[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF MIRONENKO AND MARTENKO v. UKRAINE
(Application
no. 4785/02)
JUDGMENT
STRASBOURG
10 December 2009
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 Mironenko and
Martenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Isabelle
Berro-Lefèvre,
Zdravka Kalaydjieva,
judges,
Mykhaylo Buromenskiy,
ad hoc
judge,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 17 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4785/02) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Ukrainian nationals, Mr Vladimir
Anatolyevich Mironenko and Mr Nikolay Alekseyevich Martenko (“the
applicants”), on 14 December 2000.
- The
applicants were represented by Mr V.G. Zvolinskyy, a lawyer
practising in Kyiv. The Ukrainian Government (“the Government”)
were represented by their Agent, Mr Y. Zaytsev, from the Ministry of
Justice.
- The
applicants alleged, in particular, unlawfulness of their arrest and
detention and unfairness of the criminal proceedings against them,
including lack of impartiality on the part of the trial court.
- On
9 July 2007 the President of the Fifth Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1957 and 1971 respectively. They live in
Kyiv.
1. Criminal proceedings against the applicants
- On
18 February 2000, formal charges were brought against the applicants
and two co-suspects, Mr T. and Mr K., in connection with the
kidnapping of a child earlier that month. Although the child’s
parents had received ransom demands, the perpetrators had released
the child without a ransom having been paid to them.
- On
21 February 2000, the second applicant and, on 22 February 2000, the
first applicant were arrested on suspicion of involvement in the
kidnapping.
- On
7 June 2000, while the case was still at the pre-trial stage, the
investigator decided to discontinue the criminal proceedings against
the applicants under the Amnesty Act of 11 May 2000 and ordered their
release. Two other suspects, Mr T. and Mr K., were committed for
trial in July 2000.
- On 17 August 2000 the Darnitsky District Court of Kyiv
(hereafter “the Darnitsky Court”), composed of a single
judge, Mr B., allowed a motion by the victims’ representatives
for a further investigation to be carried out. The Darnitsky Court
held that the abduction of the child was exacerbated by extortion, a
more serious criminal offence, which was not covered by the amnesty.
The investigating authorities had failed to establish who exactly
called the child’s parents and demanded a ransom. In that
respect it noted that the first applicant had stated that he did not
know who had done that. The Darnitsky Court suggested that the
authorities should verify the truthfulness of this statement by means
of voice identification. The court further stated:
“The indicated insufficiency and incorrectness of
the pre-trial investigation cannot be remedied in the trial
proceedings; moreover, the case-file contains grounds for laying
charges of the more serious offence of extortion against the
defendants and [the applicants]...
The Kyiv Prosecutor shall decide on the lawfulness of
the decisions ... of 7 June 2000 to terminate the criminal
proceedings against [the applicants] ... since their actions suggest
that they were involved in committing the more serious offence of
extortion. Their actions, in the court’s opinion, should be
qualified by a cumulation of the crimes ...
Depending on the outcome [of the additional
investigations] [the authorities] should resolve the question of the
legal qualification of the acts committed by each accomplice to the
offence. If the decision to discontinue the criminal proceedings
against [the applicants] is revoked, [the authorities] should charge
them anew and choose in accordance with law a preventive measure
corresponding to the gravity of the offence.”
- On
22 October 2000 the investigator rearrested the applicants.
- On
24 October 2000 the Deputy Kyiv City Prosecutor ordered their
detention.
- On
8 November 2000 the applicants filed an appeal against the
prosecutor’s detention order
with the Moskovsky District Court of Kyiv (“the Moskovsky
Court”).
- On
10 and 13 November 2000 and 4 January 2001 the
Moskovsky Court unsuccessfully requested
the Kyiv City Prosecutor’s Office to provide it with the case
file, which was the ground for the decision to arrest the applicants.
- On
16 November 2000, in the presence of an investigator, the child’s
father recognised the recorded voice of the first applicant as the
voice of the person who had called to demand a ransom.
- On
20 November 2000 the pre-trial investigation was completed and the
applicants were given access to the case file.
