FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35231/02 by Dmitriy Viktorovich SVERSHOV against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 13 November 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr R. Maruste , Mr J. Borrego Borrego , Mrs R. Jaeger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 11 August 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Dmitriy Viktorovich Svershov, is a Ukrainian national who was born in 1985 and is currently serving a prison sentence . He is represented before the Court by Mr A. V. Lesovoy, a lawyer practising in Simferopol .

A. Facts

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

On 19 January 2002 the applicant was arrested on suspicion of having killed his grandmother and robbed her apartment.

The applicant, a minor at the relevant time, was summoned to the police station to give evidence in relation to the robbery and killing of his grandmother. The applicant was questioned for several hours by police officers without a lawyer being present. He did not request to be assisted by a lawyer. Under pressure from the officers he gave a confession and pointed to a certain G. as his accomplice. On the same day, he participated in an on ‑ site reconstruction of the events at the scene of the crime, during which he maintained his confession. The applicant showed the sequence of events and, using a dummy, where and how had he had hit the victim. These on ‑ site proceedings were witnessed by two attesting witnesses ( поняті ) and recorded on video. Later that day the applicant was provided with an officially appointed lawyer.

On 20 January 2002 the applicant was questioned again, now in the presence of his lawyer. In the course of the questioning he repeated his confession. However, he retracted his confessions shortly afterwards and maintained throughout the subsequent proceedings that he had not been involved in the robbery and killing.

On 22 January 2002 the police arrested Mr G., who supported the applicant ' s initial confessions and maintained this position until the beginning of the trial.

On 22 January 2002 the applicant was formally charged with murder (Article 121 of the 2001 Criminal Code – “the CC”) and aggravated robbery (Article 187 of the CC).

The Kerch City Court ( Керченський міський суд – “the City Court”) held a hearing on 22 January 2002, in the presence of the applicant and his lawyer. It ordered the applicant ' s pre-trial detention on the ground that he might abscond if released because he was suspected of having committed serious offences.

On an unknown subsequent date the applicant was placed in Simferopol Pre-Trial Detention Centre no. 15 ( Сімферопольський слідчий ізолятор № 15 – “the Simferopol SIZO”).

On 15 March 2002 the City Court, following a hearing held in the presence of the applicant and his lawyer, extended the applicant ' s detention on remand for up to a total of four months. It found that there was sufficient evidence for a reasonable suspicion that the applicant had committed serious offences.

On an unknown date during the pre-trial proceedings, the investigator ( слідчий ) appointed to deal with this case carried out a confrontation between Mr G. and the applicant, who was assisted by Mr Lesov o y, a lawyer of his own choosing. Mr G. maintained that the applicant had killed the victim.

On 10 April 2002 the investigator reclassified the applicant ' s charge of murder to aggravated murder (Article 115 of the CC).

On 18 April 2002 the applicant ' s offence was again reclassified as murder (Article 121 of the CC).

On 13 May 2002 the City Prosecutor ( Прокурор міста Керч ) sent the case file, together with the bill of indictment, to the Kerch City Court for trial proceedings.

On 20 May 2002 the applicant was transferred from the Simferopol SIZO to the Kerch Temporary Detention Centre ( Керченський ізолятор тимчасового утримання – “the Kerch ITU”).

On the same date the applicant ' s lawyer Mr Lesovoy filed a request for the applicant ' s release with the Governor of the Simferopol SIZO. The request was based on the argument that the term of the applicant ' s detention on remand, as authorised by the City Court in the detention order of 15 March 2002, had expired on 19 May 2002 and that no new decision had been taken extending this term. In a letter of 30 May 2002 the Governor of the Simferopol SIZO – referring to Article 156 of the CCP – stated that the time-limit referred to in the request for release was applicable only to pre ‑ trial proceedings. However, as from 13 May 2002 the applicant ' s detention was classified as detention during the trial. Consequently, he could not be released on the ground of the expiry of the four-month time-limit invoked.

On 27 May 2002 the judge of the City Court held a preparatory hearing at which the applicant ' s lawyer lodged a new request for release, stating that the applicant ' s detention was contrary to Article 148 of the CCP as there was no indication that the applicant would seek ways to abscond, obstruct the course of justice or reoffend if released. The City Court committed the applicant for trial on charges of murder and aggravated robbery. In its decision the court also rejected the applicant ' s request for release and extended his detention during the trial proceedings without stating any specific grounds.

On 16 October 2002 the City Court granted a request by the prosecutor to refer the case back for further pre-trial investigations. Without stating any grounds, it also decided that the applicant ' s detention “should remain unchanged”.

On 12 December 2002 the investigator discontinued the proceedings in respect of the murder charge and brought a charge of aggravated murder against the applicant.

On an unspecified date in December 2002 the Court of Appeal of the Autonomous Republic of Crimea ( Апеляційний суд Автономної Республіки Крим – “the Court of Appeal”), which was competent to extend the term of pre-trial detention beyond four months, extended the applicant ' s detention until 10 March 2003. It based this decision on the fact that the applicant was charged with serious offences and had not admitted his guilt.

On 23 February the case file and the bill of indictment were submitted to the Court of Appeal for first-instance trial proceedings.

