CASE OF PASKAL v. UKRAINE
Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-3;Violations of Art. 6-1
Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy
7. The applicant was born in 1966 and lives in Simferopol. In 1999 the applicant obtained a university degree in law and at the material time was serving as a police officer in Simferopol. 8. On 1 July 1999 the applicant was arrested on suspicion of having taken part in a robbery on 10 February 1999. 9. At 9:20 a.m. on 1 July 1999 the applicant signed a procedural rights notification form, having noted in it that he wished to appoint M. as his advocate. 10. At 9:25 a.m. on the same date the applicant was questioned, without a lawyer, about the robbery. During this questioning the applicant provided various personal details and stated that he had no knowledge of the robbery, as on the date at issue he was dividing his time between his professional duties as a police officer and his studies at law school. He also named witnesses on his behalf. The interview transcript started with the following paragraph, undersigned by the applicant in addition to his general signature under the document: “My rights have been explained to me under Article 63 of the Constitution of Ukraine, according to which I have a right to refuse to testify concerning myself. I wish to testify concerning the case at issue”. 11. On 3 July 1999 the applicant, being questioned in the presence of M. (the advocate, mentioned by the applicant in his rights notification form), stated that he confirmed his testimony of 1 July 1999 and had nothing to add. 12. In the course of further investigation, the authorities increased the charges, eventually imputing to the applicant organisation of a gang and participation in over thirty robberies. The investigation questioned some 120 witnesses, carried out some twenty reconstructions of crime scenes and ordered numerous expert assessments. 13. On 20 July 2000 the pre-trial investigation was completed and the applicant, along with eighteen other individuals implicated in membership of his gang, was committed for trial to the Supreme Court of the Autonomous Republic of the Crimea (subsequently renamed the Court of Appeal of the Autonomous Republic of the Crimea, and hereafter “the ARC Court”). 14. On 4 May 2001, following familiarisation of the defendants with the case file materials and completion of other procedural formalities, the ARC Court held a preliminary hearing in the case and scheduled the trial for 5 June 2001. 15. Having held some eighteen hearings between June and December 2001, the ARC Court adjourned the proceedings following a request by one of the defendants that the hearings be recorded, for which the technical means were not available at the time. 16. On 15 May 2002 the ARC Court resumed consideration of the case. 17. On 17 January 2003 the applicant complained in court that he had been tortured during the pre-trial investigations. Following an inquiry in respect of his complaint, on 5 February 2003 the Prosecutors’ Office of the ARC refused to institute criminal proceedings against the police officers implicated by the applicant in his ill-treatment, for want of evidence of any such ill-treatment. According to the materials in the case file the applicant did not appeal against this decision. 18. On 29 January 2003 A.K., the applicant’s co-defendant, complained that Judge Sh., presiding over the case, was not impartial. In particular, in the beginning of the trial she had given an interview to the Flag Rodiny newspaper, expressing an opinion about the defendants’ guilt. A.K. presented a copy of the newspaper published on 29 June 2001, featuring the article entitled ‘Changelings with police epaulettes’. In this article the Judge was, in particular, quoted as saying: “Most often it was the well-off residents of the Crimea or the Zaporizhzhya Region who were the victims of armed assaults ... The robbers acted cruelly and coldheartedly, using any means to get the money. They acted as persons absolutely certain of their impunity. Such audacity ... I, frankly speaking, have never encountered during my eleven years of judicial practice. Yes, I am aware of occasions when criminals have used police uniforms for various criminal plots, however, those individuals had nothing to do with the law-enforcement bodies, unlike Paskal and his comrades, who managed to combine law-enforcement service with robbery. The defendants, I should say, admit their guilt in part, however, their conduct is extremely challenging. They constantly lodge absolutely unfounded requests for the removal of the judge and the prosecutor. I assume, however, that in the course of the hearings their arrogance will vanish. The hearings are likely to last a long time”. 