FIFTH SECTION
CASE OF
TARAN v. UKRAINE
(Application no.
31898/06)
JUDGMENT
STRASBOURG
17 October 2013
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 Taran v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
Helena
Jäderblom,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 24 September 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
31898/06) 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 Ivan Vasilyevich Taran (“the
applicant”), on 27 July 2006.
The applicant was represented by Mr V. Suk,
a lawyer practising in Sevastopol. The Ukrainian Government (“the Government”)
were represented by their Agent, Mr N. Kulchytskyy.
The applicant’s complaints concerned, in
particular, the conditions of his detention and transportation between detention
facilities (Article 3 of the Convention); the lawfulness of his pre-trial
detention based on court decisions adopted between August and October 2005, and
the lawfulness of his pre-trial detention after 29 November till 29 December
2005 (Article 5 § 1 of the Convention); the length of his pre-trial
detention (Article 5 § 3 of the Convention); the lack of appropriate judicial
review of his detention (Article 5 § 4 of the Convention); the absence
of an enforceable right to compensation (Article 5 § 5 of the
Convention); and the length of the criminal proceedings (Article 6 § 1
of the Convention).
On 15 May 2012 the application was declared
partly inadmissible and the above complaints were communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1980 and lives in Sevastopol.
A. Criminal proceedings against the applicant and
related issues
On the evening of 29 June 2005 the applicant was
arrested on suspicion of murder.
On 1 July 2005 the Nakhimivskyy District Court of
Sevastopol (“the District Court”) ordered the applicant’s pre-trial detention
for two months. The District Court noted that, if released, the applicant might
abscond, impair the establishment of truth and obstruct the course of justice. It
referred to the fact that the applicant had been charged with a serious crime
and had no registered address in Sevastopol.
On 11 July 2005 the Sevastopol Court of Appeal
(“the Court of Appeal”) dismissed an appeal lodged by the applicant’s lawyer
and upheld the lower court’s decision noting that the applicant had been
charged with a serious crime.
On 25 August 2005 the investigator in the case applied
to the court seeking an extension of the applicant’s pre-trial detention to
three months.
On 26 August 2005 the District Court extended
the applicant’s pre-trial detention to three months noting that, if released,
the applicant might abscond, impair the establishment of truth and obstruct the
course of justice. It referred to the gravity of the charges levelled against
the applicant and a considerable number of procedural measures that had to be
taken in the case. The hearing was attended by the prosecutor and the applicant’s
lawyer. The applicant himself was absent.
On 7 September 2005 the Court of Appeal
dismissed an appeal lodged by the applicant’s lawyer and upheld the decision of
26 August 2005, finding that the District Court had properly extended the
applicant’s pre-trial detention. It dismissed the applicant’s contention that
the investigator’s request for an extension of the preventive measure had been
submitted outside the statutory time-limit as that issue did not affect the
lawfulness of the impugned decision. The applicant’s allegation that he had to
be released for health reasons had not been supported by evidence. The hearing was
attended by the prosecutor and the applicant’s lawyer. The applicant himself was
absent.
On 27 September 2005 the investigator applied to
the District Court seeking an extension of the applicant’s pre-trial detention
to four months.
On 29 September 2005 the District Court extended
the applicant’s pre-trial detention to four months, noting that, if he were
freed, the applicant might abscond and impair the establishment of truth and
obstruct the course of justice. The court again referred to the gravity of the
charges levelled against the applicant and the considerable number of procedural
measures that had to be taken in the case. The hearing was attended by the
prosecutor; the applicant and his lawyer were absent.
On 13 October 2005 the Court of Appeal dismissed
an appeal lodged by the applicant’s lawyer and upheld the District Court’s
decision of 29 September 2005. The Court of Appeal noted, in particular,
that a considerable number of procedural measures had still to be taken in the
case; the applicant was charged with a serious crime and, if released, might abscond,
obstruct the investigation and continue his criminal activities. As to the
applicant’s absence from the hearing before the District Court, the Court of
Appeal considered that the applicant’s appearance had not been obligatory. The
hearing before the Court of Appeal was held in the presence of the prosecutor
and the applicant’s lawyer. The applicant was absent.
On 26 October 2005 the investigator applied to
the Court of Appeal seeking an extension of the applicant’s pre-trial detention
to five months.
On 28 October 2005 the Court of Appeal extended
the applicant’s pre-trial detention to five months, namely to 29 November 2005.
Its decision was based on the gravity of the charges and the necessity to
finalise the investigation and familiarise the defence with the case file. The
hearing was attended by the prosecutor and the applicant’s lawyer. The
applicant was absent. The decision was not subject to appeal.
On 29 November 2005 the criminal case file was remitted
to the District Court for the applicant to be tried.
In December 2005 the applicant lodged a complaint
under the Code of Administrative Justice alleging that the prosecutor had
failed to release him from custody after 29 November 2005. The applicant
contended that his detention after 29 November 2005 had not been based on any
court decision and was therefore unlawful.
On 23 December 2005 the Leninskiy District Court
of Sevastopol considered the applicant’s complaint under the Code of Administrative
Justice in the absence of the parties. It found that on 29 November 2005
the case had been remitted to the District Court and that the prosecutor had
not been empowered to decide on the applicant’s release. The applicant appealed
against that judgment.
On 29 December 2005 the District Court,
conducting a preliminary hearing in the applicant’s criminal case, decided to
order an additional investigation. It further ordered that the preventive
measure in respect of the applicant be left unchanged.
Following the completion of the additional
investigation, on 28 February 2006 the case was again remitted to the District
Court for the applicant to be tried.
On 30 March 2006 the Court of Appeal dismissed the
appeal lodged by the applicant against the judgment of 23 December 2005 in the
administrative case, finding that the judgment was lawful and substantiated.
The hearing was held in the presence of the applicant’s lawyer. The applicant
appealed against that decision on points of law.
On 31 March 2006 the applicant was committed for
trial before the District Court. The court held that the preventive measure in respect
of the applicant should remain the same as there had been no grounds for changing
it.
On 17 and 18 October 2006 the applicant and his defence counsel requested the District
Court that the applicant be released from custody, claiming that his
detention had not been based on a reasoned court decision and there were no
grounds for believing that he would flee from justice or obstruct the criminal
proceedings.
On 18 October 2006 the District Court dismissed
the requests as unfounded, noting that the case concerned a serious crime and
the applicant, if released, might abscond and obstruct the establishment of
truth.
On 1 March and 16 April 2007 and 1 August 2008
the District Court considered similar release requests lodged by the applicant
and his defence counsel during the hearings. The court rejected the requests,
noting that the preventive measure had been applied lawfully and there were no
grounds for changing it.
On 16 May 2007 the Higher Administrative Court,
sitting in private, upheld the decisions of 23 December 2005 and 30 March 2006 in
the administrative case and dismissed the applicant’s appeal on points of law
as unfounded.
On 19 November 2010 the District Court found the
applicant guilty of murder and sentenced him to seven years’ imprisonment. The
applicant appealed and made another request for release from custody.
On 12 April 2011 the Court of Appeal quashed
that judgment and ordered an additional investigation. It also allowed the
applicant’s release, noting that after 29 November 2005 he had been detained
without a court order; the subsequent extension of his detention had not been
properly reasoned and no time-limit had been specified by the court. In
granting the applicant’s request the Court of Appeal also had regard to the
overall length of the applicant’s detention. It released the applicant subject
to a written obligation not to abscond.
Following the additional investigation, on 18
July 2011 the applicant was committed to trial before the District Court. As of
4 December 2012 the proceedings were pending before the court.
B. The applicant’s civil claim for damages
On 18 July 2011 the
applicant lodged a civil claim with the Leninskyy District Court of Sevastopol
seeking compensation for pecuniary and non-pecuniary damage sustained as a
result of unlawful deprivation of liberty. The applicant contended, among other
things, that his claim was supported by the findings of the Court of Appeal in
its decision of 12 April 2011.
On 5 July 2012 the Leninskyy District Court of
Sevastopol found that the applicant’s claim had been groundless. Moreover, contrary
to the requirements of the Compensation Act, the applicant failed to
substantiate any damage he had allegedly sustained. The applicant appealed.
On 8 November 2012 the Court of Appeal quashed
the decision of 5 July 2012 noting that, instead of the Compensation Act,
the first-instance court should have applied the Convention. The Court of
Appeal further found that the applicant’s arrest and detention had been lawful
and justified by the circumstances of the criminal case. Besides, according to
section 2 of the Compensation Act, the fact of unlawful detention on remand
could not be confirmed by a decision on the remittal of the case for additional
investigation. Accordingly, given that the deprivation of liberty was lawful and
substantiated, the applicant had no right to compensation for damage and the
claim had to be rejected.
