SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 65550/01 by Vasyl Gavrylovych KOVAL against Ukraine

The European Court of Human Rights (Second Section) , sitting on 10 December 2002 as a Chamber composed of

Mr J.-P. Costa , President , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mrs A. Mularoni , judges , and    Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 12 October 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Vasyl Gavrylovych Koval, is a Ukrainian national who was born on 28 April 1951 and currently resides in Kyiv. He is represented before the Court by Mr Portyanyk and Mr Grytsiak, lawyers practising in Kyiv, and Mr Stephane Dunikowski, a lawyer practising in Nanterre, France. The applicant was formerly employed as Head of the Consular Department of the Ministry of Foreign Affairs of Ukraine.

A. The circumstances of the case

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

On 29 November 1997 the General Prosecution Service of Ukraine detained the applicant on suspicion of forgery committed by a public official. In a resolution of 30 November 1997 the Head of the Department of the General Prosecution Service of Ukraine (hereinafter the Head of the Department) ordered that the applicant be placed in custody since there was a danger that he would abscond and obstruct the investigation of the case.

On 2 December 1997 the Head of Department ordered that the applicant be detained on remand by way of a preventive measure. Following a complaint by the applicant’s lawyer, the Head of the Department, on 5 December 1997, refused to release the applicant notwithstanding the latter’s undertaking not to leave the jurisdiction. The Head of Department considered that there was a still a danger that the applicant would abscond and obstruct the investigation of the case. Furthermore, new charges of unlawful currency transactions, abuse of power and forgery committed by a public official had been brought against the applicant. It was decided to detain the applicant in the Investigative Detention Centre of the Zhytomyr Region.

On 30 December 1997 the Minister of Foreign Affairs of Ukraine dismissed the applicant from his position as Head of the Consular Department of the Ministry of Foreign Affairs of Ukraine for reasons of professional incompatibility.

From December 1997 to June 1998 the applicant, his wife, his defence lawyers and the employees of the Consular Department of the Ministry of Foreign Affairs petitioned on a number of occasions the General Prosecution Service, the Verkhovna Rada of Ukraine (Parliament of Ukraine), the President of Ukraine and other governmental bodies about the following matters: the unlawfulness of the investigation; the detention of the applicant; the search conducted in his house and office; the seizure of documentation and foreign currency (10,000 US dollars and 320 Polish Zlotys ); the ordering of preventive measures with respect to the applicant’s and his sister’s property; the refusal to provide him with medical assistance while in detention; and the conditions of his detention.

On 17 January 1998 the General Prosecution Service of Ukraine decided to conduct a forensic medical examination with regard to the applicant’s physical ability to be detained.

On 11 March 1998 the Bureau of Forensic Medical Expertise of the Zhytomyr Regional Administration’s Department of Health Protection adopted an expert opinion following an assessment of the applicant’s health between 18 February 1998 and 3 March 1998. It held that the applicant could be held in custody in the Investigative Detention Centre and was fit to take part in the investigation. He could be provided with emergency medical assistance if necessary.

On 12 May 1998 the General Prosecution Service ordered a further medical examination of the applicant’s state of health.

On 14 May 1998 the applicant was transferred to the Investigative Detention Centre of the Kyiv Region.

On 29 June 1998 the General Prosecution Service of Ukraine changed the preventive measure to bail. The applicant’s wife (L.M. Koval) deposited a sum of 500,000 Ukrainian Hryvnias (UAH) [*] in the deposit account of the General Prosecution Service of Ukraine on 23 and 26 June 1998.

On 24 July 1998 the General Prosecution Service of Ukraine prohibited the applicant from occupying positions in the Consular Department of the Ministry of Foreign Affairs of Ukraine during the period of the preliminary investigation.

On 20 October 1998 the General Prosecution Service of Ukraine initiated a criminal investigation into the offences of unlawful currency transactions and abuse of power. On the same date the General Prosecution Service of Ukraine, by means of a resolution, detained the applicant on the grounds that he was obstructing the investigation of criminal acts. New charges concerning other serious offences were brought against the applicant. The applicant was transferred to the Investigative Centre of the Secret Service of Ukraine.

