CASE OF PELEVIN v. UKRAINE
Preliminary objection joined to merits and dismissed (victim);Violation of Art. 6-1;Remainder inadmissible
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
5. The applicant, Mr Mykola Mykolayovych Pelevin, is a Ukrainian national who was born in Rostov-on-Don in 1938 and who currently resides in L'viv. 6. On 22 July 1999 a private dispute arose between the applicant and M.M.E. (a private person) over access to the attic of a building. As a result the applicant inflicted bodily injury on M.M.E. with an axe. 7. On 18 August 1999 M.M.E. instituted a private prosecution (приватне обвинувачення) against the applicant before the Zaliznychny District Court of L'viv and claimed compensation for non-pecuniary damage. 8. On 7 June 2000 the applicant sought to institute criminal proceedings against M.M.E. before the Zaliznychny District Court of L'viv for inflicting minor bodily injury. 9. On 13 July 2000 the Zaliznychny District Court of L'viv, in particular Judge U.P.F., instituted criminal proceedings against the applicant. He also decided that M.M.E. should be granted victim status in these proceedings. 10. On 9 June and 3 August 2000 and 27 April 2001 the applicant applied to the President of the Zaliznychny District Court of L'viv, seeking the withdrawal of Judge U.P.F. from his case. The applicant submitted, inter alia, that Judge U.P.F. had not allowed him to use the Russian language in court, in particular to put questions to witnesses. On 18 October 2000 and 27 April 2001 the President of the Zaliznychny District Court of L'viv dismissed the applicant's request as unsubstantiated. 11. On 18 May 2001 the Zaliznychny District Court of L'viv refused the applicant's request to institute criminal proceedings against M.M.E and his family members on suspicion of inflicting minor bodily injury on the applicant in May 2000. The applicant appealed against this decision. On 25 December 2001 the L'viv Regional Court of Appeal dismissed the applicant's appeal. 12. On 21 June 2001 the Zaliznychny District Court of L'viv found the applicant guilty of inflicting minor bodily injury and of arbitrary behaviour in July 1999, sentenced him to an administrative fine and released him from criminal liability because of his advanced age, on the basis of the amnesty law in force at the time. It also ordered the applicant to pay M.M.E. compensation for non-pecuniary damage and legal costs in the amount of 2,406 Ukrainian hryvnias (UAH). The court also acquitted M.M.E. of inflicting minor bodily injury on the applicant. The applicant was allowed to submit his oral plea to the court in Russian. According to the record of the court hearings, the applicant did not lodge a request for leave to use the Russian language, nor did he request the assistance of an interpreter. 13. The applicant lodged an appeal against the judgment of 21 June 2001. On 25 September 2001 the L'viv Regional Court of Appeal dismissed the applicant's appeal as unsubstantiated. In the proceedings before the first-instance court and the court of appeal the applicant was assisted by a lawyer practising in L'viv (a licensed advocate). 14. On 16 March 2002 the applicant lodged an appeal in cassation with the Supreme Court. In his appeal the applicant relied on Articles 383 - 387 of the Code of Criminal Procedure which governed the examination of criminal cases within the ordinary cassation review proceedings. In his appeal he mentioned that he had not been able to participate effectively in the proceedings because he had not been allowed to use Russian while putting questions to the witnesses and had not been provided with the assistance of an interpreter. 15. On 9 April 2002 a judge of the Supreme Court V.S., by a letter and without taking any procedural decision, refused to institute extraordinary review proceedings (перегляд в порядку виключного провадження) in the applicant's case. 16. On 13 June 2003 the Supreme Court, on the decision of Judge K.M., assumed jurisdiction over the appeal in cassation and decided to institute cassation proceedings in the applicant's case. 17. On 31 July 2003 the Supreme Court examined the applicant's appeal in cassation on merits and dismissed it within the ordinary review proceedings. The Supreme Court held its hearing in the absence of the applicant and in the presence of the prosecutor and victim in the criminal case. 18. The relevant provisions read as follows: “The following persons are entitled to lodge an appeal: 1. a convicted person...” “The following decisions may be reviewed in cassation proceedings: ... 2) judgments and resolutions of a court of appeal given by it in appeal proceedings. Judgments and resolutions or rulings of district (city) courts, inter-district (circuit) courts and garrison military courts may be also reviewed in cassation proceedings, as well as rulings of courts of appeal given in respect to those judgments and resolutions or rulings with the exceptions of rulings by which the court of appeal cancels such decisions and sends the case for a new investigation or examination.” “Appeals in cassation against the court decisions referred to in part one of Article 383 of this Code may be lodged by the persons specified in Article 348 of this Code. Cassation appeals against the court decisions referred to in part two of Article 383 of this Code may be lodged by: 1) a convicted person...” “Cassation appeals and petitions against the court decisions referred to in part one of Article 383 of this Code shall be examined with a mandatory notice of that examination being served on the prosecutor and the persons referred to in Article 384 of this Code. Cassation appeals and petitions against the 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, composed of three judges with the participation of a prosecutor. The court shall either assign the case for examination and notify the persons referred to in Article 384 of this Code accordingly or dismiss it...” “As a result of the examination of a case within the cassation proceedings, the court shall make one of the following decisions: 1) uphold the judgment, resolution or ruling and dismiss the cassation appeal or petition; 2) quash the judgment, resolution or ruling and refer the case for a fresh investigation or trial before the first-instance court or review in appeal proceedings; 3) quash the judgment, resolution or ruling and terminate the case; 4) modify the judgment, resolution or ruling. ” 19. The relevant provisions read as follows: “The final and binding judgments may be examined within the extraordinary review proceedings in view of: 1) newly disclosed circumstances; 2) incorrect application of the criminal law and fundamental breach of the requirements of criminal procedural law that have essentially impaired the correctness of the judgment (...)” “Parties to the proceedings and other persons entitled by law may lodge with the prosecutor a request for examination of the case on the grounds set forth in paragraph 1 of part one of Article 400-4 of this Code. Requests for examination of the case on the grounds set forth in paragraph 2 of part one of Article 400-4 of this Code may be lodged by the convicted person or his defender or legal representative (...)”