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FIFTH
SECTION
CASE OF SERGEY VOLOSYUK v. UKRAINE
(Application
no. 1291/03)
JUDGMENT
STRASBOURG
12
March 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 Sergey Volosyuk v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Renate Jaeger,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
Stanislav Shevchuk, ad
hoc judge,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 17 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 1291/03) 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 Sergey Viktorovich
Volosyuk (“the applicant”), on 22 October 2002.
- The
applicant, who had been granted legal aid, was represented by
Mr A. Bushchenko, a lawyer practising in Kharkiv. The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- The
applicant complained under Article 5 § 3 of the Convention that
he had not been tried within a reasonable time or released pending
trial. He further complained under Article 5 § 4 of the
Convention that throughout the whole period of his detention on
remand his requests for release pending trial had not been examined
by a court. Invoking Article 6 § 1 of the Convention the
applicant alleged that the criminal proceedings against him had
lasted an unreasonably long time. The applicant lastly complained
that officials at the detention centre had monitored his letters and
that he had been punished for having bypassed the official channel
for sending letters in the detention centre.
- On
22 May 2007 the Court declared the application partly inadmissible
and decided to communicate the above complaints to the Government. It
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
applicant was born in 1976 and is currently imprisoned.
A. Criminal proceedings against the applicant
- On
31 December 1999 the applicant, Mr D. and Mr G. were
arrested by the police on suspicion of having committed a murder.
- On
3 January 2000, given the gravity of the offence of which the
applicant was suspected, the investigator of the Druzhkivka District
Prosecutor's Office decided that the applicant should be remanded in
custody for up to two months. The same day the Druzhkivka District
Prosecutor issued the arrest warrant, authorising thereby the
investigator's decision.
- On
20 February 2000 the Druzhkivka District Prosecutor extended the term
of the applicant's detention until 31 March 2000.
- On
23 March 2000 the applicant, Mr D. and Mr G. were charged
with murder.
- On
24 March 2000 the investigator completed the investigation and gave
the applicant and the co-accused access to the case file. However, on
11 April 2000 the investigator reopened the investigation and
additionally charged the applicant with aggravated robbery. On
12 April 2000 the investigation was completed and the applicant
and the co-accused continued studying the case-file until 27 April
2000.
- On 6 May 2000 the supervising prosecutor approved the
bill of indictment and transferred the
case file to the Donetsk Regional Court of Appeal (hereafter “the
Court of Appeal”) for trial proceedings.
- On
17 May 2000 the Court of Appeal committed the applicant and the
co-accused for trial and held that the preventive measure in their
respect was to remain unchanged. The hearing took place in the
presence of the prosecutor, but the applicant and his lawyer were
absent.
- On
2 October 2001 the Court of Appeal held a hearing in the applicant's
case, where it considered several applications submitted by the
co-accused and adjourned consideration of the case until the
requisite technical facilities could be installed for the
proceedings. According to the applicant, the Court of Appeal also
adjourned consideration of his release request, lodged before the
hearing.
- According
to the applicant, in the period between 2 October 2001 and 6 October
2003 he lodged about twenty requests for his release with the Court
of Appeal, referring to his health problems and relying on his right
to a trial within a reasonable time or release pending trial as
guaranteed by Article 5 § 3 of the Convention. Those
requests remained unanswered however.
- On
6, 7, 8, 9 and 10 October 2003 the Court of Appeal held hearings
in the case during which it examined the evidence and questioned the
defendants and witnesses.
- Further
court hearings took place on 26 and 27 January, 9, 10, 11, 15, 23,
and 24 March, and 26 and 28 April 2004, during which the Court of
Appeal continued examining the evidence and questioning witnesses.
Within that period the hearings were adjourned three times because
one of the defendants was feeling ill and twice because the counsel
of the other defendant failed to appear before the court.
- In
a letter of 4 March 2004 the Deputy President of the Court of Appeal
informed the applicant that his latest complaint about the excessive
length of the proceedings had been rejected on the same basis as the
previous ones, namely that there were compelling and valid reasons
for the delays in the proceedings. However, the nature of those
reasons was not specified in the letter.
