In the case of Salov v.
Ukraine,
The European Court of Human
Rights (Second Section), sitting as a Chamber composed of:
Mr
J.-P.
Costa, President,
Mr I.
Cabral Barreto,
Mr R.
Türmen,
Mr K.
Jungwiert,
Mr V.
Butkevych,
Mr M.
Ugrekhelidze,
Mrs A.
Mularoni, judges,
and Mr
S.
Naismith, Deputy Section Registrar,
Having deliberated in private
on 22 March 2005 and on 5 July 2005,
Delivers the following
judgment, which was adopted on the last‑mentioned date:
PROCEDURE
1. The case originated in an
application (no. 65518/01) against Ukraine lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr
Sergey Petrovich Salov (“the applicant”), on 26 January 2000.
2. The applicant was
represented by Mr V. Ageyev and Mr A. Fedur, lawyers practising in
Ukraine, and by Mr S. Dunikowski, a lawyer practising in Nanterre. The
Ukrainian Government (“the Government”) were represented by their
Agents, Mrs Z. Bortnovska, succeeded by Mrs V. Lutkovska.
3. The applicant alleged under
Article 5 § 3 of the Convention that he had not been brought promptly
before a judge or other judicial authority in order to have his arrest
reviewed. The applicant also complained that his right to a fair trial,
including the principles of the “rule of law” and “legal certainty”, had
been infringed, since the Presidium of the Regional Court had set aside
the resolution of the District Court of 7 March 2000 by which his case
had been remitted for an additional investigation. He alleged a breach
of Article 6 § 1 of the Convention. Relying on Article 10 of the
Convention, the applicant complained of an infringement of his right to
receive and impart information. In particular, he complained that he did
not know whether the information about the death of the candidate
Mr Leonid D. Kuchma published in an issue of the Holos Ukrayiny
newspaper (ãàçåòà “Ãîëîñ Óêðà¿íè”) was genuine as he was
not sure about the latter's state of health. He asserted that under no
circumstances should the communication of such information to a third
party be punishable by five years' imprisonment. He also complained that
he had been detained for eleven days in the Donetsk Pre-Trial Detention
Centre and that his licence to practise as a lawyer had been withdrawn.
4. The application was
allocated to the Second Section of the Court (Rule 52 § 1 of the Rules
of Court). Within that Section, the Chamber that would consider the case
(Article 27 § 1 of the Convention) was constituted as provided in Rule
26 § 1.
5. In a decision of 27 April
2004 the Court declared the application partly admissible.
6. The applicant and the
Government each filed observations on the merits (Rule 59 § 1).
7. On 1 November 2004 the
Court changed the composition of its Sections (Rule 25 § 1). This case
was assigned to the newly composed Second Section (Rule 52 § 1).
8. A hearing took place in
public in the Human Rights Building, Strasbourg, on 22 March 2005 (Rule
59 § 3).
There appeared before the
Court:
(a) for the Government
Mrs
V.
Lutkovska, Deputy Minister of
Justice, Agent,
Ms
O.
Bartovschuk, Head of Division, Office of the Government's
Agent,
Ms
T.
Totska, Deputy Head of Division, Ministry of Justice,
Counsel;
(b) for the applicant
Mr
S.
Salov,
Applicant,
Mr
V.
Ageyev,
Counsel,
Mr
A.
Fedur,
Mr
S.
Dunikowski,
Advisers.
9. The Court heard addresses
by the applicant himself, Mr Ageyev and Mrs Lutkovska.
THE FACTS
10. The applicant is a
Ukrainian national who was born in 1958 and currently resides in Donetsk.
He is a lawyer practising in Ukraine.
I. THE CIRCUMSTANCES OF THE
CASE
A. Criminal proceedings in the
applicant's case
11. On 31 July 1999 the
Central Electoral Commission registered the applicant as the
representative of a candidate for the presidency of Ukraine, Mr Olexander O. Moroz.
The latter was the leader of the Socialist Party of Ukraine at the time.
12. On 31 October 1999 the
Kyivsky District Prosecution Service of Donetsk (the “Kyivsky
Prosecution Service”) conducted a criminal investigation into
allegations that the applicant had interfered with the citizens' right
to vote (Article 127 § 2 of the Criminal Code of Ukraine – “the CC”).
