FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1291/03 by Sergey Viktorovich VOLOSYUK against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 22 May 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mr K. Jungwiert , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr J. Borrego Borrego , Mrs R. Jaeger , Mr M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar ,

H aving regard to the above application lodged on 22 October 2002 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Sergey Viktorovich Volosyuk, is a Ukrainian national who was born in 1976 and is currently detained in prison in the Donetsk Region, Ukraine .

A. The circumstances of the case

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

1. Criminal proceedings brought against the applicant

a. Pre-trial proceedings

On 30 December 1999 the applicant and two co-suspects were arrested by the police on suspicion of having murdered Mr R. On the same day and given the gravity of the offence of which the applicant was suspected, the Druzhkovka District Prosecutor ordered his detention on remand for a maximum of two months.

Immediately after his arrest on 30 December 1999, the applicant was questioned by an investigator from the Druzhkovka District Prosecutor ’ s Office, who had been assigned to this case. In the course of this questioning, the applicant – who was assisted by an appointed lawyer P. – confessed that he and the two co-suspects had murdered Mr R. when they were burgling his apartment on 29 December 1999. The applicant admitted that he had struck the victim several times with a metal crutch.

On an unspecified, later date the investigator questioned two witnesses; Mr S. and the victim ’ s adopted daughter Ms R. Mr S. stated that he had seen the three suspects entering the victim ’ s apartment on the night of the offence. Ms R. declared that on 8 December 1999 she had introduced the applicant and one of the two co-suspects to her father, but that she had been away on the day when he had been killed.

On a subsequent, unspecified date in the pre-trial criminal investigation, the applicant partly retracted his initial confessing statement, claiming that he had given it under duress. He pointed out to the investigator that during his detention in the police station where he had been held for several days after his arrest and until his transfer to the Artemovsk Isolation Unit of Temporary Detention ( Ізолятор тимчасового утримання , hereafter “the Artemovsk ITU”), he had been ill-treated and that an ambulance had been called on several occasions for the purposes of providing him with medical treatment.

On an unspecified date shortly after the applicant ’ s arrest and in response to his claim of having been ill-treated by the police, the applicant was examined by a forensic medical expert, who found several bruises on the applicant ’ s face. According to this expert, these had been inflicted two days before the applicant ’ s arrest. Given this conclusion and having noted that the reason why the police had called an ambulance on several occasions was to provide the applicant with medical treatment for a recrudescent peptic ulcer, the Druzhkovka District Prosecutor ’ s Office decided not to take any further action as regards the applicant ’ s alleged ill ‑ treatment by the police.

Also on an unspecified date and considering that his appointed lawyer P. had not defended him effective ly during his questioning of 30 December 1999, the applicant dismissed P. and hired a lawyer of his own choice.

The pre-trial criminal investigation into the murder of Mr R. was completed on 11 April 2000 and on the same date the applicant was given access to the case file.

On 6 May 2000 the supervising prosecutor approved the bill of indictment and transmitted the case file to the Donetsk Regional Court of Appeal (hereafter “the Court of Appeal”) for trial proceedings.

b. Trial and appeal proceedings

According to information set out in a letter of the Governor of the Donetsk Investigative Isolation Unit ( Слідчий ізолятор , hereafter “the Donetsk SIZO”) dated 31 August 2004, the applicant arrived there on 13 January 2001 from the Artemovsk ITU in order to stand trial before the Court of Appeal and on 11 February 2001 he was transferred back to the Artemovsk ITU as the trial proceedings had been adjourned until 1 October 2001. On 24 September 2001 the applicant was again transferred to the Donetsk SIZO. The letter further stated that the applicant was taken from the Donetsk SIZO to attend court hearings in his case on 1 October 2001, 2 December 2002, 6, 7, 8, 9 and 10 Oc tober 2003, 8 December 2003, 26 January 2004, 9, 11, 23 and 24 March 2004, 26 and 28 April 2004.