- On
6 May 2004 the Court of Appeal considered the applicant's release
requests and rejected them, holding that he was charged with a grave
offence and, if at large, might influence the proceedings. The Court
of Appeal further adjourned the case in order to question additional
witnesses.
- On
14 May 2004 the Court of Appeal found, inter alia, that the
applicant was guilty of having committed a murder and aggravated
robbery. It sentenced him to fourteen years' imprisonment, minus the
time spent in pre-trial detention, and ordered the confiscation of
his property. On 16 December 2004 the Supreme Court upheld that
judgment.
B. The applicant's correspondence
- During
his detention on remand the applicant wrote letters in which he
complained about his conditions of detention to various officials,
including a public prosecutor supervising penitentiary
establishments, the Ombudsman, the Prisons Department and Members of
Parliament. In accordance with the prescribed procedure, these
letters were sent through officials at the detention centre, who
dispatched them to the addressees. The applicant's letters were
subject to automatic monitoring and censorship except for those
addressed to the prosecutors and, in the later stages of his
detention, to the Ombudsman.
- According
to the applicant, in February 2003, while being held in the detention
centre, he wrote a complaint to the Donetsk Directorate of the
Prisons Department, describing the ill-treatment and arbitrary
punishment inflicted on him by officials at the detention centre. He
sent the complaint without going through the officials at the
detention centre, in violation of the domestic legislation. Shortly
after the complaint had reached the addressee, the governor of the
detention centre punished the applicant with ten days' confinement in
a disciplinary cell for breaching the procedure for sending letters.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Code of Criminal Procedure of 28 December 1960 (in
the wording relevant at the material time)
- Article
236-3 of the Code provides that the detainee or his defence counsel
or legal representative may appeal against the prosecutor's arrest
warrant to the relevant district (city) court. The appeal may be
lodged directly with the court or through the officials at the
pre-trial detention centre, who must send the appeal to the relevant
court within twenty-four hours of receiving it.
- On
21 June 2001 amendments were introduced to the Code, providing
that within seventy-two hours the arrested criminal suspect was to
face the court for deciding on his further detention.
- Article
273 of the Code provides, inter alia, for the court to set out
interim decisions on preventive measures in the form of a separate
document.
- According
to Article 274 of the Code the court, if appropriate, may order,
change, or discontinue a preventive measure in respect of the
defendant.
B. The Pre-Trial Detention Act of 30 June 1993 (in
the wording relevant at the material time)
- Section
13 of the Act provides, inter alia, for persons detained on
remand to be able to correspond with relatives, other persons and
legal entities upon written consent by the authority in charge of the
criminal case against the detainee concerned.
The
officials of the detention centre must review all the letters of the
detainees except for those which are addressed to the prosecutor.
Since 6 February 2003 this exception has been extended to cover
letters addressed to the Ombudsman.
If
the letter is related to the criminal case against the detainee
concerned it has to be handed over within three days to the authority
in charge of the detainee's criminal case for consideration. Letters
containing information which can obstruct justice must not be
dispatched to the addressee but must be handed over to the authority
in charge of the detainee's criminal case. The detainee and the
prosecutor must be informed of the interception made.
If a
letter is not related to the detainee's criminal case, it must be
answered by the officials at the detention centre or sent to the
addressee.
- The
same section of the Act requires any appeal against the prosecutor's
arrest warrant authorising pre-trial detention as a preventive
measure to be sent by the detention centre to the relevant court
within twenty-four hours. The prosecutor must be notified at the same
time.
- Under
section 15 of the Act detention centre officials may impose on
detainees who violate detention regime rules such penalties as
warnings or reprimands, additional cleaning of the cell or a
one-month ban on buying food and receiving parcels.
If a
detainee intentionally violates detention regime rules, he may be
placed in a disciplinary cell for up to ten days, following a
reasoned order issued by the governor of the detention centre.
The
section further stipulates that the penalties imposed on detainees
should be proportionate to the gravity and nature of the
infringement.