13. On 1 November 1999 the
applicant was apprehended for having disseminated false information
about the alleged death of a presidential candidate, the incumbent
President Mr Leonid D. Kuchma. The applicant had allegedly disseminated
this information on 30 and 31 October 1999 in the form of a statement by
the Speaker of the Verkhovna Rada (Parliament) published in a
special nationwide issue of the Verkhovna Rada newspaper Holos
Ukrayiny (ãàçåòà “Ãîëîñ Óêðà¿íè”). The text of the
article disseminated by the applicant reads as follows:
“Holos Ukrayiny /
newspaper of the Verkhovna Rada of Ukraine / Special edition
29 November 1999 / free copy
Appeal of the Verkhovna Rada
of Ukraine to the Ukrainian citizens
We, members of the Verkhovna
Rada of Ukraine, are forced to appeal to you in this special edition
of the parliamentary newspaper in view of an emergency existing in
Ukraine. In fact, a coup d'état has taken place in the country,
but the truth is carefully concealed from the people. We are being
deceived! A person who appeared on TV and travelled around the country
during the last week allegedly as the President of Ukraine Mr L.D. Kuchma
is not the person he is pretending to be. It is only a clone of the
President, who is being used by Mr Kuchma's criminal entourage to
deceive people in the course of the presidential elections in order to
retain power. The true President of Ukraine Mr Leonid Kuchma died on 24
October 1999 in Kyiv of acute heart deficiency caused by alcohol-related
myocardiodystrophy. His body was cremated in strict secrecy and the
ashes were taken abroad. Power has in fact been actually seized by the
groups of Rabinovyches, Volkovs, Kobzons and Pinchuks.
People are being intimidated,
and forced to vote for the false Kuchma. There is a blatant information
blockade of the opposition candidates. The Verkhovna Rada of
Ukraine declares that it assumes control over the presidential
elections. Each and every act of unlawful dismissal or other
persecutions against people connected with the elections will be seen as
a criminal offence. We bring this to the attention of the management of
businesses and medical and educational institutions.
The powerful propaganda machine
aimed at fooling the people has started its work. Power in Ukraine has
been usurped.
The Verkhovna Rada
declares that the only legitimate source of power in the State is the
Ukrainian Parliament.
The Verkhovna Rada calls
on all citizens of Ukraine not to allow the presidential elections to be
hampered or to be declared unlawful in a manner that will lead to the
establishment of a fascist regime in Ukraine.
Speaker of the Verkhovna
Rada of Ukraine
A. Tkachenko”
14. Following the applicant's
arrest, the Kyivsky Prosecution Service carried out a formal criminal
investigation into the allegations made against him.
15. On 3 November 1999 the
Kyivsky Prosecution Service decided to detain the applicant on suspicion
of having committed a crime under Article 127 § 2 of the CC (see
paragraph 41 below). The applicant was detained in the Temporary
Investigative Isolation Unit of the Donetsk Region. He remained there
until 10 November 1999.
16. On 5 November 1999 the
applicant was formally charged with having committed an offence under
Article 127 § 2 of the CC (see paragraph 41 below). The prosecution
service classified his actions as having been committed by an official.
17. On 10 November 1999 the
applicant lodged an application (dated 6 November 1999) with the
Voroshylovsky District Court of Donetsk to be released from detention.
On 17 November 1999 the court dismissed his application.
18. On 11 November 1999 the
applicant was transferred to the Donetsk Investigative Detention Centre
No. 5.
19. On 16 November 1999 the
applicant underwent a medical examination. He was found to be suffering
from bronchitis and second-degree hypertension. The medical commission
recommended that the applicant be hospitalised.
20. On 22 November 1999 the
Kyivsky Prosecution Service completed the pre-trial investigation into
the applicant's case and committed him for trial.
21. On 25 November 1999 the
case file was transferred to the court. On 10 December 1999 the
Kuybyshevsky District Court of Donetsk (the District Court”) committed
the applicant to stand trial on charges of interference with the
citizens' right to vote, contrary to Article 127 § 2 of the CC (see
paragraph 41 below). It also decided not to release him from detention.
22. In the course of the trial
Judge T. of the District Court on 7 March 2000 passed a resolution (ïîñòàíîâó)
ordering an additional investigation into the circumstances of the case.
He also requested the prosecution to reconsider the preventive measure
of detention applied in respect of the applicant and to reclassify the
charges against him. In particular, he stated:
“... in the indictment
containing the charges brought against him it was not shown by the
prosecution how Mr Sergey P. Salov had influenced the election results
or how he wanted to influence them...
From the material in the case
file it can be seen that the applicant disseminated a forged copy of the
newspaper Holos Ukrayiny to only five persons; no other
information with regard to the attempts by Mr Sergey P. Salov to
influence the election results has been established by the investigation
during the judicial consideration of the case...
The investigation has not
sufficiently shown that the actions of Mr Sergey P. Salov constituted a
criminal offence...
The investigative bodies did
not consider the issue of whether [the applicant's] acts could be
considered a criminal offence under Article 125 § 2 of the Criminal Code
[libel] ... [i.e. whether] the actions of the defendant could be
understood as dissemination of untrue information about another person
(Mr Leonid D. Kuchma) ... on the basis of motives not directly related
to the conduct of the elections. ...