On 27 November 1998 the Pechersky District Court of Kyiv quashed the resolution of the General Prosecution Service of Ukraine of 20 October 1998 following the applicant’s appeal. On 27 November 1998 the General Prosecution Service of Ukraine changed the preventive measure to an undertaking by the applicant not to abscond. On 30 November 1998 the General Prosecution Service of Ukraine lodged a protest against the decision of the Pechersky District Court of Kyiv, seeking to annul the decision since it was not justified by the case-file and had been adopted in accordance with the applicable legislation. On 30 November 1998 the Kyiv City Court allowed the protest of the Deputy Prosecutor General of Ukraine and quashed the decision. On the same date the General Prosecution Service of Ukraine changed the preventive measure from an undertaking by the applicant not to abscond to detention. The applicant was subsequently arrested and transferred to the Investigative Centre of the Secret Service of Ukraine. The applicant’s complaints to the President of the Supreme Court of Ukraine against the decision of the Kyiv City Court with respect to the change of the preventive measure were dismissed on 13 January 1999 as being unsubstantiated.

From December 1998 until June 1999 the applicant unsuccessfully lodged a number of complaints with the General Prosecution Service of Ukraine, the Supreme Court of Ukraine and the Secret Service Detention Centre, seeking release from custody on account of his poor state of health.

On 27 May, 1 June and 4 June 1999 the applicant, his wife and his lawyers lodged complaints with the Kyiv City Court seeking to change the preventive measure to an undertaking by the applicant not to abscond and to have the applicant medically examined.

The hearings took place on 14 June, 15 July, 20 July, 27 July, 29 July and 3 August 1999.

During the hearing on 14 June 1999 the Kyiv City Court decided to assume jurisdiction of the case, not to change the preventive measure imposed on the applicant and to order a medical examination of the applicant.

On 16 July 1999 the medical examination concluded that the applicant was not suffering from any illnesses which could pose a threat to his life and that the applicant should be given institutionalised medical assistance should it transpire that he could not be provided with medical treatment which became necessary during his custody.

On 3 August 1999 the Kyiv City Court decided to transfer the applicant from the Security Service Detention Centre to the Detention Centre in the Kyiv Region owing to the need to provide him with necessary medical assistance. It also obliged the Detention Centre in the Kyiv Region to inform the court about the applicant’s state of health and about his ability to participate in hearings. The court also refused to change the preventive measure to an undertaking by the applicant not to abscond.

In the course of the hearing on 3 September 1999 the applicant lodged a plea challenging the prosecutor on the grounds of bias. This plea was dismissed by the Kyiv City Court on the same date as unsubstantiated. It also rejected the applicant’s motion to change the preventive measure to an undertaking by him not to abscond.

On 3 September 1999 the applicant lodged a motion with the President of the Kyiv City Court challenging the judge presiding the hearings in his case. On 6 September 1999 the President of the Kyiv City Court rejected this motion as unsubstantiated.

On 27 December 1999 the Kyiv City Court sentenced the applicant to 5 years and 6 months’ imprisonment and ordered the confiscation of all of his personal property. The court also prohibited the applicant from occupying official posts for three years and stripped him of the rank of Ambassador Extraordinary and Plenipotentiary of the second class following his conviction for unlawful currency transactions (Article 80-2 of the Criminal Code of Ukraine of 1960 [*] (hereinafter CCU)), abuse of power (Article 165-1 of the CCU), forgery committed by a public official (Article 172 of the CCU). It also ordered the confiscation of the applicant’s bail in the amount of UAH 500,000. In the course of the proceedings the applicant requested leave to question particular witnesses who, he maintained, could prove his innocence. This request was refused by the Kyiv City Court which based its findings on the applicant’s guilt on other corroborating evidence.

On 4 January 2000 the applicant appealed against that decision to the Supreme Court of Ukraine, seeking to have the Kyiv City Court decision of 27 December 1999 quashed and the proceedings in the case terminated. He and his advocates claimed that the Kyiv City Court unfairly assessed the evidence in the case, based its finding on evidence that did not prove his guilt and failed to establish the objective truth in the case. On 27 April 2000 the Supreme Court of Ukraine partly allowed the applicant’s appeal, re-classified the offence of unlawful currency transactions, and sentenced him for aiding and abetting the commission of unlawful currency operations to five years’ imprisonment. It also held that the applicant should be regarded as having been sentenced for forgery committed by a public official, as established by the Criminal Code of Ukraine of 12 January 1983. For the rest, it upheld the decision.