C. The Resolution of the Plenary Supreme Court of
Ukraine of 30 September 1994 “on certain issues that
emerge in the course of application by the courts of the legislation
providing for appeal against the prosecutor's arrest warrant”
(in force at the relevant time)
- Paragraph
1 of the Resolution provides that in accordance with Article 236-3
of the Code of Criminal Procedure, the subject of appeal shall only
be the arrest warrant issued by the prosecutor for the detention of
the suspect or accused, and not the decision of the investigator or
the investigating body concerning the applicable custodial preventive
measure or the decision of the court (judge) to detain the defendant.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF
THE CONVENTION
- The
applicant complained that he had not been tried within a reasonable
time or released pending trial as provided for in Article 5 § 3
of the Convention, which reads, in so far as relevant, as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
A. Admissibility
- The
Government maintained that as regards the applicant's detention
during the investigation it had been open for the applicant to
challenge before the court the prosecutor's warrant authorising the
investigator's decision to have the applicant detained. Therefore
this part of the complaint was to be rejected for failure to exhaust
domestic remedies.
- The
applicant disagreed, arguing that the remedy indicated by the
Government could not be regarded as an effective one for complaints
about excessively long detention. He insisted that the domestic court
considering the appeal against the prosecutor's warrant would only
review the facts that existed at the time of issuing of the warrant,
whereas the conditions that initially justified the detention might
have changed in the meantime.
- The
Court observes that the remedy referred to by the Government,
concerned appeal against the prosecutor's warrant authorising
detention pending trial, but not the investigator's decision by which
that preventive measure had been imposed or extended (see paragraphs
22, 27, and 29 above). The impugned remedy, therefore, could not be
regarded as an effective one in so far as it did not open the
possibility to challenge the decision applying the preventive measure
(see Nevmerzhitsky v. Ukraine (dec.), no. 54825/00,
25 November 2003). It follows that the Government's objection
should be dismissed.
- 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
1. The parties' submissions
- The
applicant argued that, despite the fact that the overall length of
his detention had exceeded four years and four months, none of the
national bodies had substantiated the reasons for his prolonged
detention. He further claimed that the Government had failed to
provide any proof that the applicant, if released, could have
negatively influenced the proceedings.
- The
Government contended that the applicant's prolonged detention did not
breach the 'reasonable time' requirement and emphasised that the
applicant was largely responsible for the overall period of his
detention as he had taken a long time to familiarise himself with the
case file. The Government further submitted that the court hearings
had been adjourned several times because of the illness of one of the
defendants and their counsel's failure to appear before the court. In
any event the reasons for the applicant's detention on remand had
always been sufficient.
2. The Court's assessment
a. General principles established by the
Court's case-law
- The Court reiterates that it falls in the first place
to the national judicial authorities to ensure that, in a given case,
the pre-trial detention of an accused person does not exceed a
reasonable time. To this end they must examine all the facts arguing
for or against the existence of a genuine requirement of public
interest justifying, with due regard to the principle of the
presumption of innocence, a departure from the rule of respect for
individual liberty and set them out in their decisions ordering
continued detention. It is essentially on the basis of the reasons
given in these decisions that the Court is called upon to decide
whether or not there has been a violation of Article 5 § 3 of
the Convention. The persistence of reasonable suspicion that the
person arrested has committed an offence is a condition sine qua
non for the lawfulness of the continued detention, but after a
certain lapse of time it no longer suffices. In such cases, the Court
must establish whether the other grounds given by the judicial
authorities continued to justify the deprivation of liberty. Where
such grounds were “relevant” and “sufficient”,
the Court must also ascertain whether the competent national
authorities displayed “special diligence” in the conduct
of the proceedings” (Tkachev v. Ukraine, no. 39458/02,
§§ 45-46, 13 December 2007).
- Under
Article 5 § 3 of the Convention the authorities, when
deciding whether a person should be released or detained, are obliged
to consider alternative measures of ensuring his appearance at trial.
Indeed, that provision proclaims not only the right to “trial
within a reasonable time or to release pending trial” but also
lays down that “release may be conditioned by guarantees to
appear for trial” (Iłowiecki v. Poland,
no. 27504/95, § 63, 4 October 2001, with further
references).
b. Application in the present case
- The
Court first observes that for the purpose of Article 5 § 3
of the Convention the applicant's detention began on 30 December 1999
and continued uninterruptedly until his conviction by the Court of
Appeal on 14 May 2004 (see, among other authorities, Piotr
Baranowski v. Poland, no. 39742/05, § 45, 2 October
2007). Thus the applicant's detention lasted a total of four years,
four months and fourteen days.
