Information Note on the Court’s case-law 186
June 2015
Ruslan Yakovenko v. Ukraine - 5425/11
Judgment 4.6.2015 [Section V]
Article 2 of Protocol No. 7
Applicant dissuaded from lodging an appeal against conviction since any appeal would have delayed his release: violation
Article 5
Article 5-1
Lawful arrest or detention
Preventive detention of convicted prisoner until judgment became final, even after his prison sentence had expired: violation
Facts – On 12 July 2010 the applicant was found guilty of grievous bodily harm and sentenced to four years and seven months’ imprisonment. The court ordered that the applicant should remain in a pre-trial detention centre (SIZO) as a preventive measure pending the entry of the judgment into force. On 15 July 2010 the term of the applicant’s sentence expired since he had already spent a long period in pre-trial detention. He requested the SIZO administration to release him, but his request was rejected. On 27 July 2010 the fifteen-day time-limit for lodging appeals against the judgment of 12 July expired, and, in the absence of any appeal, the judgment became final. The applicant was released on 29 July 2010, when the SIZO received the court’s order to execute the final judgment.
Law – Article 5 § 1 of the Convention
(a)  The applicant’s detention from 15 to 27 July 2010 – The applicant’s detention during this period had taken place after the delivery of the judgment in his criminal case, but was still considered “pre-trial detention” under the domestic legislation. The judgment of 12 July 2010 provided for two separate measures involving the applicant’s deprivation of liberty: firstly, a prison sentence, and, secondly, the applicant’s detention as a preventive measure until the judgment became final. While the prison sentence was to expire three days later, the second measure was to last for at least twelve days longer, given the fifteen-day time-limit for lodging appeals. In the event of an appeal, the duration of the applicant’s detention would have been even longer and would have depended on the examination of the case by the appellate court. Accordingly, the applicant’s detention during the period in question, even though it had taken place after the prison sentence had been served in full, could be regarded as an “other measure involving deprivation of liberty”, which had taken place “after conviction” in the meaning of Article 5 § 1 (a).
The Court saw no indication that the applicant’s detention pending the entry into force of the judgment of 12 July 2010 was contrary to the domestic law. However, the judgment contained no reasoning as to what had led the sentencing court to keep the applicant in detention as a preventive measure for a period that would clearly exceed the duration of the prison sentence imposed. While there might be special considerations that warranted – irrespective of the duration of the prison sentence – the applicant’s deprivation of liberty as a preventive measure aimed at ensuring his availability for the judicial proceedings at the appellate level, no such considerations had been mentioned in or could be inferred from the judgment. On the contrary, the court had noted the applicant’s cooperation with the investigation and decided, on that ground, to apply a milder sanction than legally envisaged. Accordingly, and as the respondent Government had admitted, the applicant’s continued detention after the expiry of his imprisonment sentence had been unjustified and was thus in breach of Article 5 § 1.
(b)  The applicant’s detention from 27 to 29 July 2010 – It had taken the domestic authorities two days to arrange for the applicant’s release after there ceased to exist grounds for his detention with the entry into force of the judgment of 12 July 2010. The Ukrainian authorities had thus failed to deploy all modern means of communication to keep to a minimum the delay in implementing the decision to release the applicant. The applicant’s detention during that period had therefore not been justified under Article 5 § 1.
Conclusion: violation (unanimously).
Article 2 of Protocol No. 7: The domestic courts had considered it necessary to keep the applicant in detention as a preventive measure pending the entry into force of the first-instance court’s judgment even after the prison sentence imposed on him by that judgment had already expired. In the absence of any appeal, the period in question had lasted for twelve days. Had the applicant decided to appeal, this would have delayed the entry into force of the judgment for an unspecified period. Accordingly, the realisation of the applicant’s right to appeal would have been at the price of his liberty, especially as the length of his detention would have been unspecified. That circumstance had infringed the very essence of his right embodied in Article 2 of Protocol No. 7.
Conclusion: violation (unanimously).
Article 41: EUR 3,000 in respect of non-pecuniary damage.

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