- On
10 January 2001 the
Moskovsky Court referred the letter to the General Prosecutor’s
Office of Ukraine, requesting it to take measures in respect of the
failure of the Kyiv City Prosecutor’s
Office
to dispatch necessary case file.
- On
15 January 2001 the
Moskovsky Court was informed that the pre-trial investigation in the
applicants’ case had been completed on 20 November 2000.
- On
17 January 2001 the Moskovsky Court, in the absence of the applicants
and their lawyer, discontinued the proceedings on the applicants’
appeal against the prosecutor’s detention order on the ground
that, according to Resolution no. 10 of the Plenary Supreme Court of
30 September 1994 (see paragraph 34 below), the pre-trial
investigation in the case had been completed.
- On
13 February 2001 the prosecutor sent the applicants’ case file
together with the bill of indictment to the Darnitsky Court, which,
later still, held a preparatory hearing, at which it found that the
case was ready for trial and ordered the applicants’ detention
pending the proceedings.
- The trial was held before Judge B., sitting as a
single judge at the Darnitsky Court. On 20 March and 16 July 2001 the
applicants challenged Judge B. before the President of the Darnitsky
Court, arguing that on account of his previous involvement in the
proceedings he had already formed a preconceived opinion on their
guilt of extortion. On 20 March and 23 July 2001 the President of the
Darnitsky Court refused the applicants’ requests, noting that
their reasoning as to the alleged bias of Judge B. could not serve a
ground for his replacement.
- During
the hearings the court granted several requests by the applicants for
additional witnesses to be heard and certain investigative actions to
be conducted. At the same time, the court dismissed the applicants’
requests for it to hear the owner of the flat the child had been held
in before his release, to establish the identity of an unknown
individual who had allegedly forced the first applicant to commit the
abduction and to examine the tapes of the telephone conversations
made by the Security Service in the course of the search for the
child. The court found that the proposed evidence was irrelevant to
the case, holding, in particular, that the recording of conversations
on the child’s parents’ telephone line had been commenced
after the call with ransom demands had been made, and thus the tapes
at issue had no evidential value.
- On
3 January 2002, the Darnitsky Court, composed of Judge B., found the
applicants guilty of extortion and unlawful deprivation of liberty.
The Darnitsky Court relied, inter alia, on the
applicants’ and their co defendants’ partial
confessions (they acknowledged having abducted the child, but denied
having demanded a ransom, that is, committing extortion), the
statements of the child and his father and the results of the voice
identification. The first applicant was sentenced to ten and the
second applicant to nine years’ imprisonment.
- The
applicants filed appeals against this judgment. They maintained,
inter alia, that the manner in which the voice identification
had been carried out was unlawful and challenged the impartiality of
Judge B.
- By
decision of 21 June 2002 the Kyiv City Court of Appeal (hereafter
“the Court of Appeal”) upheld the judgment of 3 January
2002, finding, inter alia, that the voice identification had
been carried out in accordance with the relevant procedural
legislation.
- The
applicants appealed in cassation, repeating their arguments made
before the Court of Appeal. Neither the applicants nor their lawyer
filed a request under Article 391 of the Code of Criminal Procedure
(see paragraph 38 below) to attend the cassation hearing.
- On
10 April 2003 the Supreme Court, in absence of the applicants and
their lawyer, but in presence of the prosecutor, rejected the
applicants’ appeal in cassation and upheld the decisions of the
lower courts.
- Neither
the Court of Appeal nor the Supreme Court addressed in their
decisions the issue of the impartiality of Judge B.
2. Alleged ill-treatment of the second applicant
- On
17 February 2000 the second applicant was arrested by the police for
swearing in public. Immediately after the arrest he was allegedly
questioned about his involvement in the above-mentioned kidnapping.
According to him, from 17 to 25 February 2000 he was continuously
subjected to ill-treatment by the police officers.
- On
18 February 2000 the Darnitsky Court sentenced the second applicant
to ten days’ administrative arrest for petty hooliganism.
- On
the same day the second applicant was seen by his wife and a Mr Sh.
in the police station.