- The
Court notes that the applicant's detention during the period of
pre-trial investigation and his committal for trial was apparently
substantiated by the gravity of the crime he had been charged with.
As regards the trial stage, the Government presented only the
judicial decision taken by the Court of Appeal, on 6 May 2004,
where it stated that the applicant's preventive measure was to be
left unchanged because of (i) the gravity of the crime and
(ii) the risk that the applicant, if released, might influence
the proceedings in the case. However, the Court of Appeal failed to
provide any details or refer to any evidence whatsoever showing that
such a risk existed.
- The
Court therefore concludes that throughout the whole period of the
applicant's detention the only reason for applying and maintaining
the preventive measure was the gravity of the crime of which the
applicant was suspected. However, after a certain lapse of time this
reason could no longer be sufficient to justify the lengthy detention
on remand and the judicial authorities should have given more grounds
which should have been expressly mentioned and substantiated in their
decisions. No such reasons were given by the courts in the present
case, however. Furthermore, at no stage did the domestic authorities
consider any alternative preventive measures instead of detention, as
required by Article 5 § 3 of the Convention.
- The
Court therefore finds that the grounds for the prolongation of the
applicant's detention on remand for more than four years and four
months cannot be regarded as “relevant” and “sufficient”.
It follows that there has been a violation of Article 5 § 3 of
the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF
THE CONVENTION
- The
applicant complained that throughout the whole period of his
detention on remand his requests for release pending trial had not
been examined by a court, in violation of Article 5 § 4 of the
Convention, which reads as follows:
“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.”
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
1. The parties' submissions
- The
applicant asserted that at no stage of the proceedings had he been
provided with an effective judicial remedy to challenge the
lawfulness of his detention.
- The
Government maintained that under domestic law it was open for the
applicant to challenge in court the prosecutor's warrant authorising
the investigator's decision to remand the applicant in custody. They
further submitted that the Court of Appeal, when committing the
applicant for trial, had considered his release requests, in so far
as it found that the preventive measure in the applicant's respect
was to be left unchanged. Lastly, they contended that the Court of
Appeal's decision of 6 May 2004 constituted an effective
judicial review of the lawfulness of the applicant's detention on
remand, as required by Article 5 § 4 of the
Convention.
2. The Court's assessment
a. General principles established in the
Court's case law
- The
Court reiterates that by virtue of Article 5 § 4, an arrested or
detained person is entitled to bring proceedings for the review by a
court of the procedural and substantive conditions which are
essential for the “lawfulness”, in the sense of Article 5
§ 1, of his or her deprivation of liberty. This means that the
competent court has to examine not only the compliance with the
procedural requirements set out in domestic law but also the
reasonableness of the suspicion grounding the arrest and the
legitimacy of the purpose pursued by the arrest and the ensuing
detention (see Grauslys v. Lithuania, no. 36743/97, §§
51-55, 10 October 2000).
- Article
5 § 4 provides that “the lawfulness of the detention shall
be decided speedily”. There are two aspects to this
requirement: first, the opportunity for legal review must be provided
soon after the person is taken into detention and, if necessary, at
reasonable intervals thereafter. Second, the review proceedings must
be conducted with due diligence (see Khudobin v. Russia,
no. 59696/00, § 115, ECHR 2006 ... (extracts)).
- The
proceedings concerning detention issues must be adversarial and must
always ensure equality of arms between the parties (see Trzaska v.
Poland, no. 25792/94, § 74, 11 July 2000). The
possibility for a detainee to be heard either in person or through
some form of representation features among the fundamental guarantees
of procedure applied in matters of deprivation of liberty (see
Kampanis v. Greece, judgment of 13 July 1995, Series A no. 318 B,
§ 47).
