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FIFTH SECTION

Application no. 7433/05
by Anatoliy Aleksandrovich KRIVOSHEY
against Ukraine
lodged on 18 February 2005

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Anatoliy Aleksandrovich Krivoshey, is a Ukrainian national who was born in 1966 and has his permanent address in Radyanske, the Dnipropetrovsk Region. He is currently serving a prison sentence in Romny.

A.  The circumstances of the case

On 15 August 2001 the applicant was arrested on suspicion of stealing grain, farm animals and other items from surrounding farms, together with several other individuals, including V.Z., his relative.

On an unspecified date S.T. was admitted to the proceedings as the applicant’s lawyer.

On 17 August 2001 the Magdalynivsky District Court (hereafter “the District Court”) remanded the applicant in custody pending pre-trial investigation of the above charges.

On an unspecified date V.Z. (the applicant’s co-defendant in theft proceedings) reported to the police that on 1 August 2001 the applicant had fatally injured L.G. in a car accident and in V.Z.’s presence had killed A.G. (her husband) to cover up this crime. He further noted that they had hidden the bodies in the forest.

On 23 August 2001 the bodies of A.G. and L.G. were found in the forest and criminal proceedings were instituted in connection with the circumstances of their death.

On the same date the police took the applicant, unaccompanied by his lawyer, to the village, where a local TV channel questioned him and V.Z. about the deaths of L.G. and A.G. Following the interview, the applicant, still unaccompanied by his lawyer, was taken to the site where the bodies had been found, to participate in a reconstruction of the crime scene.

According to the applicant, following negative publicity around his involvement in the deaths of L.G. and A.G., his pregnant wife began to feel very ill and had to abort her baby on medical grounds.

On 31 August 2001 the applicant was officially questioned for the first time as a suspect in connection with A.G.’s murder. It is unclear whether the applicant’s lawyer was present during this questioning.

On 26 September 2001 the applicant was officially charged with causing the traffic accident which resulted in L.G.’s death.

On 10 October 2001 the investigation of the circumstances of A.G.’s murder was suspended because it was impossible to establish the identity of the offender.

On an unspecified date the applicant was committed for trial on charges of theft and causing a traffic accident.

On 11 February 2002 the District Court found the applicant guilty of several counts of theft and sentenced him to ten years’ imprisonment. By the same judgment eleven other individuals, including V.Z., were convicted of various counts of theft in association with the applicant and sentenced to various penalties.

On the same date the applicant was charged with the murder of A.G.

On 12 February 2002 the murder proceedings were stayed with reference to the applicant’s unspecified illness.

On 25 July 2002 the Dnipropetrovsk Regional Court of Appeal (hereafter “the Regional Court”) quashed the applicant’s conviction following an appeal and remitted the case for retrial. The Regional Court noted, in particular, that the trial court, having admitted the case for trial on charges of theft and causing a traffic accident, had reached a verdict only on the theft charges. The Regional Court also dismissed appeals lodged by the applicant’s co-defendants.

On an unspecified date the proceedings concerning the traffic accident charges were severed from the theft proceedings and on 19 February 2003 the District Court found the applicant guilty of theft and sentenced him to ten years’ imprisonment.

On 6 June 2003 the Regional Court quashed this judgment, referring to various procedural violations, and remitted the case for retrial.

On 7 July 2003 the District Court remitted the case to the Magdalynivsky District Prosecutors’ Office, instructing it to join the proceedings to those concerning the traffic accident and the murder.

On 25 September 2003 the investigator with the Magdalynivsky District Prosecutors’ Office noted that the term for holding the applicant in custody pending trial in connection with the theft charges had expired and ordered his release. On the same date the applicant was arrested on suspicion of the murder of A.G.

On 26 September 2003 the prosecutors’ office requested the District Court to remand the applicant in custody in connection with the murder charges.

On 29 September 2003 the District Court refused this request. It noted, in particular, that the investigation of the murder case featured artificial suspensions and other delays and that by joining and disjoining various charges against the applicant the investigation had been sidestepping the proper procedure for extension of the terms of detention, in breach of the applicant’s rights. Likewise, this tactic allowed them to conduct various investigative activities in the absence of the applicant’s defence representative. The court further found that the applicant should be considered as having been detained since 15 August 2001.

On 8 October 2003 the Regional Court quashed this decision and remitted the matter for fresh consideration to the District Court.

On 14 October 2003 the District Court allowed the prosecution’s request and remanded the applicant in custody, citing all the charges against him (theft, causing a traffic accident and murder).

On an unspecified date the theft charges were disjoined and the applicant was committed for trial before the Regional Court acting as the first-instance court on charges of having caused the traffic accident which resulted in L.G.’s death, and of the murder of A.G.

During the trial the applicant acknowledged that he had hit L.G. but denied killing A.G., who, according to him, had been murdered by V.Z.

On 21 May 2004 the Regional Court found the applicant guilty of causing the traffic accident which resulted in L.G.’s death and of the murder of A.G., and sentenced him to life imprisonment. It further noted that the term of imprisonment should be counted from 10 October 2003.