- On
10 September 2002 the Darnitsky District Prosecutor’s Office
received a complaint by the second applicant alleging ill-treatment
by the police on 18 to 25 February 2000.
- On
21 September 2002 the Darnitsky District Prosecutor’s Office
decided not to institute criminal proceedings into the second
applicant’s allegations of ill-treatment. This decision was
based on the statements of the three police officers concerned, who
denied ill-treating the applicant, and the evidence of Mr Sh., who
said that when he had seen him on 18 February 2000 the second
applicant’s fingers were swollen, but there were no other
injuries. The second applicant appealed.
- On
23 March 2004 the Darnitsky Court found that the preliminary inquiry
had been adequate and sufficient and that no further investigations
were required. On 26 May 2004 and 31 May 2005 respectively the Court
of Appeal and the Supreme Court upheld this decision.
II. RELEVANT DOMESTIC LAW
1. Appeal against the prosecutor’s detention
order and requests for review of lawfulness of pre-trial detention
- The
relevant domestic law and practice is summarised in the judgments
Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 53-54,
ECHR 2005 II (extracts)) and Yeloyev v. Ukraine (no.
17283/02, § 35, 6 November 2008).
- According
to Resolution no. 10 of the Plenary Supreme Court of 30 September
1994 “on certain issues arising from application by the courts
of legislation providing for an appeal against a prosecutor’s
detention order” detained persons were entitled to appeal
against a prosecutor’s detention order at any moment during the
pre-trial investigation. If, at the time of the examination of the
appeal, the court established that the pre trial investigations
had been completed, the proceedings concerning the appeal had to be
discontinued.
2. Challenging of the judge
- Article
54 of the Code of Criminal Procedure provides, inter alia,
that a judge is precluded from participation in a trial if he or she
– at the pre trial stage of the proceedings –
ordered searches; ordered, changed or discontinued preventive
measures or extended time-limits for detention on remand; examined
appeals against arrest warrants or examined appeals against the
discontinuation of criminal proceedings. This Article also refers to
“other circumstances, which give rise to doubts about the
impartiality of the judge”.
- According to Article 55 of the Code, a judge who
participated in the criminal proceedings before the first-instance
court and whose judgment has been quashed on appeal cannot take part
in a new examination of this case by the first-instance court.
- Article
57 of the Code provides that when the case is heard by a single
judge, the parties’ motions for his or her replacement are
determined by the President of the relevant court.
3. Attendance of hearings in the cassation court
- Article 391 of the Code of Criminal Procedure provides
the following:
“A hearing before the court of cassation instance,
which is being held in the presence of the prosecutor, may be
attended by [the convicted or acquitted persons, their
representatives, civil parties and their representatives]. If need
be, the court can invite these persons to attend the hearing to give
statements. A request by a convicted person who is being held in
detention to be brought to the cassation hearing must be granted by
the court of cassation instance.
The parties to the proceedings who appeared before the
court are allowed to make submissions.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicants contended that after their arrest they were not brought
promptly before a judge. The applicants further complained that the
Moskovsky District Court did not examine their request for release
for several months and that the decision of that court to discontinue
the review proceedings concerning their request was not based on law
but on the Resolution of the Plenary Supreme Court (see paragraphs 18
and 34 above). The applicants referred to Articles 6 § 1 and 5 §
4 of the Convention. Relying on Article 5 § 5 they also
complained that they had no enforceable right to compensation in
respect of the alleged breaches of Article 5. The relevant provisions
of Article 5 of the Convention read as follows:
“3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest
or detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
A. Admissibility
- The
Government maintained that the applicants made no complaints under
Article 5 § 3 of the Convention and accordingly did not claim to
be victims of a violation of the above provision. Consequently, their
complaint under Article 5 § 5 of the Convention was equally
inadmissible.
- The
applicants maintained that from the very first communication with the
Court they had complained about the failure of the domestic
authorities to arrange for judicial review of the lawfulness of their
arrest ordered by the prosecutor, but they had referred erroneously
to Article 6 § 1 of the Convention.