- Whilst Article 5 § 4 of the Convention
does not impose an obligation to address every argument contained in
the detainee's submissions, the judge examining remand appeals must
take into account concrete facts which are referred to by the
detainee and capable of casting doubt on the existence of those
conditions essential for the “lawfulness”, for Convention
purposes, of the deprivation of liberty (see Nikolova v. Bulgaria
[GC], no. 31195/96, § 61, ECHR 1999 II).
b. Application in the present case
- The
Court shall examine the applicant's complaint under Article 5 § 4
of the Convention by dividing the period of his detention on remand
into the following intervals: (i) detention before committal for
trial; (ii) detention during committal for trial;
(iii) detention during the trial proceedings.
i. As regards the period, before the
applicant was committed for trial
- The
Court has considered above the effectiveness of the appeal against
the prosecutor's warrant authorising the investigator's decision for
the applicant's detention (see paragraph 33 above). For the same
reasons the Court holds that this remedy did not comply with the
requirements under Article 5 § 4 of the
Convention.
- The
Court further notes that the domestic legislation did not provide the
applicant with any other remedies enabling him to obtain judicial
review of the lawfulness of his detention, either at the initial
stage or at reasonable intervals thereafter, before his committal for
trial. It follows that during this period of the applicant's
detention the requirements of Article 5 § 4 of the
Convention had not been respected.
ii. As regards the period during the
applicant's committal for trial
- The
Court observes that on 17 May 2000 the Court of Appeal
considered the issue of the applicant's further detention when
committing him for trial. However, the relevant decision was taken by
the Court of Appeal following a hearing held in the presence of the
prosecutor and in the absence of both the applicant and his lawyer.
There is no indication in the case file that the applicant or his
lawyer waived their right to participate in the above hearing.
Accordingly, the guarantee of equality of arms in the course of that
hearing was not respected since the applicant had no opportunity to
comment on the arguments or contest the reasons invoked by the
prosecuting authorities to justify his detention. Moreover, reasoning
of the resulting decision in respect of the applicant's preventive
measure did not in fact refer to any particular circumstances
justifying the applicant's further detention.
- The
Court therefore finds that the hearing and the resulting decision
reached when the applicant was committed for trial did not comply
with the requirements of Article 5 § 4 of the
Convention.
iii. As regards the period during the
trial proceedings
- The
Court observes that under the domestic law the applicant was entitled
to lodge various applications with the trial court, including
applying for the court to decide on the lawfulness of his detention
on remand; such requests would be considered in the course of the
hearings held in the applicant's case.
- The
Court notes, however, that in the course of the applicant's trial
there was an interval between 2 October 2001 and 6 October
2003 when no hearings were held. It follows that for two years and
four days the applicant had not been in a position to obtain a
judicial review of the lawfulness of his detention, which is
incompatible with the requirements of Article 5 § 4 of
the Convention.
- The
Court further notes that the Government did not expressly contest the
fact that the applicant lodged a number of release requests during
the trial. However, they placed before the Court only one decision on
the applicant's preventive measure which the domestic court took
during the trial. That decision was adopted on 6 May 2004,
shortly before the applicant's conviction on 14 May 2004. The
Court therefore finds that the applicant did not obtain a proper
judicial response to the various release requests he lodged, as
required by Article 5 § 4 of the Convention.
iv. Conclusion
- The
Court concludes that during each of the intervals, examined above,
the applicant had not been provided with an opportunity to obtain
effective judicial review of the lawfulness of his detention, as
required by Article 5 § 4 of the Convention, and holds
therefore that there has been a violation of that provision of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the criminal proceedings against him had
lasted an unreasonably long time. The applicant relied on Article
6 § 1 of the Convention, which reads, in so far as
relevant, as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
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 maintained that the criminal case against the applicant
was quite complex since it concerned several accused persons and two
offences, namely, murder and robbery. It had been a difficult task
for the prosecuting authorities to carry out a thorough and effective
investigation. They further submitted that the applicant and the
other accused persons had contributed significantly to the overall
length of the proceedings.
- The Court reiterates that the period to be taken into
consideration in determining the length of criminal proceedings
begins with the day on which a person is “charged” within
the autonomous and substantive meaning to be given to that term. It
ends with the day on which a charge is finally determined or the
proceedings are discontinued (see Rokhlina v. Russia, no.
54071/00, § 81, 7 April 2005, and Antonenkov and Others
v. Ukraine, no. 14183/02, §§32-33, 22 November
2005).