On 27 March 2003 the applicant ' s lawyer filed a request with the Court of Appeal, seeking to have the case file referred back for further investigations and the applicant released on the ground that the evidence collected so far was insufficient for a reasonable suspicion of the applicant ' s involvement in the offences concerned.

At a preliminary hearing, held on 3 April 2003 in the presence of the applicant and his lawyer, the Court of Appeal rejected these two requests on the ground that the reasonableness of the suspicion could be verified only during the trial proceedings. It committed the applicant for trial on charges of aggravated murder and aggravated robbery, and further decided that his detention on remand “should remain unchanged”, without giving any reasons.

In the course of the trial proceedings Mr G. withdrew his confessions and stated, in line with the applicant ' s statements, that he had not been involved in the offences with which he, like the applicant, had been charged.

On 7 May 2003 the Court of Appeal convicted the applicant of aggravated murder and aggravated robbery and sentenced him to thirteen years ' imprisonment. The applicant appealed.

On 2 October 2003 the Supreme Court quashed this judgment on procedural grounds not related to the present application and remitted the case to the Kerch City Prosecutor ' s Office for further investigations.

On an unspecified date in December 2003 the Kerch City Prosecutor ' s Office submitted the case file and the bill of indictment to the Court of Appeal for fresh trial proceedings. On an unspecified date in December 2003 or January 2004 the applicant was committed for trial.

On 12 January 2004 the applicant lodged a request for his release with the Court of Appeal, based on the same argument as his request of 27 May 2002, namely that his detention was contrary to Article 148 of the CCP. This request was rejected by the Court of Appeal on the same day without any reasoning.

During the hearings the applicant ' s lawyer asked the trial court to order the taking of additional forensic evidence. The lawyer also asked for the questioning of several further witnesses. These requests were rejected as the Court of Appeal considered irrelevant the evidence sought by the defence.

On 6 February 2004 the Court of Appeal found the applicant guilty of aggravated murder and aggravated robbery and sentenced him to thirteen years ' imprisonment. The applicant ' s conviction was mainly based on Mr G. ' s confessions given at the pre-trial stage of the proceedings and his own confessions to the police of 19 and 20 January 2002. The Court of Appeal found that this evidence had been obtained without any coercion and tallied with the medical and other forensic evidence in the case file. The applicant lodged an appeal against that judgment.

On 13 May 2004 the Supreme Court dismissed the applicant ' s appeal and upheld the judgment of 6 February 2004.

B. Relevant domestic law

Articles 148 and 156 of the CCP are set out in the judgment of Nev merzhitsky v. Ukraine ( no. 54825/ 00, § 54, ECHR 2005).

COMPLAINTS

The applicant complain ed under Article 3 of the Convention that during his initial questioning on 19 January 2002 the police had subjected him to unlawful psychological pressure.

The applicant further complained that on 19 January 2002 he had been held in police custody between noon and 7 p.m. without his arrest or detention having been recorded, that during this period he had not been informed of the reasons for his arrest, and that he had been questioned without having been given access to a lawyer or any opportunity to prepare for questioning. According the applicant, this had been contrary to his rights under Article 5 §§ 1 (c) and 2 and Article 6 § 3 (a), (b) and (c) of the Convention.

He further complained that his de tention on remand from 19 to 27 May 2002 and from 10 March to 3 April 2003 had not been covered by any valid court order and was thus contrary to his rights under Ar ticle 5 § 1 (c) of the Convention.

Relying on Article 5 § 3, the applicant complained that he had not been brought promptly before a judge after his arrest and that his detention on remand had been unreasonably long.

Referring to Article 5 § 4, the applicant complained that the domestic courts had failed to address his arguments in their determination of his complaints about the unlawfulness of his detention on remand.

The applicant complained that he did not receive a fair trial as required by Article 6 of the Convention, in that the trial court had refused to take further evidence and in that his conviction had been based on evidence unlawfully obtained at the pre-trial stage of the proceedings. The applicant also complained that the criminal proceedings against him had lasted an unreasonably long time.

The applicant lastly complained that there was no domestic remedy within the meaning of Article 13 of the Convention in respect of the excessive length of the criminal proceedings against him, the failure to provide him with access to a lawyer on 1 9 January 2002, and the use of unlawfully obtained evidence in his conviction.

THE LAW

A. Article 5 of the Convention

The applicant complained that from 19 to 27 May 2002 and from 10 March to 3 April 2003 he had been unlawfully detained. He relied on Article 5 § 1 (c) of the Convention, which provides in so far as relevant:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...”

The applicant further complained about the excessive duration of his detention on remand. He invoked Article 5 § 3 of the Convention which provides in so far as relevant as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The applicant also complained that he had been unable to take court proceedings to contest the lawfulness of his detention on remand. He relied on Article 5 § 4 of the Convention, which is worded as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Court considers that it cannot, on the basis of the case file, de termine the admissibility of these complaint s and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

B. Remainder of the complaints

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 unanimously

Decides to adjourn the examination of the applicant ' s complaints concerning the applicant ' s detention without a valid court order (Article 5 § 1 (c) of the Convention), the excessive length of his detention on remand (Article 5 § 3 of the Convention) and the failure of the courts to consider the applicant ' s complaints about the unlawfulness of his detention (Article 5 § 4 of the Convention) ;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President