(Applications nos. 33210/07 and 41866/08)
15 October 2009
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 Dubovik v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mirjana Lazarova Trajkovska, judges,
Mykhaylo Buromenskiy, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 22 September 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Code of Civil Procedure, 1963 (no longer in force)
“Every citizen has the right to apply to court ... with an application, should he consider that a decision, action or inactivity of a public authority, legal person or official during the exercise of their administrative functions has violated his rights or freedoms”
2. The Code of Administrative Justice (in force since 1 September 2005)
Task of the administrative justice system
“1. The task of the administrative justice system is the protection of the rights, freedoms and interests of physical persons, and the rights and interests of legal entities in the field of public law relations from violations by public authorities ...
2. Any decisions, actions or inactivity of public authorities can be appealed against in administrative courts, except for cases in which the Constitution and laws of Ukraine foresee a different procedure of judicial appeal against such decisions, actions or inactivity ...”
Competence of the administrative courts in deciding administrative cases
“1. The competence of the administrative courts shall cover:
3) disputes between public authorities ...
4) disputes following an application by a public authority in the situations set forth by the law...
2. The competence of the administrative courts shall not cover public law cases:
2. that shall be decided under the criminal justice procedure ...”
Securing an administrative claim
“1. The court, upon the request of the claimant or of its own motion, can render a ruling on taking measures for securing an administrative claim ...
3. The lodging of the administrative claim or the initiation of administrative proceedings in the case does not suspend the challenged decision of the public authority, but the court may, in order to secure the claim,, suspend the decision by a ruling to that effect ...
6. A ruling on securing an administrative claim can be appealed against. An appeal against the ruling does not stop its enforcement, and does not prevent further examination of the case.”
Final and transitional provisions
“...7. After the entry into force of this Code applications and complaints that derive from administrative law relations ... (Chapters 29-32 of the Code of Civil Procedure, 1963) ... shall be considered under the procedure established by this Code ...”
3. Prosecution Service Act of 1 December 1991 (with amendments)
“Supervision over the compliance and application of laws
“Supervision over the compliance and application of laws covers:
1) compliance of acts issued by all bodies, enterprises, institutions, organisations and public officials with the requirements of the Constitution of Ukraine and laws in force ...”
Competences of the prosecutor
“...Having established a violation of the law the prosecutor or his deputy shall be competent:
1) to make objections to acts of ... ministries and other central bodies of the executive power ...”
Objection by the Prosecutor
“An objection to an act which contradicts the law may be submitted by the prosecutor or his or her deputy to the body that issued the act in question or to a higher body ...
An objection by the prosecutor shall have the effect of suspending the act objected to, and shall be subject to compulsory consideration by the relevant body ... within ten days of its receipt. The prosecutor shall be informed of the results of the examination of his/her objection within the same time-limit.
Should the objection be rejected ... the prosecutor may apply to a court to have the act declared unlawful. An application to a court may be lodged within fifteen days of receipt of the notification of rejection of the objection ... The lodging of such an application shall suspend the legal act in question.”
4. Refugees Act of 21 June 2001
Prohibition of expulsion or forced return of a refugee to the country from which he came and where his life or freedom is endangered
“No refugee may be expelled or forcibly returned to a country where his or her life or freedom is threatened for reasons of race, religion, ethnicity, nationality, membership of a particular social group or political opinion.
No refugee may be expelled or forcibly returned to a country where he or she may suffer torture and other severe, inhuman or degrading treatment or punishment, or to a country from where the refugee may be expelled or forcibly returned to a country where his or her life or freedom is threatened for reasons of race, religion, ethnicity, nationality, membership of a particular social group or political opinion.
This Article shall not apply to refugees convicted of a serious crime in Ukraine.”
