CASE OF SHALIMOV v. UKRAINE
Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 6-1;Violation of Art. 8;Violation of Art. 13;No violation of Art. 13;Non-pecuniary damage - award
Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
4. The applicant was born in 1968 and is currently in detention. 5. According to the applicant, on 26 October 1998 he found a small-bore rifle and cartridges. He checked whether the rifle worked and then practised shooting. While doing this he was accompanied by his friend T. At one moment the applicant needed to go to the toilet and went over to some bushes near the road. Behind the bushes he came face to face with two strangers, later identified as E. and D., who allegedly behaved aggressively towards him. According to the applicant, one of the strangers was holding an object in his hand which the applicant took for a gun. Fearing for his life, he fired at one of them in self-defence and left. Soon he joined T., who was waiting for him at some distance. The applicant told T. that he had fired into the river. 6. Later the same day the applicant separated the breechblock from the rifle and threw them both into the river. On 27 October 1998 E. and D. were found shot dead and criminal proceedings were instituted. 7. On 30 October 1998 the applicant was arrested on suspicion of the murder of E. and D. The applicant confessed to firing at D. in self-defence. 8. On 31 October 1998 investigating prosecutor Z. conducted a videotaped on-site reconstruction of the events. During the reconstruction the applicant asked to be represented by a lawyer. This request was rejected by prosecutor Z. 9. On 2 November 1998 the Yenakiyevo Prosecutor ordered the applicant's pre-trial detention on the ground that he was suspected of having committed a crime punishable by imprisonment and that he might abscond. The applicant's detention was extended on several occasions by the prosecutors: to three months on 21 December 1998, to five months on 25 January 1999 and to six months on 25 March 1999, without indicating any grounds for the detention. 10. On 4 November 1998 K. was appointed as the applicant's lawyer. 11. Between 2 November 1998 and 27 April 1999 the investigation conducted several different forensic examinations and questioned several witnesses. In ordering a medical examination, the investigator requested the expert to check whether the findings of the examination corresponded to the applicant's statements as to the circumstances of the crime. 12. On 27 April 1999 the applicant requested that Ms P. be appointed his lawyer. This request was granted. 13. From 27 April to 1 July 1999 the applicant and his lawyer were given time to study the case file materials. On several occasions they requested extension of the period of access to the case file. 14. On 1 July 1999 the bill of indictment was completed by the investigation and referred to the Donetsk Court of Appeal (the Donetsk Court), acting as a first-instance court. 15. On 15 July 1999 the applicant was committed for trial. The Donetsk Court also continued to remand him in custody having decided to leave the chosen preventive measure without changes. 16. On 10 December 1999 the court ordered two additional forensic examinations in respect of the victims and the weapon which had been used to commit the crime. 17. An additional forensic medical examination in respect of the victims was concluded on 14 June 2000. 18. An additional ballistic examination was concluded on 5 January 2001. 19. On 1 March 2001 the judicial examination of the applicant's case was resumed. The Donetsk Court also continued to remand the applicant in custody without indicating any grounds. 20. In September 2001 the Vice-President of the Donetsk Court of Appeal, in reply to a complaint from the applicant that he was not being allowed family visits, informed him that the hearing in his case had been fixed for 14 January 2002 and that he would be allowed a family visit after his case had been decided. 21. On 14 to 17 January 2002 the Donetsk Court held hearings in the case and questioned several witnesses. Witnesses T. and K. failed to appear before the court. 22. On 21 January 2002 the Donetsk Court decided to refer the criminal case for further investigation on the grounds that prosecutor Z., who had been in charge of the investigation, did not have legal power to conduct the investigation; that the investigators had not located the breechblock of the rifle; that it had not been proved beyond doubt that the applicant had intentionally killed E. and D.; and that the investigators had not fully checked the circumstances of the applicant's confession. The court also continued to remand the applicant in custody without indicating any grounds. 23. On 28 January 2002 the Donetsk Regional Prosecutor's Office lodged an appeal against the decision of 21 January 2002. 