European Court of Human Rights

 

 

 

FIFTH SECTION

CASE OF MOLCHANOV v. UKRAINE

(Application no. 13911/14)

 

 

 

 

JUDGMENT

STRASBOURG

20 September 2022

 

 

 

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

 

In the case of Molchanov v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Lado Chanturia, President,
          Ganna Yudkivska,
          Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 13911/14) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 5 February 2014 by a Ukrainian national, Mr Aleksandr Eduardovich Molchanov, born in 1992 and living in Chubynske (“the applicant”), who was represented before the Court by Mr M.O. Tarakhkalo, a lawyer practising in Kyiv;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, Mr I. Lishchyna, of the Ministry of Justice;

the parties’ observations;

 

Having deliberated in private on 10 March 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns the applicant’s complaints under Article 5 §§ 1, 3 and 5 of the Convention that his detention was arbitrary and unjustified, and that he did not have an effective and enforceable right to compensation for his detention.

2.  On 13 June 2013 the applicant was charged with having defrauded a minor by obtaining a mobile telephone from him under false pretences.

3.  On 16 July 2013 the applicant was subjected to a preventive measure in the form of a personal undertaking that he would comply with his procedural duties as a defendant.

4.  On 12 August 2013 the Solomyanskyy District Court of Kyiv (“the trial court”) held a preparatory hearing in the applicant’s case. The trial court heard the applicant’s and the prosecutor’s submissions as to whether the applicant should be committed for trial. According to the applicant, neither he nor the prosecutor made any applications to change the preventive measure imposed on the applicant, the trial court did not ask for their opinion as to such a possibility and it did not announce that it was considering any change to that measure.

5.  At the close of the preparatory hearing, the trial court gave a decision committing the applicant for trial and changing the preventive measure imposed on him from the personal undertaking to detention on remand. That decision was not amenable to appeal. The trial court stated that even though the offence of which the applicant was accused was not particularly serious and did not carry the punishment of imprisonment, the applicant had no registered permanent place of residence and the court had doubts as to whether he would attend further hearings. The trial court concluded that the applicant might commit another offence or interfere with the criminal proceedings.

6.  On 30 September 2013 the trial court convicted the applicant of fraud, sentencing him to restriction of liberty for one year and six months, suspended for three years with probation. The judgment referred to the applicant’s personal details, including a registered permanent place of residence in Kyiv. The applicant was immediately released from detention.

THE COURT’S ASSESSMENT

I.  ALLEGED VIOLATION OF ARTICLE 5 §§ 1 and 3 OF THE CONVENTION

7.  The applicant complained that the trial court’s decision of 12 August 2013 to place him in detention and his ensuing detention until 30 September 2013 had been arbitrary and lacked justification. He further asserted that the decision had been given at the trial court’s initiative rather than in response to a request by the prosecutor and that the court had given only formulaic reasons for the applicant’s detention without having proven the existence of risks to justify its decision.

8.  The Government submitted that the impugned decision of the trial court had been given pursuant to Article 315 § 3 of the Code of Criminal Procedure. The decision had been lawful and in accordance with the requirements of the Convention.

9.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. they must therefore be declared admissible.

 

11.  Regardless of the legal basis for the trial court’s decision of 12 August 2013, Article 5 of the Convention requires the domestic courts to substantiate in their decisions that a defendant’s detention is strictly necessary (see Khayredinov v. Ukraine, no. 38717/04, § 28, 14 October 2010).

12.  Neither the Government’s observations nor the available material suggest that the trial court made an appropriate assessment of the facts relevant to the question of whether such a stringent preventive measure was necessary in the circumstances. Although it referred to the existence of a risk that the applicant could abscond, commit another offence or interfere with the criminal proceedings, the trial court did not provide any further substantiation of its decision. Furthermore, the contradictory findings of the trial court in its decisions of 12 August and 30 September 2013 regarding whether the applicant had a registered place of residence have not been explained to the Court (see paragraphs 5 and 6 above).

13.  In the light of the foregoing, the Court concludes that the trial court did not afford the applicant adequate protection from arbitrariness, that being an essential element of the lawfulness of detention within the meaning of Article 5 § 1 of the Convention. Therefore, the applicant’s detention from 12 August to 30 September 2013 was in breach of that provision.

14.  Having regard to the above findings, the Court considers that there is no need to give a separate ruling on the applicant’s complaint under Article 5 § 3 of the Convention regarding the justification of his detention during that period of time.

II.  OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

15.  The applicant also raised a complaint covered by the well‑established case-law of the Court, namely that, contrary to the requirements of Article 5 § 5 of the Convention, he had not had an effective and enforceable right to compensation for his detention in contravention of Article 5 § 1. This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that this complaint discloses a violation of Article 5 § 5 of the Convention in the light of its findings in Kotiy v. Ukraine (no. 28718/09, § 55, 5 March 2015).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

16.  The applicant claimed 80,000 euros (EUR) in respect of non‑pecuniary damage and EUR 5,532.80 in respect of costs and expenses incurred before the Court.

17.  The Government considered those claims unsubstantiated and excessive.

18.  The Court awards the applicant EUR 1,800 in respect of non‑pecuniary damage, plus any tax that may be chargeable on that amount.

19.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 850 in respect of costs and expenses incurred before the Court, plus any tax that may be chargeable to the applicant, to be paid into Mr Tarakhkalo’s bank account, as indicated by the applicant.

20.  The Court further 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 that there is no need to examine the complaint under Article 5 § 3 of the Convention;

4.      Holds that there has been a violation of Article 5 § 5 of the Convention as regards the other complaint raised under the well-established case-law of the Court;

5.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 1,800 (one thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the bank account of the applicant’s representative, Mr Tarakhkalo;

(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;

6.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 20 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

            Martina Keller                                                   Lado Chanturia
          Deputy Registrar                                                      President