FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42484/02 by Aleksandr Sergeyevich LEBEDEV against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 2 September 2008 as a Chamber composed of:

Peer Lorenzen , President, Rait Maruste , Karel Jungwiert , Volodymyr Butkevych , Mark Villiger , Mirjana Lazarova Trajkovska , Zdravka Kalaydjieva , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 4 October 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Aleksandr Sergeyevich Lebedev , is a Ukrainian national who was born in 1975 and is currently serving his sentence in the Perekrestovka , the Romenska Correctional Colony no. 56 of the Sumy Region .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The applicant ’ s conviction

The applicant was apprehended on 9 December 1999 and held in detention on suspicion of being involved in murder and theft of private property.

In October 2000 the investigator remitted the case-file to the Cherkassy Regional Court , which on 2 October 2000 remitted the case for additional investigation to the Cherkassy Regional prosecutor.

On 25 December 2001 the Cherkassy Regional Court of Appeal, in the presence of the applicant and his representative, following examination of a wide range of documentary and oral evidence, sentenced the applicant to life imprisonment and confiscation of all of his personal property following his conviction for murder and theft of private property committed as a member of an organised criminal group.

On 16 July 2002 the Supreme Court , sitting in a chamber composed of three judges and in the presence of the applicant and his two representatives, rejected the cassation appeals lodged against the judgment of 25 December 2001 as they were unsubstantiated. It confirmed the applicant ’ s conviction, having examined a wide range of documentary and oral evidence.

On 16 October 2002, 7 July and 24 October 2003 the Supreme Court refused to re-examine the applicant ’ s case in the course of extraordinary review proceedings, finding no grounds for it.

Following the applicant ’ s conviction, in 2002-2004, he unsuccessfully complained to the General Prosecutor ’ s Office and the Regional Prosecutor ’ s Office, various other state institutions, about the unlawfulness of his conviction and various procedural irregularities that from his point of view occurred in the course of examination of his case.

2. Events concerning the applicant ’ s attempt to marry

According to a letter of 21 March 2003 from the Cherkassy Regional Court of Appeal, o n 2 October 2000 the applicant requested the Cherkassy Regional Court , which was examining his criminal case , to allow him to marry K.O.G. However, this request was not examined and no answer was given to the applicant as on the same date the Cherkassy Regional Court remitted the case for additional investigation and the applicant did not repeat his request for permission to marry K.O.G. The letter also stated that the applicant ’ s passport had remained with the prosecutor ’ s office throughout the proceedings, including the period when the case-file had been remitted for additional investigation, and after the applicant ’ s conviction became final it was sent to the court for enforcement of the sentence imposed on the applicant.

In May 2003 the applicant requested the Cherkassy Regional Prosecutor ’ s Office to provide him with his passport so that he could marry. On 26 May 2003 the Prosecutor ’ s Office replied that his passport was at the court of appeal and thus he had to address his request to that court.

On 30 October 2003 the Cherkassy Regional Court of Appeal informed the applicant that his request lodged with the court on 2 October 2000 to allow him to marry K.O.G. had not been examined by that court because the case had been remitted for additional investigation to the prosecutor ’ s office. Thus, he should have addressed the prosecutor office as it was from then on responsible for processing his criminal case. Also, when the case arrived at the court in 2001 he had not requested anew permission to marry.

On 10 December 2003 the Cherkassy Regional Prosecutor ’ s Office informed the applicant that his passport was part of his personal file and had been archived at the penitentiary institution where he was serving his sentence. They also informed him that it was being exchanged for a new Ukrainian ordinary citizen ’ s passport (in exchange for the invalid Soviet passport he had).

On 20 January 2004 the applicant received an internal Ukrainian passport in exchange for the Soviet passport issued to him in 1991.

On 4 February 2004 the applicant requested the Cherkassy City Department of Registration of Civil Status to inform him about the procedure for registration of marriages. On 27 February 2004 the applicant received detailed explanations as to how registration of marriages for convicts could be effectuated.