On 8 June 2000 the applicant arrived at Mensk Penitentiary to serve his sentence.

On 6 July 2000 and 18 July 2000 the applicant and his lawyers lodged complaints with the President of the Supreme Court of Ukraine, seeking to institute supervisory proceedings in the case and to quash the preceding decisions. On 6 December 2000 the Deputy President of the Supreme Court of Ukraine rejected these complaints as being unsubstantiated.

The applicant and his lawyers lodged further complaints against the above-mentioned decisions with the President of the Supreme Court of Ukraine. Upon these complaints the Deputy President of the Supreme Court of Ukraine lodged a protest with the Plenary Supreme Court of Ukraine seeking to have the decisions quashed, the applicant’s acts re-classified and the case remitted for a fresh consideration as regards the forfeiture of his bail. On 6 April 2001 the Plenary Session of the Supreme Court of Ukraine, consisting of 85 judges, partly allowed the protest of the Deputy President of the Supreme Court of Ukraine. It decided to amend the Kyiv City Court’s judgment of 27 December 1999 and the Supreme Court of Ukraine’s ruling of 27 April 2000. It also ruled that one of the offences committed by the applicant should be re-classified from abuse of power with serious consequences to abuse of power with no serious consequences. It decided to sentence the applicant to 4 years’ imprisonment and to prohibit him from occupying governmental posts for two years. It ruled that the penalty stripping the applicant of the rank of Ambassador Extraordinary and Plenipotentiary of the second class should be excluded from the decisions. It also upheld the decision on the forfeiture of his bail, finding that the law on criminal procedure had not been infringed by that decision.

On 27 April 2001 the Mensky City Court amnestied the applicant on the basis of section 5 of the Law of Ukraine on Amnesty of 11 May 2000.

On 2 July 2001 the Kyiv City Court decided to return to the applicant 10,000 US dollars and 320 Polish Zlotys which has been kept on the deposit account of the General Prosecution Service of Ukraine as property seized from the applicant. It also annulled the preventive measures imposed on the applicant’s apartments in Kyiv and Simferopil , on the apartment of his sister in Kyiv and on other property belonging to the applicant.

Statements made by officials with regard to the applicant’s guilt

On 30 January 1998 the Acting General Prosecutor of Ukraine expressed an opinion that the investigation proved the applicant’s guilt (“ Novosti News” ).

On 11 September 1998 the General Prosecutor of Ukraine in an interview given to the newspaper “ Segodnia ” expressed his view that the case of Koval (the applicant) and Lazarenko (ex-prime minister of Ukraine) was under investigation and that the investigation’s conclusions would be relevant to all of the persons who committed illegal acts. He also maintained that there was enough evidence to prove the applicant’s guilt.

At the end of October 1998 the Deputy General Prosecutor of Ukraine informed journalists that the applicant had been taken into custody since other criminal acts has been uncovered in the course of the investigation.

On 17 June 1999 the TV channel UT-1 showed an interview with the Deputy Prosecutor General in which the latter commented on the initiation of the judicial proceedings in the case against the applicant.

Two articles were published by journalists in the newspapers “ Kievskiy Telegraph ” (2 October 2000) and “ Novy Vek” (7 October 2000) with regard to the criminal acts allegedly committed by the applicant. The journalists based themselves on the prosecution’s statements.

B. Relevant domestic law and practice

1. Constitution of Ukraine, 26 June 1996

Article 29

“Every person has the right to freedom and personal inviolability.

No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law.

In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours.  The detained person shall be released immediately, if he or she has not been provided, within seventy-two hours from the moment of detention, with a substantiated court decision in regard to the holding in custody. 

Everyone arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of a defender.

Everyone detained has the right to challenge his or her detention in court at any time.

Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.”