24. On 14 March 2002 the Supreme Court quashed the decision of the Donetsk Court of 21 January 2002 and remitted the case to it for examination. The court noted that the prosecutor did have power to conduct the investigation, and that the investigators had searched for the breechblock of the rifle but that after three years it was not possible to remedy the situation with regard to the missing item. The court further noted that the first-instance court should have verified the circumstances of the applicant's confession in the trial proceedings. The court maintained, lastly, that the issue as to whether there was sufficient evidence on which to convict the applicant should be decided by the first-instance court during the examination of the case on the merits. 25. On 15 April 2002 the applicant was committed for trial. The Donetsk Court also continued to remand the applicant in custody without indicating any grounds. 26. By a letter of 12 September 2002, the Acting President of the Donetsk Court, in reply to the applicant's complaint, informed him, among other things, that due to the illness of Judge S., who had originally dealt with his case, the case had been transferred to Judge D. on 1 March 2001 and was scheduled for examination on 14 January 2002. Following the remittal of the case to the court on 4 April 2002 the case was scheduled for 5 August 2002 and then, due to the illness of Judge D., postponed to 9 September 2002. 27. On 24 September 2002 the Donetsk Court found the applicant guilty of two murders motivated by hooliganism and sentenced him to fifteen years' imprisonment. The court found that both victims had been killed by the same weapon, which could have been the rifle used by the applicant (conclusive identification was not possible without the missing breechblock). The court established, inter alia, that no other gun had been found at the site of the crime or elsewhere in the neighbourhood, that T. had heard several shots while the applicant had been behind the bushes and that the applicant had behaved normally immediately after the incident and had not shown any signs of agitation. The court further examined the procedural shortcomings of the pre-trial investigation and disregarded the pieces of evidence, including the videotaped reconstruction of events of 31 October 1998, which had been obtained in violation of the applicant's right to defence. 28. The applicant appealed against the judgment of 24 September 2002 challenging, among other things, the testimonies of witness K. and interpretation of evidence by the court. 29. By a separate ruling of the same day, the Donetsk Court brought to the attention of the Donetsk Regional Prosecutor's Office the procedural violations committed by prosecutor Z. during the pre-trial investigation, including refusing the applicant a lawyer during the videotaped reconstruction of events. As a result of that ruling, prosecutor Z. was found disciplinarily liable. 30. Following the applicant's conviction, he was allowed to see his mother and his wife. He had in total thirteen family visits between 25 September 2002 and 30 October 2003. 31. On 4 February 2003 the Donetsk Court gave a ruling rejecting the applicant's request for access to the audio records of the hearings. The applicant appealed. 32. On 26 February 2003 the Donetsk Court examined the applicant's complaints concerning the records of the hearings and dismissed them. 33. On 15 May 2003 the Supreme Court quashed the rulings of 4 and 26 February 2003. 34. On 7 August 2003 the Donetsk Court rejected the applicant's challenge of the court and his request for access to the audio records. The court also examined the applicant's objections to the minutes of the hearings and dismissed them. 35. On 2 October 2003 the Supreme Court upheld the judgment of 24 September 2002. 36. In 2002-2003 the applicant and his representative made number of requests to the Donetsk Court of Appeal for receiving copies of the documents from his criminal case file. In reply, they were informed that only copies of the court judgment and respective decisions by the higher courts on his appeal were furnished to the defendant. As to other documents, the court informed that the applicant or his representative could have access to the case file and could copy the documents from it. 37. On 16 January 2004 the Debaltsevo Prosecutor's Office refused to institute criminal proceedings against prosecutors Z. and N. following a complaint by the applicant that his right to defence on 31 October 1998 had been violated and that the prosecutors had claimed bribes from him in return for closing the case against him. It was established that prosecutor Z. had been subject to disciplinary sanctions for the above violation of the applicant's right to defence. As to the allegations of proposed bribes, the investigator rejected this complaint as unsubstantiated. 