The court considers that the
investigative authorities have conducted their preliminary investigation
insufficiently and that this cannot be rectified in the course of the
trial, ... the court cannot convict Mr Sergey P. Salov of a crime under
Article 125 § 2 of the Criminal Code [libel] since it cannot reclassify
his actions, and the case must therefore be remitted for additional
investigation...
This resolution is not subject
to appeal in cassation; however, the prosecutor may lodge a complaint
against it within seven days of its adoption.”
23. On 30 March 2000 the
deputy prosecutor of the Donetsk Region lodged a
protest with the
Presidium of the Donetsk Regional Court (“the Presidium”) against the
resolution of 7 March 2000 and requested the initiation of supervisory
review proceedings in the applicant's case. He also sought to set aside
the resolution of 7 March 2000 in which the case had been remitted for
additional investigation. The deputy prosecutor considered that there
was sufficient evidence to corroborate the applicant's interference with
the citizens' right to vote (Article 127 § 2 of the CC). On the same
date the registry of the court acknowledged receipt of the protest.
24. On 5 April 2000 the
Presidium, composed of its President, L.V.I., and the judges R.L.P.,
P.L.V., R.L.I., M.M.I. and B.A.M., in the presence of a prosecutor,
quashed the resolution of 7 March 2000 and
remitted the case for further judicial consideration. In particular, the
Presidium found that the District Court had remitted the case back for
additional investigation without a thorough examination of the
indictment and of the requisite actus rea and mens rea of
the offence with which the applicant had been charged. It had also not
mentioned which particular investigative measures the prosecution was
required to take. The Presidium decided not to release the applicant
from detention. In particular, it stated:
“... In finding that Mr Salov's
actions had the mens rea of a crime provided for by Article 125 §
2 of the Criminal Code of Ukraine, the court, in violation of Article 22
of the Criminal Code, did not examine circumstances essential to this
kind of conclusion. The court did not rule on the applicant's intent in
his actions referred to in the indictment, whereas the bodies
responsible for the preliminary investigation found that Mr Salov had
intended to commit a completely different offence. The court did not
deal with this [argument of the prosecution] and unfoundedly concluded
that the applicant's actions might entail the corpus juris delicti
of a crime provided for by Article 125 § 2 of the Criminal Code of
Ukraine.”
25. On 24 April 2000 the
District Court dismissed a petition filed by the applicant's lawyer
requesting that the case be remitted for additional investigation. It
also dismissed the applicant's application for release from detention.
26. On 1 June 2000 the
District Court dismissed a further application for the applicant's
release.
27. On 16 June 2000 the
District Court changed the preventive measure applied in respect of the
applicant to an undertaking not to abscond.
28. On 6 July 2000 the
District Court, chaired by Judge T., who had heard the case on 7 March
2000, convicted the applicant of interfering with the citizens' right to
vote for the purpose of influencing election results by means of
fraudulent behaviour. The District Court sentenced the applicant to five
years' imprisonment, which was suspended for a two-year probationary
period as the actions of Mr Salov “in fact entailed no grave
consequences”. It also ordered the applicant to pay a fine of
170 Ukrainian hryvnyas (UAH).
It held as follows:
“In October 1999 Mr Sergey P.
Salov received, in unidentified places, from persons whose identity was
not established in the course of the investigation copies of a forged
issue of the Holos Ukrayiny newspaper of 29 October 1999. This
issue contained information provided by the Speaker of the Parliament (Verkhovna
Rada) of Ukraine, Mr Oleksandr O. Tkachenko, concerning the death of
the incumbent President, Mr Leonid D. Kuchma ... and a coup d'état
perpetrated by criminal circles surrounding him ... This issue
contained an appeal by the Parliament of Ukraine to Ukrainian citizens
urging them not to sabotage the presidential elections ... in order to
prevent the establishment of a fascist regime...
Notwithstanding the false
nature of the information contained in the issue in question ..., Mr
Sergey P. Salov decided to disseminate copies of it to voters in the
Kyivsky District for the purpose of interfering with their right to vote
and in order to influence the results of the presidential elections...
According to a forensic
examination, ... the eight issues in question were copies of the
original version printed with the use of modern software...
The acts of Mr Sergey P. Salov
constituted an interference with the exercise of the citizens' right to
vote..., they hindered the voters' right to participate in the elections
... [The] dissemination of false information about Mr Leonid D. Kuchma's
death was fraudulent ..., the information could have influenced the
results of the elections ... and could have prevented voters from
electing that candidate as President...”
29. On 15 September 2000 the
Donetsk Regional Court, composed of the judges D.A.D., G.G. and D.A.V.,
upheld the judgment of 6 July 2000.
30. On 3 November 2000 and 9
February 2001 respectively the Regional Court and the Supreme Court of
Ukraine dismissed, as being unsubstantiated, the applicant's complaints
and his request for a supervisory review of his conviction.