5. The Act “on the procedure for the compensation of damage caused to a citizen by the unlawful actions of bodies of inquiry, the pre-trial investigative authorities, prosecutors and courts” of 1 December 1994 (with amendments)
“Under the provisions of this Law a citizen is entitled to compensation for damage caused by:
(1) unlawful conviction, unlawful indictment, unlawful arrest and detention, unlawful conduct of a search, seizure of property during the investigation and trial, unlawful removal from work (office) and other procedural actions that interfere with citizens' rights;
(2) unlawful imposition of administrative arrest or correctional labour, unlawful confiscation of property, unlawful imposition of a fine;
(3) the unlawful conduct of search and seizure activities foreseen by the Laws of Ukraine “on Search and Seizure Activities”, “on Organisational Legal Basis for Combating Organised Crime” and other legal acts.
In the cases indicated in part 1 of this Section, the damage sustained shall be compensated in full irrespective of the guilt of the officials of the bodies of inquiry, the pre-trial investigative authorities, prosecutors and courts.”
“The right to compensation for damage in the amount of and in accordance with the procedure established by this Law shall arise in cases of:
(1) acquittal by a court;
(1-1) the finding in a judgment by a court or other decision by a court (except a ruling or decision of a court on remittal of the case for further investigation or for retrial) of the fact of unlawful indictment, unlawful arrest and detention, unlawful conduct of search, seizure of property during the investigation and trial, unlawful removal from work (office) and other procedural actions that interfere with citizens' rights, unlawful conduct of search and seizure activities;
(2) the termination of a criminal case on the grounds of the absence of proof of the commission of a crime, the absence of corpus delicti, or a lack of evidence of the accused's participation in the commission of the crime;
(3) the refusal to initiate criminal proceedings or the termination of criminal proceedings on the grounds stipulated in paragraph 2 of part 1 of this section;
(4) the termination of proceedings for an administrative offence.
The right to compensation for damage caused by the search and seizure activities indicated in section 1 of this Law, conducted prior to the institution of criminal proceedings, arises in the cases set out in paragraph 1(1) of part 1 of section 1, or in cases in which no decision was taken on instituting criminal proceedings within six months of the conduct of such activities, as a result of which such activities ... were cancelled.”
“In the cases referred to in section 1 of this Law the applicant shall be compensated for ...
(5) non-pecuniary damage.”
“... Compensation for non-pecuniary damage shall be awarded in cases in which unlawful actions by bodies of inquiry, pre-trial investigative authorities, prosecutors and courts have caused non-pecuniary losses to a citizen, led to disruption of his or her usual relations and required additional efforts for the organisation of his or her life.
Non-pecuniary damage shall be defined as the suffering caused to a citizen due to physical or psychological influence which resulted in a deterioration or deprivation of his or her ability to act in accordance with his or her usual habits and wishes, a deterioration of relations with the people around him or her, and other adverse effects of a non-pecuniary nature.”
5. Other relevant legislation
I. JOINDER OF THE APPLICATIONS
II. ALLEGED VIOLATION OF ARTICLES 3, 6 AND 13 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 6 § 1
“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...”
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
“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;
(f) the lawful arrest or detention of ... a person against whom action is being taken with a view to ... extradition...
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.
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.”
1. Government's objections
(a) Incompatibility ratione personae
48. The Court notes that no other reason, except extradition, has ever been advanced by the authorities for the applicant's detention and there is no evidence in the case file to suggest that any other reason has ever existed. Therefore, notwithstanding the applicant's submissions to the contrary, her detention prior to 5 March 2008 was always with a view to extradition and her complaint about this period of her detention falls to be considered under Article 5 § 1 (f) of the Convention (see Soldatenko, cited above, § 99).
(b) Non-exhaustion of domestic remedies
1. Article 5 § 1 of the Convention
a) Period between 26 July 2007 and 5 March 2008.
b) The period between 5 March 2008 and 25 February 2009
2. Article 5 § 4
3. Article 5 § 5
70. The applicant maintained that the remedies invoked by the Government were not effective.
71. The Court reiterates that Article 5 § 5 of the Convention is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 of that Article (see Wassink v. the Netherlands, 27 September 1990, § 38, Series A no. 185 A, and Vachev v. Bulgaria, no. 42987/98, § 79, ECHR 2004 ... (extracts)). 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.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
2. Declare the complaints under Article 5 §§ 1(f), 4 and 5 of the Convention admissible and the remainder of the application inadmissible;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment became final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Ukrainian hryvnias at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 15 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer