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FIFTH
SECTION
CASE OF KRAVCHENKO v. UKRAINE
(Application
no. 49122/07)
JUDGMENT
STRASBOURG
23
February 2012
This
judgment is final but it may be subject to editorial revision.
In the case of Kravchenko v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
committee composed of:
Boštjan M. Zupančič,
President,
Ann Power-Forde,
Angelika Nußberger,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 31 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 49122/07) 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 Aleksandr Ivanovich
Kravchenko (“the applicant”), on 27 October 2007.
- The
applicant was represented by Mr A.P. Podgornyy, a lawyer practising
in Feodosiya. The Ukrainian Government (“the Government”)
were represented by their Agents, Ms Valeria
Lutkovska and Mr Yuriy Zaytsev.
- On
6 January 2010 the President of the Fifth Section decided to give
notice of the application to the Government. In
accordance with Protocol No. 14, the application was allocated
to a Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1968. From November 1997 to June 2004 he held a
post of customs inspector in Feodosiya.
- On
13 October 2004 the applicant was arrested and placed in the
Temporary Investigative Isolation Unit (“SIZO”) of
Simferopol. Later on, he was moved to the Zaporizhzhya SIZO.
- On
15 October 2004 the Feodosiya Town Court (“the Town Court”)
remanded the applicant in custody in view of the pending criminal
investigations against him. The court noted in particular that the
applicant was charged with a serious crime for which he was liable to
a penalty of over three years’ imprisonment, and that he was
unemployed. The court held, without giving any further details, that
there were grounds to believe that, if left at liberty, the applicant
would seek to evade investigation and trial, and obstruct the
establishment of the truth in his criminal case.
- By
resolutions of the Town Court and the Kyiv Court of Appeal of
8 December 2004, 8 February, 30 March, 8 July and 7 December
2005, the maximum period of the applicant’s detention was
extended, respectively, to four months, six months, nine months,
thirteen months, and fourteen months and twelve days, in view of the
pending criminal investigations against him. The courts put forward
similar reasons for the applicant’s continued detention as in
the order of 15 October 2004, and held that there were no grounds for
altering the preventive measure applied in the applicant’s
respect. In the resolutions of 8 July and 7 December 2005 the courts
also noted that the applicant had been studying the case file. By the
latter resolution, he was given a time-limit, until 20 December 2005,
to complete his study of the file.
- On
25 December 2005, the applicant requested the Simferopol SIZO
administration to be released, stating that there was no formal
decision authorising his detention after 25 December 2005. On 27
December 2005 the request was refused on the ground that his
continuing detention was governed by Article 156 of the Code of
Criminal Procedure and that his criminal case had been referred to
the court for trial on 23 December 2005.
- On
an unspecified date the Shevchenkivsky District Court of Zaporizhzhya
(“the District Court”) received the case.
- On
3 March 2006 the applicant lodged with that court a petition
alleging, among other things, that his continuing detention was
unlawful.
- On
20 March 2006 the District Court rejected his petition and ordered
him to remain in detention, stating that there were no grounds for
changing the preventive measure. The court’s order, containing
no further explanations or a time-limit for the applicant’s
detention, was not subject to appeal.
- On
25 October 2007 the District Court rejected another petition for his
release by the applicant relying, in particular, on a letter written
by prosecutors according to which there was intelligence gathered
suggesting that the applicant prepared documents to leave the
country. It also relied on information obtained during the hearings
indicating that the applicant intended to change his citizenship. The
court did not set a time-limit for the applicant’s detention.
According to the applicant, the case file contained no documents or
other evidence corroborating his intention to leave the country. As
to the issue of citizenship, he stated that he had applied for
renunciation of the Ukrainian citizenship.
- In
a judgment of 8 November 2007 the District Court convicted the
applicant as charged and sentenced him to nine years and six months’
imprisonment with confiscation of all his property. It also stripped
him of his service rank and limited his right to serve in
law-enforcement agencies.
- On
23 June 2008 the Zaporizhzhya Regional Court of Appeal (“the
Court of Appeal”) changed the first-instance court’s
judgment. While upholding the applicant’s conviction for abuse
of office, organised crime, and forgery of official documents, the
court discontinued the proceedings concerning the charges of bribery
and remitted the case concerning the charges of tax evasion for
additional investigation. It also reduced the applicant’s
prison sentence to five years.