31. On 22 November 2000 the
Donetsk Lawyers' Qualifications and Disciplinary Commission annulled the
applicant's licence to practise as a lawyer (no. 1051, issued on 17
December 1997). It based its decision on the applicant's conviction of 6
June 2000.
32. On 23 April 2004 the
applicant received a new licence to practise as a lawyer (no. 1572),
after passing an examination before the Donetsk Lawyers' Qualifications
and Disciplinary Commission and paying the sum of UAH 1,200.
He was allowed to sit exams after the legal effects of his conviction
were annulled (ïîãàøåíà ñóäèì³ñòü).
2. Proceedings concerning
compensation for unlawful detention in the Temporary Investigative
Isolation Unit
33. In July 2000 the applicant
instituted proceedings in the Voroshylovsky District Court of Donetsk
against the prosecution service of Donetsk and the Donetsk Regional
Department of the Ministry of the Interior, claiming compensation for
the non-pecuniary and pecuniary damage resulting from his unlawful
10-day detention in 1999 in the Temporary Investigative Isolation Unit (²çîëÿòîð
Òèì÷àñîâîãî Óòðèìàííÿ). In particular, it was contended that he
should have been held in the Investigative Detention Centre (Ñë³ä÷èé
²çîëÿòîð) and not in the Temporary Investigative Isolation Unit, as
his status had been that of a suspect in criminal proceedings.
34. On 15 June 2001 the
Voroshylovsky District Court of Donetsk allowed his claims in part. It
also ordered the prosecution service of Donetsk and the Donetsk Regional
Department of the Ministry of the Interior to pay UAH 3,000 (EUR 500) to
the applicant.
35. On 22 November 2001 the
Donetsk Regional Court of Appeal decided that the State Treasury, and
not the prosecution service or the Ministry of the Interior, was liable
for compensating the applicant. It therefore ordered the Donetsk
Regional State Treasury Department to pay the applicant UAH 3,000 (EUR
500) in compensation for pecuniary and non-pecuniary damage.
36. The applicant alleges that
this compensation was not paid to him.
B. Relevant domestic law
1. Constitution of Ukraine,
1996
37. The relevant provisions of
the Constitution of Ukraine read as follows:
Article 29
“Every person has the right to
freedom and personal inviolability.
No one shall be arrested or
held in custody other than pursuant to a substantiated court judgment
and only on grounds and in accordance with a procedure established by
law.”
Article 34
“Everyone is guaranteed the
right to freedom of thought and speech, and to the free expression of
his or her views and beliefs.
Everyone has the right freely
to collect, store, use and disseminate information by oral, written or
other means of his or her choice.
The exercise of these rights
may be restricted by law in the interests of national security,
territorial indivisibility or public order, for the purpose of
preventing disturbances or crimes, protecting the health of the
population, the reputation or rights of others, preventing the
publication of information received in confidence, or maintaining the
authority and impartiality of justice.”
Article 121
“The Prosecution of Ukraine
constitutes a unified system that is entrusted with:
1) prosecution in court on
behalf of the State;
2) representation of the
interests of a citizen or of the State in court in cases determined by
law;
3) supervision of the
observance of laws by bodies that conduct detective and search activity,
inquiry and pre-trial investigation;
4) supervision of the
observance of laws in the execution of judicial decisions in criminal
cases, and also in the application of other measures of coercion related
to the restraint of personal liberty of citizens.”
Article 122
“The Prosecutor of Ukraine is
headed by the Prosecutor General of Ukraine, who is appointed to office
with the consent of the Verkhovna Rada of Ukraine, and dismissed from
office by the President of Ukraine. The Verkhovna Rada of Ukraine may
express no confidence in the Prosecutor General of Ukraine that results
in his or her resignation from office.
The term of authority of the
Prosecutor General of Ukraine is five years.”
Article 124
“Justice in Ukraine shall be
administered exclusively by the courts. The delegation of the functions
of the courts, and also the appropriation of these functions by other
bodies or officials, shall not be permitted.
The jurisdiction of the courts
shall extend to all legal relations that arise in the State...”
2. The Judiciary Act of 5 June
1981
38. The relevant provisions of
the Judiciary Act of 5 June 1981, with subsequent changes and
amendments, as in force at the material time, read as follows:
Section 30
Composition of the Supreme
Court of the Crimea, the regional courts and the Kyiv and Sevastopol
City Courts
“The Supreme Court of the
Crimea, the regional courts and the Kyiv and Sevastopol City Courts
shall act in the following composition:
(1) the Presidium of the
court;
(2) the judicial division in
civil matters; and
(3) the judicial division in
criminal matters.”
Section 31
Powers of the Supreme Court of
the Crimea, the regional courts and the Kyiv and Sevastopol City Courts
“The Supreme Court of the
Crimea, the regional courts and the Kyiv and Sevastopol City Courts
shall:
(1) consider the cases that
are within their jurisdiction as a first-instance court and in cassation
proceedings, judicial supervision proceedings and proceedings in the
light of newly disclosed circumstances;
(2) supervise the judicial
activities of the district (or city) and interdistrict (or county)
courts, examine and generalise judicial practice and analyse judicial
statistics; and
(3) perform other functions
entrusted to them in accordance with the law.”