The applicant appealed in cassation to the Supreme Court of Ukraine.

On 5 October 2004 the Supreme Court upheld the conviction and reduced the sentence to fifteen years’ imprisonment.

On several occasions the theft charges were referred to the trial court for examination and remitted for further investigation. These proceedings are currently still pending before the first-instance court.

On numerous occasions the applicant and the governor of the penal institution in which he is serving his sentence complained to the Regional Court and to other authorities that the term of the applicant’s imprisonment had been calculated incorrectly. In particular, according to Articles 63, 70 and 72 of the Criminal Code of Ukraine, the prison term should have been calculated from the date of his arrest on 15 August 2001, rather than from 10 October 2003.

By letters of 16 August 2005, 30 October 2006 and 10 December 2007 the Regional Court asserted that the term of imprisonment for murder and traffic accident charges had been properly calculated, as before October 2003 the applicant had been detained in relation to the theft charges only.

On an unspecified date the applicant asked the Regional Court for a copy of his appeal to present to the Court.

On 12 May 2009 the Regional Court refused this request as not based on law.

B.  Relevant domestic law

Criminal Code of Ukraine of 2001

The relevant provisions of the Criminal Code of Ukraine concerning sentencing read as follows:

Article 63. Deprivation of liberty for a fixed term

“...

2.  Deprivation of liberty shall be for a term of between one and fifteen years.”

Article 70. Sentencing for cumulative offences

“1.  In the event of cumulative offences, the court, having imposed a penalty ... for each offence separately, shall determine the final penalty by absorbing the lesser penalty into the larger one or by full or partial addition of the imposed penalties.

2.  In the event of cumulative penalties, the final penalty for cumulative offences shall be determined within the limits set by the sanction of the [relevant] Article ..., which concerns the more severe penalty. If at least one of the offences is intentional and grave or especially grave, the court may determine the final penalty for cumulative offences within the limits of the maximal term established for this type of penalty in the General Part of this Code...

...

4.  Rules, established by paragraphs 1-3 of this Article, shall apply to the determination of the penalty if following the conviction it is discovered that the convicted is guilty of yet another crime, committed before the pronouncement of the previous conviction. In this event the term of the penalty finally determined for cumulative offences shall exclude the penalty served fully or in part under the previous conviction...”

Article 72. Rules for addition of penalties and deduction
of the term of pre-conviction detention

“...

5.  Pre-conviction detention shall be deducted by the court from the term of punishment in the event of sentencing to deprivation of liberty, matching day for day”.

Article 115 Intentional homicide (murder)

“According to the provision at issue, an intentional homicide (murder) entailed a prison sentence of up to fifteen years, or, under aggravating circumstances, life imprisonment.”

COMPLAINTS

The applicant complains that the criminal proceedings against him concerning theft charges have been excessively long.

He further alleges that the criminal proceedings against him have been unfair. In particular, he was subjected to media exposure at an early stage of the investigation of the murder, without warning and without his lawyer being present. Likewise, his lawyer was not present during some important parts of the investigation of the murder charges, including the first questioning during the reconstruction of the crime scene. In addition, the investigative and judicial authorities were biased, as they had convicted him of a murder he had not committed, having acted unfairly in taking evidence and interpreting the facts.

The applicant further complains that, as a result of the trial court’s refusal to include his detention between 15 August 2001 and 10 October 2003 in the term of his sentence, he was arbitrarily sentenced to two extra years of imprisonment, and that seventeen years’ imprisonment is not possible under the Criminal Code of Ukraine.

The applicant also complains that his pre-conviction detention was unlawful and that his wife had to have an abortion as a result of the negative publicity around his case.

The applicant cumulatively refers to Articles 1, 3, 5, 6, 8, 13 and 17 of the Convention; Article 1 of Protocol no. 1 and Article 3 of Protocol no. 7 with respect to the above complaints.

QUESTIONS TO THE PARTIES

1.  Was the length of the criminal proceedings concerning theft charges in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

2.  Did the applicant have a fair hearing in the determination of the criminal charges against him within the meaning of Article 6 § 1 of the Convention in light of the guarantees provided by Article 6 § 3 (c) of the Convention? In particular, was the applicant afforded sufficient access to his lawyer within the framework of investigation of the murder charges against him, including an opportunity to consult him as of the first questioning?

Your Government are invited to provide a copy of the applicant’s cassation appeal and copies of other relevant procedural documents, including first confessions by the applicant and his co-accused (Mr V.Z.), documents concerning participation of the lawyer in the applicant’s first questioning, and other investigative actions with respect to the murder charges, and so on.

3.  Did the domestic judicial authorities comply with the requirements of applicable domestic law, including Articles 63, 70 and 72 of the Criminal Code of Ukraine, in calculating the beginning of the applicant’s sentence from 10 October 2003? If not, was this calculation lawful for the purposes of Article 5 § 1 (a) of the Convention?

Your Government are invited, in particular, to comment on the availability of domestic remedies in respect of the applicant’s complaint concerning incorrect calculation of the term of his imprisonment.