On 10 October 2003 the applicant dismissed his lawyer and requested the Court of Appeal to appoint a free legal aid lawyer. This request was granted and the court appointed the lawyer K. to conduct the applicant ’ s defence.

In the trial proceedings, the applicant confessed to robbery and having inflicted bodily harm but denied having beaten Mr R. with a metal crutch and having killed him. The applicant stated during his trial that his confessing statements had been obtained through police brutality and undue pressure on the part of the investigator, who had been biased against him. In order to substantiate this claim, the applicant requested that oral evidence be taken from the investigator and the lawyer P. who – according to the applicant – had abetted the investigator in falsely accusing him. The Court of Appeal accepted to hear the investigator, who denied any bias or partiality on his part towards the applicant. The Court of Appeal did not find it necessary to hear the applicant ’ s former lawyer P.

In its judgment of 14 May 2004 the Court of Appeal convicted the applicant of murder and robbery and sentenced him to fourteen years ’ imprisonment with deduction of the time spent in detention on remand.

The applicant ’ s conviction was based on his statements made before the Court of Appeal and the evidence given by the applicant ’ s two co-accused. The latter had stated, inter alia , that they had seen the applicant beating Mr R. with a crutch. The Court of Appeal further took into account the statements given to the investigator by the two witnesses Mr S. and Ms R. as well as forensic evidence, including a dactylographic expert ’ s report according to which the applicant ’ s fingerprints matched the fingerprints on the metal crutch found at the crime scene and an immunologic expert ’ s report stating that the blood stains found on the applicant ’ s jacket, matched the victim ’ s blood type.

The Court of Appeal rejected as unsubstantiated the applicant ’ s claim that his confessing statements had been given under duress. It referred in this respect to the fact that in January 2000 the applicant had received treatment for a peptic ulcer, a disease which he had contracted before his arrest and detention. It also relied on the report of the medical forensic expert who had found that the bruises found on the applicant ’ s face had been sustained two days before his arrest. The Court of Appeal further found no indication that the investigator, who had dealt with the applicant ’ s case, had been biased against him in any way.

Both the applicant and his lawyer K. filed an appeal in cassation against this judgment. In his own appeal, the applicant stated that the appointed lawyers had inadequately represented him before the Court of Appeal, that this court had based his conviction on the records of oral evidence given by Mr S. and Ms R. during the pre-trial investigation, that it had erroneously assessed the evidence heard in court and that he had been subjected to ill ‑ treatment during his detention on remand. The applicant ’ s lawyer challenged the legal qualification of the offence of which the applicant had been convicted, argued that the sentence imposed was excessive and that the judges of the Court of Appeal lacked impartiality.

On 16 December 2004 the Supreme Court upheld the judgment of 14 May 2004. It found, inter alia , that the relevant facts had been duly established during the hearings and had been given a correct legal qualification in the judgment. The Supreme Court saw no reason to depart from the Court of Appeal ’ s conclusion as regards the applicant ’ s claim of ill-treatment and the alleged bias on the part of the investigator. The Supreme Court also found that the lawyers, appointed by the authorities, had conducted the applicant ’ s defence adequately.

2. The applicant ’ s requests for release

During the trial proceedings the applicant filed a number of requests for his release, referring to his health problems and relying on his right to a trial within the reasonable time or release pending trial as guaranteed by Article 5 § 3 of the Convention. According to the applicant, the Court of Appeal never took any reasoned decision on these requests.

In a letter of 4 March 2004 the Deputy President of the Court of Appeal informed the applicant that his new complaint about the excessive length of the proceedings had been rejected on the same basis as the previous ones, namely that there were compelling and valid reasons for the delays in the proceedings. However, the nature of those reasons was not specified in the letter.

3. The applicant ’ s correspondence

During his detention on remand the applicant wrote letters in which he complained about his conditions of detention with various officials, including a public prosecutor supervising penitentiary establishments, the Ombudsman, the State Prison Department and members of parliament. In accordance with the prescribed procedure, these letters were sent through the administration of the detention centre who dispatched them to the addressees. With the exception of letters addressed to public prosecutors and the Ombudsman which were allowed to pass unopened under the applicable rules, the applicant ’ s correspondence was subject to automatic monitoring and censorship.