- The
period to be considered in the present case thus began on 31 December
1999, when the applicant was arrested as a suspect on a murder
charge, and ended on 16 December 2004, when the Supreme Court
upheld the sentence passed by the Court of Appeal. It therefore
lasted four years, eleven months, and seventeen days for the
investigation and two levels of jurisdiction.
- The Court reiterates that the reasonableness of the
length of proceedings must be assessed in the light of the
circumstances of the case and with reference to the following
criteria: the complexity of the case, and the conduct of the
applicant and of the relevant authorities (see, among many other
authorities, Pélissier and Sassi v. France [GC], no.
25444/94, § 67, ECHR 1999-II). It further recalls that an
accused in criminal proceedings should be entitled to have his case
conducted with special diligence, particularly, where he is, as in
the present case, kept in custody (see Nakhmanovich v. Russia,
no. 55669/00, § 89, 2 March 2006, and Yurtayev v.
Ukraine, no. 11336/02, § 37, 31 January 2006).
- The
Court notes that the investigation in the applicant's case was
successfully completed in about four months after the applicant's
arrest, the rest of the period being taken up by the consideration of
the case by the domestic courts. However, while the proceedings were
pending before the domestic courts there were significant periods of
inactivity which have not been reasonably explained by the
Government. In particular, the Court refers to the period between
17 May 2000 and 2 October 2001, which lasted more than a
year and four months; the period between 2 October 2001 and 6 October
2003, which lasted more than two years; and the period between
10 October 2003 and 26 January 2004, which lasted about
three months and a half. It appears that no procedural steps were
taken within those periods and the delays identified are attributable
to the conduct of the domestic authorities.
- As regards the applicant's conduct, the Court notes
that he cannot be blamed for using the avenues available to him under
domestic law in order to protect his interests (see, Silin v.
Ukraine, no. 23926/02, § 29, 13 July 2006).
Even assuming the applicant's requests for release were groundless,
they did not contribute to the overall length of the proceedings.
- The
Court has frequently found violations of Article 6 § 1
of the Convention in cases raising issues similar to the one in the
present case (see, for example, Antonenkov and Others, cited
above, § 45; Ivanov v. Ukraine, no. 15007/02,
§§ 74-75, 7 December 2006; and Benyaminson
v. Ukraine, no. 31585/02, § 104, 26 July 2007).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1 of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that during his detention on remand his letters
had been monitored by officials at the detention centre. He further
complained that he had been punished for having sent a letter
bypassing the detention centre's official channels. In both cases the
applicant relied on Article 10 of the Convention. The Court,
which is master of the characterisation to be given in law to the
facts of the case, will examine these issues under Article 8 of
the Convention, which is the relevant provision and which reads as
follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
- The
Government maintained that the applicant had failed to exhaust
domestic remedies in respect of his complaint about the automatic
monitoring of his correspondence. In particular, the applicant should
have raised this complaint before the prosecutor and challenged in
court the interference with his correspondence by detention centre
officials.
- The
applicant disagreed, claiming that no effective remedy had been
available to him at the national level.
- The Court reiterates that it is incumbent on the
Government claiming non-exhaustion to satisfy the Court that the
remedy was an effective one available in theory and in practice at
the relevant time, that is to say, that it was accessible, was one
which was capable of providing redress in respect of the applicant's
complaints and offered reasonable prospects of success (see Selmouni
v. France [GC], no. 25803/94, § 76, ECHR 1999-V).
- The
Court observes that the applicant's letters had been monitored by
officials at the detention centre pursuant to section 13 of the
Pre-Trial Detention Act, which provided for the monitoring of all
detainees' letters except for those addressed to the prosecutor and,
as of 6 February 2003, to the Ombudsman. It follows that the
applicant's complaint to the prosecutor or to the court in this
connection would have had no prospect of success in so far as neither
of those authorities was empowered to overrule the legal provision
underpinning such a practice. In any event, the Government have not
supplied any example from the domestic case-law to show that the
remedies in question could have effectively redressed the applicant's
situation.
- In
view of the above considerations, the Court finds that the applicant
cannot be reproached for not having used the legal channels suggested
by the Government, and rejects their objection to this effect.