Transitional provisions

“13.  The current procedure for arrest, holding in custody and detention of persons suspected of committing a crime, and also for the examination and search of a dwelling place or other possessions of a person, is preserved for five years after this Constitution enters into force.”

2. Code of Criminal Procedure of Ukraine

Article 148

Purpose and grounds for the application of preventive measures

“Preventive measures shall be imposed on a suspect, accused, defendant, or convicted person in order to prevent his/her attempts to abscond from an inquiry, investigation or the court, to obstruct the establishment of the truth in a criminal case or pursue criminal activities , and in order to ensure the execution of procedural decisions.

Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect, accused, defendant or convicted person will attempt to abscond from investigation and the court, or if he fails to comply with procedural decisions, or obstructs the establishment of the truth in the case or pursues the criminal activities.

If there are insufficient grounds for the imposition of preventive measures, the suspect, accused or convicted person shall sign a written statement undertaking to appear upon notification by the inquirer, investigator, prosecutor or the court, and shall also undertake to notify them of any change in his place of residence.

If a preventive measure is applicable to a suspect, he shall be charged within 10 days from the time of imposition of the measure. In the event that the indictment is not issued within that time, the preventive measure shall be annulled.”

Article 149

Preventive measures

“The preventive measures are as follows:

(1) a written statement undertaking not to abscond;

(2)  personal surety;

(3) surety of a public organisation or labour collective;

(3-1) bail;

(4) remand in custody;

(5) supervision by the command of a military unit.

As a temporary preventive measure, a suspect may be detained on the grounds and pursuant to the procedure provided for by Articles 106, 115 and 165-2 of this Code.”

Article 150

Circumstances that shall be taken into account in choosing a preventive measure

“In resolving the issue of imposing a preventive measure, in addition to the circumstances specified in Article 148 of this Code, such circumstances as the gravity of the alleged crime, the person’s age, state of health, family and financial status, type of activity, place of residence and other circumstances relating to the person, shall be taken into consideration.”

Article 154-1 (Bail)

“Bail consists in the depositing by the suspect, accused, defendant, other natural or legal persons of money or other assets with the body of preliminary investigation or a court for the purpose of ensuring the proper conduct of the person with respect to whom the preventive measure has been applied, his fulfilment of the obligation not to leave the place of permanent residence or the place of temporary stay without the permission of the investigator or the court, and his appearance upon a summons before the investigative body or the court.

The amount of bail is determined taking into account the circumstances of the case by the body that applied the preventive measure. It cannot be less than: one thousand times the citizen’s tax-exempt minimum income, with regard to a person who is accused of committing a serious crime punishable by deprivation of liberty for a term of more than 10 years’; 500 tax-exempt citizen’s minimum income with regard to a person accused of committing another serious crime or a previously convicted person; and 50 times tax-exempt citizen’s minimum income, with regard to any other persons. In all cases the amount of bail shall not be less than the amount of the civil claim substantiated by sufficient evidence.

During the payment of bail,  the suspect, accused or the defendant shall be apprised of his obligations and the consequences of their non-fulfilment, and the surety shall be apprised of the offence of which the person in respect of whom bail is applied is suspected or accused, and informed that in the event that this person fails to fulfil his obligations the bail will be forfeited to the State.

Before the case is committed to the court, the preventive measure in the form of bail may be imposed on a person who is held in custody only with the permission of the prosecutor who authorised the detention, and after the case has been received by the court such a measure may only be imposed by the court.

A surety may refuse to perform obligations undertaken prior to the emergence of the circumstances for the forfeiture of the bail to the State.  In this case he shall ensure the appearance of the suspect, accused or defendant before the investigative body or the court with a view to having the preventive measure imposed on him replaced by a different one. Bail shall be returned only after a new preventive measure has been chosen.

In the event that a suspect, accused or defendant breaches his obligations, bail shall be forfeited to the State. The issue of forfeiture of bail to the State shall be resolved by the court at a hearing during the consideration of the case or in separate proceedings. The surety shall be summoned to the court in order to give explanations. Failure of the surety to appear before the court for a hearing without good reason shall  not obstruct the  examination of the issue of the forfeiture of bail to the State.

