YELOYEV proti Ukrajině

FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 17283/02
by Aleksandr Vladimirovich YELOYEV
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 25 September 2006 as a Chamber composed of:

Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 18 March 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Aleksandr Vladimirovich Yeloyev, is a Ukrainian national who was born in 1968 and is currently detained in the Kharkiv SIZO No. 27, Ukraine.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 30 January 1996 the Ordzhonikidzevskiy District Department of the Ministry of Interior in Kharkiv instituted criminal proceedings against the applicant for tax evasion.

On 20 August 1996 the case was referred to the Department for Combating Organized Crime of the Ministry of Interior in Kharkiv (hereinafter - "COC Department").

On 17 April 1997 the Kharkiv City Council lifted the applicant’s immunity from prosecution, which he had as a member of the Dzerhinskiy Local Council of Kharkiv.

It appears from the case materials that the applicant then escaped and on 18 April 1997 he was placed on the wanted list.

On 8 August 1998 the applicant was arrested. On the same day the Deputy Prosecutor of Kharkiv Region ordered his detention on remand.

On the same day the applicant was charged with tax evasion and illegal business activities.

The duration of the investigation and the applicant’s detention were extended on successive occasions : to six months on 6 October 1998 by the Prosecutor of Kherkiv Region, to ten months on 25 January 1999 by the Deputy Prosecutor General of Ukraine and to twelve months on 25 May 1999 by the Deputy Prosecutor General of Ukraine. Thus, the statutory period of the applicant’s detention on remand expired on 8 August 1999.

On 15 January 1999 the investigator of the COC Department re-qualified the charges against the applicant and instituted criminal proceedings against him for fraud, tax evasion, illegal business activities, embezzlement and abuse of power.

On 4 August 1999 the investigation was completed and the applicant was given access to the case-file. According to the applicant’s submissions, he was given about 400 hours to consult with the case materials before the case had been referred to the court and another 400 hours during the trial.

On 30 May 2000 both the applicant and his lawyer finished consulting the case-file.

On 2 June 2000 the case was referred to the Dzerzhinskiy District Court of Kharkiv (hereinafter - District Court).

On 13 July 2000 a judge of the District Court upheld the applicant’s detention on remand without giving any grounds.

On 29 January 2002, 25 March 2002 and 9 December 2002 the District Court rejected the applications for release, submitted by the applicant’s lawyer, on the ground of the seriousness of the charges against him and a risk of his absconding. These rulings were not subject to appeal.

In May 2003 the applicant’s lawyer submitted one more application for release, stressing that the applicant had been detained for about four years without any legal ground. On 12 May 2003 the District Court rejected this application without giving any grounds.

On 1 September 2003 the District Court convicted the applicant of fraud, embezzlement and abuse of power; and sentenced him to eleven years’ imprisonment. It was established that the applicant and co-accused created the pyramid schemes - private trust companies “Bystryye Dengi” (“The Quick Money”) and “Simon Invest” in order to invoke money of private persons without an intention to reimburse them.

On 27 April 2005 the Kharkiv Regional Court of Appeal upheld the judgment with minor changes.

The proceedings concerning the applicant’s cassation appeal are currently pending before the Supreme Court of Ukraine.

B. Relevant domestic law

The text of Article 120 of the Code of Criminal Procedure of 1960 (terms of pre-trial investigation) is summarised in the judgment Merit v. Ukraine (no. 66561/01, judgment of 30 March 2004, Relevant domestic law and practice).

The texts of Article 156 of the Code of Criminal Procedure (periods of detention during an investigation) and Article 218 (announcing to the accused the termination of the investigation in the case and allowing him to inspect the materials in the case file) are summarised in the judgment Nevmerzhitsky v. Ukraine (no. 54825/00, judgment of 5 April 2005, § 53).

COMPLAINTS

The applicant alleged that his detention had been unreasonably long and unlawful, that he had not been promptly brought before a judge and that lawfulness of his detention had not been reviewed. He relied on Article 5 §§ 1 (c), 3 and 4 of the Convention. He also complained under Article 6 § 1 of the Convention of the length of the criminal proceedings against him.

Referring to Article 6 §§ 1, 2 and 3(b), (c) and (d) of the Convention, the applicant alleged that he had not received a fair trial. He submitted that he had not been provided with enough time to study his case-file and that his access to his lawyers had been restricted and that his different motions during the trial had been rejected. He also complained about a violation of the defence rights of his co-defendants. The applicant complained that the court had not applied the new criminal law which mitigated the punishment, and invoked Article 7 in this respect.

The applicant further invoked Article 3 complaining about a time-table of the trial and a lack of respect for the bad state of his health.

The applicant finally complained under Article 14 about discrimination against the accused in comparison to other trial participants.

THE LAW

1. The applicant complained under Article 5 § 1 (c) that his detention on remand had been unlawful.

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant complained under Article 5 §§ 1 (c) and 3 that he had not been promptly brought before a judge.

The Court considers that the facts and decisions of which the applicant complained related to the period between August 1998 and July 2000, and therefore fall outside the six-month time-limit laid down for the introduction of complaints to the Court.

It follows that this complaint was made out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

3. The applicant complained about the length of his pre-trial detention from August 1998 to September 2003.

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

4. The applicant complained that the lawfulness of his detention on remand had not been reviewed. He relied on Article 5 § 4.

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

5. The applicant complained that the criminal proceedings lasted unreasonably long. He relied on Article 6 § 1 of the Convention.

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

6. The applicant further complained about the unfairness of the proceedings. He invoked Article 6 §§ 1 and 3 (b), (c), (d) of the Convention.

The applicant also complained that the trial court had not applied the new criminal law which mitigated the punishment. In this respect he relied on Article 7 § 1 of the Convention, however the relevant provision for this complaint is Article 6 § 1, to the extent that it guarantees the right to a fair trial. The applicant also alleged a violation of Article 6 § 2 of the Convention in the same respect.

The applicant finally invoked Article 3 complaining about a time-table of the trial and a lack of respect for the bad state of his health, and Article 14 complaining about discrimination against accused in comparison to other trial participants.

In the light of all the material in its possession, and insofar as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

It follows that this part of the application must be declared inadmissible 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 concerning the unlawfulness and excessive length of the pre-trial detention, lack of review of the lawfulness of his detention on remand and the excessive length of the proceedings;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President