ABUSISI v. UKRAINE
Inadmissible
Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary
The applicant, Ms Veronika Sergeyevna Abusisi (Abu Sisi), is a Ukrainian national, who was born in 1978. In 1998 she married Dirar Abu Sisi of Palestinian origin, born in Jordan. It appears from the available information that by 2011 the couple and their six children lived in Palestine, where Mr Abu Sisi occupied the post of technical director of a power plant in Gaza. On 27 January 2011 the applicant’s husband arrived in Ukraine and on 9 February 2011 he lodged an application for a residence permit with the Department of the Interior of the Kharkiv Region. On 18 February 2011 the applicant’s husband boarded a night train in Kharkiv bound for Kyiv, where he was supposed to meet up with Y.A., his brother. On 19 February 2011 O.Sh., an acquaintance of the applicant’s husband, notified the Railway Police that the latter had disappeared from the train and demanded a criminal investigation of his purported abduction. In a statement given to the police O.Sh. explained that on 18 February 2011 he had dropped Dirar Abu Sisi at the train station in Kharkiv. At about 10.55 p.m. on that day Dirar Abu Sisi had told him by telephone that he had been on his way to Kyiv in seat 36 of carriage 6 on train no. 63. The following day, having unsuccessfully attempted to contact Dirar Abu Sisi by telephone, O.Sh. had called Y.A. and learned that Dirar Abu Sisi had not arrived in Kyiv. O.Sh. had then managed to identify and contact A.Z., the attendant of train carriage no. 6, who had told him that at about 1.30 a.m. on 19 February 2011 two strangers had taken Dirar Abu Sisi off the train at Poltava Station without any explanation. On 20 February 2011 Y.A. also contacted the Railway Police and made a similar submission. On 21 February 2011 the applicant came to Ukraine and alerted the prosecutor’s office, the State Security Service, the National Ombudsman and other authorities to her husband’s purported abduction. On 27 February 2011 the applicant received a brief telephone call from her husband informing her that he was in custody in Petah Tikva, Israel. He provided her with the contact details of M.O., his lawyer there, who confirmed by telephone the information provided by her husband. On 16 March 2011 the State Border Control Service of Ukraine informed the National Ombudsman, who had made an enquiry on the applicant’s behalf, that the only information they had in their database concerning Dirar Abu Sisi was that he had lawfully entered Ukraine on 27 January 2011. On 17 March 2011 T.I., an investigator with the Poltava Railway Police, refused to institute criminal proceedings concerning the applicant’s husband’s purported abduction owing to lack of evidence of a crime. He noted that A.Z., the carriage attendant, had told the police that he had not noticed any criminal or other unusual activity during the trip and that the information provided by Dirar Abu Sisi’s relatives and acquaintances had been insufficient to raise a reasonable suspicion that he had been abducted or otherwise forced to leave the train. On 25 March 2011 the Ministry for Internal Affairs of Ukraine informed the National Ombudsman that, according to the information obtained from the Israeli law-enforcement authorities, Dirar Abu Sisi had been detained on suspicion of having been involved in terrorist activity as a member of Hamas. They also noted that, following an order of a competent court in Israel, the information concerning the applicant’s husband’s arrest had been classified and was not subject to disclosure. On 12 May 2011 the Security Service of Ukraine provided similar information to the applicant. On 28 March 2011 the Israeli Prison Department issued a certificate confirming that Dirar Abu Sisi was being held in Shikma Prison, Ashkelon, Israel. On 26 April 2011 the applicant complained of her husband’s purported abduction to the United Nations Human Rights Committee. On 17 May 2011 the United Nations Human Rights Committee informed the applicant that in order for her complaint to be registered, she needed to provide further substantiation and to show that she had duly exhausted domestic remedies. On an unspecified date the applicant, represented by A.K., a lawyer practising in Ukraine, instituted proceedings in the Pecherskiy District Court of Kyiv (“the Pecherskiy Court”) complaining that the General Prosecutor’s Office had failed to act in investigating her husband’s disappearance. On 22 August 2011 the Pecherskiy Court held a hearing in the applicant’s absence, having noted that she had been duly informed of the date and time, as shown in a return slip of the summons contained in the case file. The court further dismissed the applicant’s allegations against the General Prosecutor’s Office and stated that, in so far as the applicant’s submissions could be understood as challenging the refusal of the Railway Police to institute criminal proceedings, this complaint fell under the jurisdiction of the Leninskiy District Court of Poltava (“the Leninskiy Court”). The Pecherskiy Court then decided to forward the relevant parts