- The
Court notes that the applicant's 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. The parties' submissions
- The
applicant argued that the interference with his correspondence had
not been in accordance with the law within the meaning of the
Convention. He further contended that it had not pursued a legitimate
aim, especially as regards his letters to the Ombudsman and other
state authorities, and had not been necessary in a democratic
society.
- The
applicant further asserted that his placement in a disciplinary cell
for ten days as a punishment for sending a letter bypassing the
control of detention centre officials had constituted an interference
with his right under Article 8 of the Convention which did not
meet the requirements of the second paragraph of that Article.
- The
Government admitted that the practice of monitoring the applicant's
letters constituted an interference with his right to respect for his
correspondence. They maintained, however, that the interference had
been in accordance with the law and pursued the legitimate aim of
preventing the applicant's absconding from justice and obstructing
the investigation of the crime he had been charged with. They further
submitted that the interference had been necessary in a democratic
society to achieve that aim. Lastly, they noted that as of 6 February
2003 the applicant's letters to the Ombudsman had not been subject to
review.
2. The Court's assessment
a. Monitoring of correspondence
- The
Court notes that it is not disputed between the parties that the
monitoring of the applicant's letters by officials at the detention
centre constituted an interference with the applicant's right to
respect for his correspondence, which is guaranteed by paragraph 1 of
Article 8 of the Convention. The Court further notes that such an
interference will contravene Article 8 of the Convention unless it is
“in accordance with the law”, pursues one or more of the
legitimate aims referred to in paragraph 2 and furthermore is
“necessary in a democratic society” in order to achieve
them (see Silver and Others v. the United Kingdom, 25 March
1983, § 84, Series A no. 61; Campbell v. the United
Kingdom, 25 March 1992, § 34, Series A no. 233;
Calogero Diana v. Italy, 15 November 1996, § 28,
Reports 1996-V; and Petra v. Romania, 23 September
1998, § 36, Reports 1998-VII).
- The
expression “in accordance with the law” does not only
necessitate compliance with domestic law, but also relates to the
quality of that law (see, mutatis mutandis, Halford v. the
United Kingdom, 25 June 1997, § 49, Reports
1997-III, and Baranowski v. Poland, no. 28358/95,
§ 52, ECHR 2000 III). The Court recalls that domestic
law must indicate with reasonable clarity the scope and manner of
exercise of the relevant discretion conferred on the public
authorities so as to ensure to individuals the minimum degree of
protection to which citizens are entitled under the rule of law in a
democratic society (see Domenichini v. Italy, 15 November
1996, § 33, Reports 1996 V).
- The
Court has already held that the practice of automatic monitoring of
prisoners' correspondence, based on legal rules worded in a rather
general manner and providing prison authorities with wide discretion
in this regard was not in compliance with the requirements of Article
8 of the Convention (see Niedbała v. Poland,
no. 27915/95, §§ 81-84, 4 July 2000; Sałapa
v. Poland, no. 35489/97, §§ 97-102, 19
December 2002).
- In
the instant case the Court observes that under the domestic law (see
paragraph 26 above) officials at the detention centre monitored all
the letters sent by detainees, with very limited exceptions. In
particular, until 6 February 2003 an exception existed only in
respect of letters addressed to the prosecutor and, after 6 February
2003, during the applicant's stay in custody, the exception was
extended to cover letters addressed to the Ombudsman.
- The
applicable provisions of the domestic law did not draw any further
distinctions between the different categories of persons with whom
detainees could correspond, such as, for example, law-enforcement and
other domestic authorities, Convention and other international
bodies, relatives, legal counsel, and so on. Moreover, as the
monitoring was automatic, the authorities were not obliged to give a
reasoned decision specifying the grounds on which correspondence was
monitored. Likewise, the law did not specify whether the detainee was
entitled to be informed of any alterations of the contents of his or
her outgoing correspondence. Nor did it provide for a specific remedy
enabling the detainee to contest the manner or scope of the
application of the screening measures provided for by the law.
