Communicated on 7 January 2016

FIFTH SECTION

Application no. 36600/09 Boris Karpovich RADZEVIL against Ukraine lodged on 27 June 2009

STATEMENT OF FACTS

The applicant, Mr Boris Karpovich Radzevil , is a Ukrainian national who was born in 1936 and lives in Odessa.

A. The circumstances of the case

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

On 12 September 2002 G. fell on the pavement, while crossing the street at a pedestrian crossing, and sustained cerebral, chest and upper limbs injuries, from which he died in the Illichevsk hospital later the same day.

On the same day the Illichevsk police, having identified the applicant as a driver driving through that pedestrian crossing at the moment when G. had fallen, took him to the police station to be interviewed.

According to the record of the interview given by the applicant in the police station, which was signed by him under the title “an explanation”, G. had unexpectedly emerged from behind a nearby moving vehicle as the applicant had been slowly driving his car through the pedestrian crossing and had suddenly fallen onto the bonnet of the applicant ’ s car. From there – when the applicant had hit the brakes – G. had fallen onto the pavement.

On 20 September 2002 the Illichevsk police instituted criminal proceedings against the applicant on suspicion of having breached the traffic regulations, resulting in a fatal accident.

On an unspecified date K., a licensed advocate, was admitted to the proceedings as the applicant ’ s defence lawyer.

On 15 October 2003 the applicant was committed to stand trial before the Illichevsk Court on a charge of committing vehicular homicide by breaching the traffic regulations.

During the trial, the applicant denied having breached the traffic regulations or having hit G. with his car. He submitted that there was no expert evidence or other evidence in the case file proving that his car had come into contact with G. ’ s body before the latter had fallen. In fact, G., who had been crossing the pedestrian crossing, had suddenly fallen into the applicant ’ s traffic lane – a short distance away from the applicant ’ s car – after an on-coming vehicle had gone past at very high speed. G. could have been hit by that oncoming vehicle (which had never been identified) or slipped trying to avoid colliding with that vehicle, or fallen for some other reason.

On 13 December 2006 the Illichevsk Court convicted the applicant as charged but applied an amnesty, as provided for by the Amnesty Act, whereupon he did not have to serve his sentence. In its reasoning, the court referred, among other evidence, to a statement of police officer T., who had submitted that on 12 September 2002 the applicant had approached him, when he had been visiting G. in the hospital before his death, and had volunteered a confession that he had hit G. with his car. The court noted that the plausibility of this statement was confirmed by the fact that the applicant had repeated the same assertion during the subsequent interview that the police had conducted with him in the police station later the same day. The court also noted that the record of this interview, signed by the applicant under the title “an explanation”, could not be included in the body of evidence adduced to demonstrate the applicant ’ s guilt (as it did not qualify as a procedural document), however, the assertions contained in it, matched against other available information, could be used to confirm the plausibility of T. ’ s statement given in court.

The applicant appealed, reiterating his plea of not guilty. He also submitted that the trial court had unlawfully referred in its reasoning to the record of his interview give n to the police of 12 September 2002, which had to be excluded from the case-file given that ( i ) the applicant had given this interview in a non-procedural setting and without having been advised of his right not to give self-incriminating statements, and (ii) the record of the interview had been drafted by police officers, who had insisted on the applicant signing it as a condition of his being released from police custody. In these circumstances, the applicant had signed the record without reading it, as he had left his glasses at home and could only vaguely see the text. Subsequently he had discovered that the text of the document had distorted his original words. In particular, the applicant had never told the police that G. had fallen onto the bonnet of his car. In addition, the document had also contained the forged assertion that the applicant had been notified of his right to remain silent; that assertion had been added with a different pen and in different handwriting.

On 12 May 2008 the applicant notified the Odessa Regional Court of Appeal (“the Regional Court”) that he had lost contact with his advocate K. and asked it to admit lawyers I. and P. to the proceedings in his stead. His request was ignored.

On 26 August 2008, at the appeal hearing, the applicant reiterated his request for I. and P. (who were present in the courtroom) to be admitted as his defence counsel. This request was not allowed by the court. It is not clear from the case file whether the court expressly rejected this request or failed to address it.

On 26 August 2008 the Regional Court dismissed the applicant ’ s appeal. It found that the applicant ’ s submissions regarding his innocence had been disproved by other evidence in the file – in particular, the statements given by numerous witnesses (including people who had been present at the scene of the accident when it had happened), expert reports and other materials collected by the investigation.

On 3 September 2008 the applicant, I. and P. complained to the President of the Regional Court that the judicial panel that had examined the applicant ’ s case had arbitrarily denied him the right to be legally represented during the appeal hearing.

On 11 September 2008 the Deputy President of the Regional Court gave a written response to that complaint, noting that the panel had acted in accordance with Article 44 of the Code of Criminal Procedure and with a resolution issued by the Plenary of the Supreme Court on 24 October 2003. In particular, under that Resolution, legal practitioners who, like I. and P., had no advocate ’ s licence, could not at the material time be admitted as defence counsel in criminal proceedings, as no statute had yet been enacted expressly setting out the relevant admission criteria.

On 26 September 2008 the applicant brought a cassation appeal against the rulings given by the courts in his case, reiterating his plea of not guilty and other previous arguments. In addition, he complained that by refusing to admit I. and P. to the proceedings as his defence counsel, the Regional Court had arbitrarily denied him his right to legal assistance.

On 5 January 2009 the Supreme Court rejected the applicant ’ s cassation appeal. It noted that the arguments raised by the applicant in this appeal were essentially the same as those properly dismissed by the Regional Court in the ordinary appeal proceedings.

B. Relevant domestic law

The relevant provisions of the Constitution of Ukraine of 1996 read as follows:

Article 59

“Everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose the defender of his or her rights.

In Ukraine, advocates shall act to ensure the right to mount a defence against an accusation, and to provide legal assistance during the determination of cases by courts and other State bodies.”

Article 63

“A person shall not bear responsibility for refusing to testify or to explain anything about himself or herself, members of his or her family or close relatives in the degree determined by law.

A suspect, an accused, or a defendant shall have the right to mount a defence .

A convicted person shall enjoy all human and civil rights, except [where such rights are restricted] by law and established in court judgments.”

Other relevant domestic law is summarised in the Court ’ s judgment in the case of Zagorodniy v. Ukraine (no. 27004/06 , §§ 36-43, 24 November 2011).

COMPLAINTS

The applicant complains that the criminal proceedings against him were unfair, as his defence rights had been breached. In particular, he had not been properly informed before his first police interview of his right not to incriminate himself; the record of that interview had then been used to support the case for his conviction. In addition, his request to be allowed to appoint the legal counsel of his choosing in the appeal proceedings was arbitrarily denied. The applicant refers to Article 6 §§ 1 and 3(c) of the Convention in respect of the above complaints.

The applicant also complains under Article 6 § 1 of the Convention that the proceedings against him were inordinately lengthy and contained unnecessary delays.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular:

(a) has there been a breach of the applicant ’ s right not to incriminate himself regard being had

( i ) to the manner, in which his first police interview was conducted on 12 September 2002, and

(ii) to the fact that the record of this interview was used by

the domestic courts in substantiating the applicant ’ s

conviction ?

(b) Did the refusal of the Odessa Regional Court of Appeal to admit in the proceedings the lawyers chosen by the applicant breach his right to defend himself through legal assistance of his choosing (see Zagorodniy v. Ukraine , no. 27004/06 , §§ 53-56, 24 November 2011) ?

2. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement stipulated by Article 6 § 1 of the Convention?