38. By letters of 29 October 2004 and 8 September 2005, the Supreme Court informed the applicant that there were no grounds for an extraordinary review of his case. 39. The Code of Criminal Procedure 1960 (prior to 21 June 2001) provided: Article 236-3 Appeal against the prosecutor's arrest warrant “The detainee, his defender or legal representative may appeal against the prosecutor's arrest warrant to the relevant district (city) court... The appeal may be lodged directly with the court or through the administration of the pre-trial detention centre, which must send the appeal to the relevant court within twenty-four hours of its receipt.” Article 263 Rights of the defendant during the trial “In the court proceedings the defendant has the right: ...3) to lodge requests...” Article 273 Procedure for rendering rulings in the court sittings “In all matters decided by the court during the trial, the court gives a ruling. Rulings on ... selection, change or cancellation of a preventive measure ... decided by the court in camera and drawn in form of a separate document signed by all judges. Rulings rendered by the court during the trial shall be pronounced... “ Article 274 Selection, termination or change of a preventive measure in court “During the court proceedings, if there are any grounds to do so, the court may by its ruling change, cancel or select a preventive measure in respect of the defendant ...” 40. The above-mentioned Article 236-3 was excluded from the CCP on the basis of the Code of Criminal Procedure Amendment Act of 21 June 2001. By the Amendment Act, the new procedure of ordering and maintaining detention at the pre-trial stage has been introduced: Article 165 General provisions on the procedure of application, cancellation and change the preventive measure “A custodial preventive measure shall be applied only by motivated judge order or court ruling...” Article 165-2 Procedure for the selection of a preventive measure “...In the event that the investigating body or investigator considers that there are grounds for selecting a custodial preventive measure, with the prosecutor's consent he shall lodge an application with the court. The prosecutor is entitled to lodge an application to the same effect. In determining this issue, the prosecutor shall be obliged to familiarise himself with all the material evidence in the case that would justify placing the person in custody, and to verify that the evidence was received in a lawful manner and is sufficient for charging the person. The application shall be considered within seventy-two hours of the time at which the suspect or accused is detained. In the event that the application concerns the detention of a person who is currently not deprived of his liberty, the judge shall be entitled, by means of an order, to give permission for the suspect to be detained and brought before the court under guard. Detention in such cases may not exceed seventy-two hours; and in the event that the person is outside the locality where the court is situated, it may not exceed forty-eight hours from the moment at which the detainee is brought within the locality. Upon receiving the application, the judge shall examine the material in the criminal case file submitted by the investigating bodies or investigator. A prosecutor shall question the suspect or accused and, if necessary, shall hear evidence from the person who is the subject of the proceedings, shall obtain the opinion of the previous prosecutor or defence counsel, if the latter appeared before the court, and shall make an order: (1) refusing to select the preventive measure if there are no grounds for doing so; (2) selecting a preventive measure in the form of taking of a suspect or accused into custody. The court shall be entitled to select for the suspect or accused a non-custodial preventive measure if the investigator or prosecutor refuses to select a custodial preventive measure for him or her. The judge's order may be appealed against to the court of appeal by the prosecutor, suspect, accused or his or her defence counsel or legal representative, within three days from the date on which it was made. The lodging of an appeal shall not suspend the execution of the judge's order.” 41. Relevant parts of articles 263, 273 and 274 of the Code remained unchanged after the amendments of 21 June 2001. 42. Other relevant domestic law concerning pre-trial detention and investigation is summarised in the cases of Solovey and Zozulya v. Ukraine (nos. 40774/02 and 4048/03, § 43, 27 November 2008) and Shavel v.Ukraine ((dec.), no. 25486/03, 8 January 2007). 43. Under section 12(1) of the Pre-Trial Detention Act 1993, permission for relatives to visit a detainee (in principle, once a month for one to two hours) can be given by the authorities of the place of detention, but only with the written approval of an investigator or a court dealing with the case depending on whether it is the investigation or the trial stage. 44. Relevant provisions of the Code of Criminal Procedure 1960 read as follows: Section 162 Visiting a detainee “Visits of relatives or other persons to a detainee can be allowed by a person or an institution that deals with the case. The duration of the visit shall be fixed from one to two hours. The visit can be allowed, as a rule, not more than once a month.” Section 345 Granting relatives permission to visit a convicted person “Prior to entry of the judgment into force, the presiding judge or the president of the relevant court shall be obliged to grant close relatives of a convicted person, upon their request, permission to visit the detained convicted person.”