On an unspecified date in 2003 the Governor of the Donetsk SIZO punished the applicant by ten days ’ confinement in a disciplinary cell for having sent correspondence, i.e. his complaints about his conditions of detention, through channels other th an the prison administration in breach of Article 13 of the Pre-Trial Detention Act.

B. Relevant domestic law

The relevant domestic law provisions concerning pre-trial detention and other preventive measures are set out in the Court ’ s judgment of 5 April 2005 in the case of Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 53-55, ECHR 2005) .

Article 273 of the Code of Criminal Procedure contains the rules on interim procedural decisions during trial proceedings. It provides, in particular, that certain types of interim decisions, including decisions relating to preventive measures, should be set out by the trial court in separate documents.

According to Article 274 of the Code of Criminal Procedure, the trial court may – if found appropriate – order, change or discontinue the defendant ’ s detention during the trial proceedings.

Article 13 of the Pre-Trial Detention Act 1993 stipulate s that, following a written consent by the competent criminal investigation authority, persons held in pre-trial detention are allowed to conduct correspondence with relatives, other persons and organisations. With the exception of privileged correspondence with prosecutors and the Ombudsman which is allowed to pass unopened, all such correspondence is subject to automatic monitoring and censorship by the administration of the detention centre concerned.

In all cases where such correspondence is found to concern matters related to the criminal proceedings pending against the detainee concerned it has to be handed over to the relevant investigating authority. Letters containing information which can obstruct justice are not to be dispatched, of which the detainee must be informed.

COMPLAINTS

The applicant complain ed under Article 3 of the Convention that following his arrest on 30 December 1999 he had been beaten up by police officers. He also complained about the inadequate conditions of his detention on remand in that he had not been provided with adequate medical assistance and treatment .

He further complained under Article 5 § 3 of the Convention that he had not been tried within a reasonable time or released pending trial, and under Article 5 § 4 of the Convention, that his various requests for release pending trial had not been examined by the Court of Appeal.

The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings taken against him had lasted unreasonably long. He also complained under Article 6 §§ 1 and 3 that the trial judges had lacked impartiality, that his conviction had been based on witness evidence given during the pre-trial investigation and that the trial court had refused his request to hear as a witness his lawyer P. The applicant also complained that the lawyers, appointed by the authorities to represent him, had conducted an ineffective defence.

Relying on Article 6 § 2 of the Convention, the applicant complained that, during the pre-trial proceedings, the investigator had disclosed information about him with a journalist of the local newspaper “Okno”, which resulted in a newspaper article describing him as a criminal.

Invoking Article 10 of the Convention the applicant complained of the monitoring of his correspondence by the administration of the Donetsk SIZO and his punishment for having sent an unauthorised letter.

The applicant complained under Article 13 of the Convention that he had not had any effective remedy as regards his complaints under Article 3 of the Convention.

The applicant further complained that the Supreme Court ’ s failure to consider his appeal properly infringed Article 2 of Protocol No. 7.

The applicant also alleged violations of Articles 1, 14, 17 and 53 of the Convention.

THE LAW

A. Allegedly excessive length of the detention on remand and the failure to determine the applicant ’ s requests for release

The applicant complained under Article 5 § 3 of the Convention that he had not been tried within a reasonable time or released pending trial. Article 5, in so far as relevant reads as follows:

“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; ...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article 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 further complained under Article 5 § 4 of the Convention that his various requests for release from detention on remand had never been duly examined by the domestic trial court. Article 5 § 4 reads:

“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 this part of the application 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. Allegedly excessive length of the criminal proceedings

The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against him lasted unreasonably long Article 6 § 1, in its relevant part, provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Court considers that it cannot, on the basis of the case file, de termine the admissibility of this complaint 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.

