FIFTH SECTION

CASE OF CHANYEV v. UKRAINE

(Application no. 46193/13)

JUDGMENT

STRASBOURG

9 October 2014

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 Chanyev v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
	Mark Villiger, President,
	Ann Power-Forde,
	Ganna Yudkivska,
	Vincent A. De Gaetano,
	André Potocki,
	Helena Jäderblom,
	Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 16 September 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 46193/13) 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 Yuriy Vasylyovych Chanyev (“the applicant”), on 9 July 2013.
2.  The applicant was represented by Mr D. S. Zlati, a lawyer practising in Reni. The Ukrainian Government (“the Government”) were represented by their Agent, Ms N. Sevostianova, from the Ministry of Justice.
3.  On 3 September 2013 the Government were given notice of the application.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1983 and lives in Izmayil.
5.  On 28 November 2012 the applicant was arrested by the police on suspicion of having murdered Mr S. earlier the same day.
6.  On 30 November 2012 the investigating judge of the Reni Local Court of the Odessa Region ordered the applicant’s pre-trial detention until 27 January 2013.
7.  On 25 January 2013 the investigating judge extended the applicant’s pre-trial detention until 27 February 2013.
8.  On 26 February 2013 the indictment in the applicant’s case was approved.
9.  On 27 February 2013 the indictment and the criminal case file were forwarded by the prosecutor to the court.
10.  On 28 February 2013 the applicant’s lawyer requested the Head of the Izmail SIZO to release the applicant immediately given that the period of detention ordered by the court had expired on 27 February. By a letter of the same day, the Head of the Izmail SIZO replied to the applicant’s lawyer that, under the Code of Criminal Procedure, after the forwarding of the criminal case file to the trial court it was for that court to decide on the applicant’s continued detention.
11.  The same day the lawyer complained to the prosecutor about the failure of the prison authorities to release the applicant. In reply to that letter, the Odessa Regional Prosecutor’s Office informed the applicant’s lawyer that the applicant’s pre-trial detention had been extended in January 2013 until 27 February 2013 and that on the latter date the criminal case file against the applicant had been forwarded to the trial court; the prosecutor’s office therefore considered that the applicant’s rights and interests had not been violated.
12.  On 11 March 2013 the lawyer submitted a request to the investigating judge for the applicant’s release. He noted that the applicant’s pre-trial detention ordered by the judge had expired on 27 February 2013 and that no decision had been taken on the applicant’s continued detention.
13.  On 14 March 2013 the investigating judge rejected the above request. With reference to Article 331 § 3 of the Code of Criminal Procedure (“the CCP”), the judge noted that on the last date of the applicant’s pre-trial detention, that is, on 27 February 2013, his criminal case had been referred to the trial court, which had two months to decide on his continued detention. The judge concluded that there had been no grounds for the applicant’s release on 28 February 2013.
14.  On 25 March 2013 the Odessa Regional Court of Appeal upheld the decision of 14 March 2013.
15.  On 15 April 2013 the Izmayil Local Court of the Odessa Region held a preliminary hearing in which it ordered the applicant’s continued detention.
16.  On 21 October 2013 the applicant was found guilty of murder and sentenced to eleven years’ imprisonment.
II.  RELEVANT DOMESTIC LAW
A.  Constitution
17.  The relevant provisions of the Constitution read as follows:
Article 29
“Every person has the right to freedom and personal inviolability.
No one shall be arrested or held in custody other than pursuant to a reasoned court decision and [then] only on the grounds of and in accordance with the procedure established by law.
...
Any person who is arrested or detained shall be informed without delay of the reasons for his or her arrest or detention and apprised of his or her rights, and from the moment of detention shall be given the opportunity to defend himself or herself in person or to have the legal assistance of defence counsel.
Any person who is detained has the right to challenge his or her detention in court at any time.
The relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.”
B.  Code of Criminal Procedure (CCP), 2012
18.  The relevant provisions of the CCP read as follows:
Article 176
General provisions on preventive measures
“1.  Preventive measures are:
...
(5)  detention on remand.
...
4.  Preventive measures shall be applied during the investigation by the investigating judge at the request of the investigator following agreement with the prosecutor, or at the request of the prosecutor; during the trial, they shall be applied by the court at the request of the prosecutor.”
Article 197
Term of validity of the ruling on detention or continued detention
“1.  The term of validity of the ruling by the investigating judge or the court ordering an accused’s detention or continued detention may not exceed sixty days.
...
3.  The period of detention may be extended by the investigating judge within the time-limits of the pre-trial investigation in accordance with the procedure laid down in this Code...”
