(Application no. 4785/02)
10 December 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 Mironenko and Martenko 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 Claudia Westerdiek, Section Registrar,
Having deliberated in private on 17 November 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
1. Criminal proceedings against the applicants
“The indicated insufficiency and incorrectness of the pre-trial investigation cannot be remedied in the trial proceedings; moreover, the case-file contains grounds for laying charges of the more serious offence of extortion against the defendants and [the applicants]...
The Kyiv Prosecutor shall decide on the lawfulness of the decisions ... of 7 June 2000 to terminate the criminal proceedings against [the applicants] ... since their actions suggest that they were involved in committing the more serious offence of extortion. Their actions, in the court’s opinion, should be qualified by a cumulation of the crimes ...
Depending on the outcome [of the additional investigations] [the authorities] should resolve the question of the legal qualification of the acts committed by each accomplice to the offence. If the decision to discontinue the criminal proceedings against [the applicants] is revoked, [the authorities] should charge them anew and choose in accordance with law a preventive measure corresponding to the gravity of the offence.”
2. Alleged ill-treatment of the second applicant
II. RELEVANT DOMESTIC LAW
1. Appeal against the prosecutor’s detention order and requests for review of lawfulness of pre-trial detention
2. Challenging of the judge
3. Attendance of hearings in the cassation court
“A hearing before the court of cassation instance, which is being held in the presence of the prosecutor, may be attended by [the convicted or acquitted persons, their representatives, civil parties and their representatives]. If need be, the court can invite these persons to attend the hearing to give statements. A request by a convicted person who is being held in detention to be brought to the cassation hearing must be granted by the court of cassation instance.
The parties to the proceedings who appeared before the court are allowed to make submissions.”
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
“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.
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. Article 5 § 3
2. Article 5 § 4
There has accordingly been a violation of this provision too.
3. Article 5 § 5
II. COMPLAINT ABOUT THE LACK OF IMPARTIALITY UNDER ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
III. OTHER COMPLAINTS
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
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts plus any tax that may be chargeable on those amounts:
(i) to Mr Mironenko, EUR 5,000 (five thousand euros) for non-pecuniary damage, to be converted into Ukrainian hryvnias at the rate applicable at the date of settlement;
(ii) to Mr Martenko, EUR 5,000 (five thousand euros) for 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 amounts 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 10 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen