(Application no. 41015/04)
19 November 2009
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 Kaboulov v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Zdravka Kalaydjieva, judges,
Mykhaylo Buromenskiy, ad hoc judge,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 20 October 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
B. The applicant’s detention and main proceedings related to the lawfulness of the applicant’s extradition
1. The applicant’s initial detention from 23 August to 13 September 2004
“(...) 1. Person had been arrested at the moment of committing a crime or in flagranto;
2. The witnesses of a crime and its victims have identified this person as an offender;
3. Traces of crime were found on the suspect or his clothes, with him or in his place of residence;
4. [There is] other data, giving grounds to suspect the person in committing a crime, if he/she tried to escape or has no permanent place of residence or when the identity of the suspect has not been established.”
“To prevent crime.
1. To prevent a possibility of disappearing from the investigation and the court, ensuring enforcement of a criminal sentence.
2. To prevent events which would hinder the establishment of objective truth in the criminal case.”
2. Main proceedings related to the lawfulness of the applicant’s detention pending extradition
C. Various judicial proceedings against the decisions to detain the applicant and to extradite him
1. Proceedings relating to the lawfulness of the applicant’s detention in SIZO no. 27
2. Proceedings against GPO of Ukraine relating to the lawfulness of the applicant’s detention
3. Proceedings relating to the lawfulness of the applicant’s detention in SIZO no. 27
II. RELEVANT LAW AND PRACTICE
A. Relevant Ukrainian domestic law and practice
B. Other domestic normative acts in force at the material time
1. Constitution of Ukraine, 28 June 1996
“Every person has the right to freedom and personal inviolability.
No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law.
In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately, if he or she has not been provided, within seventy-two hours from the moment of detention, with a substantiated court decision in regard to the holding in custody.
Everyone arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of a defender.
Everyone detained has the right to challenge his or her detention in court at any time.
Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.”
Detention pending extradition
“The requesting Contracting Party shall immediately adopt the necessary measures for detention of a person whose extradition is requested, except in circumstances in which the person cannot be extradited.”
Procedural relations with regard to extradition and criminal prosecution
“Procedural relations with regard to extradition, criminal prosecution, and enforcement of investigative sanctions involving citizens’ rights and necessitating the approval of the prosecutor shall be handled by the prosecutors general (prosecutors) of the Contracting Parties.”
2. Militia Act of 20 December 1990 (as in force at the material time)
3. Regulation no. 4203-IX of 13 July 1976 “On the temporary detention of persons suspected of having committed a criminal offence” (enacted by Decree of the Presidium of the Verkhovny Soviet of the USSR and still in force in Ukraine)
C. International human rights reports on Kazakhstan
1. Kazakhstan: Amnesty International Briefing to the UN Committee Against Torture (November 2008)
“5. Cruel, inhuman or degrading treatment or punishment (Article 16)
5.1. The death penalty
In May 2007 the scope of the application of the death penalty permitted by the constitution was reduced from 10 “exceptionally grave” crimes to one – that of terrorism leading to loss of life. The death penalty also remains a possible punishment for “exceptionally grave” crimes committed during times of war. A person sentenced to death in Kazakhstan retains the right to petition for clemency. A moratorium on executions, which had been imposed in 2003, remained in force and no death sentences were passed during 2007 and the first 10 months of 2008. All 31 prisoners on death row had their sentences commuted to life imprisonment.
Amnesty International is concerned that the death penalty could be applied to acts committed outside Kazakhstan and ... concern is heightened in view of the documented failure of judges to exclude evidence extracted under torture and the numerous reports of the authorities using national and regional security and the fight against terrorism to target vulnerable groups such as asylum-seekers and groups perceived to be a threat to national and regional stability. ....
5.2. Prison conditions
Whereas by all accounts Kazakhstan had implemented a successful reform of its penitentiary system ... the last two years have reportedly seen a decline in prison conditions, with many of the abusive practices reoccurring more and more often.
2007 saw a number of disturbances in prisons camps throughout the country with large groups of prisoners committing acts of self-mutilation, such as slicing their abdomens, hands and necks, reportedly in protest at deteriorating conditions of detention. The South Kazakhstan Regional office of the prosecutor opened a criminal case into the abuse of office, and the unlawful use of police equipment, by prison officials in relation to 77 prisoners committing acts of self-mutilation. The prosecutor’s office was quoted by the press as admitting that prison officers had beaten and otherwise ill-treated prisoners. Nevertheless the prison officials were not charged under Article 347-1 (Torture). The prisoners themselves were charged with organizing disturbances in order to disrupt the functioning of the prison, a criminal offence under Article 361 of the Criminal Code punishable from one to up to 10 years’ imprisonment.
NGOs told Amnesty International that the conditions of detention in prisons had severely deteriorated since 2006 and that they were receiving increasing numbers of complaints of torture or ill-treatment from prisoners or from relatives. It was becoming increasingly difficult for prisoners to lodge complaints about torture or other ill-treatment by prison officers, according to these reports, because all correspondence was vetted by the prison administration and complaints could only be forwarded to the local prosecutor’s office with the permission of the prison administrator, in contravention of the rights of prisoners and detainees. NGOs were told that prisoners had to pay the prison administration to see a medical doctor or to get medical treatment, or to send letters or make phone calls to their families, that they were often locked up in punishment cells for extended periods of time for either complaining about cruel, inhuman or degrading treatment or punishment or for disobeying orders by prison officers. Some methods of punishment meted out to prisoners reportedly included being forced to clean toilets with their bare hands and wash the floor naked.”
2. Report of the Special Rapporteur of the Commission on Human Rights on the independence of judges and lawyers, Leandro Despouy (Addendum “Civil and Political Rights, including the questions of independence of the judiciary, administration of justice, impunity”), at Sixty-first session Item 11(d) of the provisional agenda, 11 January 2005
“... 20. Moratorium on the death penalty
In December 2003, the Senate proposed a moratorium on the death penalty. By presidential decree the moratorium was extended in January 2004 and the Criminal Code amended to introduce life imprisonment instead of capital punishment. With all human rights organizations, the Special Rapporteur welcomes this development, especially having in mind that 40 persons were executed in 1999; 22 in 2000 and 15 in 2001. Since the moratorium, only one death sentence was registered and the Supreme Court commuted it to life imprisonment.”
3. The International Helsinki Federation for Human Rights Report of 11 September 2006
“.... Though there has been a moratorium on executions since December 2003 and life imprisonment has been a viable legal alternative to the death sentence since January 2004 -- both developments welcomed by the IHF -- this latest ruling signals that obstacles remain in Kazakhstan’s journey towards abating the use of the death penalty and, eventually, abolishing it. With the moratorium in place, Ibragimov now goes to death row, joining 27 other inmates and awaiting his death should the political will of the Kazakh government break and lift the moratorium. ...”
4. International Service for Human Rights Report on Kazakhstan (discussed at the 26th session of the Committee against Torture in Geneva, 30 April to 18 May 2001)
Kazakhstan (initial report)
“... The Committee was concerned about the allegations of torture and other degrading treatment committed by law enforcement officials. The lack of independence of the [prosecutors], the defence counsel and the judiciary was also raised with concern. The Committee highlighted that allegations of torture are not being considered seriously, as reflected by the fact that investigations are being postponed and judges sometimes refuse to recognise evidence of torture.
Another point of concern related to overcrowding and reduced access to medical care in prisons and detention centres.
... The Committee recommended that the crime of torture, as outlined in the Penal Code, be amended in line with the Convention. It urged the State Party to ensure a fully independent mechanism of complaints and enable the defence counsel to follow a case from the beginning and to gather evidence ...”
