FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 16404/03 
by Dmitriy Grigoryevich SHABELNIK 
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 15 January 2008 as a Chamber composed of:

Peer Lorenzen, President, 
 Snejana Botoucharova, 
 Volodymyr Butkevych, 
 Margarita Tsatsa-Nikolovska, 
 Rait Maruste, 
 Javier Borrego Borrego, 
 Renate Jaeger, judges,
 
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 2 April 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Dmitriy Grigoryevich Shabelnik, is a Ukrainian national who was born in 1979 and is currently in prison in the city of Zhytomyr, Ukraine.

A.  The circumstances of the case

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

On 10 December 2001 the applicant was arrested on suspicion of kidnapping and murdering a minor, S. During the arrest the applicant sustained light bodily injuries, which were recorded by a forensic medical expert.

On 13 December 2001, upon an application by the prosecutor, the Bogunsky District Court of Zhytomyr ordered the applicant’s detention.

On 17 December 2001 the applicant was provided with a lawyer.

On 19 December 2001 the applicant was charged with the above-mentioned crime, following an investigation during which the applicant had shown the police the places in which S.’s corpse and some of her belongings had been hidden.

On 15 February 2002 the applicant, allegedly under psychological pressure by the investigator, wrote a letter to the investigator requesting that he be questioned “about events that took place at the end of October 2001 at the address 5, maidan Rad, in Zhytomyr”. In his letter he mentioned that he did not require the assistance of a lawyer during the interrogation. Upon that request, he was questioned as a witness about the circumstances of the death of K. During the questioning he confessed to the murder of K.1 The minutes of the applicant’s questioning stated that he had been told about his duty to state everything he knew about the case and the criminal liability for refusal to give testimony and for giving false testimony under Articles 385 and 386 of the Criminal Code. They further noted that his right not to testify against himself had been explained to him.

On 16 February 2002 the applicant, still as a witness, participated in an on-site reconstruction of the events of the murder of K. The minutes of the reconstruction contained similar indications about criminal liability for refusal to testify and about the right not to incriminate oneself.

On the same day the applicant was examined by a forensic expert who did not report any signs of ill-treatment on the applicant’s body.

On 25 February 2002 the investigating prosecutor Sh. issued a decision opening a criminal case against the applicant for both crimes.

On 3 April 2002 the applicant was charged with both the kidnapping and murder of S. and the murder of K.

On 11 July 2002 the Zhytomyr Regional Court of Appeal found the applicant guilty of the kidnapping and two murders and sentenced him to life imprisonment. The applicant’s conviction for murdering K. was based on his confessions, which corresponded to the information available to the investigating authorities.

The applicant’s lawyer, D., appealed against that decision. In his cassation appeal, he complained, inter alia, of a violation of the applicant’s right to defence and of the use of unlawfully obtained evidence by the court. He submitted that the accusation that the applicant had murdered K. had been based exclusively on the statements he had made as a witness and had not been supported by any collaborating evidence. Furthermore, he complained that some contradictions in the body of evidence had been ignored by the court.

The applicant raised similar issues in his appeal. He further complained that the investigation had failed to locate M., who had been his accomplice in the kidnapping case and the murderer of S.

On 10 October 2002 the Supreme Court of Ukraine upheld the decision of the appellate court. In reply to the complaints of the applicant and his lawyer of a violation of the right to defence, the court stated:

“The arguments of the appeals as to the violation of the right to defence of D. Shabelnik during his questioning as a witness of a crime against K. are groundless.

Having been arrested on suspicion of committing another crime, on 15 February 2002 Shabelnik D.wrote a letter stating his wish to give voluntarily testimony about the events that took place at the end of October 2001 at the address Zhytomyr, 5, maidan Rad. Since in his letter he did not indicate what information he wanted to provide, the investigating authorities rightly questioned him as a witness. The provisions of Article 63 of the Constitution were explained to him.”

The court further repeated the reasoning of the appellate court and concluded that the applicant could have learnt about the circumstances of the murder of K. only by having been the offender himself.

B.  Relevant domestic law and practice

1. Constitution of Ukraine

Article 59

Everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose the defender of his or her rights.

In Ukraine, the advocacy acts to ensure the right to a defence against accusation and to provide legal assistance in deciding cases in courts and other state bodies.

Article 63

A person shall not bear responsibility for refusing to testify or to explain anything about himself or herself, members of his or her family or close relatives in the degree determined by law.

A suspect, an accused, or a defendant has the right to a defence...

2.  Code of Criminal Procedure (“the CCP”) (before 29 June 2001)

Article 69 of the CCP provided that a person who could incriminate himself or herself by giving testimony was entitled to refuse from giving testimony as a witness. The investigator should inform the person about his or her right to such a refusal and should record it in the minutes of the questioning.

Article 70 of the CCP provided that a person who had been called as a witness should give truthful information about the circumstances of the case, to the best of his or her knowledge.

Article 71 of the CCP provided that a witness should bear criminal responsibility for giving knowingly false testimony.

Article 96 of the CCP concerned the surrender of a person who acknowledged his or her guilt.

3.  Criminal Code of Ukraine, 2001

Article 384.

Knowingly false testimony

“1. Any knowingly false testimony by a witness or victim, or any knowingly false opinion presented by an expert during the inquiry, pre-trial investigation, investigation by an ad-hoc investigation commission or an ad-hoc special commission of the Verkhovna Rada (Parliament) of Ukraine, or in court, and also any knowingly false interpretation/translation made by an interpreter/translator in the same cases, –

shall be punishable by correctional labour for a term up to two years, or arrest for a term up to six months, or restraint of liberty for a term up to two years.

2. The same actions accompanied with accusations in a grave or special grave offence, or with the fabrication of prosecution or defence evidence, and also committed for mercenary motives, –

shall be punishable by correctional labour for a term up to two years, or restraint of liberty for a term up to five years, or imprisonment for a term of two to five years.”

Article 385.

Refusal of a witness to testify, or refusal of an expert or interpreter/translator to perform their duties

“1. A groundless refusal of a witness to testify, or an expert or interpreter/translator to perform their duties in court or during pre-trial investigation, investigation by an ad-hoc investigation commission or an ad-hoc special commission of the Verkhovna Rada (Parliament) of Ukraine, or inquiry, –

shall be punishable by a fine (...), or arrest for a term up to six months.

2. A person who refuses to testify against himself/herself, members of his/her family or close relatives during an inquiry, pre-trial investigation or in court, shall not be criminally liable.”

COMPLAINTS

The applicant complained that in the course of criminal proceedings against him Articles 3, 5 § 2, and 6 §§ 1 and 3 (a), (b), and (c) of the Convention had been violated.

THE LAW

1. The applicant complained that his right to a fair trial was violated, as he was forced to incriminate himself and that his conviction for the murder of K. was based on confessions obtained from him under coercion in the absence of lawyer. He referred to Article 6 §§ 1 and 3 (c) of the Convention which reads in its relevant parts:

“1.  In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...

(...)

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 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 are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints that his conviction for the murder of K. was based on incriminating evidence obtained in violation of his right to remain silent and the privilege against self-incrimination and that he had been hindered in the effective exercise of his right to defence when interrogated at the pre-trial stage of the proceedings concerning the murder of K.;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen 
 Registrar President

1 According to the applicant, on 25 December 2001 Mr K., son of the late Mrs K., had already “confessed” to the murder of his mother, under coercion by the police.


SHABELNIK v. UKRAINE DECISION


SHABELNIK v. UKRAINE DECISION