Case of European Court of Human Rights, December 10, 2019 (case RADZEVIL v. UKRAINE)

Defense:UKRAINE
Resolution Date:December 10, 2019
SUMMARY

No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

 
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FOURTH SECTION

CASE OF RADZEVIL v. UKRAINE

(Application no. 36600/09)

JUDGMENT

Art 6 (criminal) • Art 6 § 3 c) • Fair hearing • Legal assistance of own choosing • Domestic courts’ indirect reliance on self-incriminating statement formally excluded from the file • Applicant not represented on appeal by lawyers of his choice • Overall fairness of trial not undermined • Excessive length of proceedings

STRASBOURG

10 December 2019

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Radzevil v. Ukraine,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Jon Fridrik Kjølbro, President,Faris Vehabović,Ganna Yudkivska,Branko Lubarda,Carlo Ranzoni,

Jolien Schukking,Péter Paczolay, judges,and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 19 November 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in an application (no. 36600/09) 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 Boris Karpovich Radzevil (“the applicant”), on 27 June 2009.

  2. The applicant, who had been granted legal aid, was represented by Mr A.V. Leshchenko, a lawyer practising in Odesa. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.

  3. On 7 January 2016 the complaints concerning the alleged violation of the applicant’s rights not to incriminate himself and to defend himself through the legal representative of his choosing, as well as his complaint about the length of the criminal proceedings against him, were communicated to the Government, and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

  4. On 12 April 2016 the applicant’s wife, Mrs Nina Ivanivna Radzevil, informed the Court that the applicant had died on 12 January 2016. She expressed the wish to pursue the proceedings on his behalf.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  5. The applicant was born in 1936 and died on 12 January 2016. Until his death he lived in Odesa.

  6. On the morning of 12 September 2002 the applicant was driving to work in a white Toyota car. As he was approaching a pedestrian crossing, a pedestrian, G., started to cross the street. As the applicant subsequently explained in the course of his trial, G. suddenly fell into the applicant’s traffic lane – a short distance away from the applicant’s car – after an oncoming red vehicle had gone past at very high speed. According to the applicant, G. could have been hit by that oncoming vehicle (which has never been identified), or he could have slipped while trying to avoid colliding with that vehicle, or he could have fallen for some other reason. The subsequent investigation and proceedings before the domestic courts, however, were to conclude that G. had been hit by the applicant’s car.

  7. Immediately after the incident, the applicant stopped his car and placed G. in the rear seat. It is not clear from the documents submitted whether the applicant or a passer-by called an ambulance. After the ambulance arrived and took G. to hospital, the applicant left without waiting for the police.

  8. G. died in Illichivsk Hospital later the same day from a number of cerebral, chest and upper-limb injuries.

  9. The applicant came to the hospital on that day to enquire about G.’s health. A police officer, T., who was there for the investigation purposes, asked the applicant about the reason for his visit. As T. later stated, the applicant explained that he had accidentally hit G. with his car. According to the officer, the applicant agreed to show him the site of the accident and to explain how it had happened. According to the applicant’s submissions during his subsequent trial, he came to the hospital because he had helped G., and he was therefore not indifferent to the latter’s fate.

  10. Immediately after, the police took the applicant to the site of the accident, where they drew up a scene inspection report. No traces of the accident were identified. Citing the absence of his signature on that report, the applicant later in the domestic proceedings submitted that he had neither shown the site to the police nor otherwise participated in that investigative measure.

  11. On the same day, 12 September 2002, the applicant signed an “explanation” addressed to the Illichivsk police, according to which G. had unexpectedly emerged from behind a nearby moving vehicle as the applicant had been slowly driving his car through the pedestrian crossing and had suddenly fallen onto the bonnet of the applicant’s car. From there –when the applicant had hit the brakes – G. had fallen onto the road. The “explanation” contained a note to the effect that the applicant had been familiarised with the contents of Article 63 of the Constitution (providing the right not to incriminate oneself – see paragraph 44 below).

  12. According to the applicant’s submissions to the Court, he had not had his glasses with him and had signed the “explanation” without reading it. He denied having stated what was written there. The applicant also denied that his right not to incriminate himself had been explained to him. He pointed out that the note regarding the constitutional provision was written in a different ink, which proved, according to him, that it had been added later.

  13. On 20 September 2002 the Illichivsk police instituted criminal proceedings against the applicant on suspicion of his having breached the traffic regulations, resulting in a fatal accident (see paragraph 45 below).

  14. On an unspecified date K., a licensed advocate, was admitted to the proceedings as the applicant’s defence lawyer.

  15. On 11 December 2002 formal charges were brought against the applicant and his status changed from that of suspect to that of accused. As a preventive measure pending trial he was placed under an obligation not to leave the town.

  16. According to the applicant, on 11 December 2002, during his questioning in the presence of his lawyer, he retracted the “explanation” dated 12 September 2002 (see paragraph 11 above), stating that he had given it under psychological pressure.

  17. On an unspecified date the case was sent for examination to the Illichivsk Town Court (“the Illichivsk Court”).

  18. On 31 July 2003 the Illichivsk Court remitted the case for additional pre-trial investigation.

  19. On 15 October 2003 the case file was again sent to the Illichivsk Court.

  20. The Illichivsk Court adjourned its hearings several times owing to the absence of certain witnesses.

  21. On 19 April 2004 it ordered a comprehensive forensic medical examination and an expert technical examination, as well as a fresh reconstruction of the events in question.

  22. On 24 February 2005 some of the above-mentioned examinations were carried out.

  23. On 30 March 2005 the term of office of V. – the judge who was dealing with the case – expired.

  24. On 29 November 2005 a new judge, B., started examining the case.

  25. On 4 July 2006 B. ordered a fresh reconstruction of the events. Apparently, the previous judicial order to that effect, of 19 April 2004 (see paragraph 21 above) had not been implemented.

  26. On 10 July 2006 the above-mentioned investigative measure was carried out.

  27. During the trial, the applicant denied having breached the traffic regulations or having hit G. with his car. He maintained his account of the events, as outlined in paragraph 6 above. The applicant submitted that there was no expert evidence or other evidence in the case file proving that his car had come into contact with G.’s body.

  28. On 13 December 2006 the Illichivsk Court convicted the applicant as charged. It sentenced him to four years’ imprisonment and divested him of his driver’s licence for two years. However, the court issued an amnesty under the Amnesty Act. Accordingly, the applicant did not have to serve his sentence.

  29. In convicting the applicant, the Illichivsk Court relied, in particular, on the following evidence. The victim’s widow stated that the applicant had paid her 1,000 Ukrainian hryvnias (UAH) after G.’s death (which at the time was the equivalent of about 180 euros (EUR)) and that he had offered her UAH 30,000 (about EUR 5,400) in return for her not pressing criminal charges against him. A witness, V., who had been three metres away from the site of the accident, stated that he had seen a foreign-made car hit a man crossing the street at the pedestrian crossing in question. V. stated that the driver, whom he identified as the applicant, had placed the victim in the rear seat of his car; an ambulance had subsequently arrived and taken the latter to hospital. Another witness, R., submitted that he had been walking near the site of accident when, having heard a noise, he had turned his head and had seen the applicant’s car on a pedestrian crossing and G. in front of the car. The applicant had got out of his car and had remarked that he had been driving slowly. Another witness, Ga., stated that she had been crossing the street at the same time and at the same pedestrian crossing as G., but in the opposite direction. After G. had passed her by, she had heard a car braking. She had turned around and had seen G. falling. The applicant’s car had been there. The applicant had...

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