The applicant
appealed on points of law, but on 4 February 2013, his appeal was dismissed as
unfounded.
C. Conditions of detention and transportation
Following the court decision of 1 July 2005 the
applicant was placed in the Simferopol Pre-Trial Detention Centre (“the
Simferopol SIZO”). In order to participate in the investigative measures and court
hearings, he was escorted to the Sevastopol Temporary Detention Centre (“the
Sevastopol ITT”) for several days at a time. According to the official reply
from the Prison Department of the Autonomous Republic of Crimea, between 2005
and 2009 the applicant was escorted to the Sevastopol ITT on twenty-seven
occasions. According to the applicant, during the whole period of his pre-trial
detention he was transported to the Sevastopol ITT on forty-five occasions.
According to the applicant, his trip to Sevastopol took about twelve hours and the trip back to Simferopol took from twenty to
twenty-four hours. Although the transportation itself took about two hours, for
the rest of the time he had to remain in a special metal cage inside the
vehicle measuring 0.5 sq. m. During the trip the applicant was not given food
or water and he could not sleep. The cages were dirty, cold in winter and hot
in summer, and not properly ventilated.
In the Sevastopol ITT, the applicant was
allegedly held in overcrowded cells: during the first years of his detention he
was held in cells containing six bunks, while the overall number of detainees
ranged from twenty-five to thirty. In the last two years of his detention the
number of detainees decreased to fifteen per cell, which still contained only six
bunks.
On 18 November 2005 the applicant applied to the
Ukrainian Parliamentary Commissioner for Human Rights complaining about the conditions
of detention and transportation.
II. RELEVANT DOMESTIC LAW
The relevant provisions of the Constitution and
the Code of Criminal Procedure, which was applicable at the relevant time, can
be found in the judgment in the case of Molodorych v. Ukraine
(no. 2161/02, §§ 57-59, 28 October 2010).
Under Article 162 of the Code of Administrative Justice
(2005), the administrative court, should it find an administrative claim
substantiated, may, inter alia, declare the impugned action, omission or
decision unlawful, invalidate the decision in question and/or oblige the
defendant to undertake, or abstain from taking, certain actions. The
administrative court may also take other decisions guaranteeing the protection
of human and citizens’ rights, and the rights and interests of other subjects of
public law relationships, from violations committed by public authorities.
Article 1176 of the Civil Code (2003) deals with
the compensation for damage sustained as a result of unlawful decisions,
actions or inactivity by the body of inquiry, pre-trial investigation
authorities, prosecutor’s offices and courts. It provides, inter alia,
that the procedure for compensation of damage inflicted by such bodies “shall
be established by the law”.
The relevant provisions of the Compensation Act
(the law “on the procedure for compensation for damage caused to citizens by
the unlawful acts of bodies of inquiry, pre-trial investigation authorities,
prosecutor’s offices and courts”) of 1 December 1994 read as follows:
Section 1
“Under the provisions of this Act a citizen is entitled to
compensation for damage caused by:
1) unlawful conviction, bringing of charges, arrest,
placing and holding in custody, searches, seizures, attachment of property,
removal from job, and other procedural actions restricting the citizen’s
rights; ...”
Section 2
“The right to compensation for damage in the amount and in
accordance with the procedure established by this Act shall arise in the event
of:
1) acquittal by a court;
2) the termination of a criminal case for the reason
that no crime has been committed, for the absence of corpus delicti, or
for lack of evidence of the accused’s participation in the commission of the
crime;
3) refusal to initiate criminal proceedings or
terminate criminal proceedings on the grounds stipulated in sub-paragraph 2 of
paragraph 1 of this section;
4) termination of proceedings for an administrative
offence.
...”
According to the amendments to the Compensation
Act of 1 December 2005, section 2, providing the list of situations in
which the right to compensation arose, was supplemented with the following
paragraph:
“(1-1) where ... unlawfulness of remand and holding in custody
... has been established by a conviction or other judgment of a court (except for
rulings on the remittal of cases for additional investigation)”.
