FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 23194/02 
by Dmitriy Aleksandrovich AYBABIN 
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 18 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 3 May 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Dmitriy Aleksandrovich Aybabin, is a Ukrainian national who was born in 1970 and is currently detained in the prison of Zhovti Vody, Ukraine. He is represented before the Court by Mr Y. A. Aybabin, his brother, who lives in Canada.

A.  The circumstances of the case

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

On 8 June 1997 the applicant was arrested on suspicion of aggravated murder. He was suspected of having killed Mr R. and Mr Sh. and inflicted grievous bodily harm on Mr S. and Mr Sch.

On 11 June 1997 the applicant was formally charged with two counts of aggravated intentional murder. On the same day the prosecutor authorised his detention on remand.

On 1 August 1997 the prosecutor extended the applicant’s detention on remand and the term of pre-trial investigation up to three months.

On 1 September 1997 the charges against the applicant were amended: he was accused of exceeding the limits of necessary defence which resulted in killing two persons and in inflicting grievous bodily harm on two others.

On 3 October 1997 the investigation was completed and the case was referred to the Kyivskiy District Court of Kharkiv.

On 3 November 1997 the case was referred from the Kyivskiy District Court of Kharkiv to the Kominternovskiy District Court of Kharkiv for examination on the merits.

On 11 June 1999 a judge of the Kominternovskiy District Court remitted the case to the Kyivskiy District Prosecutor’s Office of Kharkiv for additional investigation.

On 30 August 1999 the investigation in the case was reopened.

On 28 September 1999 the applicant was charged with exceeding the limits of necessary defence which resulted in killing two persons and in inflicting grievous bodily harm on two others.

On 1 October 1999 the case was referred to the Kominternovskiy District Court of Kharkiv.

On 26 November 1999 a judge of the Kominternovskiy District Court remitted the case to the Kyivskiy District Prosecutor’s Office of Kharkiv for additional investigation.

On 7 April 2000 the investigation in the case was reopened.

On 6 May 2000 the applicant was again charged with exceeding the limits of necessary defence which resulted in killing two persons and in inflicting grievous bodily harm on two others.

On 6 May 2000 the case was referred to the Kominternovskiy District Court of Kharkiv.

On 18 May 2000 a judge of the Kominternovskiy District Court remitted the case for additional investigation.

On 30 May 2000 the investigation in the case was officially renewed.

On the same day the Kharkiv City Prosecutor set a term for additional investigation until 30 June 2000 and extended the applicant’s detention on remand until the same date.

On 7 June 2000 the investigator of the Kharkiv City Prosecutor’s Office instituted criminal proceedings against the applicant charging him with two accounts of murder and two accounts of attempted murder.

On 20 June 2000 the same investigator re-qualified the charges against the applicant and instituted criminal proceedings against him for two accounts of murder connected to the victims’ performance of their public duty to prevent a crime, and committed by a person who had previously committed murder; and two accounts of an attempted murder connected to the victims’ performance of their public duty to prevent a crime.

On 20 June 2000 the same investigator instituted criminal proceedings against the applicant for extremely malicious hooliganism.

On the same day the above criminal proceedings against the applicant were joined.

On 29 June 2000 the applicant was officially charged with the above offences.

On the same day the pre-trial investigation was completed.

On 3 August 2000 the applicant consulted the case-file.

On 4 August 2000 the bill of indictment was completed and the case was referred to the Kharkiv Regional Court.

On 17 May 2001 the Kharkiv Regional Court convicted the applicant of two accounts of murder and two accounts of attempted murder and sentenced him to fifteen years’ imprisonment. According to the applicant, his motion to appoint a representative of the Charkassy Christian Eparchy as his “social defender”, in addition to his legal counsel and his representative, was dismissed during the trial.

According to the applicant’s submissions, on 3 August 2001 he was given only two days to familiarise himself with the case file which consisted of nine volumes.

On 18 December 2001 the Supreme Court upheld the judgment. The Supreme Court mentioned in its decision that the applicant had been intentionally delaying his studying of the trial record, and had refused to study the case-file.

B.  Relevant domestic law

The texts of Article 120 of the Code of Criminal Procedure of 1960 (terms of pre-trial investigation) and Article 281 (remittal of a case for additional investigation) are summarised in the judgment Merit v. Ukraine (no. 66561/01, judgment of 30 March 2004, Relevant domestic law and practice).

Article 241 of the Code provides that the preliminary hearing of the case by a judge should be completed within five days (fifteen days for complicated cases) from the date when the case-file was submitted to the court.

COMPLAINTS

The applicant complained about the length of the criminal proceedings against him. He invoked Article 5 in this respect.

The applicant further alleged that he had not received a fair trial. He complained that his access to the case-file whilst preparing the cassation appeal had been restricted; that the court had dismissed his motion to appoint a representative of the Cherkassy Christian Eparchy as his defender and that he had not been able to examine several witnesses as they had failed to attend the trial.  He referred to Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention.

The applicant also complained that he had been convicted of intentional murders whilst in fact he had committed killings as a result of exceeding the limits of necessary defence. He invoked Article 7 of the Convention in this respect.

THE LAW

1. The applicant complained that the criminal proceedings lasted unreasonably long. He relied on Article 5 of the Convention. The Court considers that this complaint should be examined under Article 6 § 1 of the Convention , which provides so far as relevant as follows:

“In the determination ... criminal charge against him, everyone is entitled to a ... hearing within a reasonable time..”

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 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 he had not committed the crimes imputed to him and, therefore his conviction was unlawful. 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.

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 excessive length of the proceedings;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen 
 Registrar President

AYBABIN v. UKRAINE DECISION


AYBABIN v. UKRAINE DECISION