5. Analysis of the legal framework for the death penalty in Kazakhstan by OSCE/ODIHR
“.... There are currently 27 persons on death row in Kazakhstan. Persons subjected to the moratorium are currently detained in pre-trial detention facilities.
... Official statistics provided by the Office of the Prosecutor-General indicate that nine death sentences were passed in the period from 30 June 2003 to 30 March 2004. No death sentences entered into force (i.e., all appeals stages exhausted) in this period. According to unofficial statistics, only one death sentence has been passed since the moratorium was put in place, but this was subsequently reduced to life imprisonment by the Supreme Court.
... Official statistics provided by the Office of the Prosecutor-General indicate that no executions were carried out in the period from 30 June 2003 to 30 March 2004.
... All persons sentenced to death have the right to appeal for commutation of the sentence to life imprisonment or 25 years’ imprisonment (Art. 49(3) of the Criminal Code, Art. 31(2) of the Criminal Procedure Code, and Art. 166(1) of the Criminal Executive Code). The cases of all persons sentenced to death are considered regardless of whether the sentenced person has submitted an appeal for clemency (Presidential Decree No. 2975 “On provisions for pardoning procedure by the president of the Republic of Kazakhstan”, 7 May 1996)
... Relatives are not informed in advance of the date of execution, the body is not returned, and the location of the place of burial is not disclosed to the relatives until at least two years after the burial has taken place (Art. 167, Criminal Executive Code).”
6. US Department of State Country Reports on Human Rights Practices - 2004, released by the Bureau of Democracy, Human Rights and Labour, 28 February 2005 (extract on Kazakhstan)
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
“The Government reported that 51 criminal cases against law enforcement officers for physical abuse were filed during the year.
... Prison conditions remained harsh and sometimes life threatening. Mistreatment occurred in pre-trial detention facilities and in prisons, and nongovernmental organizations (NGOs) and international organizations reported that abuses of prisoners increased after the head of the penitentiary system and approximately one third of the prison administrators were replaced in 2003. The December 2003 transfer of supervision of pre-trial detention facilities from the Ministry of the Interior to the Ministry of Justice was completed in May; as a result of this transfer, conditions improved, although they remained harsh. The head of the prison system and two deputies resigned in February following reports of brutal beatings of inmates in certain prisons. Violent crime among prisoners was common. During the year, the number of prisoners continued to decline significantly. Much of the decrease was associated with the 2002 Humanization of Criminal Justice Law, which prescribes punishments other than imprisonment, such as probation, for minor first offences.
The Government reported 2,600 total violations, including physical force violations, by employees of the penitentiary system during the year. Some officials were punished for these abuses; 911 employees received disciplinary punishment, including fines, demotions, and dismissal and another 8 employees were convicted on criminal charges.
In the past several years, prison diets and availability of medical supplies have improved. There were 6 tuberculosis colonies and 2 tuberculosis hospitals for prisoners; 5,591 prisoners were housed in these colonies. While the incidence of tuberculosis stabilized, HIV/AIDS continued to be a problem. The Government, together with the U.N. Development Program (UNDP), continued to implement a project to prevent HIV/AIDS and other sexually transmitted diseases in penitentiaries. Prisoners were permitted to have visitors, although the number and duration of visits depended on the security level of the prison and the type of sentence being served.
Prisoners were held in close proximity, barracks-style facilities; however, a government program to build new correctional facilities and rehabilitate existing facilities continued throughout the year.
Incidents of self-mutilation by inmates to protest prison conditions continued. In general, the Government did not take action in response to self-inflicted injuries by prisoners... ”
7. US State Department Country Reports on Human Rights Practices – 2006, released by the Bureau of Democracy, Human Rights, and Labour, 6 March 2007)
“(...) The following human rights problems were reported: an incident of unlawful deprivation of life; ... detainee and prisoner abuse; unhealthy prison conditions; ... lack of an independent judiciary; ...
a. Arbitrary or Unlawful Deprivation of Life
... The court sentenced Rustam Ibragimov, a former ministry of internal affairs official, to death, though he will remain in prison as long as the death penalty moratorium remains in effect. ....
