CASE OF GAVAZHUK v. UKRAINE
Violation of Art. 5-1-c
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger
4. The applicant was born in 1971. He is currently serving a prison sentence at the Berdychiv Town Correctional Colony (Prison) No. 70, Zhytomyr Region (“the Berdychiv Colony”). 5. On 4 November 1998 the Deputy Prosecutor of Chernivtsi initiated criminal investigations into the murder of Mrs S. 6. On 30 July 1999 the applicant’s wife was arrested on suspicion of the murder of Mrs S. On 2 August 1999 she was released. 7. On 4 August 1999 the prosecutors placed Mr V. on the list of persons suspected of the crime. The investigations were suspended. 8. On 2 September 1999 the applicant was arrested following the issue of a warrant by the Head of the Investigation Unit of the Chernivtsi Town Prosecutor’s Office on suspicion of the murder of Mrs S., and the criminal investigations resumed. The applicant chose Mr Shelepa to defend him in the proceedings. 9. On 4 September 1999 the Chernivtsi Town Prosecutor remanded the applicant in custody in view of the pending criminal investigations against him. The applicant remained in detention throughout the proceedings. 10. On 7 September 1999 the applicant and Mr V. were charged with aggravated murder. 11. On 18 October 1999 the Chernivtsi Town Prosecutor extended the maximum period of the applicant’s pre-trial detention to three months. 12. On 23 November 1999 the investigations were completed and the applicant, together with his lawyer, was given access to the case file. 13. On 20 December 1999 the applicant and his lawyer completed their study of the case file. 14. On 28 January 2000 the prosecutors referred the case together with the indictment, containing charges of aggravated murder and theft, to the Chernivtsi Regional Court (“the Chernivsti Court”). The latter received the case file on 4 February 2000. 15. On 25 February 2000 the court remitted the case for additional investigation as it was incomplete. It also ordered the applicant to remain in detention. On 6 March 2000 the prosecutors received the case file. 16. On 9 March 2000 the prosecutors resumed the pre-trial investigations. 17. On 13 March 2000 the Chernivtsi Regional Prosecutor extended the maximum period of the applicant’s detention to five months on the ground that it was not possible to complete the investigation. 18. On 15 May 2000 the investigations were completed and the applicant, together with his lawyer, was given access to the case file. On 5 June 2000 the latter finished consulting the file. 19. On 22 June 2000 the prosecutors referred the case to the Chernivtsi Court. 20. On 30 June 2000 the court received the case file and on 19 September 2000 it remitted the case for additional investigation. The court refused to change the applicant’s preventive measure. 21. On 26 September 2000 the prosecutors received the case file. 22. On 10 October 2000 the Chernivtsi Regional Prosecutor extended the maximum period of the applicant’s detention to six months. 23. On 25 October 2000 the Deputy Prosecutor General of Ukraine extended the maximum period of the applicant’s detention to nine months. 24. On 28 November 2000 the investigations were completed and the applicant, together with his lawyer, was given access to the case file. On the same day they completed their study of the case file. 25. On 22 December 2000 the case was referred to the Chernivtsi Court. 26. On 12 January 2001 the Deputy Prosecutor of the Chernivtsi Region withdrew the case from the court and resumed the investigations. 27. On 18 January 2001 the applicant was informed that the investigations were complete and that he was charged with concealment of crime. 28. On 26 January 2001 the applicant and his lawyer were given access to the case file. On the same day they completed consulting the case file. 29. On 1 February 2001 the case was referred to the Chernivtsi Court. 30. On 5 February 2001 the court received the case file. 31. On 14 March 2001 the court remitted the case for additional investigation. The applicant was ordered to remain in detention. 32. On 19 March 2001 the prosecutors received the case file. 33. On 29 March 2001 the applicant was informed that the investigations were complete, and was given a copy of the indictment, in which he was charged with aggravated murder and robbery. Between 29 March and 2 April 2001 the applicant and his lawyer consulted the case file. 34. On 6 April 2001 the case was referred to the Chernivtsi Court. On 9 April 2001 the court received the case file. 35. On 17 April 2001 the prosecutors withdrew the case and resumed the investigations. On the same day they issued an indictment, containing the same charges and based on the same facts as the indictment of 29 March 2001. 36. On 16 May 2001 the applicant was informed that the investigations were complete and he was given a copy of the indictment of 17 April 2001. On the same day the applicant was provided with another lawyer, Mr B., whom the prosecutors gave access to the case file. 37. According to the applicant, he had agreed to have another lawyer, as the prosecutors told him that Mr Shelepa had not been able to participate in the proceedings due to his illness. From mid-April to 5 May 2001 Mr Shelepa was having medical treatment in a hospital in Kyiv. The latter was not informed that the investigations were complete on 16 May 2001. 38. On the same day the applicant and his new lawyer finished consulting the case file and on 18 May 2001 the case was referred to the Chernivtsi Court, the latter having received it on 24 May 2001. 39. On 29 May 2001 Mr Shelepa was again admitted to participate in the proceedings. 40. In the course of the investigations, in particular on 11 June and 28 November 2000, and 30 March 2001 the applicant’s lawyer made three requests to the prosecutors that the proceedings against the applicant be discontinued for absence of elements of a crime in his actions. The requests were dismissed as unfounded by the prosecutors’ decisions of 13 June and 30 November 2000 and 3 April 2001. 