III. RELEVANT INTERNATIONAL AND DOMESTIC
MATERIALS
The relevant international and domestic
materials concerning conditions of detention and transportation can be found in
the judgments of Yakovenko v. Ukraine (no. 15825/06,
§§ 56-61, 25 October 2007), and Koktysh v. Ukraine (no. 43707/07, §§ 39-42, 10 December
2009).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that the conditions of
his detention in the Sevastopol ITT and the conditions of his transportation
between the Simferopol SIZO and the Sevastopol ITT had been contrary to Article
3 of the Convention.
Article 3 of the Convention provides as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
1. The parties’ submissions
The Government submitted that the applicant had
failed to exhaust domestic remedies in respect of this part of application. In
particular, he should have applied to the administrative courts or raised these
issues before the prosecutor. As an example of the practical effectiveness of
the judicial remedy, the Government referred to the domestic court’s decision
of 4 February 2009 in which the claimants were awarded compensation in
allegedly similar circumstances. They did not provide a copy of that decision.
The Government further maintained that the complaints
were not properly developed and substantiated by the applicant and had to be
rejected as manifestly ill-founded. They submitted that the documentation
concerning the applicant’s detention in the Sevastopol ITT and his
transportation between the Sevastopol ITT and the Simferopol SIZO had been
destroyed, since the time-limit for keeping it had expired. They provided a
general description of the Sevastopol ITT and stated that its detainees were
held in adequate conditions. The Government also provided a general description
of the vehicles and train carriages used to transport detainees, and contended
that the transportation of the applicant had not disclosed any issue under the
Convention.
The applicant, relying on the Court’s case-law, alleged
that the remedies referred to by the Government were ineffective. He insisted that
his complaints under Article 3 of the Convention were well-founded and could
not be rejected as inadmissible.
2. The Court’s assessment
The Court observes that it has rejected
non-exhaustion arguments similar to those raised by the Government in the
present case (see, for example, Melnik v. Ukraine, no. 72286/01, §§
69-71, 28 March 2006; Yakovenko, cited above, §§ 75-76; Koktysh,
cited above, § 86; Logvinenko v. Ukraine, no. 13448/07, § 57, 14
October 2010; Iglin v. Ukraine, no. 39908/05, § 43, 12 January 2012; and Belyaev
and Digtyar v. Ukraine, nos. 16984/04 and 9947/05, §§ 30 and 31, 16 February 2012). As to the
Government’s additional contention that the domestic court’s decision of 4 February
2009 proved the efficiency of the judicial remedy, the Court notes that a copy
of that decision was not provided. Moreover, it appears that the Government refer
to a decision which was examined by the Court in the same context and found to
be of no relevance for the issue of exhaustion of domestic remedies (see Petukhov
v. Ukraine, no. 43374/02, § 74-78, 21 October 2010, and Ustyantsev v. Ukraine, no. 3299/05, §§ 56-58, 12 January
2012). In summary, there are no grounds for assuming that in the present
case the use of the remedies mentioned by the Government could effectively have
addressed the applicant’s issues. The Court therefore sees no reason to depart
from its previous approach and dismisses the Government’s objection.
The Court further considers that this part of application
is not manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention. It notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicant contended that the conditions of
his detention and transportation were inappropriate and contrary to Article 3
of the Convention.
The Government did not comment on the merits of
these complaints considering them inadmissible.
2. The Court’s assessment
The Court notes that the applicant’s complaints
concerning the conditions of detention and transportation are detailed and
consistent. These complaints, including the specific allegations of degrading
manner of the applicant’s transportation in a metal cage, raise serious
concerns. The Court considers that the applicant’s submissions, which have not
been refuted by the Government, are sufficiently supported by the international
and domestic reports examined by the Court in the cases of Yakovenko and
Koktysh (cited above) and by the Court’s findings in those cases
concerning the conditions of detention in the Sevastopol ITT and the manner of
transportation between the Sevastopol ITT and the Simferopol SIZO. At the same
time, there is no material leading the Court to conclude that in the present
case the applicant’s conditions of detention and transportation were compatible
with the requirements of Article 3 of the Convention.
There has therefore been a violation of that
Convention provision.
II. ALLEGED VIOLATION OF ARTICLE 5 §§ 1
AND 3 OF THE CONVENTION
The applicant complained under Article 5 §§ 1
and 3 of the Convention that his detention after 29 November 2005 till 29
December 2005 had not been lawful as it had not been based on a court decision.
