CASE OF KHLEBIK v. UKRAINE
Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court;Fair hearing;Reasonable time)
Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Vincent A. De Gaetano
5. The applicant was born in 1974 and lives in Nizhyn in the Chernihiv Region. 6. On 1 May 2010 the applicant was arrested and remanded in custody pending the outcome of the investigation and trial. 7. On 30 April 2013 the Alchevsk Court of the Luhansk Region convicted the applicant and his four co-defendants of armed robbery committed in an organised group, banditry and illegal possession of firearms in connection with a series of armed attacks committed in the Perevalsk District of the Luhansk Region. The court sentenced the applicant to eight years and nine months’ imprisonment, to be counted from 1 May 2010 (the date on which he had been arrested), and to confiscation of his property. It ordered that the applicant remain in detention pending appeal. 8. On 14 May 2013 the applicant’s sister, acting in the capacity of his lay defender, appealed against the judgment to the Luhansk Regional Court of Appeal (“the Court of Appeal”). Other parties lodged appeals as well. 9. From the beginning of April 2014, armed groups started to seize official buildings in the Donetsk and Luhansk regions and announced the creation of self-proclaimed entities known as the “Donetsk People’s Republic” and the “Luhansk People’s Republic” (“DPR” and “LPR”). 10. In response, on 14 April 2014 the Ukrainian Government, who consider those armed groups to be terrorist organisations, authorised the use of force against them in the legal form of an “anti-terrorist operation”. 11. As a result of extensive military action, between May and August 2015 the Ukrainian Government forces recaptured some territory in the Donetsk and Luhansk regions, but certain parts of the regions have remained outside of the Government’s control since that time. The parts of the Luhansk Region not under the Government’s control include the Perevalsk District, where the offences for which the applicant was convicted were committed, Alchevsk, where the applicant was tried and convicted, and Luhansk, where the Court of Appeal was located. 12. A ceasefire was agreed upon within the framework of the Tripartite Contact Group composed of representatives of Ukraine, Russia and the Organisation for Security and Co-operation in Europe (hereinafter, “the OSCE”). An obligation to uphold the ceasefire and to withdraw heavy weaponry from the contact line was enshrined in the Minsk Agreements and the Package of Measures for their Implementation of September 2014 and February 2015 respectively. However, numerous violations of the ceasefire have continued to occur ever since. 13. At the time the events of spring and summer 2014 were unfolding, the applicant was detained in Starobilsk remand prison, located in the part of the Luhansk Region that has remained under the control of the Ukrainian Government. He remained in that prison until his release (see paragraph 30 below). 14. On 6 June 2014 the Court of Appeal, which was still sitting in Luhansk, failed to hear the applicant’s case because the applicant could not attend the hearing on account of the armed conflict. A hearing by video conference was scheduled for 8 August 2014, but it did not take place because as from 1 August 2014 the electricity and water supply and telephone communications were cut off at the Court of Appeal’s building in Luhansk. At some point around that time, the judges of the court moved to the Government-controlled territory. The case files, however, remained at the court’s building in Luhansk. 15. On 2 September 2014 the President of the High Civil and Criminal Court, acting under the Law of 12 August 2014 (see paragraph 44 below), reassigned jurisdiction over cases which would normally have fallen within the jurisdiction of the Alchevsk Court to the Lysychansk Court of the Luhansk Region (“the Lysychansk Court”), located in the Governmentcontrolled area. 16. On 12 November 2014 the President of Ukraine issued a decree defining Sieverodonetsk in the Luhansk Region, also located in the Government-controlled area, as the seat of the Court of Appeal instead of Luhansk. 17. On 25 February 2015 the applicant complained to the Court of Appeal about the delay in the examination of his appeal. 18. On 3 March 2015 the applicant lodged a similar complaint with the office of the Parliamentary Commissioner for Human Rights. 19. On 27 March 2015 the Court of Appeal informed the applicant that his criminal case file was in Luhansk, which was not under the Government’s control, and that this prevented the court from examining his case. In order to resolve the problem, amendments would have to be made to the relevant legislation. 20. On 30 March 2015 the Parliamentary Commissioner’s office responded that there was no way to obtain case files from the territory that was not under the Government’s control, but that the Commissioner was working with the courts, the prosecutor’s office and other authorities to find a way to resolve the problem. 21. In response to another complaint from the applicant, on 19 May 2015 the Court of Appeal informed him that it was unable to apprise him of the state of proceedings in his case because his criminal case file was in the court archives in Luhansk, to which there was no access. 22. On 21 May 2015 the Parliament of Ukraine (Verkhovna Rada) adopted a declaration which read, insofar as relevant, as follows: “I. Derogation from Obligations ... 2. In view of the armed aggression of the Russian Federation against Ukraine involving both the regular Armed Forces of the Russian Federation and illegal armed groups guided, controlled and financed by the Russian Federation, since April 2014 an anti-terrorist operation has been conducted by the units of the Security Service of Ukraine, the Ministry of Internal Affairs of Ukraine and the Armed Forces of Ukraine in certain areas of the Donetsk and Luhansk regions (oblasts) of Ukraine. The anti-terrorist operation is part of Ukraine’s inalienable right to individual self-defense against aggression under Article 51 of the UN Charter. The Russian Federation, which has occupied and is exercising control over certain areas of the Donetsk and Luhansk regions, is fully responsible for respect for and protection of human rights in these territories under international humanitarian law and international human rights law. 3. The Russian Federation’s ongoing armed aggression against Ukraine, together with war crimes and crimes against humanity committed both by the regular Armed Forces of the Russian Federation and by illegal armed groups guided, controlled and financed by the Russian Federation, constitutes ‘a public emergency threatening the life of the nation’ in the sense of ... Article 15 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. 