- The
Court reiterates that Article 34 requires that individual applicants
should claim to be a victim “of a violation of the rights set
forth in the Convention”; it requires them to raise the
substance of the complaint but it does not oblige them to specify
which Article, paragraph or sub-paragraph, or even which right, they
are praying in aid Any greater strictness would lead to unjust
consequences; for the vast majority of “individual”
petitions are received from laymen applying to the Court without the
assistance of a lawyer (see, mutatis mutandis, Guzzardi
v. Italy, 6 November 1980, § 61, Series A
no. 39).
- The
Court is satisfied that the applicants did complain about lack of
proper judicial review of lawfulness of their detention ordered by
the prosecutor and their erroneous reference to Article 6 does not
preclude the Court, which is master of the characterisation to be
given in law to the facts of the case, to examine the problem raised
by the applicants under Article 5 § 3 of the Convention,
which is the relevant provision. For the same reason their complaint
under Article 5 § 5 must be declared admissible.
- The
Court therefore dismisses this objection of the Government. It
further notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. Article 5 § 3
- The
Government referred to their objection on admissibility and made no
further observations on the merits.
- The
applicants made no further submissions.
-
The Court reiterates that Article 5 § 3 of the Convention
provides persons arrested or detained on suspicion of having
committed a criminal offence with a guarantee against any arbitrary
or unjustified deprivation of liberty. Article 5 § 3 is aimed at
ensuring prompt and automatic judicial control of police or
administrative detention ordered in accordance with the provisions of
Article 5 § 1 (c) (see Harkmann v. Estonia, no. 2192/03,
§ 36, 11 July 2006, with further references).
- The
Court further observes that under Ukrainian legislation, a prosecutor
cannot be regarded as an officer exercising “judicial power”
within the meaning of Article 5 § 3 of the Convention (see
Nevmerzhitsky v. Ukraine, no. 54825/00, § 125, ECHR
2005 II (extracts)).
- The
Court notes that the applicants, having been rearrested on 22 October
2000, were not brought before a judge while the investigation was
pending, that was, at least until mid-February 2001, when the
criminal case against the applicants was referred to the court and
the preparatory hearing was held (see paragraph 19 above). The Court
is of the opinion that the applicants’ detention for several
months without any judicial control fell outside the strict
constraints of time laid down by Article 5 § 3 of the Convention
(see Brogan and Others v. the United Kingdom, 29 November
1988, Series A no. 145-B, pp. 30-35, §§ 55-62).
- In
the light of the above, the Court concludes that there has been a
violation of Article 5 § 3 of the Convention.
2. Article 5 § 4
- The
Government maintained, without any further elaboration, that there
was no violation of Article 5 § 4.
- The
applicants made no further submissions.
- The
Court reiterates that Article 5 § 4 of the Convention entitles
arrested or detained persons to a review bearing upon the procedural
and substantive conditions which are essential for the “lawfulness”,
in Convention terms, of their deprivation of liberty. This means that
the competent court has to examine not only compliance with the
procedural requirements of domestic law but also the reasonableness
of the suspicion underpinning the arrest, and the legitimacy of the
purpose pursued by the arrest and the ensuing detention (see
Butkevičius v. Lithuania, no. 48297/99, § 43, ECHR
2002 II).
- The
Court notes that in the circumstances of the present case the review
of the lawfulness of the detention, initiated by the applicants,
lasted for more than two months and did not lead to any decision on
the merits (see paragraph 18 above). Furthermore, as mentioned by the
applicants, the decision of the domestic court to discontinue the
review proceedings was based on a resolution of the Plenary Supreme
Court and, as the Court previously found, the resolutions of the
Plenary Supreme Court do not have the force of law and are not
legally binding on the courts and the law-enforcement bodies (see,
mutatis mutandis, Soldatenko v. Ukraine, no. 2440/07,
§ 113, 23 October 2008).
- The
foregoing considerations are sufficient to enable the Court to
conclude that the applicants had not benefited from a judicial review
of the lawfulness of their detention as required by Article 5 §
4 of the Convention.