Article 203
Immediate termination of preventive measures
“1.  A ruling on the application of a preventive measure shall cease to have effect after expiry of the period of validity of the ruling on the choice of preventive measure, following delivery of a judgment acquitting the defendant, or after termination of the criminal proceedings in accordance with the procedure prescribed by this Code.”
Article 206
General duties of judges regarding the protection of human rights
“1.  Any investigating judge whose territorial jurisdiction covers a person held in custody shall be entitled to issue a ruling ordering any public authority or official to ensure respect for that person’s rights.
2.  Whenever an investigating judge receives information from any source which gives ground for a reasonable suspicion that there is a person within the court’s territorial jurisdiction who has been deprived of his or her liberty without a valid court decision ... that judge shall be obliged to issue a ruling ordering any public authority or official in whose custody the person is held to bring that person immediately before the investigating judge in order to verify the grounds for the deprivation of his or her liberty.
3.  The investigating judge shall be obliged to release the person deprived of his or her liberty unless the public authority or official holding the person in custody presents a court decision which has already entered into force or demonstrates the existence of other legal grounds for depriving the person of his or her liberty.
...
5.  Irrespective of the request by the investigator or public prosecutor, the investigating judge shall be obliged to release the person from custody unless the public authority or official keeping him or her in custody demonstrates:
(1)  the existence of legal grounds for detaining the person concerned without a ruling by the investigating judge or the court...”
Article 315
Resolution of issues related to preparation for trial
“...
3.  During the preparatory court hearing the court shall be entitled, at the request of participants in the trial, to impose, alter or revoke measures to ensure the conduct of the criminal proceedings, including any preventive measures imposed on the accused. When considering such requests, the court shall follow the rules set forth in Chapter II of this Code [Measures to Ensure the Conduct of Criminal Proceedings]. In the absence of such a request from the parties to the trial, the measures to ensure the conduct of the criminal proceedings that were selected at the pre-trial investigation stage shall be deemed to be extended.”
Article 331
Imposing, revoking or altering a preventive measure in court
“1.  During the trial the court, at the request of the prosecution or the defence, may issue a ruling altering, revoking or imposing a preventive measure against the accused.
...
3.  Regardless of whether such requests have been made, the court shall be obliged to examine the reasonableness of the accused’s continued detention within two months from the date of receipt of the indictment by the court ... or from the date of the court ruling ordering the accused’s detention as a preventive measure...”
III.  RELEVANT COUNCIL OF EUROPE MATERIALS
19.  The Council of Europe’s Committee of Ministers, which under Article 46 § 2 of the Convention has the duty to supervise the execution of the Court’s judgments, is currently examining the execution by Ukraine of the Court’s judgment in Kharchenko v. Ukraine (no. 40107/02, 10 February 2011), which summarised shortcomings identified in the Ukrainian system of detention on remand. One of the issues highlighted in that judgment was the detention of persons without any judicial decision during the period between the end of the investigation and the beginning of the trial. According to information published on the Committee’s website, the case is currently under “enhanced supervision”. The most recent developments were in February-March 2013. On 21 February 2013 the Ukrainian Government submitted a Revised Action Plan in which they reiterated that Parliament had adopted a new Code of Criminal Procedure which had come into force and had largely eliminated the legislative shortcomings underlying recurrent violations of Article 5 of the Convention. At its 1164th meeting (5-7 March 2013) the Committee of Ministers noted, among other things, that further clarifications were required from the Ukrainian authorities regarding the legislative changes in question.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
20.  The applicant complained that that he had been detained without any court order between 28 February and 15 April 2013, that the penitentiary authorities had failed to release him and that the prosecuting and judicial authorities had not reacted to his unlawful detention. He relied on 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
21.  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
22.  The applicant maintained that under Article 29 of the Constitution no one could be detained without a reasoned court decision, and that there had been no such decision in his case to cover the period between 28 February and 15 April 2013. In his opinion, the transfer of the case from the investigating authorities to the court could not justify his detention without a court order. He considered that the penitentiary authorities had been required to release him on 27 February 2013, when the last detention order had expired. Furthermore, the prosecuting and judicial authorities had been required to react to his unlawful detention but had failed to do so.
