FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 20915/06
by Sergey Ataniyazovich KHUDAYKULIYEV
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 8 February 2011 as a Chamber composed of:
	Dean Spielmann, President,
	Elisabet Fura,
	Boštjan M. Zupančič,
	Isabelle Berro-Lefèvre,
	Ann Power,
	Ganna Yudkivska,
	Angelika Nußberger, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 17 May 2006,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Sergey Ataniyazovich Khudaykuliyev, is a Ukrainian national who was born in 1969 and is currently serving a prison sentence.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 2 January 2005 K. was found dead between a road and forest plantations in Kyiv.
On 6 February 2005 the applicant was arrested for an administrative offence (minor disorderly conduct). The applicant was detained immediately pending consideration of the administrative case by the court.
On 7 February 2005 the court found the applicant guilty of that offence and sentenced him to ten days’ administrative detention.
On 9 February 2005 the police investigator took witness evidence from the applicant in respect of K.’s death.
On 11 February 2005 the police investigator instituted criminal proceedings against the applicant and P. for inflicting grievous bodily injuries on K., causing the latter’s death (Article 121 § 2 of the Criminal Code).
On the same day the applicant was questioned as a suspect. In the course of questioning the applicant made self-incriminating statements. Allegedly, before the questioning the applicant was forced to sign a waiver of his right to a lawyer and was physically ill-treated with the purpose of inducing him to give self-incriminating evidence. The proceedings were carried out in the Ukrainian language.
On 12 February 2005 the police carried out a reconstruction of events in the course of which the applicant showed in details the manner how the crime was committed. The reconstruction was videotaped and held in the presence of two witnesses.
On 13 February 2005, the police investigator charged the applicant and P. with the crime set out in Article 121 § 2 of the Criminal Code. When questioned, the applicant continued to incriminate himself.
On 18 February 2005 the police investigator additionally charged the applicant and P. with the offence as set out in Article 187 § 4 of the Criminal Code.
The charges under Articles 121 § 2 and 187 § 4 of the Criminal Code were based on the following version of events, as established by the police investigator. On 1 January 2005 the applicant was running a taxi service. That evening he gave a lift to K. The applicant’s acquaintance, P., was also in the car. During the trip K. picked a quarrel with P. As the quarrel continued, the applicant stopped the car near the forest plantations and demanded payment for the trip. The quarrel developed into a fight. The applicant then picked up a crowbar. P. seized the crowbar, approached K. and hit him on the head with the crowbar about seven times. K. died. The applicant and P. took K.’s mobile phone and some clothes and left the scene.
It appears that later on the applicant was provided with a legal-aid lawyer.
On 2 August 2005 the case was referred to the prosecutor’s office, which had the powers to investigate and place charges of murder (as distinguished from the crime of causing grievous bodily harm resulting in death).
On 5 August 2005 the investigator of the prosecutor’s office shifted the charges against the applicant and P. from Article 121 § 2 to Article 115 § 2 (subparagraphs 6 and 12). According to the applicant, he was not assisted by a lawyer in the course of that action.
When the applicant was questioned the same day he retracted all the self-incriminating statements he had made earlier.
Following the completion of the investigation the applicant was provided with the case file. The applicant’s lawyer allegedly refused to assist him in the examination of the case file.
On 10 August 2005 the prosecutor approved a bill of indictment in respect of the applicant and P.
On an unspecified date the Kyiv Court of Appeal commenced trial. The applicant was represented by a lawyer.
On 13 September 2005 the prosecutor specified the charges against the defendants as to the number and nature of the bodily injuries inflicted by them on K.
During the trial, the applicant and P. acknowledged that in the evening of 1 January 2005 they had been in the car with K. However, they each said the other had beaten P. to death. The applicant further submitted that the police had made him make self-incriminating statements by ill-treatment.
On 1 November 2005 the trial court found, inter alia, that the applicant and P. had committed in respect of K. crimes set out in Articles 187 § 4 and 115 § 2 of the Criminal Code and sentenced both of them to fourteen years’ imprisonment with confiscation of all their property. The judgment was based on material, oral, expert and other documentary evidence examined by the trial court. The trial court relied, in particular, on the self-incriminating statements made before the trial by the applicant, noting that they were consistent with the other evidence in the file.
