CASE OF DOVZHENKO v. UKRAINE
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);Violation of Article 6 - Right to a fair trial (Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6-3-c - Defence through legal assistance);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence)
André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Mykhaylo Buromenskiy
5. The applicant was born in 1972 and is currently serving a life sentence in prison. 6. On 19 May 2002 the applicant was arrested on suspicion of having committed a series of murders. 7. On 22 October 2002 the investigation was completed and the applicant started to study the case file. During the pre-trial investigation and the examination of the case file the applicant was assisted by a legal-aid lawyer. 8. On 7 November 2002 the applicant and the lawyer finished examining the case file in full. 9. On 8 September 2003 the Donetsk Court of Appeal, acting as a first-instance court (“the first-instance court”), found the applicant guilty of seventeen murders and other less serious crimes committed by him between 1999 and 2002 and sentenced him to life imprisonment with confiscation of property. During the trial the applicant was represented by the lawyer. 10. According to the applicant, following the judgment of 8 September 2003, he was not assisted by any lawyer despite his complaints to the first-instance court on this account. 11. On 2 October 2003 the applicant lodged with the Supreme Court a cassation appeal against the judgment of 8 September 2003. 12. On 17 September 2003, in the course of preparation to the proceedings before the Supreme Court, the applicant requested the first-instance court to familiarise him with the minutes of the hearings. 13. On 23 January 2004 the applicant started to examine the minutes of the hearings held by the first-instance court. 14. On 26 January 2004 the applicant submitted that he would continue examination of the minutes only after he had studied the case file one more time. He therefore requested that the case file be provided to him for examination. 15. On 2 February 2004 the first-instance court, having regard to the applicant’s statements, set a five-day period for him to examine the minutes of the hearings. Despite the fact that the applicant was invited on several occasions to continue studying the minutes of the hearings, he refused to do so, insisting that he needed to examine the case file first. 16. On 28 April 2004 the first-instance court found that the applicant had refused to familiarise himself with the minutes of the hearings for no valid reason and allowed no further time to do so. The applicant was then provided with the case file. 17. On 16 July 2004 the first-instance court found that, despite having been provided with the case file on several occasions, the applicant had examined only two volumes of the file. As the file consisted of twenty-five volumes, the court concluded that the applicant’s actions suggested that he had deliberately sought to draw out the time allowed for examining the case file. It set therefore a thirty-five-day time-limit for him to complete his examination of the case file. 18. During fifty-three days between July and September 2004 the applicant was provided with the case file. He managed to examine twelve volumes of the file. 19. On 28 September 2004 the first-instance court decided to allow no further time for the applicant to study the case file, as the relevant time-limit had expired. 20. On 7 April 2005 the Supreme Court held a hearing in the applicant’s case. In his further submissions before the Supreme Court the applicant complained, inter alia, that there had been a lack of legal assistance and lack of time to study the case file. 21. The same day the Supreme Court, in the presence of the prosecutor and the applicant, who had not been represented by a lawyer, found that the applicant’s guilt had been well founded and dismissed the applicant’s appeal in cassation as unsubstantiated. 22. On 25 May 2002 a local newspaper, Priazovskiy Rabochiy, reported that the police had arrested the applicant on suspicion of a number of murders. It read, in particular: “But the most sensational is the fact that the arrestee turned out to be former police lieutenant of the criminal investigation department, Sergey Dovzhenko. ...” 23. On 28 May 2002 another newspaper, Salon Dona i Basa, reported on a press conference held by K., the Head of the Mariupol Police Department. According to the newspaper, with respect to the progress of the investigation of series of murders K. announced that the police had arrested “a person who was reasonably suspected of having committed crimes with the use of a firearm” and then emphasised that it would be inappropriate to divulge any other information about the investigation. 24. On 8 June 2002 Priazovskiy Rabochiy provided a summary of another press conference given by K. on the subject of the applicant’s arrest. The journalist reporting on the press conference referred to the detainee by his real name and provided some extracts from K.’s speech. In particular, when opining as to who might have been the next victims of the detainee, K. was quoted as noting as follows: “Those would be the police officers ... and others... But in this respect we can only trust in the words of the criminal ... And I have doubts about many of his statements...” 25. On 11 December 2002 the same journalist reported in Priazovskiy Rabochiy that the first hearing in the applicant’s case was to commence on that day. He noted that the police had always insisted that the applicant had acted without any accomplices, while in the latest press release M., the Head of the Donetsk Regional Police Department, expressed a different opinion. The journalist reported as follows: “In the beginning of July [M.] stated in the official press release that Dovzhenko is just – quoting him word for word – ‘one member of a criminal group which committed a series of murders’...”. 26. The criminal proceedings against the applicant were further extensively reported on by the same journalist in a number of his publications, some of which contained pictures of the applicant. 27. On 4 June 2004 that journalist published an interview with the prosecutor, who commented on the procedural actions taken by the applicant after the judgment of the first-instance court. 28. In his submissions before the Supreme Court the applicant complained that his right to be presumed innocent had been affected by multiple newspaper articles reporting on the proceedings in his case, specifying further that in some of the articles State officials had clearly indicated that he had committed the murders, despite the fact that the proceedings were pending. 29. On 5 November 2004 the first-instance court referred the case file to the Supreme Court, following which the applicant was refused permission by the officials of the detention facilities to send correspondence. The refusals were based on the fact that the written permit for the applicant’s correspondence, issued by the first-instance court, was no longer valid, while a new one had not been issued by the Supreme Court, which had become responsible for his case. The authorities acted on the basis of section 13 of the Pre-Trial Detention Act (see paragraph 33 below). 30. On 2 February 2005 and 1 March 2005 the applicant lodged two applications with the Supreme Court asking for such a permit to be issued, but to no avail. On 28 June 2005 the applicant could still not dispatch any correspondence. 31. The relevant provisions of the CCP read as follows: “Participation of a defence lawyer in the inquiry, pre-trial investigations and trial by the first-instance court shall be compulsory: ...(4) from the moment of the person’s arrest or when he or she is charged with a criminal offence carrying a penalty of life imprisonment ... The participation of a defence lawyer in the proceedings before the court of appeal shall be compulsory in cases as provided by the first paragraph of this Article if the appeal raises issues capable of worsening the position of the convicted or acquitted person.” “A defence lawyer shall be selected by a suspect, an accused, a defendant or a convicted person ... A defence lawyer shall be appointed [by the authorities] in the following cases: (1) when, in accordance with Article 45 §§ 1 and 2, the participation of the defence lawyer is compulsory but the suspect, accused or defendant does not wish to or cannot appoint a defence lawyer; (2) when a suspect, an accused or a defendant wishes to appoint a defence lawyer but cannot do so for lack of means or other objective reason. ...” 32. Article 395 of the CCP provides, inter alia, that the court of cassation shall review whether the challenged court decision is lawful and substantiated based on the case file and additionally submitted material. The scope of the review shall be limited by the arguments of the cassation appeal(s). The court shall be empowered to review the case beyond the arguments of the cassation appeal(s) provided that this does not worsen the position of the convicted or acquitted person. 33. Section 13 of the Act provides, inter alia, that a person held in custody may correspond with their relatives, other individuals and legal entities upon obtaining a written permit from the authority dealing with the criminal case against the detainee concerned.