23.  The Government considered that there had been lawful grounds for the applicant’s detention. They noted that as of 27 February 2013, the day on which the criminal case had been referred for trial, the applicant had been under the jurisdiction of the trial court and his detention had been in compliance with the requirements of the national legislation. They referred to Article 331 § 3 of the Code of Criminal Procedure, which provided that the trial court was obliged to examine the reasonableness of the accused’s continued detention within two months from the date of receipt of the indictment by the court. The Government further noted that the court had examined the lawfulness of the applicant’s detention after 27 February 2013 during the preliminary hearing of 15 April 2013, and found that there had been no grounds for the applicant’s release.
24.  The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and lay down an obligation to conform to the substantive and procedural rules thereof. While it is for the national authorities, notably the courts, to interpret and apply domestic law, the Court may review whether national law has been observed for the purposes of this Convention provision (see, among other authorities, Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004‑II).
25.  However, the “lawfulness” of detention under domestic law is the primary, but not always the decisive element. The Court must, in addition, be satisfied that the applicant’s detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary manner. Moreover, the Court must ascertain whether the domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein (see Winterwerp v. the Netherlands, 24 October 1979, § 45, Series A no. 33).
26.  The Court has previously addressed a number of shortcomings relating to the pre-trial detention of criminal suspects in Ukraine, which are summarised in the Kharchenko judgment (cited above, § 98). One of those shortcomings was the practice of detaining persons without any court order during the period between the end of the investigation and the beginning of the trial. Such a practice, which, according to the Court’s case-law, constituted a violation of Article 5 § 1 of the Convention, was found to be of a recurrent nature and to stem from legislative lacunae (ibid.).
27.  The circumstances of the present case differ from the previous cases against Ukraine in that the criminal proceedings against the applicant were conducted within the framework of the new Code of Criminal Procedure which came into force on 19 November 2012. The Court notes that the new Code was designed, among other things, to eliminate the legislative shortcomings underlying recurrent violations of Article 5 of the Convention (see paragraph 19 above). Therefore, the Court is called upon to examine the present complaint in more detail, despite the clarity of its case-law with regard to the unlawfulness of prolonged detention not covered by any judicial decision.
28.  The Court notes that under the new Code the choice of preventive measures imposed in criminal proceedings is entrusted to two different judicial authorities: the investigating judge during the pre-trial investigation and the judge of the trial court during the trial (see Articles 176 and 197 of the CCP, paragraph 18 above). The division of competences between the above-mentioned authorities is therefore clearly marked by the point at which the investigation is completed, the indictment is approved and the criminal case is transferred to the trial court for examination. The Government confirmed this position in their observations (see paragraph 23 above). After the transfer of the case for trial, the investigating judge may nevertheless verify the grounds for the deprivation of liberty of the accused (see Article 206 of the CCP, paragraph 18 above).
29.  In the present case the applicant’s detention during the pre-trial investigation had been ordered by the investigating judge up to 27 February 2013. On that day the criminal case against him was transferred to the trial court, which assumed jurisdiction over the case and the competence to impose preventive measures on the applicant. Nevertheless, the trial court did not rule on the applicant’s continued detention for about one and a half months (from 27 February to 15 April 2013) and the applicant remained in detention, even though Article 203 of the CCP clearly provided that any decision on preventive measures should cease to have effect immediately after the expiry of its term of validity (see paragraph 18 above). All his complaints concerning the unlawfulness of his pre-trial detention without a judicial decision and his requests for release were rejected on the ground that his detention was in accordance with the law. In particular, the investigating judge rejected his complaint, stating that the trial court had two months to decide on his continued detention, under Article 331 § 3 of the CCP (see paragraphs 13, 18 and 23 above). Thus, the domestic authorities considered that there had been no violation of the applicant’s right to liberty, despite the clear fact that he had been detained without a judicial decision for one and a half months. What is more, they referred to the provisions of the CCP as permitting such a situation to exist.
