CASE OF SARANCHOV v. UKRAINE
Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance;Free legal assistance)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev
5. The applicant was born in 1968 and lives in Komsomolskoye village in the Kharkiv Region. 6. In May 1999 the Pavlograd Police placed the applicant on the wanted list in connection with their criminal investigation into a violent burglary in Pavlograd and the infliction of grave bodily injuries on B.’s daughter P., who was a minor. 7. On 28 January 2000 the applicant was arrested in Russia on suspicion of having committed an unrelated crime in that country, for which he was subsequently convicted by a Russian court to a term of imprisonment that was due to end on 27 July 2004. 8. On 1 June 2004 a Russian court ordered the applicant’s retention in custody pending his extradition to Ukraine. 9. On 1 December 2004 the applicant was extradited to Ukraine and placed in a pre-trial detention facility. 10. At 5.20 p.m. on 16 January 2005 the applicant was presented with an arrest report stating that he had been arrested on suspicion of having committed aggravated burglary. He was informed of his right to have access to a lawyer as from the first interrogation. The applicant signed this report, stating that he generally disagreed with its content and that he wished to have a lawyer as from the first interrogation. 11. At the same time on the same day the applicant also signed a record confirming that he had been informed about his rights as a suspect, in particular the right to remain silent and to consult a lawyer. The applicant signed the report and added by hand in the relevant field provided on the pre-printed form that he had “refused the assistance of a defence counsel and would defend himself, not for financial reasons” (свои права буду защищать самостоятельно, не по материальным причинам). The applicant alleged that he had been compelled to sign this and subsequent waivers because the police had told him that they would not provide him with a lawyer, as he had initially requested. 12. On 17 January 2005 the applicant signed another record confirming that he had been informed about his rights as a suspect and stating ‒ using the same wording ‒ that he would defend himself. 13. On the same day he was questioned twice. He denied any involvement in the alleged offence. 14. On 25 January 2005 the applicant was formally charged with aggravated burglary. On the same day he signed a record confirming that he had been informed about his rights as an accused person and stated ‒ using the same wording ‒ that he would defend himself. 15. On 27 January 2005 he signed another such record using the same wording. On the same day the investigator announced to the applicant that the pre-trial investigation was complete and gave him the criminal case file to study. 16. On 29 January 2005 the Pavlograd Prosecutor signed the final bill of indictment, charging the applicant with aggravated burglary. The indictment contained a request that the victims, B. and P., and two other witnesses be called at the trial. 17. On 1 March 2005 the applicant stood trial before the Pavlograd Court sitting in a single judge formation, assisted by a clerk. According to the trial record, the trial unfolded as follows: 18. According to the applicant, this record of the trial was inaccurate. In particular, the applicant did not initially plead guilty. It was only after B. had departed that the judge persuaded him to plead guilty and to agree to abbreviated proceedings in exchange for a lenient sentence. 19. At the close of the trial on the same day, the court delivered its judgment. It convicted the applicant as charged and sentenced him to six and a half years’ imprisonment, to be counted from 28 January 2000, the date of his arrest in Russia, with one year and about five months therefore remaining to be served. The court relied on his guilty plea in the course of the trial and his consent to dispensing with the examination of evidence. It also stated that the applicant’s guilt was proven by a number of documents in the file. In particular it referred to the identification reports, according to which P. and another eyewitness had identified the applicant as the person who had attacked P. 20. On 4 March 2005 B. appealed, maintaining that the sentence was too lenient. She argued that the term of imprisonment should be calculated from the date of the applicant’s arrest in Ukraine rather than from the date of his arrest in Russia for an unrelated crime. She also maintained that the prosecutor had not been present at the trial and that the applicant had never repented or admitted his guilt and had behaved defiantly at the trial. 21. The applicant replied to the appeal, submitting that his guilty plea and remorse for the crime had been genuine and that the sentence imposed by the trial court had been correct and justified. 22. On 20 May 2005 the Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal”) held a hearing in the presence of a prosecutor, B. and the applicant. At the hearing the applicant reaffirmed his initial submissions, said that he regretted the offence he had committed, and requested that the trial court’s verdict be left in force. According to the applicant, he had requested the presence of a lawyer at this hearing but his request had not been granted. 23. On the same date the Court of Appeal quashed the sentence of the Pavlograd Court as unduly lenient, taking into account the seriousness of the offence and the applicant’s personality. It also found that the trial court had misinterpreted the law regulating the calculation of sentences with regard to the time served in prison in Russia. In particular, it had failed to take into account the fact that Ukraine had made a reservation to the Protocol to the Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters 1993 concerning the effect given to sentences rendered in other States Parties to the Protocol. Accordingly, the Court of Appeal sentenced the applicant to twelve years’ imprisonment to be calculated from 16 January 2005, the date of his arrest in Ukraine. 24. The applicant lodged an appeal on points of law, arguing that he was in fact innocent. He alleged that at the trial he had initially denied his guilt and pointed out what he believed to be gaps and inconsistencies in the prosecution’s case. However, he had then pleaded guilty because of pressure from the trial judge and because he had wished to be released sooner and had no funds to pay for a lawyer. No prosecutor had been present at his trial and in these circumstances he had not been convinced of the judge’s impartiality or that there had been a fair examination of evidence. When the judge had assured him that he would receive a lenient sentence if he pleaded guilty, he had followed the judge’s instructions. The applicant also alleged that the Court of Appeal had erred in failing to take into account the time he had served in prison in Russia. 25. On 30 August 2005 the Supreme Court rejected the applicant’s appeal and found that, taking due account of the adequacy of the written evidence collected by the prosecution, the applicant’s conviction had a sufficient factual and evidentiary basis. It furthermore found that the Court of Appeal had been correct in its calculation of the applicant’s prison term from 16 January 2005, but reduced the sentence to nine years. 26. On 10 March 2009, at the request of the prosecutors’ office, the Court of Appeal ordered that the term of the applicant’s imprisonment be calculated from 1 June 2004 (the date of the decision to remand him in custody pending consideration of the extradition request). 27. On 30 September 2011 the applicant was released.