Section 32
Presidium of the Supreme Court
of the Crimea, the regional courts and the Kyiv and Sevastopol City
Courts
“The Presidium of the Supreme
Court of the Crimea, the regional courts and the Kyiv and Sevastopol
City Courts shall be composed of the President, the Vice-Presidents and
judges whose number shall be determined by the Presidium of the
Verkhovna Rada of Ukraine on a proposal by the President of the
Supreme Court and the Minister of Justice ...
... The participation of the
prosecutor of the Republic of the Crimea, the regional prosecutor, [or
the prosecutor] of Kyiv and Sevastopol in the consideration of cases by
the Presidium of the relevant court shall be obligatory.”
Section 33
Jurisdiction of the Presidium
of the Supreme Court of the Crimea, the regional courts and the Kyiv and
Sevastopol City Courts
“The Presidium of the Supreme
Court of the Crimea, the regional courts and the Kyiv and Sevastopol
City Courts shall:
(1) consider the cases that
are within their jurisdiction in supervisory review proceedings and in
the light of new circumstances;
(2) approve, on a proposal by
the President of the Court, the composition of the judicial division in
civil matters and the judicial division in criminal matters;
(3) examine the
standardisation of judicial practice;
(4) hear reports by the
presidents of the judicial divisions on the activities of the judicial
divisions and examine issues relating to the operation of the registry
of the court;
(5) provide assistance to the
district (or city) and interdistrict (or county) courts in correct
application of the law; and
(6) perform other functions
entrusted to them by the law.”
Section 34
Functioning of the Presidium of
the Supreme Court of the Crimea, the regional courts and the Kyiv and
Sevastopol City Courts
“Sessions of the Presidium of
the Supreme Court of the Crimea, the regional courts and the Kyiv and
Sevastopol City Courts shall be held not less than two times a month.
The quorum for meetings of the
Presidium shall be the majority of its judges.
Decisions of the Presidium
shall be adopted by an open vote by the majority of the members who take
part in the vote.
Decisions of the Presidium
shall be signed by the President of the court.”
Section 37
President of the Supreme Court
of the Crimea, the regional courts and the Kyiv and Sevastopol City
Courts
“The President of the Supreme
Court of the Crimea, the regional courts and the Kyiv and Sevastopol
City Courts shall:
... (9) manage the activities
of the judicial divisions and the registry of the court;
... (11) propose the
candidatures of judges for election to positions in the district (or
city) courts, in collaboration with the Minister of Justice of the
Crimea, the head of the Regional Department of Justice or the Kyiv and
Sevastopol City State Administration, and with the approval of the
President of the Supreme Court and the Minister of Justice; ...”
3. The Status of Judges Act of
15 December 1992 (in force at the material time)
39. Section 7 of this Act
provides that any citizen of Ukraine who has attained the age of
twenty-one and has a minimum of two years' legal experience may become a
judge. By section 9(3), judges are appointed for a maximum initial
period of five years, following an examination by the judicial
qualifications commission and a decision of the relevant local
authority. In accordance with sections 33 and 34 of the Act, a judge of
the district court may be subject to disciplinary investigation on the
basis of a request by the President of the regional court.
4. The Judicial Qualifications
Commissions Act of 2 February 1994 (in force at the material time)
40. By sections 6 and 7 of
this Act, the qualifications commissions had the power to institute
disciplinary proceedings, and to submit conclusions on the feasibility
of appointing a candidate for a position as a district-court judge and
on the renewal of the judicial term of a judge elected for an initial
period of five years. They could also request an attestation for a judge
proposed for a promotion in judicial or administrative rank within the
court, or an assessment of his legal knowledge. The presidents of the
regional courts could request the qualifications commissions to certify
or assess judges' knowledge and qualifications. In accordance with
sections 32 and 33 of the Act, the presidents of the higher courts were
allowed to request the institution of disciplinary proceedings against
judges of the district courts.
5. Chapter IV of the Criminal
Code of Ukraine (extracts): offences against electoral, labour and other
personal rights and freedoms of the individual and citizens
41. The relevant provisions of
Article 127 of the Criminal Code read as follows:
Interference with the exercise
of citizens' electoral rights or with the activity of an electoral
commission
“Interference with the exercise
by a Ukrainian citizen of his electoral rights, or interference with the
activity of an electoral commission, for the purpose of influencing
election results, shall be punishable by 3 to 5 years' imprisonment.