The issue of the return of bail to the surety shall be resolved by the court during the trial of the case. The bail deposited by the suspect, accused or defendant may be withheld by the court for the execution of the judgment in the form of compensation for damage.”

(As amended by Article 154-1 in accordance with the Law of Ukraine of 20.11.96 р. N 530/96-ВР)

Article 165-1. Decree (Ruling) on the Application, Annulment or Modification of a Preventive Measure

“With regard to the application, annulment or modification of a preventive measure the investigative body, investigator, prosecutor or judge shall issue a decree, and the court shall give a ruling.”

Article 165-2. Procedure for the Selection of a Preventive Measure

“At the stage of the pre-trial investigation a  non-custodial preventive measure shall be selected by the investigative body, investigator or prosecutor.

In the event that the investigative body, investigator considers that there are grounds for selecting a custodial preventive measure, with the prosecutor’s consent he shall lodge a motion with the court. The prosecutor is entitled to lodge a motion to the same effect. In resolving this issue, the prosecutor is obliged to familiarise himself with all the material evidence in the case that gives grounds for taking the person into custody, and check that the evidence was received in a lawful manner and that it is sufficient for charging the person.

The motion shall be considered within seventy-two hours from the time at which the suspect or accused is detained.

In the event that the motion concerns the detention of a person who is currently not deprived of his liberty, the judge is entitled  by means of a decree, to give permission for suspect to be detained and brought to the court under guard. Detention in such cases may not exceed seventy-two hours; and in the event that the person is outside the locality where the court is situated, it may not exceed forty-eight hours from the moment at which the detainee is brought to this locality.

Upon receiving the motion, the judge shall examine the material in the criminal case-file submitted by the investigative bodies, investigator, a prosecutor shall interrogate the suspect or accused, and, if necessary, shall hear explanations from the person who is the subject of the proceedings, shall hear the opinion of the prosecutor or defence counsel, if the latter appeared before the court, and shall issue a decree:

(1) refusing to select the preventive measure if there are no grounds for selecting it;

(2) selecting a preventive measure in the form of taking of a suspect, accused into custody.

If is refuses to select a custodial preventive measure, the court is entitled to select for the suspect or accused a non-custodial preventive measure.

The judge’s decree may be appealed against by the prosecutor, suspect, accused or his/her defence counsel or legal representative to the court of appeal within three days from the date on which it was issued. The filing of an appeal shall not suspend the execution of the judge’s decree.”

3. Resolution of the Plenary Supreme Court of Ukraine on the practice of the applying bail as a preventive measure, no. 6 of 26 March 1999

“...

2. Judging from the content of Article 154-1 of the CCP (Code of Criminal Procedure), a decision on the application or non-application of bail entirely within the jurisdiction of the person or body responsible for proceedings in the case at the time. The court shall also resolve the issue (taking into consideration the relevant reasons) in each individual case, taking into account the character and the gravity of the criminal act committed, information about the accused person and the other circumstances of the case, and choose the preventive measure of bail instead of custody only if there are reasonable grounds for considering that bail would ensure the appropriate conduct by the person concerned and his fulfilment of the procedural obligations, as well as the execution of the judgment.

9. ...

In considering the issue of the amount of bail the courts shall take into account the specific circumstances of the case and the personality of the accused (in particular, his family and financial status).

12. In accordance with paragraph 6 of Article 154-1 of the CCP a breach by the suspect, accused or convicted person of his obligations shall lead to forfeiture of the bail to the State. This issue shall be resolved during the trial of the case (by the judgment, and, before its delivery by the decree or ruling), as or as in separate court proceedings.”

COMPLAINTS

1. The applicant complains under Article 3 of the Convention of his ill-treatment in detention. He states that he was deprived of proper and necessary medical treatment and assistance and criticises the conditions of his detention. He also complains that he did not have any effective remedies in respect of his Article 3 complaints.

2. The applicant complains under Article 5 § 1(c) of the Convention of the unlawfulness of his detention.

3. The applicant complains under Article 5 § 3 of the Convention that he was not released pending trial and that he was required to lodge an unreasonable amount of bail for his release.

