia, that Judge U.P.F. had not allowed him
to use the Russian language in court, in particular to put questions
to witnesses. On 18 October 2000 and 27 April 2001 the President
of the Zaliznychny District Court of L’viv dismissed the
applicant’s request as unsubstantiated.
- On
18 May 2001 the Zaliznychny District Court of L’viv refused the
applicant’s request to institute criminal proceedings against
M.M.E and his family members on suspicion of inflicting minor bodily
injury on the applicant in May 2000. The applicant appealed against
this decision. On 25 December 2001 the L’viv Regional
Court of Appeal dismissed the applicant’s appeal.
- On
21 June 2001 the Zaliznychny District Court of L’viv found the
applicant guilty of inflicting minor bodily injury and of arbitrary
behaviour in July 1999, sentenced him to an administrative fine and
released him from criminal liability because of his advanced age, on
the basis of the amnesty law in force at the time.
It also ordered the applicant to pay M.M.E. compensation for
non-pecuniary damage and legal costs in the amount of 2,406 Ukrainian
hryvnias (UAH). The court also acquitted M.M.E. of inflicting minor
bodily injury on the applicant. The applicant was allowed to submit
his oral plea to the court in Russian. According to the record of the
court hearings, the applicant did not lodge a request for leave to
use the Russian language, nor did he request the assistance of an
interpreter.
- The
applicant lodged an appeal against the judgment of 21 June 2001.
On 25 September 2001 the L’viv Regional Court of Appeal
dismissed the applicant’s appeal as unsubstantiated. In the
proceedings before the first-instance court and the court of appeal
the applicant was assisted by a lawyer practising in L’viv (a
licensed advocate).
- On
16 March 2002 the applicant lodged an appeal in cassation with the
Supreme Court. In his appeal the applicant relied on Articles 383 -
387 of the Code of Criminal Procedure which governed the examination
of criminal cases within the ordinary cassation review proceedings.
In his appeal he mentioned that he had not been able to participate
effectively in the proceedings because he had not been allowed to use
Russian while putting questions to the witnesses and had not been
provided with the assistance of an interpreter.
- On
9 April 2002 a judge of the Supreme Court V.S., by a letter and
without taking any procedural decision, refused to institute
extraordinary review proceedings (перегляд
в порядку виключного
провадження)
in the applicant’s case.
- On
13 June 2003 the Supreme Court, on the decision of Judge K.M.,
assumed jurisdiction over the appeal in cassation and decided to
institute cassation proceedings in the applicant’s case.
- On
31 July 2003 the Supreme Court examined the applicant’s appeal
in cassation on merits and dismissed it within the ordinary review
proceedings. The Supreme Court held its hearing in the absence of the
applicant and in the presence of the prosecutor and victim in the
criminal case.
II. RELEVANT DOMESTIC LAW
A. Provisions of the Code of Criminal Procedure
governing cassation proceedings (as amended on 21 June 2001)
- The
relevant provisions read as follows:
Article 348. Persons entitled to lodge an appeal
“The following persons are entitled to lodge an
appeal:
1. a convicted person...”
Article 383. Court decisions that may be reviewed in
cassation proceedings
“The following decisions may be reviewed in
cassation proceedings:
...
2) judgments and resolutions of a court of
appeal given by it in appeal proceedings.
Judgments and resolutions or rulings of district (city)
courts, inter-district (circuit) courts and garrison military courts
may be also reviewed in cassation proceedings, as well as rulings of
courts of appeal given in respect to those judgments and resolutions
or rulings with the exceptions of rulings by which the court of
appeal cancels such decisions and sends the case for a new
investigation or examination.”
Article 384. Persons entitled to lodge an appeal in
cassation or to file a cassation petition
“Appeals in cassation against the court decisions
referred to in part one of Article 383 of this Code may be
lodged by the persons specified in Article 348 of this Code.
Cassation appeals against the court decisions referred
to in part two of Article 383 of this Code may be lodged by:
1) a convicted person...”
Article 394. Examination of a case by a court of
cassation
“Cassation appeals and petitions against the court
decisions referred to in part one of Article 383 of this Code shall
be examined with a mandatory notice of that examination being served
on the prosecutor and the persons referred to in Article 384 of this
Code.
Cassation appeals and petitions against the 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,
composed of three judges with the participation of a prosecutor. The
court shall either assign the case for examination and notify the
persons referred to in Article 384 of this Code accordingly or
dismiss it...”
Article 396. Results of the examination of a case by
a court of cassation
“As a result of the examination of a case within
the cassation proceedings, the court shall make one of the following
decisions:
1) uphold the judgment, resolution or ruling
and dismiss the cassation appeal or petition;
2) quash the judgment, resolution or ruling
and refer the case for a fresh investigation or trial before the
first-instance court or review in appeal proceedings;
3) quash the judgment, resolution or ruling
and terminate the case;
4) modify the judgment, resolution or ruling.
”
B. Provisions of the Code of Criminal Procedure
governing extraordinary review proceedings (as amended on 21 June
2001)
- The
relevant provisions read as follows:
Article 400-4. Grounds for examination of the
judgments within the extraordinary review proceedings
“The final and binding judgments may be examined
within the extraordinary review proceedings in view of:
1) newly disclosed circumstances;
2) incorrect application of the criminal law and
fundamental breach of the requirements of criminal procedural law
that have essentially impaired the correctness of the judgment (...)”