41. In the course of the trial, the applicant and his lawyer argued that some of the evidence submitted by the prosecutors had been collected after the expiry of the statutory terms of the investigation and the applicant’s detention and therefore should not be admitted by the court. 42. On 26 June 2001 the court found the applicant and Mr V. guilty of aggravated murder and sentenced the applicant to twelve years’ imprisonment. It rejected the applicant’s and his lawyer’s argument concerning the admissibility of evidence, holding in particular that the maximum statutory terms of the investigation and pre-trial detention envisaged by the Code of Criminal Procedure had not expired in the case, and that those terms had ceased to run during the periods when the applicant and his lawyer were studying the case file, when it had been referred to the court, and when the lawyer’s petitions had been considered by the prosecutors. The court, relying on Articles 120 and 156 of the same Code, also noted that the terms of the investigation and detention had actually been extended up to twelve months, as the case had been remitted for additional investigation on three occasions. 43. In his appeal in cassation, the applicant complained about the wrongful assessment of the facts and a violation of his procedural rights in the course of the investigation and trial. 44. On 25 September 2001 the Supreme Court rejected the applicant’s appeal in cassation as unsubstantiated. 45. The relevant provisions of the Constitution read as follows: “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in detention other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law...” “...13. The existing procedure for the arrest, custody and detention of persons suspected of committing an offence, and the procedure for carrying out an inspection and search of a person’s home and other property, shall be retained for five years after the entry into force of the present Constitution...” 46. The relevant provisions of the Code, as worded at the material time, read as follows: “An investigator may arrest and question a person suspected of having committed a crime according to procedure envisaged by Articles 106, 106-1, and 107 of the Code.” “Pre-trial investigation in criminal cases shall be completed within two months. The [running of this] term shall commence from the moment the criminal proceedings are initiated up to the moment when the case is referred to the prosecutor together with an indictment or a resolution concerning the referral of the case to the court for a decision concerning the application of the measures of compulsory medical treatment, or until the proceedings are suspended or discontinued. If it is impossible to complete the investigation, this term may be extended to up to three months by district, city prosecutor, military prosecutor of the army, fleet, military districts (commands), garrisons, and prosecutors of equal rank. The time it takes for the accused and his defence to familiarise themselves with the materials of the criminal case file shall not be included in the calculation of the term of pre-trial investigation. In especially complicated cases the term of pre-trial investigation set by part 1 of this Article may be extended to up to six months by the Prosecutor of the Autonomous Republic of the Crimea, prosecutors of regions, the prosecutor of Kyiv, military prosecutors of the military district (command), navy and prosecutors of equal rank or their deputies on the basis of a reasoned resolution of the investigator. Further extension of the term of pre-trial investigation may only be enacted by the Prosecutor General of Ukraine or by his deputies. Where the case has been remitted for additional investigation, or if the discontinued proceedings have resumed, the term of additional investigation shall be established by the prosecutor who supervises the investigation, and shall not exceed one month from the moment when the investigation is resumed. Further extension of this term shall be enacted on general grounds. The rules set in this Article shall not be applicable to criminal proceedings where the person having committed the crime has not been identified. The running of the term of investigation in such cases shall commence from the date on which the person who committed the crime is identified.” “If there are sufficient grounds to consider that the accused, if at liberty, will abscond from the investigation or trial, or will obstruct the establishment of the truth in a criminal case or will pursue criminal activities, and if it is necessary to ensure the execution of a sentence, the investigator and prosecutor shall be entitled to impose on the accused one of the preventive measures envisaged by Article 149 of the Code... In exceptional cases a preventive measure may be applied in respect of a person suspected of having committed a crime before the charges are brought against that person. In such a case the charges shall be brought [against the suspect] within ten days of the application of the preventive measure...” “The preventive measures shall be as follows: (1) a written undertaking not to abscond; (2) personal surety; (3) the surety of a non-governmental organisation or labour collective; (3-1) bail; (4) placement in custody; (5) supervision by the command of a military unit.” “Placement in custody as a preventive measure shall be applied in cases concerning criminal offences for which the law envisages a punishment of more than one year’s imprisonment. In exceptional circumstances this preventive measure may be applied in cases concerning criminal offences for which the law envisages a punishment of up to one year’s imprisonment...” “Pre-trial detention during the investigation of criminal offences in criminal cases shall not last more than two months. This term may be extended to three months by