- On
22 October 2009 the Supreme Court quashed the appellate court’s
judgment and remitted the case for fresh appellate review.
- On
19 April 2010 the Court of Appeal quashed the first-instance judgment
and remitted the case to the District Court. It also ordered further
detention of the applicant. According to the latter’s
submissions, the case is pending before the District Court.
II. RELEVANT DOMESTIC LAW
- According
to Article 89 of the Code of Criminal Procedure, when time limits are
calculated, the day from which they start running are not taken into
account. When a time limit is expressed in days, it ends at midnight
of the last day.
- Other
materials pertinent to the issue of lawfulness of the applicant’s
detention are summarised in the judgments in the cases of
Nevmerzhitsky v. Ukraine (no. 54825/00, §§
53-54, ECHR 2005 II (extracts)) and Yeloyev v. Ukraine
(no. 17283/02, § 35, 6 November 2008).
THE LAW
I. SCOPE
OF THE CASE
- In
his submissions of 14 May 2010, the applicant raised a new complaint
under Article 5 of the Convention, alleging that his detention
ordered on 19 April 2010 was unlawful. In his just satisfaction
claims lodged on 10 July 2010, he further complained about poor
conditions of his detention from 26 December 2005 to 8 November 2007.
- The
Court notes that these new, belated complaints are not an elaboration
of the applicant’s original complaints, on which the parties
have commented. The Court considers, therefore, that it is not
appropriate now to take these matters up separately (see Vitruk v.
Ukraine, no. 26127/03, § 49, 16 September 2010). The
new complaints will be dealt with in application no. 35122/11.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained that his detention from 26 December 2005 to
8 November 2007 was contrary to the requirements of Article 5
§ 1 (c) of the Convention, which reads as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so”.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) 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 contended that the applicant’s detention had been
lawful. In particular, before 20 March 2006, the applicant had been
detained under a clear and foreseeable provision of national law,
while after that date his detention had been duly and reasonably
authorised by the courts.
- The
Court observes that the period of the applicant’s detention
authorised by courts was fourteen months and twelve days (see
paragraph 7 above). Calculated according to the domestic law (see
paragraph 17 above), its last day was 25 December 2005. The ensuing
period until 20 March 2006 was not covered by any formal decision. On
that date the District Court warranted the applicant’s
continued detention, not giving, however, any reasons for his
detention and not setting any time-limit for his detention. This
situation remained unchanged until 25 October 2007, when the District
Court found that the applicant could leave the country if released.
Even if there is a disagreement between the parties whether the
District Court adduced relevant and sufficient reasons for that
finding, the Court finds that the court again omitted to set a
time-limit for the applicant’s detention which lasted, for the
purposes of Article 5 § 1 (c) of the Convention until 8 November
2007, the date of his conviction.
- The
Court recalls that it has previously examined similar situations in
other cases against Ukraine and found them to be incompatible with
the requirements of lawfulness under Article 5 § 1 of the
Convention. In particular, there were instances when continued
detention before or during trial were not covered by any
judicial decision (see, for example, Yeloyev v. Ukraine,
cited above, §§ 48-51; Solovey and Zozulya v.
Ukraine, nos. 40774/02 and 4048/03, §§ 70-73, 27
November 2008; Nikolay Kucherenko v.
Ukraine, no. 16447/04, §§
37-38, 19 February 2009; and Doronin v.
Ukraine, no. 16505/02, §
58, 19 February 2009). There were also instances of the failure of
the judicial authorities to give reasons for their decisions
authorising detention or to fix a time-limit for such detention (see
see, e.g., Yeloyev, cited above, §§ 52-55, and
Doronin, cited above, § 59).
Moreover, in the judgment of Kharchenko v. Ukraine (no.
40107/02, §§ 98 and 101, 10 February
2011), the Court held that the situation where there are
periods of detention not covered by any court order or the court
orders made during the trial stage fix no time-limits for further
detention, is a recurrent
problem of structural nature in Ukraine. There are no
arguments in this case capable of persuading the Court to reach a
different conclusion. It concludes that the applicant’s
detention from 26 December 2005 to 8 November 2007 was unlawful.