C. Monitoring of the applicant ’ s correspondence during his detention on remand

Invoking Article 10 of the Convention, the applicant complains of the monitoring of his correspondence by the administration of the Donetsk CDR and his punishment for having sent an unauthorised letter to the public prosecutor in which he complained of the conditions of his detention.

The Court, noting that the punishment was imposed on the applicant for having circumvented the prescribed procedure for monitoring detainees ’ correspondence and that it has not been alleged that this sanction was connected to the contents of the letter concerned, considers that this complaint falls to be examined under Article 8 of the Convention, which provides as follows:

“1. Everyone has the right to respect for his ... correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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.

D. The remainder of the complaints

1. Articles 3 and 13 of the Convention

a. Alleged ill-treatment by the police

The applicant alleged that on 30 December 1999, while he had been detained in the police station, he had been subjected to ill-treatment by police officers, in violation of Article 3 of the Convention. He also complained that, in this respect, he had not any effective remedy within the meaning of Article 13 of the Convention.

The Court recalls that a llegations of ill-treatment must be supported by appropriate evidence (see Math ew v. the Netherlands , no. 24919/03, § 154 , ECHR 2005). It notes in this respect that the medical expert ’ s report, issued in the context of the prosecution ’ s inquiry into the applicant ’ s complaints of ill-treatment, stated that the bruises found on the applicant ’ s face had been inflicted two days before his arrest. This being so, the Court considers that there is no evidence that the injuries described in the medical expert ’ s report were inflicted on the applicant after his arrest and during his stay in the police station .

What is more, the Court of Appeal, in the course of the trial proceedings against the applicant, examined and rejected as unsubstantiated his allegations that his initial confessing statements had been extracted from him by force. In reaching that finding the Court of Appeal relied on the above-mentioned expert ’ s report, statements by the police and other circumstances, including the fact – which the applicant did not deny – that during his detention in the police custody the ambulance had been called to treat the applicant for peptic ulcer, rather than for any consequences of ill ‑ treatment. No material has been adduced by the applicant which could call into question the findings of the domestic authorities and add weight to the applicant ’ s allegations before the Court ( see, mutatis mutandis , Olszewski v. Poland (dec.), no. 55264/00, 13 November 2003 ).

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

b. Alleged inadequateness of the medical care in detention

Relying on Article 3 of the Convention, the applicant further complained that he had not been provided with adequate medical assistance and treatment for his peptic ulcer.

The Court notes that, as indicated above, during the period in which the applicant was held in police custody , an ambulance had been called by the police on several occasions to treat the applicant ’ s peptic ulcer. T he applicant has submitted no evidence , medical or otherwise, that the medical assistance he was provided with during his detention in the Artemovsk or Donetsk SIZOs had been inadequate for the purposes of Article 3 of the Convention.

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

c. Alleged unavailability of an effective remedy

In so far as the applicant complains of a violation of Article 13 of the Convention with respect of his complaints under Article 3 , the Court recalls that according to its case-law, Article 13 does not require a remedy in domestic law for all claims alleging a breach of the Convention; the claim must be an arguable one ( Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52). In the light of its above findings in respect of the applicant ’ s grievances under Article 3 of the Convention, the Court finds that the applicant cannot be regarded as having an arguable claim o f a breach of Article 3.

Accordingly, the Court rejects also this part of the application under Article 35 §§ 3 and 4 of the Convention as being manifestly ill ‑ founded.

2. Article 6 of the Convention

a. Witnesses

The applicant complained that the domestic courts had based his conviction on the evidence of two witnesses given at the pre-trial stage, thus denying him opportunity to cross-examine them. The courts further refused to hear the lawyer P. who had allegedly abetted the investigator in falsely accusing the applicant. The applicant invoked Article 6 §§ 1 and 3 (d).

The Court recalls that, as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which the defendant seeks to adduce. More specifically, Article 6 § 3 (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses and it does not require the attendance and examination of every witness on the accused ’ s behalf, its essential aim being an “equality of arms” in the matter. The task of the Court is to ascertain whether the proceedings in issue, considered as a whole, were fair as required by § 1 (see, among other authorities, Ninn-Hansen v. Denmark (dec.), no. 28972/95, 18 May 1999 ).

