Přehled
Rozhodnutí
FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 16243/02
by Oleg Petrovych OVCHARUK
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 11 December 2006 as a Chamber composed of:
Mr P. Lorenzen, President,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr J. Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 21 August 2000,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Oleg Petrovych Ovcharuk, is a Ukrainian national who was born in 1970. He currently serves his sentence at the Shepetivka Colony.
I. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant has been suffering from psychopathy with aggressive tendencies since 1992. During the periods of October – November 1992, June – July 1993, August – September 1994, January – February and November – December 1997 the applicant underwent specialised treatment in various psychiatric hospitals.
On 28 December 1999 the Kyivskyy District Court of Odessa found the applicant guilty of aggravated robbery, which he had committed in July 1999, and sentenced him to nine years’ imprisonment with confiscation of his property. It also ordered him to pay compensation to the victim of the crime. The court stated that, in determining the applicant’s sentence, it took into account his previous conviction and the information concerning his personality.
According to the applicant, he requested the first instance court to summon a witness on his behalf. The court refused to allow the applicant’s request.
On 29 December 1999 the applicant appealed in cassation, alleging that the first instance court had erroneously assessed the evidence in the case. In particular, the applicant contended that he had not participated in the robbery and that he had been a witness to that crime. The applicant further complained that the court had failed to provide him with free legal assistance. The applicant also stated that the court had not sought the information about his mental health from the psychiatric hospitals in which he had undergone medical treatment.
In January 2000 the applicant’s mother requested the administration of the Temporary Detention Centre No. 21 of the Odessa Region (the “Odessa SIZO”) to provide her with a power of attorney certified by the administration for the applicant’s representation in the criminal proceedings against him. On 26 January 2000 the administration of the Odessa SIZO informed the applicant’s mother that she should have addressed her request to the investigation authority. On 28 February 2000 the administration of the Odessa SIZO sent to the applicant’s father the certified copy of the power of attorney, signed by the applicant on 24 January 2000, by which the latter authorised his father to represent him in the criminal proceedings. According to the applicant, his father received that letter on 23 March 2000.
In her letters of 27 January 2000, the applicant’s mother requested the Kyivskyy District Court of Odessa and the Odessa Regional Court to inform her about the date and time of the hearing on the applicant’s appeal in cassation. She received no reply to these letters.
On 29 February 2000 the Odessa Regional Court held a hearing on the applicant’s appeal in cassation. The applicant and his representative were not present at that hearing, whereas the prosecutor was present and made oral submissions to the court. The regional court upheld the judgment of 28 December 1999. It found that the applicant’s right to defence had not been violated, as he had opted not to be represented by a lawyer at the stage of investigation and trial. The regional court further held that the first instance court had sentenced the applicant in compliance with the requirements of Article 39 of the Criminal Code of 1960 (see Relevant Domestic Law below).
According to the applicant, neither he nor his representative was informed about the date and time of the hearing before the regional court in advance. Thus, they could not participate in that hearing.
On 15 March 2000 the Odessa Regional Department of Justice informed the applicant that on 16 February 2000 his appeal in cassation together with his case file had been sent to the Odessa Regional Court and the hearing was scheduled for 29 February 2000.
On an unspecified date the President of the Odessa Regional Court lodged a protest with the Presidium of that court, seeking mitigation of the applicant’s sentence. On 22 September 2000 the Presidium allowed the protest and reduced his sentence to six years’ imprisonment.
In July 2001 the applicant lodged with the Supreme Court a request, seeking the initiation of supervisory review proceedings in the case in the light of exceptional circumstances. In his submissions, the applicant alleged that he had been subjected to ill-treatment by the police at the stage of the preliminary investigation. He did not mentioned dates or the names of the alleged offenders.
On 24 July 2001 a judge of the Supreme Court informed the applicant that his request had been rejected.
The applicant maintains that, in the course of the criminal proceedings, he unsuccessfully requested the investigators and the courts to take into account his state of mental health and to obtain relevant medical records from the hospitals in which he had undergone medical treatment.
The applicant also submits that he is under supervision of a psychiatrist of the Colony, in which he serves his sentence. The applicant continues to receive specialised medical treatment in respect of his mental disease.