district, city prosecutors, military prosecutors of the army, fleet, military districts (commands), garrisons, and prosecutors of equal rank, if it is not possible to complete the criminal investigation and there are no grounds for changing the preventive measure. Further extension of this term to six months from the moment of the arrest may only be enacted if the case is exceptionally complex by the Prosecutor of the Republic of the Crimea, prosecutors of regions, the prosecutor of Kyiv, military prosecutors of the military district (command), navy and prosecutors of equal rank. The six-month term of pre-trial detention may be extended to one year by the Deputy Prosecutor General of Ukraine and to one year and a half by the General Prosecutor of Ukraine. No further extension of the term of pre-trial detention is allowed; an accused held in detention must be immediately released. If it is impossible to complete the investigation within the terms set by the law for pre-trial detention and there are no grounds for changing the preventive measure, the General Prosecutor of Ukraine or his Deputy shall have the power to approve the referral of the case to the court in the part relating to proven charges. The part of the case relating to criminal offences, the investigation of which has not been completed, shall be disjoined from the proceedings and completed in accordance with the general rules. The accused and his defence shall be provided, not later than one month before the expiry of the term of pre-trial detention set by part 2 of the Article, with the materials of the part of the criminal case in respect of which the investigation has been completed, so that they can familiarise themselves with [those materials]. The time it takes for the accused and his defence to familiarise themselves with the materials of the criminal case shall not be taken into account in the calculation of the term of pre-trial detention. If the court remits the case for a new investigation, and where the term of pre-trial detention has ended, and the preventive measure of pre-trial detention may not be changed, an extension, for up to one month following the receipt of the case, of the term of pre-trial detention shall be enacted by the prosecutor supervising investigation. Further extension of this term shall be enacted according to the procedure envisaged by paragraphs 1, 2 and 6 of the Article, taking into account the period the accused has been held in detention.” “Pre-trial detention during pre-trial investigation shall not last more than two months. When it is impossible to complete the investigation within the period provided for in part 1 of the Article and there are no grounds for discontinuing the preventive measure or substituting it with a less restrictive measure, [the term of pre-trial detention] may be extended: (1) up to four months – upon a request approved by the prosecutor supervising the compliance with the laws by the bodies of inquiry and investigation, or at the same prosecutor’s [own request], by a judge of the court, which adopted a resolution on the application of the preventive measure; (2) up to nine months – upon a request approved by the Deputy Prosecutor General of Ukraine, the Prosecutor of the Autonomous Republic of the Crimea, prosecutors of regions, prosecutors of Kyiv and Sevastopol, and prosecutors of equal rank, or at the same prosecutor’s [own request] in cases concerning serious and particularly serious crimes, by a judge of a court of appeal; (3) up to eighteen months - upon a request approved by the Prosecutor General of Ukraine and his Deputy, or at the same prosecutor’s [own request] in particularly complex cases concerning particularly serious crimes, by a judge of the Supreme Court of Ukraine; In each case, when it is impossible to complete the investigation within the terms specified in parts 1 or 2 of the Article and there are no grounds for changing the preventive measure, the prosecutor supervising the compliance with the law in the course of the investigation in the case shall have the right to approve the referral of the case to the court in the part relating to proven charges. In such an event, the part of the case relating to criminal offences or episodes of criminal activities, the investigation of which has not been completed, shall be disjoined from the proceedings pursuant to the requirements of Article 26 of the Code and completed in accordance with the general rules. The term of pre-trial detention shall be calculated from the moment when the person was placed in custody, or, if his placement in custody was preceded by his arrest [within the meaning of Article 115 of the Code], from the moment of the arrest. The term of pre-trial detention shall include the time during which the person underwent in-patient expert examination at a psychiatric medical institution of any type. If the person is repeatedly placed in custody in the framework of the same proceedings ... or if new charges are brought against him, the time the person has spent in detention before this shall be taken into account when calculating the term of pre-trial detention. The term of pre-trial detention shall end on the day the court receives the case file; however, the time it takes for the accused and his defence to familiarise themselves with the materials of the criminal case shall not be taken into account when calculating the term of pre-trial detention as a preventive measure. If the case is withdrawn by the prosecutor from the court pursuant to Article 232 of the Code, the running of the term shall resume from the day on which the prosecutor receives the case. If the case is returned by the court to the prosecutor for additional investigation, the term of pre-trial detention shall be calculated from the moment the case is received by the prosecutor and shall not exceed two months. Further extension of that term shall be enacted in accordance with the procedure envisaged by part 2 