19. On the same date Judge Sh. addressed a letter to the Prosecutor of the ARC requesting that the circumstances of the publication be investigated. She maintained that the publication, which, in her opinion, could adversely influence the proceedings, was inaccurate, as she had never given the said interview to the newspaper. 20. Following Judge Sh.’s application, the Prosecutors’ Office established that the Flag Rodiny newspaper belonged to the Black Sea Fleet of the Russian Federation in Sevastopol. A request was sent to the Military Prosecutors’ Office of the Russian Federation to investigate the matter. According to the case file materials, there was no further follow-up. 21. Between 15 May 2002 and 22 May 2004 the ARC Court held some 150 hearings in the applicant’s case. 22. On 17 November 2004 the ARC Court pronounced its judgment, which was presented on some 200 pages. The court convicted the applicant of being a member of a gang and of numerous counts of robbery, and sentenced him to fourteen and a half years’ imprisonment. The court examined in detail and rejected the complaints by the applicant and his coaccused that they had been ill-treated by the investigative authorities. 23. On 22 December 2004 the applicant appealed in cassation, alleging that the trial court had erred in its assessment of the facts and application of the law and imposed a disproportionately heavy sentence on him. 24. On 15 August 2005 the applicant amended his initial appeal. He contended, in particular, that Judge Sh. was not impartial, since she had given an interview to the Flag Rodiny newspaper implying that the applicant was guilty long before the conviction had been pronounced. He also complained in general terms that his right to defence had been infringed, in particular as the trial court had not allowed him to be represented by several unnamed defenders and as the initial bill of indictment allegedly contained fewer charges than those examined by the court. 25. On 16 March 2006 the Supreme Court rejected the applicant’s appeal, finding that the trial court had properly assessed the facts and applied the law to his case and that there were no procedural irregularities in the proceedings such as would prejudice the applicant’s right to a fair trial. It likewise found that there was no evidence that the applicant had been illtreated. 26. On 3 July 1999 the Prosecutors’ Office of the ARC remanded the applicant in custody for ten days pending determination of the grounds for his indictment. 27. On 12 July 1999 the applicant was presented with a bill of indictment and his detention was extended until 1 September 1999. Subsequently, on several occasions the Prosecutors’ Office of the ARC took decisions to extend the term of the applicant’s detention, the reasoned texts of which, if any, have not been provided to the Court. 28. Initially the applicant was held in several Temporary Detention Centres (ITU), which were purportedly not suitable for long-term detention. Eventually, by May 2000 he was transferred to the Simferopol Pretrial Detention Centre (SIZO) no. 15, where he had allegedly no access to quality medical assistance, in particular to the services of a specialist in endocrinology. 29. On 7 April 2000 the Prosecutors’ Office of the ARC extended the applicant’s detention until 3 May 2000. According to the applicant, after this date and before the date of his conviction on 17 November 2004 his detention was not based on any formal decision. The applicant raised a relevant complaint before the Supreme Court of Ukraine in amendments to his cassation appeal and obtained no response. 30. According to the Government, on 4 May 2001 the ARC Court extended the applicant’s detention for the period of the trial, finding that there were no reasons to release him and modify the custodial preventive measure in his respect. The Government did not provide a copy of this decision. 31. On 7 June 2005 the applicant instituted civil proceedings against Flag Rodiny and several other newspapers and a local television company which had provided media coverage of the trial, complaining that they had portrayed him as a criminal before he had been finally convicted. 32. On 7 May 2007 the Kyivsky District Court of Simferopol rejected his claims, in particular, as lodged outside the one-year statute of limitations without any valid grounds for the delay. 33. On 5 March 2008 the ARC Court upheld this decision. 34. On 14 July 2008 the Supreme Court of Ukraine refused the applicant’s request for leave to appeal in cassation. 35. The relevant provisions of Articles 59 and 63 of the Constitution of Ukraine of 1996 concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of 19 February 2009 in the case of Shabelnik v. Ukraine (no. 16404/03, § 25). 36. The relevant provisions of the Code of Criminal Procedure of Ukraine of 1960 concerning preventive measures pending trial are quoted in the judgment in the case of Yeloyev v. Ukraine, no. 17283/02, § 35, 6 November 2008.