B. Relevant domestic law

1. Correctional Labour Code, 1973 (in force at the material time)

In accordance with Article 8 of the Code, convicted persons had the same rights and duties as other citizens of Ukraine , with restrictions provided by the law, resulting from the judgments of the court and the regime of serving their sentence, as provided by these judgments.

2. Code on Marriage and Family, 1969 (with changes and amendments and in force at the material time)

Marriages are registered in accordance with the general rules of Articles 173 – 178 of the Code on Marriage and Family. According to Article 177 of the Code the presence of the couple is obligatory for registration of marriages. However, if a person is unable to attend registration of marriage at the civil acts registration department, marriage can be registered at other premises. Article 17 of the Code established a limited list of circumstances that would preclude a person from getting married, however, conviction of a person or his detention were not seen as an obstacle for registration of a marriage.

3. Rules on Registration of Civil Acts in Ukraine (approved by the Order no. 52/5 of the Ministry of Justice on 18 October 2000)

By virtue of Rule 4.17-4.18 registration of marriage with convicts shall be conducted on the general grounds referred to in the Code on Marriage and Family. A marriage can be registered on the basis of a request from a person who is not serving the sentence as well as a convict himself. The completed documents are then sent to the penitentiary for transfer to the convict (Rule 4.19), who is to fill out his part of the application for marriage and after that the documents and the convict ’ s signature are certified and sent to the appropriate civil acts registration department (Rule 4.20 ).

If a convict is the person who initiates the marriage, then he requests the relevant documents from the penitentiary (including a special application form), fill them out and send them to the person he intends to marry, who shall then also fill them out. The completed documents are then transferred to the civil acts registration department (Rules 4.21 and 4.22).

The persons concerned are then informed (the respective penitentiary institution shall inform the convict) by the civil acts registration department of the date and time of the marriage (Rule 4.23). The registration of marriage takes place in the premises designated by the penitentiary institution (Rule 4.24). The relevant remarks as to registration of marriage are put into the ordinary national passport of the married couple (Rule 4.25). Registration of marriage for persons who are detained pending trial is conducted by the relevant civil acts registration departments at the Pre-Trial Detention Centres (SIZO or prisons), only upon written permission of the body, which is responsible for the case, in accordance with the procedure and rules established for the penitentiary institutions.

COMPLAINTS

1. The applicant initially complained about the unfairness of his conviction of 25 December 2001 by the Cherkassy Regional Court . He alleged that the domestic courts had erred in the ir assessment of the facts and in application of the law. He claimed that they unfairly assessed witness statements and he was thus compelled to plead guilty by the law enforcement authoritie s. He further complained about the numerous alleged violations of the domestic procedural law , including the infringements of the Code of Criminal Procedure. He referred to Article 6 §§ 1, 2, 3(b ) and ( d) of the Convention , citing all the possible aspec ts of this provision.

2. The applicant alleged, as stated in his co mplaint introduced in June 2004 that he was unable to marry Ms K.O.G. , his partner. He maintained that Article 12 of the Convention had been infringed by the domestic authorities, which prohibited him from marrying . The applicant alleges that he could not marry because he did not have a passport and the authorities did not give him permission to get married. He provided copies of both passports, the old Soviet passport issued to him in 1991 and the new one issued in 2004.

3. In January 2006, the applicant lodged new complaints, alleging that Articles 1, 3, 5, 7, 13 and 14 of the Convention had been infringed. Citing these provisions, he repeated his previous complaints about the unfairness of his conviction and therefore unlawfulness and arbitrariness of his detention and serving sentence.

THE LAW

1. The applicant complains of an alleged infringement of his right to a fair trial and of the courts ’ failure to assess evidence fairly and apply the law correctly. He relies in this connection on Article 6 §§ 1, 2, 3(b ) and ( d) of the Convention , which read as follows:

“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. (...)

