CASE OF ZHUK v. UKRAINE
Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
5. The applicant was born in 1958 and lives in Kyiv. 6. According to the applicant, on 16 September 2001 he was assaulted by officers of the Anti-Drug Police Unit at the entrance to his apartment. When he lost consciousness the police allegedly planted evidence on him, putting a wrap of heroin into his pocket. Later, the police conducted a search of his apartment. As a result, some more wraps of drugs (allegedly also planted), a gun and chemical equipment were discovered. The applicant alleges that certain property items (for example, money and jewellery) were unlawfully taken during this search. 7. After the search the applicant was taken to the police station, where he remained until 25 September 2001 when the Shevchenkivsky District Court of Kyiv (“the District Court”) remanded him in custody. The applicant further contends that he had no means (namely that he lacked stationery) to appeal against the court detention order and that subsequently, although he sent an appeal, it was not examined and allegedly was lost. 8. The applicant was provided with a lawyer through the legal aid scheme on 21 September 2001 and the latter's performance was allegedly poor and of little help to his defence. In particular, notwithstanding the applicant's requests that the lawyer visit him more frequently and consult on his case, that lawyer allegedly visited him only on 24 September and 12 December 2001; furthermore, the lawyer allegedly did not attend the court hearings on 25 September and 19 November 2001 when the court remanded the applicant in custody. During the trial, the applicant was legally represented but it is not clear whether this representation was undertaken by another lawyer or by the same lawyer that the applicant claims was deficient. 9. According to the applicant, he requested on several occasions that the trial court summon K., his partner, but the court rejected his requests. 10. On 18 November 2003 the District Court found the applicant guilty of drug dealing and sentenced him to six years' imprisonment. In doing so, the court relied on evidence seized during the search on 16 September 2001, forensic examinations and witnesses' testimonies. 11. The applicant appealed, challenging, inter alia, the lawfulness of the search and the evidence produced against him as a result of it. On 11 June 2004, the Kyiv City Court of Appeal allowed the applicant's appeal in part and reduced his sentence to four years. It found that the search was lawful as the applicant had consented to it and that the conviction was not based solely on evidence produced as a result of the search. 12. The applicant, who was no longer legally represented, appealed to the Supreme Court of Ukraine, challenging his conviction on points of law. He also expressed his wish to be present at the hearing. 13. On 5 April 2005, in the presence of the public prosecutor but in the absence of the applicant, a panel of three judges of the Supreme Court of Ukraine considered the appeal on points of law submitted by the applicant. Having heard the prosecutor, who maintained that the appeal was unsubstantiated, the panel found that there were no grounds for the cassation review of the case and dismissed the applicant's appeal. In doing so it nevertheless examined the case on the merits. According to the applicant, he was not informed of the date of the hearing at the Supreme Court of Ukraine. He was notified of the Supreme Court's decision on 2 June 2005. 14. On 29 September 2001 the applicant complained to the local prosecutor about the actions of the police on 16 September 2001. 15. On 29 October 2001 the prosecutor refused to institute criminal proceedings because of the lack of evidence that a crime had been committed. In particular, he found that the applicant had attempted to flee and had resisted the policemen. 16. According to the applicant, he challenged this decision before the District Court, which upheld the initial decision on 26 September 2003. The applicant made a further appeal but, according to him, the court found that the latter decision was not subject to appeal. He also raised this issue during his trial and in appeals against his conviction. In a judgment of 18 November 2003 the District Court upheld the conclusions of the impugned prosecutor's decision; the higher courts did not expressly address this issue. 17. In 2003 the applicant instituted civil proceedings in the District Court seeking return of his property that was allegedly subject to unlawful seizure. By a decision of 23 May 2003, the court rejected the claim as a result of procedural shortcomings (for instance, failure to indicate the defendant, to pay the court fee and so on). It appears that the applicant did not appeal against this decision. 18. The relevant provisions of the Ukraine Code of Criminal Procedure (“the Code”) (as worded at the material time) read as follows: “The following decisions may be reviewed in cassation proceedings: 1) judgments, rulings and resolutions of an appellate court rendered by it as a court of first instance; and 2) judgments and resolutions of an appellate court rendered by it in appeal proceedings. Judgments and resolutions of district (city) courts, inter-district (circuit) courts and garrison military courts may be also reviewed in cassation proceedings, as well as rulings of appellate courts rendered with regard to those judgments and resolutions.” “Cassation appeals and petitions against court decisions referred to in part one of Article 383 of this Code shall be examined and notice of that examination served on the prosecutor and the persons referred to in Article 384 of this Code. Cassation appeals and petitions against court decisions referred to in part two of Article 383 of this Code shall be examined within thirty days of receipt by the court of cassation, which shall be composed of three judges with the participation of a prosecutor. The court shall either assign the case for examination, and must notify the persons referred to in Article 384 of this Code accordingly, or dismiss it. A case assigned for examination, with notice served on the prosecutor and the persons referred to in Article 384 of this Code, shall be examined by the court of cassation, which shall be composed of three judges with the participation of a prosecutor, in accordance with the procedure provided for by parts one, two and three of Article 362 of this Code. The deliberations of the court of cassation's judges shall be conducted in accordance with the requirements provided for by Articles 322 and 325 of this Code.” 19. Other provisions of the Code concerning examination of a case by a court of cassation are set out in Arkhipov v. Ukraine ((dec.), no. 25660/02, 18 May 2004). 20. On 12 January 2006 Article 394 § 2 of the Code was amended to remove the prosecutor from involvement in preliminary hearings before a court of cassation.