He also complained that between August and October 2005 his pre-trial detention
had not been lawfully extended by the courts. The applicant further alleged
that the other court decisions taken in respect of the preventive measure had
been unreasoned and the overall length of his detention had been excessive.
The relevant provisions of Article 5 read as
follows:
Article 5
“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;
...
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.”
A. Admissibility
1. The parties’ submissions
The Government submitted that the applicant had
not complied with the rule of exhaustion of domestic remedies. They noted that
the Court of Appeal, in its decision of 12 April 2011, had acknowledged in
substance that the applicant’s rights had been violated under Article 5 §§
1 and 3 of the Convention. Relying on Article 1176 of the Civil Code and the
Compensation Act, the Government maintained that after the Court of Appeal’s decision
it had been open for the applicant to seek damages, but he had failed to exhaust
that remedy.
The Government further argued that the applicant’s
complaint concerning the unlawful prolongation of his pre-trial detention between
August and October 2005 fell outside the six-month period, which had started to
run from the date when the applicant had become aware of the relevant decisions
of the Court of Appeal.
The applicant disagreed with the Government’s
objections.
2. The Court’s assessment
As regards the Government’s contention that the
applicant failed to exhaust domestic remedies as he did not lodge a civil claim,
the Court notes that in fact the applicant lodged a claim for damages which was
considered and rejected by the domestic courts (see paragraphs 31 - 34 above).
Accordingly, the Government’s objection should be dismissed.
As to the alleged non-compliance with the
six-month rule, the Court observes that the applicant’s uninterrupted detention
during the specific period to which he referred, as well as during the
subsequent periods until his conviction on 19 November 2010, was of the same
legal nature and constituted, for the purposes of the Convention, a continuing
situation. As the application was introduced on 27 June 2006, the complaint
cannot be dismissed as lodged out of time (see Nikolay Kucherenko v. Ukraine,
no. 16447/04, § 29, 19 February 2009 and Gavazhuk v. Ukraine, no. 17650/02, §§ 54-55, 18 February 2010).
The Court therefore dismisses the Government’s objection in this respect.
The Court notes that this part of the application
is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It also notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicant insisted that his rights under
Article 5 had been infringed.
The Government contended that the applicant’s complaints
did not give rise to a violation of Article 5 of the Convention. In particular,
the decisions between August and October 2005 constituted appropriate legal
basis for the applicant’s pre-trial detention at the relevant time.
2. The Court’s assessments
The Court considers that the applicant’s
submissions concern the following issues, which have to be examined in turn:
(a) whether the applicant’s detention after 29 November 2005 till
29 December 2005 was compatible with the requirements of lawfulness under
Article 5 § 1 (c) of the Convention; and
(b) whether the court decisions in respect of the
preventive measure were compatible with the requirements of Article 5 §§ 1
and 3 of the Convention.
(a) Whether the applicant’s detention after 29 November
2005 till 29 December 2005 was compatible with Article 5 § 1 (c)
of the Convention
The Court notes that during the period under
examination the applicant was held in detention on account of an indictment having
been submitted to the court, even though there was no court decision validating
his detention. The Court has already found that such practice is not compatible
with Article 5 § 1 (c) of the Convention (see, for example, Nikolay
Kucherenko, cited above, §§ 35-38, Kharchenko v. Ukraine, no. 40107/02, §§ 71 and 98, 10 February 2011 and Tsygoniy
v. Ukraine, no. 19213/04, § 60,
24 November 2011). The Court
sees no reason to depart from its previous findings in the present case and
holds that there has been a violation of Article 5 § 1 (c) of the Convention.
(b) Whether the court decisions in respect of the
preventive measure were compatible with Article 5 §§ 1 and 3 of the
Convention
Article 5 § 1 of the Convention requires
that for deprivation of liberty to be considered free from arbitrariness, it
does not suffice that this measure is executed in conformity with national law;
it must also be necessary in the circumstances (see Nešťák v. Slovakia,
no. 65559/01, § 74, 27 February 2007). For the Court, detention pursuant to
Article 5 § 1 (c) must embody a proportionality requirement, which implies a
reasoned decision balancing relevant arguments for and against release (see Ladent
v. Poland, no. 11036/03, § 55, ECHR 2008-... (extracts), and Khayredinov
v. Ukraine, no. 38717/04, § 86, 14 October 2010).