- There
has accordingly been a violation of Article 5 § 1 (c) of the
Convention in this respect.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Articles 6 § 1 and 7 § 1 of
the Convention about the outcome of the criminal proceedings brought
against him, disagreeing with the courts’ assessment of the
evidence and application of national law in his case.
- It
should be noted that the proceedings giving rise to the issues under
the Convention are still pending before domestic courts. Thus the
Court concludes that domestic remedies have not been exhausted as
required by Article 35 § 1 of the Convention (see, mutatis
mutandis, Arkhipov v. Ukraine (dec.), no. 25660/02,
18 May 2004).
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, costs and expenses
- The applicant claimed 1,320 euros (EUR) in respect of
pecuniary and EUR 68,600 in respect of non-pecuniary damage. He also
claimed EUR 2,300 EUR for the costs and expenses.
- In particular, he based the pecuniary damage claim on
the salary allegedly lost due to his unlawful detention. The
non-pecuniary damage claim was intended to compensate for
unlawfulness and inhuman conditions of his detention. As regards the
costs and expenses, he claimed, submitting no relevant documents, EUR
400 in legal fees to be paid directly to his lawyer and EUR 1,900 of
his relatives’ expenditure incurred on additional food and its
delivery to him held in detention.
- The
Court recalls that according to its established case-law there must
be a clear causal connection between the damage claimed by the
applicant and the violation of the Convention (see, amongst other
authorities, Cakıcı v. Turkey, judgment of 8 July
1999, Reports 1999-IV, § 127). In the present case,
the applicant did not submit documents indicating what employment
contract had been concluded, for what duration and why it was
terminated in October 2004. The mere indication of his pre-detention
salary is not sufficient to enable the Court to conclude that the
applicant would have earned the claimed salary, had he not been
unlawfully detained. Moreover, the applicant’s unlawful
detention started after about fourteen months since that contract may
have been terminated or suspended, which renders a causal link
between the alleged damage and the violation found to be even more
speculative. The applicant’s claim should therefore be
rejected. As regards the expenditure on additional food, the Court
notes that the issue of the conditions of the applicant’s
detention was not considered in the present case. It therefore
rejects these claims (see, mutatis mutandis, Molodorych v.
Ukraine, no. 2161/02, § 119-122, 28
October 2010).
- As
regards the legal fees, the Court reiterates that, in order for costs
and expenses to be included in an award under Article 41, it must be
established that they were actually and necessarily incurred in order
to prevent or obtain redress for the matter found to constitute a
violation of the Convention and were reasonable as to quantum (see,
among many other authorities, Nilsen and Johnsen v. Norway [GC],
no. 23118/93, § 62, ECHR 1999-VIII). In the instant case,
which is not particularly complex, the applicant furnished
no contract concluded with the lawyer, or any other documents
specifying the lawyers tasks, remuneration and what services had been
actually performed. Nor were documents
proving the payment for the services provided. Nevertheless,
the Court can not overlook the fact that the lawyer concerned filed
observations and handled correspondence with the Court after the
application had been communicated to the Government. Regard being had
to the Court’s case-law and the information in its possession,
the Court awards the amount of EUR 200 for costs and expenses to be
paid into the representatives’ bank account, as identified by
the applicant (see mutatis mutandis, Romanchenko v.
Ukraine, no. 5596/03, § 38, 22 November 2005).
- Lastly,
even if the claimed non-pecuniary damage is partly based on
allegations that have not been examined in the present case, the
applicant has suffered distress and frustration on account of the
unlawful detention. Ruling on an equitable basis, the Court awards
him EUR 6,000 in respect of non-pecuniary damage.
B. 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 Article 5 § 1
(c) of the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
5 § 1 (c) of the Convention;
- Holds
(a) that
the respondent State is to pay, within three months, the following
amounts to be converted into Ukrainian hryvnias at the rate
applicable on the date of settlement:
(i) EUR
6,000 (six thousand euros), plus any tax that may be chargeable, to
the applicant in respect of non-pecuniary damage;
(ii) EUR
200 (two hundred euros) in respect of the applicant’s costs and
expenses to be paid into his representatives’ bank account;
(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 23 February 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan M. Zupančič
Deputy
Registrar President