The same actions perpetrated by
means of bribery, deceit, or together with damage to the property of or
physical violence against a citizen who exercises his right to vote, or
against a member of an electoral committee or his close relatives, or
with the threat of using force or damaging property, or through a
conspiracy by a group of persons, or by a member of an electoral
commission or other official abusing his powers or acting in his
official capacity, shall be punishable by 5 to 8 years' imprisonment.”
6. Chapter 15 of the Code of
Administrative Offences of 7 December 1984
42. The relevant provisions of
the Code of Administrative Offences read as follows:
Article 186-2
Infringements of the
legislation on the election of the President of Ukraine and Members of
Parliament
“Public appeals or incitement
to boycott elections for the presidency of Ukraine or for membership of
the Ukrainian Parliament, the publication or dissemination of untrue
information about a presidential candidate or a parliamentary candidate
by any other means, and any campaigning for or against a candidate on
the day of the election, shall be punishable by a fine equivalent to
three to six times the minimum citizens' wage before tax.”
7. Code of Criminal Procedure,
1960 (in relation to remitting a case back for additional investigation)
43. The relevant provisions of
Section III, Chapter 23, of the Code of Criminal Procedure read as
follows:
Article 242
Issues to be taken into
consideration when the accused is committed for trial
“Judges individually, or the
court in the course of the directions hearing, are obliged to clarify
the following issues with respect to each accused:
... whether the actions of the
accused have been correctly classified ...;
... whether a preventive
measure has been applied correctly to the accused ...”
Article 244
Decisions delivered by the
court or a judge in the course of the preliminary hearing
“The court or a judge, in the
course of the preliminary hearing, shall be entitled to deliver
decisions on the following:
... (2) remittal of the case
for additional investigation; ...”
Article 246
Remittal of a case for additional investigation at the preliminary court
hearing
“The court shall be entitled to remit the case for additional
investigation in the following circumstances:
(1) substantial incompleteness or incorrectness of the inquiry or the
preliminary investigation undertaken which cannot be rectified at the
trial;
(2) a
fundamental breach of the requirements of criminal procedure;
(3) existence of grounds for bringing charges against the accused which
have not been brought against him before; ...
... The
court shall rule on the particular facts that are to be ascertained in
the course of the additional investigation and the investigative
measures that are to be taken.
... The
court shall rule on the applicable preventive measure ...”
Article 252
Lodging of a separate application and complaint against rulings and
resolution of a judge given at the preliminary court hearing
“The public prosecutor shall be allowed to lodge a separate application
against a ruling of the court or resolution of the judge given in the
course of the preliminary court hearing with a higher court within 7
days after its adoption ...”
Article 273
Procedure for adopting a ruling
in the course of the court hearing
“The court shall give a ruling on all issues decided by it in the course
of the hearing. Resolutions remitting the case back for additional
investigation; instituting an investigation into the new charges or
concerning a person who failed to appear before the court; discontinuing
the proceedings in the case; determining, changing or annulling the
applicable preventive measure; applying witness protection measures or
appointing an expert, as well as any separate resolutions, shall be
adopted by the court in the deliberations room and shall be set out in
the form of a separate document that shall be signed by all members of
the court ...
A
judge examining a case may issue a decision on issues referred to in
this Article.”
Article 274
Application, annulment or change of a preventive measure by the court
“The court may decide in a ruling to ... change, annul or apply a
different preventive measure to the accused if it finds grounds for
doing so.”
Article 281
Remittal of the case for
additional investigation
“The court, on its own initiative or on an application by the parties to
the proceedings, may refer the case back for additional investigation on
account of the incompleteness or incorrectness of the preliminary
investigation only where such incompleteness or incorrectness cannot be
rectified in the course of the hearing.
After an additional investigation the case shall be referred to the
court under the ordinary procedure.
The ruling (or resolution) on remittal of the case for additional
investigation cannot be appealed against, but the public prosecutor may
lodge a separate application against it.”
Article 354
Applications by the public
prosecutor and complaints against court rulings and judges' resolutions
“The public prosecutor shall be allowed to lodge a separate application
against a ruling by the court or resolution by the judge.
... the defendant, his defence
counsel and his representative, as well as the victim and his
representative, shall have the right to lodge complaints against
the ruling of the court or
resolution of the judge within
seven days after its adoption.
... The lodging of a separate
complaint or prosecutor's application shall suspend the enforcement of
the ruling.”
44. The relevant provisions of
Chapter 31 of the Code of Criminal Procedure provide as follows:
Article 384
Persons entitled to lodge a
protest against an enforceable judgment, ruling or resolution of a
court
“Supervisory review of an
enforceable court judgment, ruling or resolution shall be allowed only
on the basis of a protest lodged by the public prosecutor ...
The following persons are
entitled to lodge a protest:
... (2) ... the public
prosecutor of the region ... – against judgments, resolutions and
rulings of city (or district) courts ...”