of the Article and the time the accused was held in detention before the referral of the case to the court shall be taken into account. If the term of pre-trial detention ... envisaged by parts 1 and 2 of the Article has ended and if this term was not extended in accordance with the procedure envisaged by the Code, the body of inquiry, investigator, or prosecutor shall immediately release the person from detention. Governors of pre-trial detention centres shall immediately release from detention any accused in whose respect no court resolution extending the term of pre-trial detention has been received on the day of expiry of the terms of pre-trial detention envisaged by parts 1, 2, and 6 of the Article. They shall notify accordingly the person or authority before whom the case is pending and the prosecutor supervising the investigation.” “Having found the collected evidence to be sufficient for formulating charges and having satisfied the requirements of Article 217 of the Code, the investigator shall notify the accursed of the completion of the investigation in his case and of his right to familiarise himself, personally or with the assistance of defence, with the materials of the case... The accused and his defence shall not be limited in the time which they require to familiarise themselves with the materials of the case file. However, if the accused and his defence are obviously trying to delay the completion of the case, the investigator shall have the right to set, by a reasoned resolution, a certain time-limit for study of the case file. Such a resolution shall be approved by the prosecutor.” 47. The relevant extracts from the Reservation contained in the instrument of ratification deposited by Ukraine on 11 September 1997 (period covering 11 September 1997 – 28 June 2001) provide as follows: “...2. The provisions of Article 5 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 shall apply in the part that does not contravene paragraph 13 of Chapter XV of the Transitional Provisions of the Constitution of Ukraine and Articles 106 and 157 of the Code of Criminal Procedure of Ukraine concerning the detention of a person and the issue of an arrest warrant by a public prosecutor. Such reservations shall be in force until appropriate amendments to the Code of Criminal Procedure of Ukraine are introduced or until the adoption of the new Code of Criminal Procedure of Ukraine, but not later than 28 June 2001... The provisions of Article 5 § 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 shall apply in the part that does not contravene Articles 48, 49, 50 and 51 of the Disciplinary Statute of the Armed Forces of Ukraine concerning the imposition of arrest as a disciplinary sanction.” 48. The relevant extracts from Article 106 of the Code of Criminal Procedure, the English translation of which was provided in the appendix to the reservation of Ukraine, read as follows: “A body of inquiry shall be entitled to detain a person suspected of committing an offence for which a custodial penalty may be imposed, subject to the existence of one of the following grounds: 1. if the person is discovered whilst committing an offence or immediately after committing one; 2. if eyewitnesses, including victims, directly identify this person as the one who committed the offence; 3. if clear traces of the offence are found on the body of the suspect or on the clothing which he is wearing or which is kept at his home. If there are other data which constitute grounds for suspecting the person of committing an offence, he may be detained only if he attempts to escape, or if he has no permanent place of residence, or if the identity of the suspect has not been established. For each case of detention of a person suspected of committing an offence, the body of inquiry shall be required to draw up a record setting out the grounds, the reasons, the day, time, year and month, the place of detention, the explanation given by the person detained and the time when it was recorded that the suspect was informed of his right to have a meeting with defence counsel before being questioned for the first time, in accordance with the procedure provided for in Part 2 of Article 21 of the present Code. The body of inquiry shall also be required to notify the public prosecutor of the detention in writing within twenty-four hours and, at his request, give him the documents constituting the grounds for detention. The record of detention shall be signed by the person who drew it up and by the detained person. Within forty-eight hours of receipt of the notification of detention, the public prosecutor shall authorise the person detained to be taken into custody or order his release. The body of inquiry shall inform the suspected person’s family of his detention if his place of residence is known.” 49. The relevant extracts from Article 157 of the Code of Criminal Procedure, which set out the specific duties of a public prosecutor when issuing a warrant for arrest, provide as follows: “The public prosecutor shall issue a warrant for the arrest of a suspect or accused subject to the existence of the grounds prescribed by law. When deciding whether to issue a warrant for arrest the public prosecutor shall be required to study conscientiously all the relevant documents and, where necessary, question the suspect or accused personally. In the case of a suspect or accused who has not attained the age of majority, such questioning shall be mandatory. The right to issue a warrant for the arrest of a person shall be vested in the Prosecutor General of Ukraine, the public prosecutors of the Republic of the Crimea, the regional prosecutors, the prosecutors of the cities of Kyiv and Sevastopol, and other equal-ranking prosecutors. The same right shall also be vested in the deputy public prosecutors of towns and districts with a population exceeding 150,000, unless otherwise stipulated in a special order of the Prosecutor General of Ukraine.”