30.  In this latter respect the Court notes with concern that the new Code of Criminal Procedure of Ukraine, contrary to the Government’s submissions to the Committee of Ministers (see paragraph 19 above), does not regulate in a clear and precise manner the detention of the accused between the completion of the pre-trial investigation and the beginning of the trial. Thus, as in the present case, Article 331 § 3 of the Code provides that the trial court has a period of two months to decide on the continued detention of the accused even where the previous detention order issued by the investigating judge has already expired.
31.  The foregoing considerations are sufficient to enable the Court to conclude that the existing legislative framework allows the continued detention of the accused without a judicial decision for a period of up to two months, and that those provisions were applied in the case of the applicant, who was detained without a court ruling ordering his detention for the period between 28 February and 15 April 2013.
There has accordingly been a violation of Article 5 § 1 of the Convention.
II.  APPLICATION OF ARTICLE 46 OF THE CONVENTION
32.  Before examining the claims for just satisfaction submitted by the applicant under Article 41 of the Convention, and having regard to the circumstances of the case, the Court considers it necessary to determine what consequences may be drawn from Article 46 of the Convention for the respondent State. Article 46 of the Convention reads as follows:
“1.  The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2.  The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
33.  The Court reiterates that Article 46 of the Convention, as interpreted in the light of Article 1, imposes on the respondent State a legal obligation to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to secure the right of the applicant which the Court has found to have been violated. Such measures must also be taken in respect of other persons in the applicant’s position, notably by solving the problems that have led to the Court’s findings (see, among many other authorities, Vyerentsov v. Ukraine, no. 20372/11, § 94, 11 April 2013). This obligation has been consistently emphasised by the Committee of Ministers in the supervision of the execution of the Court’s judgments. Whilst it is not for the Court to determine what measures of redress may be appropriate for a respondent State, the Court’s concern is to facilitate the rapid and effective suppression of a shortcoming found in the national system of protection of human rights (see Driza v. Albania, no. 33771/02, § 125, ECHR 2007‑XII (extracts)).
34.  In the present case the Court has found a violation of Article 5 of the Convention which can be said to be recurrent in the case-law concerning Ukraine. In the case of Kharchenko the Court noted that it regularly found “violations of Article 5 § 1 (c) of the Convention as to the periods of detention not covered by any court order, namely for the period between the end of the investigation and the beginning of the trial” (see Kharchenko, cited above, § 98). The issue was considered to stem from legislative lacunae (ibid.), and the respondent State was invited to take urgent action to bring its legislation and administrative practice into line with the Court’s conclusions in respect of Article 5 of the Convention (ibid, § 101). The new legislation, as the present case demonstrates, contains a similar shortcoming and the same violation has been found in respect of the new Code of Criminal Procedure.
35.  In view of the above, the Court considers that the most appropriate way to address the above violation is to amend the relevant legislation without delay, in order to ensure compliance of domestic criminal procedure with the requirements of Article 5.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
36.  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
37.  The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.
38.  The Government considered that claim to be unsubstantiated as there had been no violation of the applicant’s rights, and, in any event, to be excessive.
39.  Having regard to the specific circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant EUR 4,500, plus any tax that may be chargeable, in respect of non‑pecuniary damage.
B.  Costs and expenses
40.  The applicant also claimed EUR 10 for costs and expenses.
41.  The Government considered this claim to be unsubstantiated and not supported by any documents.
42.  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 were actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court awards the amount claimed in full.
C.  Default interest
43.  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 application admissible;

2.  Holds that there has been a violation of Article 5 § 1 of the Convention;

3.  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 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 10 (ten 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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 9 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Claudia Westerdiek	Mark Villiger
	Registrar	President