There
has accordingly been a violation of this provision too.
3. Article 5 § 5
- The
applicants complained that they could not claim compensation for
their unlawful detention before the domestic courts.
- The
Government referred to their preliminary objection and made no
further observations on the merits.
- The
Court reiterates that Article 5 § 5 of the Convention is
complied with where it is possible to apply for compensation in
respect of a deprivation of liberty effected in conditions contrary
to paragraphs 1, 2, 3 or 4 (see Wassink v. the Netherlands,
27 September 1990, Series A no. 185 A, p. 14, § 38, and
Vachev v. Bulgaria, no. 42987/98, § 79, ECHR
2004 ... (extracts)). The right to compensation set forth in
paragraph 5 therefore presupposes that a violation of one of the
preceding paragraphs of Article 5 has been established, either by a
domestic authority or by the Court.
- In
so far as the Court has found that there have been violations of
Article 5 §§ 3 and 4 of the Convention, Article 5 § 5
of the Convention is also applicable (see Steel and Others v. the
United Kingdom, 23 September 1998, Reports of
Judgments and Decisions 1998-VII, p. 2740, § 81). The
Court must therefore establish whether or not Ukrainian law afforded
the applicants an enforceable right to compensation for the breaches
of Article 5 of the Convention.
- The Court notes that the Government did not refer to
any remedy in the Ukrainian legislation at the material time that
would provide for compensation for the breaches found in the present
case. The Court is not aware of such remedies either. Furthermore, it
appears that the domestic courts failed to examine the issue of the
lawfulness of the applicants’ deprivation of liberty, therefore
the applicants do not appear to have had even a theoretical
opportunity to claim compensation in the domestic proceedings (see,
mutatis mutandis, Svetlorusov v.
Ukraine, no. 2929/05, § 69,
12 March 2009). The Court thus concludes that there has been a
violation of Article 5 § 5 of the Convention.
II. COMPLAINT ABOUT THE LACK OF IMPARTIALITY UNDER ARTICLE
6 § 1 OF THE CONVENTION
- The
applicants complained under Article 6 § 1 of the Convention
that the trial court which convicted them was not
impartial as it consisted of Judge B., who at the earlier stages of
the proceedings had expressed the opinion that they were guilty of
extortion. Article 6 § 1 of the Convention reads:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government considered that there were no grounds to question the
impartiality of the domestic courts in the present case. They
contended that Judge B., who considered the case in a single-judge
formation in the first-instance court, had not demonstrated any bias
towards the applicants. He had allowed their various procedural
motions either in full or in part. As to the court’s ruling of
17 August 2000 the Government considered that Judge B. simply gave a
legal assessment to the existing facts and ordered an additional
investigation to be conducted precisely because the investigation had
failed to look into the matter and to find who had been responsible
for extortion. They finally contended that the President of the
Darnitsky Court and courts of higher instances had examined the
matter and found no bias on the part of Judge B.
- The
applicants disagreed.
- According to the Court’s constant case-law, the
existence of impartiality for the purposes of Article 6 § 1 must
be determined according to a subjective test where regard must be had
to the personal conviction and behaviour of a particular judge, that
is, whether the judge held any personal prejudice or bias in a given
case; and also according to an objective test, that is to say by
ascertaining whether the tribunal itself and, among other aspects,
its composition, offered sufficient guarantees to exclude any
legitimate doubt in respect of its impartiality (see, inter alia,
Fey v. Austria, 24 February 1993, Series A no. 255, p.
12, §§ 27, 28 and 30; Wettstein v. Switzerland,
no. 33958/96, § 42, ECHR 2000-XII). It must be decided in each
individual case whether the relationship in question is of such a
nature and degree as to indicate a lack of impartiality on the part
of the tribunal (see Pullar v. the United Kingdom, 10 June
1996, Reports 1996-III, p. 794, § 38).
- As
to the subjective test, the personal impartiality of a judge must be
presumed until there is proof to the contrary (Wettstein,
cited above, § 43).