4. In order to safeguard the vital interests of society and the State in response to the armed aggression of the Russian Federation, the Parliament of Ukraine, the Cabinet of Ministers of Ukraine and other authorities have to adopt decisions which constitute a derogation from certain obligations on the part of Ukraine under the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms. ... 7. On 12 August 2014, the Parliament of Ukraine adopted the Law on Administration of Justice and Criminal Proceedings in connection with the Antiterrorist Operation. The Law changed, for the duration of the anti-terrorist operation, the territorial jurisdiction over cases amenable to the courts located in the anti-terrorist operation area and, concerning the situations where it is impossible to conduct a pre-trial investigation in that area, investigative jurisdiction over criminal offences perpetrated there. The application of this law makes it necessary for Ukraine to derogate from certain of its obligations under Article 14 of the International Covenant on Civil and Political Rights and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. However, the courts and pre-trial investigation bodies are not currently functioning in certain areas of the Donetsk and Luhansk regions because of the armed aggression of the Russian Federation and the actions of terrorist groups backed by the Russian Federation. That is why Ukraine has had to change the territorial jurisdiction of the courts and investigative jurisdiction in respect of criminal offences in conditions where the life of the nation is threatened. ...” 23. On 5 June 2015 the Permanent Representation of Ukraine to the Council of Europe transmitted to the Secretary General of the Council of Europe a note verbale containing the text of the above declaration and its translation. 24. On 15 June 2015 the applicant applied to the Lysychansk Court for restoration of the lost case file (відновлення матеріалів втраченого провадження). 25. On 22 June 2015 the Lysychansk Court held a hearing in the presence of a prosecutor but in the applicant’s absence. The prosecutor stated that the case file in question was not in the area of the Luhansk Region controlled by the Ukrainian Government and that it was therefore not possible to furnish the court with any of the material therein. The court found that there was insufficient material available to restore the file. It discontinued the examination of the application, reminding the parties that if sufficient material was provided, the question of restoration could be reexamined. 26. On 22 October 2015 the Court of Appeal again informed the applicant that examination of his case required amendments to the legislation. In this context, it referred to draft law no. 2930 (see paragraph 47 below). 27. On five occasions between May 2015 and February 2016 the applicant applied for release, arguing that his detention was unlawful because his conviction was not final and “would never become final”. 28. The Starobilsk Court of the Luhansk Region rejected the applicant’s applications for release, finding that, contrary to his submissions, there were sufficient legal grounds for continuing to detain him, since he had been convicted and his case was pending before the Court of Appeal. The most recent of those decisions was taken on 25 February 2016. No appeal lay against them. 29. On 30 December 2016 the applicant applied to the Court of Appeal for release under the Law of 26 November 2015 (see paragraph 46 below). 30. On 18 March 2016 the Lysychansk Court released the applicant. It considered that, as he had been held in pretrial detention since 1 May 2010, under the Law of 26 November 2015 he could be deemed to have already served his sentence. 31. The regional prosecutor’s office appealed, arguing that the applicant’s conviction had not become final because his domestic case file had remained inaccessible in a non-Government-controlled area and appeals against his conviction were still pending before the Court of Appeal. According to the prosecutor’s office, only convicted persons whose convictions had become final could benefit from the application of the new legislation. By contrast, those whose convictions were not final could be released only once the period for which they had been detained had exceeded half of the maximum sentence for the offence of which they stood accused. Since the applicant was accused of offences, in particular banditry and aggravated robbery, the maximum punishment for which was fifteen years’ imprisonment (see paragraph 41 below), and he had served much less than half of that term, he could not be released. 32. On 24 May 2016 the Court of Appeal upheld the Lysychansk Court’s ruling of 18 March 2016 (see paragraph 30 above). 33. Following communication of the case to the respondent Government, on 11 August 2016 the regional prosecutor’s office informed the office of the Government Agent that, apart from the applicant, there were seven other individuals still held in the region’s remand prisons against whom criminal proceedings were still pending but whose case files were in the non-Government-controlled areas. The prosecutor’s office stated that it had requested the assistance of the police in gathering the documentation necessary to restore the relevant files. That work had allowed the prosecutor’s office to gather sufficient material to ask the courts to consider the case against one of those individuals. The work was ongoing concerning two other defendants. Assistance had also been requested from the International Committee of the Red Cross, which operated in both the Government-controlled and the non-Government-controlled areas, in facilitating the transfer of files from the Court of Appeal’s building in Luhansk. 34. At the date of last information made available to the Court (19 January 2017), the applicant’s appeal against his conviction remained pending before the Court of Appeal.