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The constitution and law prohibit such practices, but police and prison officials at times tortured, beat, and abused detainees, often to obtain confessions. In its Human Rights Commission’s annual report, the government acknowledged that torture and other illegal methods of investigation were still used by some law enforcement officers. Human rights and international legal observers noted investigative and procurator’s practices that overemphasized a defendant’s confession of guilt over collecting other types of evidence in building a criminal case against a defendant.
... The ombudsman’s office reported 2,613 citizen complaints during the year, over 20 percent of which were allegations of abuse by law enforcement.
... Prison and Detention Centre Conditions
Though the government implemented prison reforms and granted greater access, prison conditions remained harsh and facilities did not meet international health standards. Mistreatment occurred in police cells, pre-trial detention facilities, and prisons. The government took some steps to address systemic patterns that encouraged prisoner abuse. These included continued operation of and increased access for regional penitentiary oversight commissions, training of prison officials, and seminars for MVD police; however, no prison officials were prosecuted for abuses during the year.
The government conducted 13 criminal investigations of penitentiary officials for corruption in the first eight months of the year. These investigations resulted in 12 convictions and one acquittal.
... Although the government made some efforts to upgrade existing facilities and build new ones, buildings at many prisons remained outdated and hygiene conditions were substandard. In February the procurator general’s office issued an order closing one of the buildings in the Semipalatinsk pre-trial investigation facility because it did not meet sanitary standards and posed a threat to the health and lives of detainees. On May 25, the procurator general’s office issued a statement criticizing the MOJ for failing to address overcrowding, sewage, and poor sanitation in prisons.
During the year, 31 detainee deaths, including five suicides, were reported at pre-trial detention facilities. The government reported 268 deaths in prisons during the year, including 26 suicides.
Incidents of self-mutilation by inmates to protest prison conditions continued. On March 31, inmates in the Zarechny prison outside of Almaty rioted to protest harsh conditions, mistreatment, and confiscation of personal belongings. According to human rights activists, the prison was originally designated to house convicted law enforcement officers. However, prior to the riot, regular criminals were added to the population, leading to increased tension and the tightening of controls. Twenty-four inmates mutilated themselves by cutting their abdomens, and three inmates were injured when prison guards restored order. Local NGOs were permitted to visit the facility and interview inmates after the incident. An activist from the Public Committee for Monitoring Human Rights reported that the prison officials’ response to the riot was generally appropriate. Several officers of the prison administration were disciplined for their failure to deal with the protest action. After the incident, prison officials transferred the regular criminals out of the population to reduce tension and problems.”
8. US Department of State Country Reports on Human Rights Practices - 2007, released by the Bureau of Democracy, Human Rights and Labour, 11 March 2008
“(...) There were the following human rights problems: (...) detainee and prisoner abuse; unhealthy prison conditions; arbitrary arrest and detention; lack of an independent judiciary; (...) pervasive corruption, especially in law enforcement and the judicial system; (...)
a. Arbitrary or Unlawful Deprivation of Life
In contrast with the previous year, there were no reports that the government or its agents committed arbitrary or unlawful killings. (...)
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The procurator general’s office (PGO) and the human rights ombudsman acknowledged that torture and other illegal methods of investigation were still used by some law enforcement officers. Human rights and international legal observers noted investigative and prosecutorial practices that overemphasized a defendant’s confession of guilt over collecting other types of evidence in building a criminal case against a defendant. Courts generally ignored allegations by defendants that their confessions were obtained by torture or duress.
The ombudsman’s office reported 1,684 citizen complaints during the first 11 months of the year, approximately 300 of which were allegations of abuse or misconduct by law enforcement.