Article 400-9. Request to examine a judgment within
the extraordinary review proceedings
“Parties to the proceedings and other persons
entitled by law may lodge with the prosecutor a request for
examination of the case on the grounds set forth in paragraph 1
of part one of Article 400-4 of this Code.
Requests for examination of the case on the grounds set
forth in paragraph 2 of part one of Article 400-4 of this Code may be
lodged by the convicted person or his defender or legal
representative (...)”
THE LAW
I. ACCESS TO A COURT
- The
applicant complained of lack of access to the Supreme Court on
account of its refusal to review his case in the course of cassation
proceedings. He relied on Article 6 § 1 which provides, in so
far as relevant, as follows:
“In the determination of … any criminal
charge against him, everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...”
A. Admissibility
- The
Government submitted that the applicant could no longer claim to be a
“victim” of a breach of his right of access to a court as
on 31 July 2003 the Supreme Court examined his appeal in
cassation on its merits. They further submitted that the applicant’s
appeal in cassation was initially dealt with as if it was a request
for extraordinary review proceedings due to a technical error.
- The
applicant disagreed. He contended that examination of his appeal in
cassation on 31 July 2003 was prompted by his recourse to the Court
and communication of the application to the respondent Government.
- The Court finds that the victim status issue and the
parties’ arguments in that respect are closely linked to the
substance of the applicant’s complaint under Article 6 § 1
of the Convention. It should, therefore, be joined to the merits.
- The
Court considers, in the light of the parties’ submissions, that
the case raises issues of law and fact under the Convention, the
determination of which should depend on an examination of the merits
of the application. It finds that the applicant’s complaints as
to lack of access to a court are not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention
and that they are not inadmissible on any other grounds. They must
therefore be declared admissible.
B. Merits
- The
Government did not comment on the merits of the complaint of lack of
access to a court and maintained that application was inadmissible.
- The
applicant maintained his complaint.
- The
Court notes 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). It reiterates that the
right to a court, of which the right of access is one aspect, is not
absolute and may be subject to limitations permitted by implication,
particularly regarding the conditions of admissibility of an appeal,
which must not impair the very essence of the right of access. They
must pursue a legitimate aim and there must be a reasonable
proportionality between the means employed and the aim sought to be
achieved (see, for example, Ashingdane v. the United Kingdom,
28 May 1985, § 57, Series A no. 93).
- Turning
to the facts of the present case, the Court observes that the
applicant’s appeal in cassation, although lodged within
ordinary cassation review proceedings, was examined and rejected by
the Supreme Court as if it was a request for extraordinary review of
his conviction without any reasons being given for such a decision
and without any procedural decision taken (see paragraphs 18 and 19
above). The Government acknowledged that appeal in cassation was
examined in the course of the extraordinary review proceedings
erroneously.
- The
Court notes that after the present case was communicated to the
Government, on 13 June 2003 (see paragraph 16 above) the Supreme
Court instituted ordinary cassation review proceedings on the
applicant’s appeal in cassation, examined it on its merits and
dismissed it. The national authorities however did not recognise in
any way that the initial decision of 9 April 2002 (see paragraph 15
above), to deal with the applicant’s appeal in cassation as if
it was a request for extraordinary review, interfered with the
applicant’s right of access to the court of cassation.
- Moreover,
the examination of the appeal in cassation on 31 July 2003 (see
paragraph 17 above) was held in the absence of the applicant, while
the prosecutor and the victim of the criminal offence were both
present at the Supreme Court hearing.
- Having regard to all the circumstances of the case,
the Court considers that the applicant suffered an excessive
restriction of his right of access to a court, and therefore of his
right to a fair trial, which was never acknowledged or redressed by
the authorities. There has consequently been a violation of that
provision. It follows that the Government’s preliminary
objection as to the victim status (see paragraph 21 above),
previously joined to the merits (see paragraph 23 above) must be
dismissed.
- There
has accordingly been a breach of Article 6 § 1.
II. REMAINDER OF THE COMPLAINTS
- The
applicant also complained under Article 6 §§ 1 and 2 that
the criminal proceedings instituted against him were both unfair and
excessively long. He further complained of a violation of Article 6 §
3 (e) in that he had not been allowed to use the Russian language in
the proceedings before the domestic courts and had not been granted
the assistance of an interpreter from Ukrainian to Russian.
He
further complained of an infringement of his right to private life
and lack of an effective domestic remedy for his claims on account of
the refusal of the domestic authorities to institute criminal
proceedings against M.M.E. He relied on Articles 8 and 13 of the
Convention in this respect.
The
applicant also complained of a violation of Article 2 § 1 of
Protocol No. 1 on account of the Supreme Court’s refusal to
examine his criminal case within the ordinary review proceedings.
- The
Court, having carefully considered the applicant’s submissions,
in the light of all the material in its possession, 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 manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 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.”
- The
applicant submitted his claims for just satisfaction out of time.
These submissions were not included in the case file for examination
by the Court. Accordingly, the Court considers that there is no call
to award any sum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join to the
merits the Government’s preliminary objection as to the
applicant’s victim status and dismisses it after having
examined the merits;
2. Declares the complaint concerning lack of access
to a court under Article 6 § 1 admissible and the remainder
of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention.
Done in English, and notified in writing on 20 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