Article 385
Time-limits for supervisory
review of judgments, rulings and resolutions of a court
“Supervisory review of a
conviction, ruling or resolution of the court on account of the need to
apply the law on a more serious offence, or to review the leniency of
the sanction imposed, or on the basis of other grounds resulting in
deterioration of the convicted person's situation, and of an acquittal,
ruling or resolution of the court terminating the proceedings in the
case shall be allowed only within one year of its becoming final.
There shall be no time-limit
for initiating the supervisory review of a conviction, ruling or
resolution of the court on any other grounds.”
Article 391
Supervisory review proceedings
“The court considering the case
in supervisory review proceedings shall have the right to summon the
defendant, ... the defence counsel, ... in order to hear their
statements. The above persons shall have the right to familiarise
themselves with the application for supervisory review...”
Article 393
The outcome of consideration of
applications for supervisory review
“... the court shall have the
right, by means of a ruling or resolution, to: ... quash a judgment and
remit the case for fresh consideration ...”
Article 395
Obligatory character of the
supervisory court's instructions
“The instructions of the
supervisory review court shall be binding in the course of the
additional investigation and fresh consideration of the case ...”
6. The Presidential Elections
Act, 1999
45. The relevant provisions of
the Presidential Elections Act read as follows:
Section 50
Liability for an infringement
of electoral legislation
“1. Persons who have
interfered through deceit, threats, bribery or other means with the free
exercise by a citizen of Ukraine of his right to vote, to be elected and
to conduct pre-election campaigning, and chairmen, deputy chairmen,
secretaries and members of electoral commissions, officials or other
persons representing State bodies, bodies of local self-government or
non-governmental organisations who have fraudulently substituted
documents, intentionally counted the number of votes incorrectly,
violated the right to vote by secret ballot, or committed any other
violation of this Act, shall be held liable in accordance with the law.
2. Persons who have
intentionally published or disseminated untrue information about a
candidate for the presidency shall be held liable in accordance with the
law.”
7. Reservation contained in
the instrument of ratification deposited on 11 September 1997 (period
covering 11 September 1997 – 28 June 2001)
46. The relevant provisions of
the reservation contained in the instrument of ratification are set out
in the judgment of Nevmerzhitsky v. Ukraine (no. 54825/00, § 56,
5 April 2005).
8. Appendix to the reservation
handed to the Secretary General at the time of depositing the instrument
of ratification on 11 September 1997
47. The relevant transitional
provisions of the Constitution of Ukraine are set out in the
Nevmerzhitsky judgment cited above.
9. Resolution of the Plenary
Supreme Court of Ukraine (no. 10) of 30 September 1994 on issues
relating to the application by the courts of the legislation on lodging
complaints with the courts against an arrest warrant issued by a
prosecutor
48. The relevant resolution of
the Plenary Supreme Court of Ukraine reads as follows:
“... in accordance with Article
236-6 of the Code of Criminal Procedure of Ukraine, only a warrant
issued by the prosecutor for the arrest of the suspect or accused, and
also the resolution of the court (or judge) concerning the application
of preventive measures, may be appealed against to the courts, but not
the resolution of the investigator or body of inquiry to apply the
preventive measure of taking the suspect or accused into custody or to
continue their detention...”
10. Decision of the
Constitutional Court of Ukraine of 24 July 1999 (No. 6-ðï)
49. In its decision the
Constitutional Court found that the Cabinet of Ministers had acted
unconstitutionally in passing the resolution of 22 March 1999 (no. 432)
that reduced the expenditure of the 1999 State budget on the needs of:
the Supreme Court by 40%, the regional courts by 7.5%, the district (and
city) courts by 6.8%, the Higher Arbitration Court by 26.4%, the
arbitration courts by 19.4%, and the military courts by 15.5%. According
to the information issued by the Ministry of Justice (responsible for
the courts' administration at the material time), this expenditure
covered 51.6% of the needs of the first-instance courts and 62.8% of the
needs of the regional courts. The Constitutional Court found that
Resolution no. 432 exerted financial influence on the courts and
infringed the citizens' right to judicial protection.
11. Relevant decisions of the
Council of Judges of Ukraine (in relation to the appointment and
selection of judges)
50. The Council of Judges, in
its Decision no. 13 of 12 December 2000, found that the existing
procedure for the selection and appointment of candidates for judicial
posts, as established by the Ministry of Justice, Higher Council of
Justice and the judicial qualifications commissions, was not compatible
with the need to form a highly qualified judiciary able to administer
justice effectively and independently.
51. On 12 December 2000 the
Council of Judges adopted Resolution no. 10, finding that the decisions
of the Cabinet of Ministers to lower judicial salaries were contrary to
the principle of the independence of the judiciary.