- In
the light of the foregoing considerations, the Court concludes that
the applicable domestic law did not indicate with reasonable clarity
the scope and manner of exercise of the discretion conferred on the
public authorities in respect of the monitoring of detainees'
correspondence. It follows that the interference complained of was
not “in accordance with the law”. The Court therefore
does not consider it necessary in the instant case to ascertain
whether the other requirements of paragraph 2 of Article 8 were
complied with and holds that there has been a violation of that
provision.
b. Placement of the applicant in a
disciplinary cell
i. Establishment of facts
- The
Court notes that the Government neither submitted any evidence
capable of disproving the applicant's allegations as regards this
complaint, nor commented on them. The Court observes that the failure
on the Government's part to submit such information which is in their
hands without a satisfactory explanation may give rise to the drawing
of inferences as to the well-foundedness of the applicant's
allegations (see, mutatis mutandis, Ahmet Özkanet and
Others v. Turkey, no. 21689/93, § 426,
6 April 2004). Given that the Government was completely silent
in respect of the applicant's allegations, which are, however,
consistent and clearly formulated, the Court accepts the applicant's
account of the facts.
ii. Whether there was an interference
- The
Court observes that the applicant was placed in a disciplinary cell
as a punishment for sending a letter through an unauthorised channel
when he should have sent it through the officials of the detention
centre, as required by the domestic law. Though the punishment did
not directly affect the posting or arrival of the impugned letter
itself, it was intended to influence the manner in which the
applicant sent his subsequent correspondence.
- The
Court therefore finds that this punishment constituted an
interference with the applicant's right to respect for his
correspondence, within the meaning of Article 8 § 1 of the
Convention.
iii. Whether the interference was in
accordance with the law
- The
Court observes that section 15 of the Pre-Trial Detention Act
provided that one of the penalties which could be imposed on
detainees who violated detention regime rules was placement of the
detainee in a disciplinary cell for up to ten days. The section did
not specify in any detail the procedure and grounds for imposing this
penalty (see paragraph 28 above), which could give rise to the
question whether the requirement of the quality of law had been met.
The Court does not find it necessary to dwell on this issue, however,
since the interference was in any event not compatible with Article 8
of the Convention for the reasons set out below.
iv. Whether the interference pursued a
legitimate aim and was necessary in a democratic society
- The
Court notes that the interference in question pursued the legitimate
aim of preventing disorder and crime. However, the Court notes that
the letter that gave rise to the punishment was addressed to the
State authority responsible for the detention centre where the
applicant was held. It follows that the letter did not give rise to
any risk of the applicant's obstructing the course of justice, or to
any other possible risk that justified the domestic requirement of
sending letters exclusively through the authorised channels.
Moreover, the applicant, in sending a letter bypassing the control of
the detention centre, committed a relatively minor offence, but was
still punished with the severest penalty. Lastly, the Court observes
that the applicant had no remedy to effectively challenge the
impugned disciplinary measure (contrast Puzinas v. Lithuania
(no. 2), no. 63767/00, §§ 30-35, 9
January 2007).
- In
these circumstances the Court considers that, even regard being paid
to the ordinary and reasonable requirements of detention, the
authorities overstepped their margin of appreciation in the present
case, and that the interference was not proportionate and necessary
in a democratic society. It follows that Article 8 of the Convention
has been violated.
V. 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
applicant claimed 300,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government submitted that the amount claimed by the applicant was
exorbitant and unsubstantiated.
- The
Court notes that the applicant must have
suffered distress and anxiety on account of the violations found.
Ruling on an equitable basis, as required by Article 41 of the
Convention, it awards the applicant EUR 3,000 in respect
of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 3,000 for costs and expenses.
- The
Government contended that the claim was unsubstantiated as the
applicant failed to present the requisite supporting documents.
- The
Court observes that the applicant has not provided any evidence in
support of his claims for costs and expenses. It therefore decides
not to award any sum under this head.
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 remainder of the application
admissible;
- 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
6 § 1 of the Convention;
- Holds that there has been a violation of Article
8 of the Convention in respect of monitoring the applicant's
correspondence;
- Holds that there has been a violation of Article
8 of the Convention in respect of disciplinary punishment imposed on
the applicant in the detention centre;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into the national
currency of the respondent State 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 amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 12 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