The Court has also held that Article
5 § 3 of the Convention requires that justification for any period of
detention, no matter how short, must be convincingly demonstrated by the
authorities. The arguments for and against release, including the risk that the
accused might hinder the proper conduct of the proceedings, must not be taken in
abstracto, but must be supported by factual evidence. The danger of an accused’s
absconding cannot be gauged solely on the basis of the severity of the sentence
risked. It must be assessed with reference to a number of other relevant
factors which may either confirm the existence of a danger of absconding or
make it appear so slight that it cannot justify detention pending trial (see Becciev
v. Moldova, no. 9190/03, §§ 56 and 59, 4 October 2005, with further
references).
Having regard to the close affinity between the
relevant principles developed under Article 5 §§ 1 (c) and 3 of the Convention,
the Court shall consider the present complaint under both provisions
simultaneously (for a similar approach see Korneykova v. Ukraine, no. 39884/05, § 38, 19 January 2012, and Sizarev
v. Ukraine, no. 17116/04, §§161-164, 17 January 2013).
The Court notes that the applicant’s pre-trial
detention lasted for more than five years and nine months. The decisions on the
applicant’s detention, some of which were adopted by the courts without hearing
the applicant in person, were couched in general terms. They do not suggest
that the courts made an appropriate assessment of the facts relevant to the
question whether such a preventive measure was necessary in the circumstances. Moreover,
with the passage of time the applicant’s continued detention required more
justification, but the courts did not provide any further reasoning in that respect.
The foregoing considerations are sufficient to
enable the Court to conclude that there has been a violation of Article 5
§§ 1 (c) and 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 4
OF THE CONVENTION
The applicant complained that he had been denied
the right to have the lawfulness of his detention after 29 November 2005
reviewed by a court. He alleged that the administrative proceedings in which he
raised that issue had been incompatible with the requirements of Article
5 § 4, Article 6 § 1 and Article 13 of the Convention.
The Court considers that the crux of the
applicant’s complaint concerns the question whether the applicant was provided
with an effective procedure by which he could challenge his ongoing detention
at the relevant time. The Court will therefore examine the matter solely under
Article 5 § 4 of the Convention, which provides as follows:
“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.”
A. Admissibility
1. The parties’ submissions
The Government submitted that in so much as the
complaint related to the administrative proceedings, Article 5 § 4 of
the Convention was not applicable. They maintained that the administrative
courts had no jurisdiction over issues of detention in the course of criminal
proceedings and, in any event, they had no powers to order the applicant’s
release.
The applicant maintained that his complaint was
admissible.
2 The Court’s assessment
The Government’s objection suggests that the
administrative proceedings, instituted by the applicant, were not appropriate
for the review of the lawfulness of his detention as required by Article
5 § 4 of the Convention. However, this Government’s argument does not
preclude the Court from considering the merits of the applicant’s complaint in
the context of a wider problem, namely whether the applicant had any effective
procedure for the purpose of Article 5 § 4. The Court therefore
dismisses the Government’s objection.
The Court further notes that the complaint is neither
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention, nor inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
The Government submitted that the applicant had
been provided with an effective procedure by which he could have challenged his
detention at the relevant time. In particular, in accordance with the Code of
Criminal Procedure, the applicant had been entitled to submit various requests to
the body dealing with his criminal case, including requests to change or lift
the preventive measure.
The applicant disagreed.
The Court reiterates that it has already found
that Ukrainian law, as it stood at the relevant time, did not provide a procedure
for reviewing the lawfulness of continued detention after the completion of
pre-trial investigations that satisfied the requirements of Article 5 § 4 of
the Convention (see Molodorych, cited above, § 108; Pleshkov v.
Ukraine, no. 37789/05, § 42,
10 February 2011; Kharchenko v. Ukraine, no. 40107/02, § 100, 10 February 2011; and Tsygoniy,
cited above, § 78). The applicant’s
unsuccessful attempt to have the issue reviewed by the administrative courts and
the Government’s contention that those proceedings could not effectively deal
with the issue at stake can only support that general finding.
