FIFTH SECTION

CASE OF VOLYANYK v. UKRAINE

(Application no. 7554/10)

JUDGMENT

STRASBOURG

2 October 2014

This judgment is final but it may be subject to editorial revision.

In the case of Volyanyk v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Boštjan M. Zupančič, President,
	Helena Jäderblom,
	Aleš Pejchal, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 9 September 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 7554/10) 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 Oleg Markiyanovych Volyanyk (“the applicant”), on 22 January 2010.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Ms Olga Davydchuk.
3.  On 6 May 2013 the application was communicated to the Government.
THE FACTS
4.  The applicant worked as a deputy chief guard in “Lviv Railways”, a State-owned company.
5.  On 26 October 2009 the police instituted criminal proceedings against the applicant suspecting that he, against bribes, had covered up thefts from the company’s premises in conspiracy with S. and D.
6.  On 3 November 2009 the Galytskyy District Court of Lviv ordered the applicant’s pre-trial detention stating that “[The applicant] committed serious crimes, he does not admit his guilt, if at liberty [he] will influence witnesses and other persons involved in the criminal case. [As the applicant] works as a policeman, [he] is well aware of how to obstruct the investigation and justice”. There is no evidence in the case-file that the applicant worked as a policemen prior to or during the events described in the present application. It remains unknown whether S. and D. were also arrested or remained at liberty.
7.  On 9 November 2009 the Lviv Regional Court of Appeal upheld this decision.
8.  On 25 December 2009 the Galytskyy Court extended the applicant’s detention until 26 February 2010 on the grounds that “not all the applicant’s accomplices were detained ... [the investigative authorities] keep receiving complaints [from persons who gave bribes to the applicant]. If at liberty the applicant will have an opportunity to obstruct the investigation or abscond”. On 30 December 2009 the Court of Appeal upheld this decision.
9.  On 22 February 2010 the Galytskyy Court extended the applicant’s detention until 26 April 2010 stating that “the accused committed serious crimes, he does not admit his guilt and refuses to testify, while if at liberty [the applicant], who has higher education and extensive work experience [as a guard], might influence witnesses, obstruct the investigation and abscond”.
10.  On 22 April 2010 the Lviv Regional Court of Appeal prolonged the applicant’s detention until 26 July 2010 stating that there was a need to carry out a number of investigative measures in the case, the applicant was charged with serious crimes, he might abscond, obstruct the investigation, or continue his criminal activities.
11.  On an unspecified date the preliminary investigations in the applicant’s case were completed and the case was submitted to the Sykhiv District Court of Lviv for trial.
12.  On 17 August 2010 the Sykhiv District Court, holding a preliminary hearing in the criminal case against the applicant, upheld the applicant’s preventive measure without providing any reasons for doing so or fixing a time-limit for the applicant’s detention.
13.  On 16 February 2012 the Sykhiv Court allowed the applicant’s request for change of a preventive measure on health grounds. On the same date the applicant was released against an undertaking not to abscond.
THE LAW
14.  The applicant alleged that the decisions on his detention and extension of the term of detention were unlawful and groundless which, in his opinion, constituted violation of his rights guaranteed by Article 5 of the Convention, the relevant part of 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
15.  The Court notes that the application 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
16.  The Government stated that there was no violation of the applicant’s rights under Article 5 of the Convention in the present case. Initially the applicant was placed in detention because there was a “reasonable suspicion” that he had committed a crime. The preventive measure was selected according to the procedure and on the grounds prescribed the domestic law. Before deciding on the prolongation of the applicant’s detention the court examined the case-files and heard the arguments of the interested parties, the courts’ decisions were lawful and substantiated.
17.  Relying on the general principles established in its case-law concerning the interpretation of Article 5 § 1 of the Convention (see McKay v. the United Kingdom [GC], no. 543/03, § 30, ECHR 2006‑X, Korneykova v. Ukraine, no. 39884/05, § 43, 19 January 2012 with further reference), the Court observes that in the present case, the Galytskyy Court ordered and prolonged the applicant’s pre-trial detention stating that: i) the applicant could obstruct investigation, in particular by influencing witnesses and other persons; ii) he could abscond or reoffend; iii) he had committed or was suspected of serious crimes; iv) there was a need to conduct certain investigative measures; v) he did not admit his guilt and refused to testify.
18.  The Court notes that the latter ground for detention by its nature runs contrary to such important elements of the fair trial concept as freedom from self-incrimination and the presumption of innocence. In the context of choice of whether or not to impose a custodial preventive measure, the advancing of such grounds appears particularly disturbing as they indicate that a person may be punished for relying upon his basic rights to a fair trial (see Lutsenko v. Ukraine, no. 6492/11, § 72, 3 July 2012).
19.  As regards the obstruction of the investigation, the Court notes that there is no evidence in the case-file that when detained, the applicant worked as policemen and could interfere with the investigation in that capacity. The mere fact that he was a guard and had higher education might prove that he had sufficient skills to obstruct investigation, but not that he actually intended to do so.
20.  The Court accepts that in cases concerning organised crimes involving several accused, the risk that a detainee, if released, might put pressure on witnesses and accomplices or otherwise obstruct the proceedings is often particularly high. The fact that a person is charged with criminal conspiracy is not, however, in itself sufficient to justify long periods of detention; his personal circumstances and behaviour must always be taken into account (see Grossman v. Russia, no. 46282/07, 31 October 2013). There is no indication in the present case that the domestic courts in any way verified whether the applicant had indeed attempted or planned to intimidate witnesses or to obstruct the course of justice in any other way. The allegation that the applicant may influence witnesses and other persons was not supported by any proof or, at least, reference to the names of such persons and the manner in which the applicant could influence them. It was not specified whether S. and D. remained at liberty, or whether the applicant had other accomplices and who they were. In such circumstances, the Court does not consider that the risk of interference by the applicant with the administration of justice was sufficiently demonstrated.
21.  Similarly, the Court is not convinced that there were risks that the applicant would abscond or reoffend: no plausible evidence supporting those allegations can be found in the case-file.
22.  As regards the court’s reliance on the seriousness of charges brought against the applicant, the Court has repeatedly held that this reason cannot by itself serve to justify detention (see, e.g., Khudoyorov v. Russia, no. 6847/02, § 180, ECHR 2005‑X). Moreover, a mere reference of the court when extending the applicant’s detention to the need to carry out investigative measures is not as such a relevant consideration justifying the continued detention (see Segeda v. Russia, no. 41545/06, § 66, 19 December 2013 with further reference).
23.  Lastly, the Court notes that the applicant’s deprivation of liberty from 17 August 2010 to 16 February 2012 was based on a court decision which did not contain any grounds for the detention and did not fix a time-limit for it. The Court has dealt with similar situations in the past and found such practice to be incompatible with the lawfulness requirement enshrined in Article 5 § 1 (c) (see Kharchenko v. Ukraine, no. 40107/02, § 98, 10 February 2011). It does not see any reason to depart from that conclusion in the present case.
24.  In the light of the above the Court finds that there has been a violation of Article 5 § 1 (c) of the Convention in the present case.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
25.  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.”
26.  The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 5 § 1 (c) of the Convention;
Done in English, and notified in writing on 2 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Boštjan M. Zupančič 
	Deputy Registrar	President