Prison and Detention Centre Conditions
NGOs and international observers reported that prison and detention centre conditions declined during the year. Observers cited worsening treatment of inmates and detainees, lack of professional training for administrators, and legislative changes on April 26 that criminalized prisoner protests and self-mutilation. The legislative changes also transferred operation of the parole system from penitentiary officials to the MIA and implemented forced tuberculosis treatment.
Prison conditions remained harsh and facilities did not meet international health standards, although the government began renovating three prisons and two detention facilities during the year as part of a penitentiary development program. Mistreatment occurred in police cells, pre-trial detention facilities, and prisons. The government took steps to address systemic patterns that encouraged prisoner abuse, including continued operation of and increased access for regional penitentiary oversight commissions, training of prison officials, and seminars for MIA police. Authorities did not prosecute any prison officials for abuses during the year, although they opened 21 investigations for corruption, resulting in eight convictions by year’s end.
During the first ten months of the year, 32 detainee deaths, including six suicides, were reported at pre-trial detention facilities. The government reported 40 suicides in prisons during the first 11 months of the year. Incidents of self-mutilation by inmates to protest prison conditions continued.
e. Denial of Fair Public Trial
The law does not provide adequately for an independent judiciary. The executive branch limited judicial independence. Procurators enjoyed a quasi-judicial role and were permitted to suspend court decisions.”
D. Relevant extracts from the Constitution and the Criminal Code of the Republic of Kazakhstan
1. Constitution of the Republic of Kazakhstan (adopted on 30 May 1995 with changes and amendments dated 21 May 2007)
Article 15 (in force as from 22 May 2007)
“1. Everyone shall have the right to life.
2. No-one shall deprive a person of his/her life. The death penalty shall be established by law as an exceptional punishment for terrorist crimes which have resulted in the loss of human life, and also for especially grave crimes, committed in time of war, with a sentenced person having a right to appeal for pardon.”
Article 83 (in force as from 22 May 2007)
“1. The Prosecutor’s Office, acting on behalf of the State, effectuates highest supervision over strict and unified application of the laws, Presidential decrees, and other normative acts of the Republic of Kazakhstan ...”
2. The Criminal Code of the Republic of Kazakhstan (approved by Law no. 167 of 16 July 1997, with changes and amendments dated 9 December 2004)
“1. Capital punishment, that is a sentence to be shot, is an exceptional form of punishment reserved for especially grave crimes infringing a person’s right to life and for crimes committed in war time or in a combat situation, high treason, crimes against the peace and safety of mankind and especially grave military crimes.
2. Capital punishment shall not be applied to women, to persons who committed a crime while under the age of eighteen or to men who have reached the age of sixty five when the sentence is passed by a court.
3. Should the President of the Republic of Kazakhstan introduce a moratorium on enforcement of the death penalty, the enforcement of a death sentence shall be suspended for the effective period of the moratorium.
4. A sentence of death shall be implemented not earlier than one year from the time of its entry into force and no less than one year after the abolition of a death penalty moratorium.
5. Under the pardon procedure, the death penalty may be replaced with life imprisonment or with deprivation of liberty for a period of twenty-five years in a special-regime correctional facility. Persons sentenced to the death penalty shall, in the event of the abolition of a moratorium, have the right to petition for pardon, irrespective of whether or not they had made such a petition prior to the introduction of the moratorium.”
E. Third party submissions as to the legal and human rights situation in Kazakhstan
I. PRELIMINARY CONSIDERATIONS
A. The continued examination of the application
B. The applicant’s identity
84. The applicant initially submitted that he was detained in error as his real surname was “Kubulov (Kuboulov)” and not “Kaboulov”. He provided several documents, including his passport showing citizenship of the Russian Federation, which had been issued in that name.
C. Objection as to exhaustion of domestic remedies
1. The parties’ submissions
2. The Court’s assessment
A. Alleged violation of Article 2 § 1 of the Convention
1. The parties’ submissions
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally ... (...)”