II. Relevant domestic law and practice
A. Constitution of Ukraine
The relevant provisions of the Constitution of Ukraine read as follows:
Article 59
“Everyone has the right to legal assistance. Such assistance is provided free of charge in the cases envisaged by law. Everyone is free to choose the defender of his or her rights...”
Article 63
“... A suspect, an accused or a defendant has the right to a defence...”
B. Code of Criminal Procedure
At the material time, Article 21 of the Code provided that the defence rights of suspects, accused persons or defendants should be ensured. The persons conducting an inquiry, investigators, prosecutors, judges and the courts were obliged to explain to the suspect, accused or defendant that they had a right to have a defence lawyer. The competent officials should draw up a written statement in this respect. The latter should also provide the suspect, accused person or defendant with a possibility to defend themselves by all the means, envisaged by the law.
According to Article 45, the participation of a defence lawyer during the inquiry and the preliminary investigation and during consideration of the criminal case in the first-instance court was obligatory, save where the suspect, accused person or defendant waived his right to legal representation in accordance with the procedure established by Article 46 of the Code.
Pursuant to Article 46 § 2, in the event of a refusal to be represented the person conducting the inquiry or the investigator had to draw up a written statement, and the court had to issue a ruling or the judge had to deliver a resolution.
Under Article 46 § 3 (2), the waiver should not be accepted from the persons, who could not exercise their right to defence due to their physical or mental defects.
Article 363 envisaged that the court of cassation was obliged to examine the legality and reasons for the conviction on the basis of the materials contained in the case file, as well as additionally submitted materials. The examination by the court was not limited to the grounds on which an appeal had been lodged. The court was obliged to review the whole case concerning of all defendants, irrespective whether each of them had appealed in cassation.
C. Criminal Code of 1961 (repealed as of 1 September 2005)
According to Article 39 of the Criminal Code, when imposing a punishment, the court, applying its sense of justice, had to take into account the character and degree of social danger of the crime, personality of the one who had been found guilty, and the mitigating or aggravating circumstances of the case.
COMPLAINTS
1. The applicant complains under Article 3 of the Convention about his alleged ill-treatment by the police at the stage of pre-trial investigation.
2. He further complains under Article 5 § 1 of the Convention that the domestic courts disregarded his state of mental health and unlawfully sentenced him to imprisonment. The applicant maintains that the courts should have ordered him to undergo medical treatment in a psychiatric hospital.
3. The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against him were unfair because the domestic courts erroneously assessed the evidence in his case.
4. The applicant complains under Article 6 § 1 read in conjunction with Article 6 § 3 (c) of the Convention that the State authorities had not informed him or his representative about the date and time of the hearing before the regional court. As a result, neither he nor his representative could participate in that hearing. He also alleges a violation of Article 6 §§ 2, 3 (b) and Article 10 of the Convention on the same grounds.
5. The applicant complains under Article 6 § 1 read in conjunction with Article 6 § 3 (c) of the Convention about an alleged failure of the State authorities to provide him with free legal assistance.
6. He further complains under Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention that the domestic court did not summon a witness on his behalf.
7. The applicant complains under Articles 6 § 1 and 13 of the Convention about the refusal of the Supreme Court to review his case in the light of exceptional circumstances.
8. He complains under Article 14 read in conjunction with Article 6 § 1 of the Convention that he could not exercise his procedural rights during the proceedings before the first instance court due to discrimination against him on the grounds that he was mentally ill and was previously convicted for a crime.
9. The applicant finally complains about a violation of Article 8 of the Convention, alleging that the prison authorities failed to send to his parents an authority form for his representation before the regional court in due time.
THE LAW
1. The applicant complains about his and his representative’s inability to participate in the hearing before the regional court. He also complains about the alleged failure of the State authorities to provide him with free legal assistance. The applicant invokes Article 6 § 1 and 3 (c), which provide, in so far as relevant, as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by a ... tribunal...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.
2. The Court has examined the remainder of the applicant’s complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of were within its competence, they did not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that the remainder of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints under Article 6 § 1 in conjunction with Article 6 § 3 (c) concerning the alleged inability of the applicant and his representative to participate in the hearing on the applicant’s appeal in cassation and about the alleged failure of the State authorities to provide him with free legal assistance;
Declares the remainder of the application inadmissible.
Claudia Westerdiek Peer Lorenzen
Registrar President