THE LAW
I. ALLEGED VIOLATION OF
ARTICLE 5 § 3 OF THE CONVENTION
A. The parties' submissions
52. The applicant complained
that he had been detained unlawfully for a period of 18 days without any
judicial review of his detention. This period had lasted from 1 November
1999, the date when the applicant was arrested, to 17 November 1999, the
date on which the Voroshylovsky District Court of Donetsk had reviewed
his complaints about his detention. He alleged an infringement of
Article 5 § 3 of the Convention, which provides:
“Everyone arrested or detained
in accordance with the provisions of paragraph 1 (c) of this Article
shall be brought promptly before a judge or other officer authorised by
law to exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial. Release may be conditioned
by guarantees to appear for trial.”
1. The Government's
submissions
53. The Government maintained
that the applicant had been detained in accordance with the decision of
the prosecutor. They stressed that the prosecutor, pursuant to the
reservation made by Ukraine in respect of Article 5 of the Convention,
could be considered “... another officer authorised by law to exercise
judicial power...” (see paragraphs 46-47 above). In this capacity, the
prosecutor who had authorised the applicant's detention had acted
promptly in reviewing it. They further stressed that the public
prosecutor's warrant for the applicant's arrest was subject to strict
judicial control, which could be, and in fact had been, initiated by the
applicant. The judicial control provided for in the Ukrainian
legislation required complaints against detention orders to be
considered urgently, and the courts had the power to decide on the
detainee's release. The Government concluded, therefore, that the
Ukrainian criminal procedure in force at the time of the applicant's
arrest fully complied with the requirements of Article 5 § 3 of the
Convention. They therefore concluded that there had been no infringement
of Article 5 in this respect.
54. Considering the
requirement of Article 5 § 3 of the Convention to be brought promptly
before a judicial body, the Government maintained that the period of
time before the applicant's detention was reviewed had not been lengthy.
They stated that, according to Ukrainian legislation, an appeal against
an arrest warrant could be lodged even on the day it was issued. They
further maintained that the legislation had established strict
time-limits for dealing with complaints against detention and the
periods involved were not excessive. However, possible delays could
occur if a detainee or his lawyer delayed in appealing against the
detention order. In particular, the Government mentioned that on 3
November 1999 the public prosecutor had approved the warrant for the
applicant's arrest. The complaint against the warrant had been dated
6 November 1999 and, according to the court resolution, had been
submitted only on 10 November 1999. On 17 November 1999 the court had
considered the complaint and confirmed the lawfulness of the arrest
warrant. They noted that on 8 November 1999 the applicant had asked for
his lawyer to be replaced, which had led to a delay in the consideration
of his appeal.
55. The Government stressed
that the delay in lodging the appeal against the arrest warrant had been
attributable to the applicant. In particular, the appeal had been lodged
seven days after the warrant was approved. In view of the above, the
Government concluded that there had been no violation of Article 5 § 3
of the Convention in the present case in respect of the promptness of
the judicial review of the applicant's detention.
2. The applicant's submissions
56. The applicant maintained
that under Ukrainian law, a prosecutor belonged to the law-enforcement
authorities and could not by any means be considered an officer
authorised by law to exercise judicial power. In particular, in
accordance with Article 124 § 1 of the Constitution, judicial functions
in Ukraine were exercised exclusively by the courts and it is prohibited
to delegate judicial powers to other bodies or officials (see
paragraph 37 above). The applicant therefore concluded that in Ukraine a
prosecutor could not be considered a person “authorised by law to
exercise judicial power”. The sole function entrusted to the prosecutor
by Articles 121-122 of the Constitution was to conduct the prosecution
on behalf of the State in court. Furthermore, Ukrainian prosecutors were
not independent and impartial as far as criminal cases were concerned
(he cited Huber v. Switzerland,
judgment of 23 October 1990, Series A no. 188, p. 18, § 42, and
Niedbała v. Poland, no. 27915/95, §§
48-50, 4 July 2000) as they were a prosecuting party to the criminal
proceedings (here, he cited Assenov and
Others v. Bulgaria, judgment of 28 October
1998, Reports of Judgments and Decisions 1998‑VIII, p. 3298, §
146, and Nikolova v. Bulgaria
[GC], no. 31195/96, §§ 49-50, ECHR 1999‑II).
57. The applicant therefore
concluded that his detention had not been lawful and that he had not
been brought promptly before a judicial officer to review his arrest and
detention. He added that no delays had been attributable to him.
B. The Court's assessment
58. The Court notes at the
outset that the Government's reference to the reservation in respect of
Article 5 § 3 of the Convention should be disregarded (see
Salov v. Ukraine (dec.),
no. 65518/01, 27 April 2004; and for the validity of the reservation
made under Article 5 of the Convention, Falkovych v. Ukraine (dec.),
no. 64200/00, 29 June 2004). As to the Government's arguments with
regard to the status of a prosecutor (see paragraph 53 above), the Court
observes that under Ukrainian legislation, a prosecutor cannot be
regarded as an officer exercising “judicial power” within th