2. The Court’s case-law
3. The Court’s assessment
B. Alleged violation of Article 3 of the Convention
1. The parties’ submissions
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
2. The Court’s case-law
3. The Court’s assessment
C. Alleged violation of Article 13 of the Convention
“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.”
D. Alleged violation of Article 6 § 1 of the Convention
“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...”
E. Alleged violation of Article 5 of the Convention
1. Complaints under Article 5 §§ 1 (c), (e) and (f), 3 and 4 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; ...
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. ...
3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
a. The parties’ submissions
b. The Court’s assessment
i. General principles
ii. Application of these principles: introduction
- the applicant’s initial detention from 23 August 2004 until the judicial decision of 13 September 2004 authorising his detention with a view to his extradition;
- the applicant’s detention after a judicial decision of 13 September 2004.
iii. Application of these principles to the first period of the applicant’s detention
iv. Application of these principles to the second period of the applicant’s detention
138. The first judicial decision to detain the applicant for the purposes of extradition was given on 13 September 2004, that is, 21 days after the applicant had been arrested. Thereafter, the applicant’s detention was extended on several occasions up to October 2005. Since then, no judicial decisions have been taken as to his continued detention.
139. However, in respect of the Ukrainian legislation, as noted above, in the case of Soldatenko v. Ukraine (§§ 112-114, cited above), the Court found that the applicant’s detention pending extradition was not lawful as there was no procedure in Ukrainian law that would comply with the aforementioned criteria. On the basis of these findings the Court found a violation of Article 5 § 1(f) of the Convention. The Government do not point to any features in the present case which could distinguish it from Soldatenko.
2. The applicant’s complaints under Articles 5 § 2 of the Convention
a. Parties’ submissions
“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”
b. The Court’s assessment
3. The applicant’s complaints under Article 5 § 4 of the Convention
149. The applicant further complained of the lack of sufficient procedural guarantees in domestic legislation for the review of the lawfulness of his detention, and of the delay in the initial review of his detention by the domestic court, given that he had been brought before a court on the seventh day of his detention. He relied on Article 5 § 4 of the Convention, which reads as follows:
“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.”
150. The Government disagreed, stating that such an effective procedure existed in the Ukrainian domestic law. They referred to Articles 106, 165-2 and 382 of the Code of Criminal Procedure, which specified the procedure for examining appeals against preventive measures. They further maintained that on 8 October 2004 the Plenary Supreme Court had adopted a practice recommendation concerning review of complaints concerning extradition matters.
151. The Court reiterates the relevant principles established in its case-law regarding the interpretation of Article 5 § 4 of the Convention (see Soldatenko, cited above, § 125):
“... The Court reiterates that the purpose of Article 5 § 4 is to secure to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected (see, mutatis mutandis, De Wilde, Ooms and Versyp v. Belgium, judgment of 18 June 1971, Series A no. 12, § 76). A remedy must be made available during a person’s detention to allow that person to obtain speedy judicial review of the lawfulness of the detention, capable of leading, where appropriate, to his or her release. The existence of the remedy required by Article 5 § 4 must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see, mutatis mutandis, Stoichkov v. Bulgaria, no. 9808/02, § 66 in fine, 24 March 2005, and Vachev v. Bulgaria, no. 42987/98, § 71, ECHR 2004-VIII (extracts)). The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (see, mutatis mutandis, Čonka, cited above, §§ 46 and 55).”
154. The Court, having regard to the applicant’s attempts to bring about a review of the lawfulness of his detention, its findings under Article 5 § 1 of the Convention (see paragraphs 137 and 140 above) and those in the judgment of Soldatenko (cited above), concludes that there has been a violation of Article 5 § 4 of the Convention in the present case.
4. The applicant’s complaints under Articles 5 § 5 of the Convention
“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.”
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
III. 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
(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, EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the national currency of Ukraine 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 19 November 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President