of the case file to the Leninskiy Court for examination. On 21 October 2011 the Leninskiy Court dismissed the complaint. A copy of that decision was not provided to the Court by the applicant. In the meantime, on 19 September 2011, the applicant had contracted Y.K., a lawyer practising in Kyiv, to represent her in Ukraine. As of 20 January 2012 Y.K. was also mandated to represent Dirar Abu Sisi before the Ukrainian courts and other authorities. On 31 August 2012 Y.K., acting on Dirar Abu Sisi’s behalf, challenged the decision of the Railway Police of 17 March 2011 before the Poltava transport prosecutor. On 12 September 2012 his complaint was rejected on the grounds that the decision of 17 March 2011 had been well-founded. Following a further appeal to court, on 14 November 2012 the Poltava Regional Court of Appeal (“the Regional Court”) discontinued the proceedings on the grounds that they related to essentially the same matter which had already been finally decided by the Leninskiy Court decision of 21 October 2011. On 18 December 2012 Y.K. lodged an appeal against the decision of 21 October 2011. On 4 February 2013 the Leninskiy Court decided that the appeal of 18 December 2012 had procedural shortcomings. Among other issues, it was lodged outside the statutory time-limit without an extension request. The court gave the applicant’s counsel a period within which to rectify the issues with the appeal. A rectified appeal was lodged. In this document, Y.K. noted that he had only learned of the decision taken by the Leninskiy Court on 21 October 2011 in the course of the court proceedings instituted with a view to challenging the decision of the Railway Police of 17 March 2011. The applicant, for her part, had only learned of it from Y.K.’s electronic mail in the beginning of December 2012. On 1 April 2013 the Leninskiy Court rejected the request for an extension of the time-limit, finding that no good reason for missing it had been provided. On 29 May 2013 the Regional Court upheld the decision of 1 April 2013. On 16 July 2013 Y.K., who had not been present at the court hearing, obtained a copy of the decision of 29 May 2013. On 13 October 2013 Y.K. lodged a cassation appeal against the decisions of 1 April and 29 May 2013 with the Higher Specialised Civil and Criminal Court (“the Higher Court”). On 21 October 2013 the Higher Court refused to consider the appeal of 13 October 2013, having found that it had been lodged outside the three-month statutory time-limit which began on the date of the appellate court’s decision that was to be appealed against. It further noted that in this situation it fell to the appellant to obtain an extension of the time-limit from the Leninskiy Court in order to lodge a cassation appeal. On an unspecified date Y.K. requested that the Leninskiy Court extend the time-limit. He stated that the delay in lodging his cassation appeal had been a result of the technical difficulties in establishing contact with the applicant, who had been in Gaza, an area of constant political unrest and tension, and also a result of the delay in notifying him of the decision of 29 May 2013. On 9 December 2013 the Leninskiy Court rejected the request for extension of the time-limit for lack of sufficient reasoning. On 27 January and 9 October 2014 the Regional Court and the Higher Court, respectively, upheld the decision of 9 December 2013. The Higher Court noted, in particular, that Y.K. had failed to provide good reasons for not lodging the appeal between 16 July (when he had received a copy of the decision of 29 May 2013) and 29 August 2013 (when the three-month statutory time-limit for lodging a cassation appeal expired). According to public sources, on 30 March 2015 Dirar Abu Sisi was convicted by the Beersheba District Court of membership of a terrorist organisation and production of illegal weaponry after pleading guilty to several incriminating charges. He is still in custody in Israel. The relevant provisions of the Code of Criminal Procedure of 1960 (“the CCU”), in operation at the material time, read as follows: “An appeal against a decision of an ... investigator... refusing to institute criminal proceedings may be lodged by a person whose interests it concerns, or his or her representative, with the local district (town) court ... within seven days of the date on which a copy of the decision was received ...” “Judgments and rulings of the court of appeal taken following appeal proceedings may be reviewed in cassation proceedings. Judgments of the local courts ... other rulings (decisions) of these courts ... which impede further examination of the case, rulings of the appellate courts taken with respect to these judgments [or] rulings (decisions) ... may also be reviewed in cassation proceedings.” “Cassation appeals against the court decisions mentioned in the second paragraph of Article 383 of the present Code may be lodged within three months of the date on which they enter into force ...” “... Decisions and rulings of the appellate and cassation courts shall enter into force immediately upon their delivery, except in cases envisaged by this Code ...”