As to the allegations of ill-treatment, the trial court noted that the applicant had never raised that issue with the investigating authorities. It further questioned the witnesses participating in the reconstruction of the events and examined the other evidence from this standpoint but found nothing in support of the alleged ill-treatment. It therefore rejected the applicant’s contention as unfounded.
The applicant appealed in cassation, claiming that he had been ill-treated by police and that his right to defence had been impaired, as he had been forced to refuse a lawyer at the initial stage of the investigation.
On 14 March 2006 the Supreme Court considered the case. It partly amended the judgment of the first-instance court as regards some factual circumstances but endorsed the sentence in respect of the defendants. It noted in particular that the findings of the first-instance court were well-founded and based on the evidence collected. The facts had been established correctly, the applicant’s right to a defence had not been impaired and his allegations of ill-treatment were groundless.
The hearing was held in the presence of the prosecutor, the victims (the relatives of the deceased), and P.’s defence counsel. The applicant was absent.
B.  Relevant domestic law
1.  Criminal Code of 5 April 2001 (as worded at the material time)
“Article 115. Murder
1. Murder, that is intentional unlawful causing of death to another person, – shall be punishable by imprisonment of from seven to fifteen years.
2.  Murder:
...
(6) if committed with lucrative purpose; ...
(12) if committed premeditatedly by a group of persons; ...
– shall be punishable by imprisonment for from ten to fifteen years or by life imprisonment, combined with confiscation of property in the event of subparagraph (6) of the second paragraph of this Article.”
Article 121 § 2 penalises premeditated infliction of grievous bodily harm causing the victim’s death by imprisonment for seven to ten years.
Under paragraph 4 of Article 187, assault with intent to rob committed by an organised group or combined with infliction of grievous bodily harm is punishable by imprisonment for eight to fifteen years, with confiscation of property.
2.  Code of Criminal Procedure 28 December 1960
Article 45 of the Code stipulates that the legal representation of a suspect, accused or defendant is obligatory, inter alia, if a potential penalty is a life sentence.
Article 46 of the Code provides, inter alia, that a suspect, accused or defendant may dispense with invited or appointed counsel at any stage of proceedings. Such a waiver is possible only at the initiative of the suspect, accused or defendant and does not preclude him/her from appointing the same or another defence counsel at a later stage of the proceedings. The waiver in cases provided by Article 45 of the Code can be accepted only if the suspect, accused or defendant gives reasons which are found to be satisfactory by the body of inquiry, the investigator or the court. In that event the dismissed defence counsel shall be replaced by the new one.
COMPLAINTS
1.  The applicant complains that he was arrested for an administrative offence which he did not commit. However, in the course of his detention for an administrative offence he was also charged with a crime. The applicant invokes Article 5 § 2 of the Convention in this regard.
2.  The applicant complains under Article 3 of the Convention that he was ill-treated by the police with the aim of making him incriminate himself.
3.  The applicant complains that the investigative actions were carried out in the Ukrainian language, which he could not understand.
4.  The applicant complains that his right to legal assistance was not ensured by the investigative authorities.
5.  The applicant complains that he was not given sufficient time to study the case file before the trial.
6.  The applicant complains under Article 6 §§ 1, 2, 3 of the Convention that the courts failed to assess the evidence properly, misinterpreted the facts, and convicted him groundlessly.
THE LAW
1.  The applicant complains that his right to legal assistance was not ensured by the investigative authorities.
The Court shall examine the complaint under Article 6 §§ 1 and 3 (c) 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:
(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 these complaints 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.
2.  The Court has examined the remainder of the applicant’s complaints and considers that, in the light of all the materials in its possession and 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 or its Protocols.
It follows that this part of the applications must be rejected as 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 applicant’s complaint concerning failure by the investigative authorities to ensure the applicant’s right to legal assistance;
Declares the remainder of the application inadmissible.
	Claudia Westerdiek	Dean Spielmann
	Registrar	President