SHABELNIK v. UKRAINE (No. 3)

• Judgment Date: 04 November 2021
• ECLI: ECLI:CE:ECHR:2021:1104JUD005480618
• Counsel: TARAKHKALO M.O.
• Date: 04 November 2021
• Application Number: 54806/18
• Court: Fifth Section (European Court of Human Rights)
• Respondent State: Ucrania
• Applied Rules: 7;7-1

FIFTH SECTION

CASE OF SHABELNIK v. UKRAINE (NO. 3)

(Application no. 54806/18)

JUDGMENT

Art 7 • Retroactivity • Confirmation of applicant’s sentence for murder conviction in judicial review proceedings not amounting to a new punishment • No issue as to the lawfulness of the sentence by virtue of Supreme Court’s alleged failure to address applicability of statutory time-limit

STRASBOURG

4 November 2021

FINAL

04/02/2022

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Shabelnik v. Ukraine (no. 3),

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

Síofra O’Leary, President,
Mārtiņš Mits,
Ganna Yudkivska,
Lətif Hüseynov,
Jovan Ilievski,
Ivana Jelić,
Mattias Guyomar, judges,
and Victor Soloveytchik, Section Registrar,

Having regard to:

the application (no. 54806/18) 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 Dmitriy Grigoryevich Shabelnik (“the applicant”), on 13 November 2018;

the decision to give notice of the application to the Ukrainian Government (“the Government”);

the observations submitted by the Government and the observations in reply submitted by the applicant;

the written comments submitted by the Lviv Forum of Criminal Justice (“the third party”), who was granted leave to intervene by the President of the Section (Article 36 § 2 of the Convention and Rule 44 § 3);

Having deliberated in private on 12 October 2021,

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

INTRODUCTION

1. The case deals with the applicant’s complaint under Article 7 of the Convention that the judicial review of his previous conviction had resulted in a new punishment being imposed on him outside the statutory time-limit.

THE FACTS

2. The applicant was born in 1979. He is currently serving a life sentence in Zhytomyr, Ukraine. The applicant, who was granted legal aid, was represented by Mr M.O. Tarakhkalo and Ms V. Lebid, lawyers practising in Kyiv, Ukraine.

3. The Government were represented by their Agent, Mr I. Lishchyna.

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

1. Criminal proceedings against the applicant

5. In October 2001 Ms K., an elderly person, was found murdered in her flat. In December 2001 Ms S., a minor, was abducted and murdered.

6. On 10 December 2001 the applicant was arrested on suspicion of abduction of S. in order to extort money from her parents and of S.’s subsequent murder.

7. On 17 December 2001 the applicant appointed a lawyer.

8. On 19 December 2001 the applicant was charged with the above-mentioned crime, following an investigation during which the applicant showed the police the places in which he had hidden S.’s corpse and some of her belongings. The banknotes received as a ransom from the parents of S. were found in his possession.

9. On 15 February 2002, apparently at his own request, the applicant, was questioned as a witness regarding the circumstances of K.’s death. During the questioning, which took place without the presence of a lawyer, the applicant confessed to K.’s murder. The next day, still acting in the capacity of a witness, the applicant participated without the presence of a lawyer in an on-site reconstruction of the attack on K. On 18 and 22 February 2002 he was again questioned, without a lawyer, about the attack.

10. On 25 February 2002 the investigating prosecutor instituted criminal proceedings against the applicant in respect of K.’s murder and joined them with the criminal case concerning the abduction and murder of S.

11. On 11 July 2002 the Zhytomyr Regional Court of Appeal, acting as a trial court, convicted the applicant of the abduction, hostage-taking, extortion and murder of S., and of the robbery and murder of K. The court decided that the applicant’s actions in respect of K. had had the following qualifying features (кваліфікуючі ознаки) under the respective Articles of the Criminal Code: robbery (Article 187 § 4) and murder committed in order to conceal a robbery (Article 115 § 2 (9)) (aggravated by the fact that the murder had been committed against an elderly person (Article 67 § 1 (6)). According to the verdict, the qualifying features of the applicant’s actions with respect to S. were: the abduction of a person leading to grave consequences...