In the present case the applicant ’ s conviction was mainly based on his own evidence before the trial court, the statements of the two co-accused and forensic evidence. Furthermore, the judgment contained a thorough reasoning for the court ’ s findings.

There is nothing in the case-file to suggest that the hearing in court of two witnesses – whose evidence the applicant never denied (namely that he was acquainted with the victim before the crime took place and that he had been present in the victim ’ s apartment on the night of the offence) – could make any valuable contribution to the matter to be determined. Nor can the trial court ’ s refusal to hear the lawyer P. be regarded as arbitrary or unreasonable.

The Court therefore finds no appearance of a violation of Article 6 §§ 1 and 3 (d) of the Convention in respect of the Court of Appeal ’ s refusal to hear these three persons.

b. Legal assistance

The applicant alleged that the defence counsels appointed by the authorities had not provided him with effective legal assistance to him in the preparation and conduct of his defence.

The Court recalls that m ere nomination of a lawyer by the authorities does not ensure effective assistance since the lawyer appointed for legal aid purposes may , inter alia , shirk his duties. If they are notified of the situation, the authorities must either replace him or cause him to fulfil his obligations . Nevertheless, a State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal aid purposes (see Kamasinski v. Austria , judgment of 19 December 1989, Series A no. 168, p. 33 , § 65).

In the present case the applicant was initially provided with a lawyer P., whom he subsequently replaced with a lawyer of his own choosing. In October 2003 this lawyer was also dismissed by the applicant, who then requested the trial court to appoint another free legal aid lawyer, which request was granted. The latter represented the applicant throughout the trial proceedings, took part in court pleadings and lodged with the Supreme Court an appeal against the judgment of 14 May 2004. On the basis of the contents of the case-file, the Court finds no reason to disagree with the Supreme Court ’ s finding that there was no wrongdoing or failure to act on the part of the State appointed lawyers.

c. Media coverage of the case

The applicant complained that contrary to Article 6 § 2 of the Convention the investigator at the pre-trial stage had disclosed to the media certain information from the case file, which resulted in an newspaper article where he was described as a criminal.

The Court notes that despite several requests of the Registry the applicant has failed to produce a copy of the impugned article.

d. Alleged lack of impartiality of judges

The applicant complained under Article 6 § 1 of the Convention that the judges of the trial court had been biased against him. The Court finds that the applicant has failed to show that any doubts he might have had about the objectivity of the judge were objectively justified.

e. Conclusion

The Court notes that in the determination of the criminal charges brought against him , the applicant had the benefit of adversarial proceedings before the domestic courts. At the various stages of those proceedings he was able to submit the arguments and evidence he considered relevant to his case. The Court does not discern any arbitrariness or procedural unfairness in the decisions of the domestic courts. The Court, therefore, concludes that t he applicant ’ s complaint s under Article 6 of the Convention must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

3. Article 2 of Protocol No. 7

The applicant alleged that the Supreme Court had failed to examine duly his appeal, which violated his right to a second level of jurisdiction.

The Court notes that the applicant exercised his right to appeal, challenging before the Supreme Court both procedural and substantive aspects of the manner in which the Court of Appeal had determined his case . W hen reviewing the judgment of 14 May 2004 , the Supreme Court deal t with all aspects of the case and gave due consideration to all complaints raised by the applicant. Therefore, the facts of the case do not disclose a violation of the applicant ’ s rights under Article 2 of Protocol No . 7 to the Convention. This part of the application, therefore, should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.

4. Articles 1, 14, 17 and 53 of the Convention

The applicant invoked Articles 1, 14, 17 and 53 of the Convention without any further reasoning. The Court finds no appearance of a violation of these provisions and 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 under Article 5 §§ 3 and 4; Article 6 § 1 (the allegedly excessive length of the proceedings); Article 8 of the Convention ;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President