FIFTH SECTION

DECISION

Application no . 23647/06 Aleksandr Petrovich ZAKUTNIY against Ukraine and Russia

The European Court of Human Rights ( Fifth Section ), sitting on 23 August 2016 as a Committee composed of:

André Potocki , President, Ganna Yudkivska , Síofra O ’ Leary , judges, and Milan Bla š ko , Deputy Section Registrar ,

Having regard to the above application lodged on 19 May 2006 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Aleksandr Petrovich Zakutniy , is a Ukrainian national, who was born in 1976 and is detained in Kryvy Rig . He wa s represented before the Court by Mr M.O. Tarakhkalo , a lawyer practising in Kyiv .

The Ukrainian Government (“the Government”) were represented , most recently, by their acting Agent , Ms O. Davydchuk .

The circumstances of the case

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

On 23 January 2004 the applicant was arrested in Irkutsk, Russia, and detained with a view to his extradition in connection with criminal proceedings pending in Ukraine against him and several other individuals suspected of membership in a criminal association ( банда ) implicated in several murders, assaults, robberies and other crimes.

In August 2004 the applicant was extradited to Ukraine.

On 6 May 2005 the Dnipropetrovsk Regional Court tried the applicant and found that he had belonged to the aforementioned criminal association and that he had personally taken part in one murder and several assaults.

The applicant appealed against his conviction, alleging, in particular, that his right to be presumed innocent had been breached in several television programmes . More specifically, according to his submissions, on 9 and 10 April 2005 a documentary film entitled The Puppeteer , which concerned the activity of the aforementioned criminal association, had been broadcast on the STB national channel. He submitted that this documentary featured, in particular, interviews with the State Security Service officers, who had directly referred to the applicant as “a scoundrel”, “a bandit”, and “a criminal” and had falsely alleged that he had turned his comrades in to the police and then had fled to Russia with the money belonging to the group. He further alleged that on 22 and 23 May 2005 the Dnipropetrovsk local television Channel 11 had broadcast a program, entitled The Fact , which had featured another interview with a Security Service officer, who had given similar statements. Finally, on 9 and 10 July 2005 The Puppeteer had again been shown on television.

On 29 November 2005 the Supreme Court of Ukraine discontinued the proceedings concerning the murder charge, having found it insufficiently substantiated. It further upheld all the other findings of the Regional Court. The Supreme Court did not comment in the text of its judgment on the applicant ’ s arguments with regard to the broadcasting of the interviews, which had purportedly breached his right to be presumed innocent.

COMPLAINTS

1. The applicant complained under Article 6 § 2 of the Convention that his right to be presumed innocent had been breached by Ukraine on account of the statements referring to him as a criminal offender given by the Security Service officers to the journalists and broadcast on television before the end of the applicant ’ s criminal trial.

2. In addition to the above complaint, the applicant also raised a number of other complaints against Ukraine referring to Articles 1, 6, 7, 8, 13, 14, 17 of the Convention, Article 1 of Protocol No. 1 and Article 1 of Protocol No. 12 .

3. Finally, the applicant also complained that the Russian Federation had breached his rights under Articles 1, 3, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 7 to the Convention during the period of his detention in Irkutsk and on account of his unfair extradition to Ukraine.

THE LAW

A. Alleged violation of Article 6 § 2 of the Convention on account of the public statements by the Security Service officers

The applicant first complained under Article 6 § 2 of the Convention that his right to be presumed innocent had been breached on account of the statements referring to him as a criminal offender given by the Security Service officers to the journalists and broadcast on television before the end of the applicant ’ s criminal trial.

The Government maintained, in particular, that, regard being had to the lapse of time, it was not possible to obtain the original footage or transcripts of the program me s complained about as well as to verify whether and when they had been broadcast. In any event, in his initial correspondence with the Court (dated 19 May 2006) the applicant complained about the Puppeteer film only. His complaint concerning the Fact programme had been raised for the first time in his application form dating 9 July 2007. This complaint had therefore been lodged outside the six-month time-limit to be calculated from the date of the final judgment in the applicant ’ s criminal case (29 November 2005). As regards the Puppeteer documentary, the Government had been able to download it from the internet. As followed from the footage of this documentary (which was also submitted by the Government for the Court ’ s review on an optical disc), the film was dedicated to the crimes and other activities of the aforementioned criminal association. However, the applicant personally had never been referred to either by name or any other identifying details and, regard being had to the general manner in which the information had been presented, it was not possible for the public to identify the applicant as one of that association members.

The applicant contested the Government ’ s submissions. He alleged, in particular, that the footage of the Puppeteer film presented by the Government had not been authentic. In fact, the version broadcast in April and July 2005 had contained additional details making him clearly identifiable. He also submitted that, in his view, his complaint concerning the breach of the presumption of innocence was sufficient for interrupting the six-month time-limit in respect of his complaints concerning all the broadcasts.

The Court reiterates that whether a statement by a public official is in breach of the principle of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made (see, among other authorities, Dovzhenko v. Ukraine , no. 36650/03 , § 48 , 12 January 2012 ).

Turning to the facts of the present case, the Court notes that the applicant has provided neither a recording nor a transcript of any of the television programmes he referred to. Regard being had to the submissions of the parties and other available materials, the Court is not able to discern the exact wording of the statements complained of as well as to ascertain whether, when, or in what context they had been published. The Court therefore finds that it is not necessary to examine other arguments by the parties and dismisses the present complaint as being manifestly ill-founded , pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

B. Other complaints

The Court has examined the remainder of the applicant ’ s complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are 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. It follows that this part of the application is manifestly ill-founded and must be rejecte d in accordance with Article 35 §§ 3 (a) and 4 of the Convention .

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 September 2016 .

Milan BlaÅ¡ko André Potocki              Deputy Registrar President