FIFTH SECTION

Application no. 2308/06 Sergey Ivanovich SARANCHOV against Ukraine lodged on 12 December 2005

STATEMENT OF FACTS

The applicant, Mr Sergey Ivanovich Saranchov , is a Ukrainian national who was born in 1968 and has a permanent address in Vyazivok , the Dnipropetrovsk Region.

A. The circumstances of the case

In May 1999 the Pavlograd Police placed the applicant on the wanted list in connection with the criminal investigation into a robbery and the infliction of grave bodily injuries on B. ’ s minor daughter P. in her flat.

On 28 January 2000 the applicant was arrested in the Russian Federation on suspicion of having committed another unrelated crime in this country and remanded in custody pending the investigation.

On 28 July 2000 the Novokubansk Court (the Russian Federation ) convicted the applicant and sentenced him to a term of imprisonment to end on 27 July 2004.

On 1 June 2004 the Apsheronsk Court (the Russian Federation ) ordered the applicant ’ s retention in custody pending consideration of an application for his extradition to Ukraine .

On 1 December 2004 the applicant was extradited to Ukraine and placed in a pre-trial detention facility.

On 16 January 2005 the applicant was presented with an arrest report, stating that he had been arrested on that date on suspicion of having committed an aggravated robbery. He was informed of his right to have a lawyer as from the first interrogation. The applicant countersigned this report, stating that he had generally disagreed with its content and that he wished to have a lawyer as from the first interrogation.

On 18 January 2005 the Pavlograd Court ordered that the applicant be remanded in custody.

At the investigation stage the applicant denied any involvement in the incriminated offence. According to him, on numerous occasions he requested for a State-funded lawyer, since he had no funds to hire one privately. His requests were ignored or rejected. In the event, the applicant had no legal representative throughout the proceedings.

On 29 January 2005 the Pavlograd Prosecutor signed the final bill of indictment, accusing the applicant of having robbed B. ’ s flat and having inflicted grave bodily injuries on P. during this robbery.

On 1 March 2005 the Pavlograd Court dispensed with examination of evidence at an oral hearing pursuant Article 299 of the Code of Criminal Procedure of Ukraine and convicted the applicant as charged. The court further sentenced the applicant to six-and-a-half years ’ imp risonment to be counted from 28 January 2000 (the date of his arrest in the Russian Federation ) and awarded B. UAH 8,822.94 hryvnias in damages.

In the text of its judgment, the court noted that neither the applicant, nor B. (the victim) contested the facts as presented by the prosecution. The applicant had fully acknowledged his guilt, repented, agreed that all evidence collected by the prosecution had been admissible and refused to answer further questions. In light of the parties ’ positions and the sufficiency of evidence in the case-file, the use of a summary procedure was justified.

On 4 March 2005 B. appealed against the above decision, maintaining that the applicant should be sentenced to a longer prison term. She further requested that this term be calculated from the date of his arrest in Ukraine for her daughter ’ s assault and her flat robbery, rather than from the date of his arrest in Russia for an unrelated crime. She also maintained that the prosecutor had in fact been wholly absent from the trial court ’ s hearing and that the applicant had never repented or admitted his guilt.

The applicant contested this appeal, alleging that he had regretted his crime and requesting that the Pavlograd Court ’ s verdict be validated.

On 20 May 2005 the Dniptopetrovsk Regional Court of Appeal held a hearing in presence of a prosecutor, B. and the applicant. At the hearing the applicant confirmed his initial submissions and requested that the trial court ’ s verdict be left in force.

On the same date the Court of Appeal quashed the sentence of the Pavlograd Court as unduly lenient regard being had to the seriousness of the offence and the applicant ’ s personality, and sentenced the applicant to twelve years ’ imprisonment to be calculated from the date of his arrest in Ukraine (16 January 2005). The Court of Appeal did not comment on B. ’ s allegation that the prosecutor had been absent from the trial hearing.

The applicant lodged a cassation appeal against the above judgment. He alleged that he had been innocent of the incriminated offence and that during trial he had pleaded guilty because of the pressure from the judge. The prosecutor had been absent from the trial and the applicant had no funds to hire a lawyer to represent his interests. In these circumstances he had had no faith in judge ’ s impartiality and a fair examination of evidence during the hearing and when the judge had assured him that he would receive a light sentence if he pleaded guilty, he had followed the judge ’ s instructions. He had also refused to answer further questions, as he had not been aware of the details of the crime. The applicant also alleged that regard being had to his previous detention in the Russian Federation and his extradition to Ukraine in December 2004, calculating his prison term from 16 January 2005 had been arbitrary.

On 30 August 2005 the Supreme Court of Ukraine held a hearing in the applicant ’ s case in presence of the applicant and a prosecutor. Either before or during the hearing the applicant lodged an additional ‘ appeal statement ’ , which was added to the case-file. In this statement, the applicant confirmed his previous submissions before the Supreme Court and additionally complained that he had not had a chance to confront witness S. and that the Court of Appeal had rejected his request for legal representation and had never examined B. ’ s complaint about the absence of the prosecutor from the first-instance trial.