The Court therefore holds that there has been a
violation of Article 5 § 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF
THE CONVENTION
The applicant complained that he had been unable
to claim compensation in respect of his unlawful pre-trial detention. He relied
on Article 5 § 5 of the Convention, which reads as follows:
“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 Court finds 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 submitted that there had been no
violation of Article 5 § 5 of the Convention. They maintained that
the applicant could claim damages under Article 1176 of the Civil Code and the
Compensation Act, relying on the Court of Appeal’s decision of 12 April
2011 in which a violation of the applicant’s rights under
Article 5 §§ 1 and 3 of the Convention had been recognised in
substance.
The applicant disagreed and insisted that the compensatory
remedy had not been available to him.
The Court reiterates that Article 5 § 5 is
complied with where it is possible to apply for compensation in respect of
deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or
4. 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 (see, for example, Włoch
v. Poland (no. 2), no. 33475/08, § 25,
10 May 2011).
With respect to the Government’s submission that
the applicant could claim damages under Article 1176 of the Civil Code and the
Compensation Act, the Court notes that the domestic courts, dealing with the
applicant’s claim for damages, did not in fact consider that the Court of
Appeal’s decision of 12 April 2011 generated a right to compensation in
that regard. Moreover, they expressly stated that the applicant had no such a
right after finding that the depravation of liberty had been lawful and
substantiated.
The Court further notes that the Government have
not shown that the applicant’s right to compensation under Article
5 § 5 of the Convention was ensured in the domestic legal system
should the Strasbourg Court find a violation of any preceding paragraphs of
that Article (see Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, §§
229-234, 21 April 2011 and Klishyn v. Ukraine, no. 30671/04, § 98, 23 February 2012).
There has therefore been a violation of Article
5 § 5 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 6 § 1
OF THE CONVENTION
The applicant complained under Article
6 § 1 of the Convention that the criminal proceedings against him had
been excessively lengthy.
The relevant part of Article 6 § 1 of
the Convention reads as follows:
“In the determination of ... any criminal charge against him,
everyone is entitled to a ... hearing within a reasonable time by [a] ...
tribunal ...”
A. Admissibility
The Court finds 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 applicant maintained that the proceedings
had been unreasonably lengthy. The Government contested that argument, stating
that the case was complex and that there had been no major delays attributable
to the State.
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, the conduct of the applicant and the relevant authorities, and what was
at stake for the applicant in the dispute (see, among many other authorities, Frydlender
v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
Turning to the present case, the Court notes
that on 29 June 2005 the applicant was arrested on suspicion of murder. As of 4 December
2012 - that is, more than seven years and five months later - the proceedings
were pending before the first-instance court.
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 that such lengthy criminal proceedings were justified
in the circumstances of the 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 therefore been a violation of Article
6 § 1 of the Convention.
VI. 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 19,600.80 euros (EUR) in
respect of pecuniary damage and EUR 130,000 in respect of non-pecuniary damage.
The Government submitted that the claim for
pecuniary damage was not supported by any evidence and the claim for
non-pecuniary damage was excessive and unfounded.
The Court notes that the applicant failed to
substantiate the pecuniary damage alleged. It therefore makes no award in this connection.
As to the claim for non-pecuniary damage, the Court considers 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 14,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 5,979.8 for the
costs and expenses incurred before the domestic authorities and the Court.
The Government considered that the claim was
not supported by sufficient evidence and was, in any event, excessive.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are reasonable
as to quantum. In the present case, regard being had to the documents in its
possession and the above criteria, the Court considers it reasonable to award
the sum of EUR 900, covering costs under all heads.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Declares the remainder of the application
admissible;
2. Holds that there has been a violation of
Article 3 of the Convention;
3. Holds that there has been a violation of
Article 5 § 1 (c) of the Convention as regards the period of the
applicant’s detention after 29 November 2005 till 29 December 2005;
4. Holds that there has been a violation of
Article 5 §§ 1 (c) and 3 of the Convention;
5. Holds that there has been a violation of
Article 5 § 4 of the Convention;
6. Holds that there has been a violation of
Article 5 § 5 of the Convention;
7. Holds that there has been a violation of
Article 6 § 1 of the Convention;
8. 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, the following amounts, to be
converted into the currency of the respondent State
at the rate applicable at the date of settlement:
(i) EUR 14,000 (fourteen thousand euros), plus any
tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 900 (nine hundred euros), plus any tax
that may be chargeable to the applicant, in respect of costs and expenses;
(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;
9. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 October 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Mark Villiger
Registrar President