4. The applicant complains of the unfairness of the proceedings in his case. He alleges an infringement of Article 6 § 1 of the Convention.

5. The applicant complains under Article 6 § 2 of the Convention of a breach of the principle of the presumption of innocence, since State officials expressed the opinion in interviews to the press that he was guilty before his guilt had been established by the domestic courts.

6. The applicant complains that witnesses proving his innocence were not heard by the domestic courts; he alleges an infringement of Article 6 § 3 (d) of the Convention.

7. The applicant complains of an infringement of Article 5 § 4 of the Convention in conjunction with Article 6 § 1, since the Kyiv City Court quashed the decision of the Pechersky District Court to release him pending trial upon the protest lodged by the Deputy Prosecutor General of Ukraine.

8. The applicant also complains of the unfairness of the confiscation of his bail in favour of the State (Article 6 § 1 of the Convention).

THE LAW

1. The applicant complains of his ill-treatment during pre-trial and trial detention and while awaiting transfer to prison. He alleges that he was deprived of proper and necessary medical treatment and assistance and that the conditions of his detention from 5 December 1997 to 2 June 2000 were degrading. He also complains that he was denied effective remedies in respect of these complaints. He relies in this connection on Articles 3 and 13 of the Convention, which provide:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

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 Court, to give notice of this part of the application to the respondent Government.

2. The applicant also alleges that his detention was unlawful, that he was denied the right to have his detention pending trial reviewed and that the Kyiv City Court on 30 November 1998 quashed the decision of the Pechersky District Court of 27 November 1998 to release him pending trial upon the protest lodged by the Deputy Prosecutor General of Ukraine. He also complains that the domestic authorities refused his applications for release pending trial. In particular, he refers to Article 5 §§ 1(c) and 3, which provide:

“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 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 Court finds that the complaints to which the applicant refers in this part of the application relate to events or decisions which intervened more than six months before the date of introduction of the application. It follows that these complaints have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. As to the applicant’s complaints with regard to the unreasonable amount of bail which he was required to lodge (Article 5 § 3), the Court considers that the applicant did not exhaust the domestic remedies available to him to challenge the amount of bail imposed. It follows that this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3. The applicant complains of a breach of the principle of presumption of innocence, since State officials expressed opinions in interviews given to the press that he was guilty before his guilt had been established by the domestic courts. Article 6 § 2 provides:

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

The Court observes that the applicant did not raise this complaint either at his trial or on appeal before the Supreme Court of Ukraine and the Plenary Supreme Court of Ukraine. It follows that this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

4. The applicant complains of the alleged infringement of his right to a fair trial and of the courts’ refusal to take into account the witness statements and evidence produced by him. He relies in this connection on Article 6 §§ 1 and 3(d) of the Convention:

“1. In the determination of his civil rights and obligations or 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. (...).

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

(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 considers that this complaint relates to the manner in which the domestic courts assessed the evidence before them. However, it reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz c. Espagne [GC], no. 30544/96, § 27, ECHR 1999-I). Furthermore, the Convention does not require the attendance and examination of every witness on the accused’s behalf ( Bricmont v. Belgium , judgment of 7 July 1989, Series A no. 158, p. 31, § 89; Vidal v. Belgium, judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 33). In respect of witnesses on behalf of the accused, only exceptional circumstances could lead the Court to conclude that a refusal to hear such witnesses violated Article 6 ( Bricmont judgment, loc.cit ). The Court finds no indication in the case-file that the refusal to take into account the evidence requested by the applicant was incompatible with Article 6, or that the applicant’s defence rights were thereby unduly restricted rendering the proceedings unfair.

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

5. As to the applicant’s claims with regard to the confiscation of his bail in favour of the State (Article 6 § 1 of the Convention), the Court considers that it is not possible on the basis of the case-file to determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Adjourns the applicant’s complaint concerning the inhuman and degrading treatment to which he was allegedly subjected and the confiscation of his bail;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa Registrar President

[*] The applicant alleges that at the time of the deposit, the 500,000 UAH amounted to approximately 200,000 USD.

[*] The new Criminal Code of Ukraine of 5 April 2001 entered into force on 1 September 2001.