On 30 August 2005 the Supreme Court of Ukraine heard the case in the presence of the applicant and a prosecutor and found that regard being had to the applicant ’ s guilty plea during trial and the sufficiency of written evidence collected by the prosecution, the trial court ’ s decision to dispense with examination of witnesses and other evidence at an oral hearing had been justified. It further found that there was sufficient evidence to convict the applicant and that the applicant ’ s prison term had been correctly calculated from 16 January 2005. The Supreme Court, however, reduced the prison sentence to nine years.

Following his conviction, on numerous occasions the applicant complained to various authorities that it had been neither lawful, nor fair to calculate his prison term from 16 January 2005, regard being had to his previous detention in Ukraine and Russia .

On 10 March 2009 the Court of Appeal reviewed the matter upon the request of the prosecutors ’ office and ordered that the term of the applicant ’ s imprisonment be calculated from 1 June 2004 (the date of the decision to remand him in custody pending consideration of the extradition request).

According to the applicant, during his post-conviction detention his health deteriorated and medical assistance available to him was insufficient. By way of evidence, he presented a certificate of 6 September 2009 from the detention facility ’ s medical unit attesting that he was suffering from chronic colitis, but was able-bodied and liable to employment.

On 30 September 2011 the applicant was released from prison, the remaining term of detention having been replaced by 240 hours of public service.

B. Relevant domestic law

Relevant provisions of the Criminal Code of Ukraine of 1960 (in force on the date of the offence incriminated to the applicant) read as follows:

Article 142. Robbery with violence

“Assault with a view to appropriation of individual property of citizens, accompanied with violence, dangerous for life or health of a person, who was assaulted, or with a threat of such violence (robbery with violence), -

...

... accompanied by infliction of grave bodily injuries or carried out with penetration in a dwelling..., -

Shall be punishable by deprivation of liberty for the term from six to fifteen years with confiscation of property.”

Relevant provisions of the Code of Criminal Procedure as worded at the material time read as follows:

Article 47. Procedure for the engagement and appointment of a defence representative

“...

A defence representative shall be appointed in the event:

...

(2) that ... the defendant wishes to engage a defence representative, but lacking funds or in view of other objective circumstances is unable to do so.

...”

Article 264. Prosecutor ’ s participation in court hearing

“The prosecutor ’ s participation in a court ’ s hearing shall be mandatory, except where:

1) the examined cases concern crimes referred to in Article 27, first paragraph [1] , of the present Code;

2) he (she) refuses to support the charges on behalf of the State.

The prosecutor, being guided by law and his/her inner convictions, shall support charges on behalf of the State, present evidence, participate in examination of evidence, file motions, express his/her opinion with regard to motions by other participants to trial, state his/her considerations in respect of application of criminal law to and punishment of the defendant.

...”

Article 299. Establishing the scope of evidence to be examined and procedure for its examination

“...

The court may, if parties to the trial do not object thereto, find that examination of evidence is unnecessary in respect of circumstances of the case... In so doing, the court shall ascertain that the defendant and other participants to trial correctly understand contents of such circumstances, that there are no doubts regarding voluntary and true nature of their position, as well as explain them that in such a case they will waive the right to challenge these circumstances and the amount of claim by way of appeal.

...

Unless the defendant refuses to testify, his/her examination is obligatory.”

COMPLAINTS

The appl icant complains under Article 6 of the Convention that he was not provided with free legal assistance, had no opportunity to question witness S., and that no prosecutor was present during the trial before the Pavlograd Court.

The applicant additionally complains, without invoking any Convention provision, that his health deteriorated in detention and medical assistance provided was inadequate.

Finally, the appl icant complains under Article 5 § 1 (a) of the Convention that the judicial authorities failed to acco unt for his detention before 16 January 2005 in calculating his pris on sentence and under Article 5 § 4 of the Convention that he had no opportunity to challenge the lawfulness of his pre-conviction detention.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention and in the light of the procedural guarantees afforded by paragraph 3 (c) of this provision? In particular, did the interests of justice require that the applicant be appointed a legal-aid lawyer to represent him in criminal proceedings?

The Government are invited to present copies of relevant procedural documents, including the applicant ’s response to Mrs B. ’ s appeal against the judgment of 1 March 2005, copies of the applicant ’ s requests for legal assistance and relevant responses by the authorities.

2. Was the prosecutor present during examination of the applicant ’ s case by the Pavlograd Court ? If not, was the examination of the case in absence of the prosecutor in compliance with the fair t rial guarantees under Article 6 § 1 of the Convention (see Ozerov v. Russia , no. 64962/01 , § § 53-58, 18 May 2010 ) ?

The Government are invited to present copies of relevant procedural documents, including the hearing record ( протокол судового засідання ) reflecting the scope of participation of the prosecutor and the judge in the applicant ’ s trial by the Pavlograd Court .

[1] 1. So called “privately prosecuted crimes” such as infliction of lesser bodily injuries or arbitrary actions.