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

... (b) to have adequate time and facilities for the preparation of his defence;

... (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 notes that the applicant ’ s complaints relate to the manner in which the domestic courts assessed the evidence before them and concerned overall fairness of the criminal proceedings instituted against the applicant (see Koval v. Ukraine ( dec .), no. 65550/01, 10 December 2002). However, in context of Article 6 of the Convention, the Court does not deal with errors of fact or law allegedly committed by domestic judicial authorities unless they have a bearing on the right to “a fair trial” protected by the Convention. Moreover, admissibility of evidence or the way it should be assessed are primarily matters for regulation by national law and the national courts (see García Ruiz c. Espagne [GC], no. 30544/96, § 27, ECHR 1999-I). The task of the Court , thus, is limited to ascertaining whether the proceedings, as a whole, were fair and complied with Article 6 § 1 of the Convention (see, among many other authorities, Volosyuk v. Ukraine ( dec .), no. 1291/03, 22 May 2007). However, for the Court no appearance of unfairness or arbitrariness can be seen , which would infringe the guarantees of a fair hearing within the meaning of Article 6 § 1 of the Convention. Furthermore , no indication that the applicant ’ s right to a fair hearing was compromised in any way can be found.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. T he applicant also complained, referring to Article 12 of the Convention that he was not able to marry Ms K.O.G. This provision provides, insofar as relevant:

“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”

U nder Article 35 § 1 of the Convention, the Court may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, which only requires normal recourse by an applicant to remedies which are effective, sufficient and available (see, mutatis mutandis , MPP Golub v. Ukraine ( dec .), no. 6778/05, ECHR 2005-..., and Karuna v. Ukraine ( dec .), no. 43788/05, 3 April 2007). T he purpose of the domestic remedies rule in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. However, the only remedies to be exhausted are those which are effective. Furthermore, the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case and whether the applicant did everything that could reasonably be expected in order to exhaust domestic remedies (see Merit v. Ukraine , no. 66561/01, § 58 , 30 March 2004 ; V.A.M. v. Serbia , no. 39177/05, § 83 , 13 March 2007 ) .

In this respect, the Court observes that the Ukrainian law does not prohibit detainees or convicted prisoners from marrying, although it does set up a number of formalities for lodging marriage requests, which have to be complied with. These formalities are set out in the domestic law , in particular in the Code of Marriage and Family, 1969 and the Rules on Registration of Civil Acts in Ukraine (see domestic law part above) . Furthermore, convicts and detainees are not prohibited from lodging administrative complaints and instituting proceedings before the domestic courts against refusals to permit marriage or any other actions in respect of receipt of the permissions to marry.

Turning to the facts of the instant case, the Court observes that the applicant requested permission from the Cherkassy Regional Court to marry K.O.G. on 2 October 2000. He did not complain to any domestic authorities about the failure to examine this request. Furthermore, the applicant did not make any further applications to marry until after his conviction in 2002, namely in March 2003. Moreover, the domestic authorities never stated to the applicant that he could not get married or was prohibited from getting married; indeed, on 4 February 2004 they provided him with detailed explanations as to how he should proceed to have his marriage registered. The Court also notes that the case-file contains no evidence of any refusals of the prison authorities to let him marry K.O.G. or any attempts to comply with the formalities for marriage (see domestic law above). Nor does it contain any information that K.O.G. had consented to marry him or that she had initiated proceedings related to registration of their marriage, as envisaged by the law (see domestic law above).

The Court considers therefore that if any of the formalities of domestic law had been applied to the applicant, it would have been open to him to challenge them before the domestic courts. In particular, if he had considered that the failure to reply to his letter of 2 October 2000 had interfered with the right to marry, he could have lodged an administrative complaint with the domestic courts seeking a finding that a judge acted unlawfully in failing to examine his complaint and demanding to issue a permission to marry. Subsequent requests, if they at all amounted to alleged interferences with the right to marry, could also have been challenged before the domestic prison authorities , administrative authorities responsible for registration of marriages, and the domestic courts.

It follows that, to the extent that the applicant can at all claim to be a victim of an alleged violation of Article 12, he has not exhausted the domestic remedies available to him. The Court considers therefore that this part of the application must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

3. The applicant also made a series of other complaints about his conviction and detention. The Court has examined the remainder of the applicant ’ s complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

Accordingly, it rejects this part of the application in accordance with Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.

For these reasons, the Court by a majority

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President