CASE OF PLESHKOV v. UKRAINE
Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva
5. The applicant was born in 1960 and lives in Belgorod, Russia. 6. On 29 May 2003 a criminal case was opened against him, along with some other persons, on suspicion of trafficking in human beings, and on 31 May 2003 the applicant was arrested. 7. On 30 July 2003 the Kyivskyy District Court of Kharkiv (“the Kyivskyy Court”) released him subject to an undertaking not to abscond. 8. On 21 November 2003 the pre-trial investigation was declared complete and the case was sent to the trial court, which commenced the proceedings on 10 December 2003. 9. On 25 May 2004 the Kyivskyy Court, in a hearing in which the victims' representative took part, allowed the prosecutor's application for the applicant's (as well as the other co-defendant) remand in custody. The court agreed with the prosecutor's argument that the applicant had been putting pressure on the victims, which had led to changes in their testimonies. According to the applicant, his own argument, on which the court allegedly failed to comment, was that the changes in the victims' statements in the court might have been explained by the investigator's pressure on them in the course of the pre-trial investigation, which they were not any longer subjected to during the trial. The applicant was arrested in the hearing room. 10. He repeatedly and unsuccessfully requested to be released under an undertaking not to abscond. The applicant argued that there was no evidence of his guilt, that he had never faced any criminal charges before and had received some government awards. Furthermore, he referred to the facts that he had a permanent place of residence and elderly parents to take care of, and that his health had deteriorated in detention. 11. On 24 September 2004, 13 and 15 April, 31 May and 5 December 2005 the Kyivskyy Court rejected the applicant's requests for release. The reasoning of those rulings was practically identical. The court supported the prosecutor's opinion, which referred to the serious nature of the charges against the applicant and an inherent risk of his absconding. It further noted: “The court considers that the issue of changing the preventive measure is premature. The issue of the preventive measure [“of the penalty” – in the rulings of 24 September 2004 and 5 December 2005] will be resolved when the verdict is pronounced in the case and [the applicant] is convicted or acquitted.” 12. The applicant unsuccessfully complained about the length of the trial to the Council of Judges of Ukraine, to the Kharkiv Court of Appeal and to various other authorities. He was informed in reply that it was caused by the complexity of the case and the large number of victims, as well as by the need to handle numerous requests and petitions from the applicant. 13. On 31 July 2006 the Kyivskyy Court found the applicant guilty of trafficking in human beings and production and distribution of pornographic materials, and sentenced him to ten years' imprisonment, with prohibition on working in any film, video or computer programme production and distribution area. 14. Overall, the Kyivskyy Court held over sixty hearings. It issued rulings requiring the presence of the victims and witnesses, enforceable by the police, on some ten occasions. 15. On 13 February 2007 the Kharkiv Court of Appeal quashed that verdict and remitted the case to the same first-instance court for fresh examination. The main point of criticism was the vagueness of the verdict, including, in particular, the charges against the co-defendants, the classification of the films in which the victims had appeared as pornographic, and the conclusions that the victims had been both deceived and coerced by the co-defendants. The appellate court made a general conclusion that the investigation of the case by the first-instance court had been unbalanced and incomplete. It released the co-defendants under an undertaking not to abscond. 16. On 13 March 2007 the Kharkiv Court of Appeal decided to examine the case itself as a court of first instance. 17. On 12 April 2007 it remitted the case to the Kharkiv Regional Prosecutor's Office for additional investigation. 18. On 10 July 2007 the Supreme Court quashed the ruling of 12 April 2007. 19. On 27 September 2007 the Kharkiv Court of Appeal started the examination of the case. 20. On 4 and 16 October 2007 the court adjourned hearings on account of the applicant's failure to attend. 21. On 24 October 2007 it ordered the applicant's remand in custody, examination of the case being stayed until his whereabouts had been established. 22. The case remains pending before the Kharkiv Court of Appeal. 23. In his submissions to the Court, the applicant admitted he had absconded and gave as the reason that he did not trust the Ukrainian judiciary. 24. The relevant legal provisions can be found in the Shalimov v. Ukraine judgment, no. 20808/02, §§ 40-41, 4 March 2010).