- In
the instant case, the Court is not convinced that there are
sufficient elements to establish that any personal bias was shown by
Judge B. who sat in the applicants’ case. In any event, the
Court does not consider it necessary to rule on that question since
it has arrived at the conclusion, for the reasons set out below, that
there was a lack of objective impartiality.
- As
to the objective test, it must be determined whether, quite apart
from the conduct of Judge B., there are ascertainable facts which may
raise doubts as to his impartiality. This implies that, in deciding
whether in a given case there is a legitimate reason to fear that a
particular judge lacks impartiality, the standpoint of the person
concerned is important but not decisive. What is decisive is whether
this fear can be held to be objectively justified (see Wettstein,
cited above, § 44; and Ferrantelli and Santangelo v. Italy,
7 August 1996, Reports 1996 III, pp. 951-952,
§ 58).
- In
this respect even appearances may be of a certain importance or, in
other words, “justice must not only be done, it must also be
seen to be done” (see De Cubber v. Belgium, 26 October
1984, Series A no. 86, p. 14, § 26). What is at stake is
the confidence which the courts in a democratic society must inspire
in the public (see Wettstein v. Switzerland, loc. cit.;
and Castillo Algar v. Spain, 28 October 1998,
Reports 1998 VIII, p. 3116, § 45).
- The
Court notes that in its ruling of 17 August 2000, Judge B. remitted
the criminal case against Mr T. and Mr K. for further investigation
and expressed the opinion that the above defendants and the
applicants had committed extortion, which the law-enforcement bodies
had failed to investigate. His ruling was couched in terms such as
“their actions suggest that they were involved in committing
the more serious offence of extortion” (see paragraph 9 above),
that could inspire a grounded fear that Judge B. had already formed
an opinion about the applicants’ guilt and that it could
influence his impartiality when the case file was resent to him for
trial. Therefore, in the Court’s view, the applicants’
fears that Judge B. lacked impartiality can be held to be objectively
justified. Moreover, the higher courts, in dealing with the
applicants’ appeals, disregarded their submissions to this
effect.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
III. OTHER COMPLAINTS
- The
applicants further complained under Article 6 of the Convention that
the voice identification was ordered and carried out in breach of the
relevant procedural rules. They also complained that the trial court
refused to hear a further witness and to examine further material
evidence. The applicants maintained that the proceedings before the
Supreme Court to examine their appeals in cassation against their
convictions had not respected the principle of equality of arms. The
second applicant complained under Article 3 of the Convention that he
had been subjected to ill-treatment in police custody.
- The
Court has examined these complaints of the applicants as submitted by
them. However, in the light of all the material in its possession,
and in so far 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 or its
Protocols.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
first applicant claimed 335,000 euros (EUR) in respect of
non-pecuniary damage. The second applicant claimed 485,000 EUR in
respect of non-pecuniary damage.
- The
Government considered these claims excessive and unsubstantiated.
They maintained that there was no causal link between the alleged
violations and the damage claimed.
- The
Court takes the view that the applicants have suffered non pecuniary
damage as a result of the violations found. Making its assessment on
an equitable basis, as required by Article 41 of the Convention,
the Court awards each of the applicants EUR 5,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicants made no claims under this head. The Court therefore makes
no award.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Articles 5 §
3, 5 § 4, 5 § 5 and 6 § 1 (lack of impartiality)
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds that there has been a violation of Article
5 § 4 of the Convention;
- Holds that there has been a violation of Article
5 § 5 of the Convention;
- Holds that there has been a violation of Article
6 § 1 of the Convention concerning lack of impartiality;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts plus any tax that may be chargeable on those amounts:
(i) to
Mr Mironenko, EUR 5,000 (five thousand euros) for non-pecuniary
damage, to be converted into Ukrainian hryvnias at the rate
applicable at the date of settlement;
(ii) to
Mr Martenko, EUR 5,000 (five thousand euros) for non-pecuniary
damage, to be converted into Ukrainian hryvnias at the rate
applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicants’ claim for just satisfaction.
Done in English, and notified in writing on 10 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
