(Applications nos. 40774/02 and 4048/03)
27 November 2008
This judgment may be subject to editorial revision.
In the case of Solovey and Zozulya v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Rait Maruste, President,
Mirjana Lazarova Trajkovska, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 4 November 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Criminal proceedings against the applicants
B. Applicants’ detention on remand
C. Applicants’ requests for release and complaints about unlawfulness of their detention
II. RELEVANT DOMESTIC LAW
Article 148: Grounds for the application of preventive measures
“If there are sufficient grounds to consider that the accused, if at liberty, will abscond from an investigation or the court, or will obstruct the establishment of the truth in a criminal case or will pursue criminal activities, and in order to ensure the execution of the sentence, the investigator and prosecutor shall be entitled to impose on the accused one of the preventive measures envisaged by Article 149 of the Code ...”
Article 149: Preventive measures
“The preventive measures shall be as follows:
(1) a written undertaking not to abscond;
(2) a personal surety;
(3) the surety of a public organisation or labour collective;
(4) remand in custody;
(5) supervision by the command of a military unit.”
Article 155 (as worded at the material time): Detention on remand
“Detention on remand as a preventive measure shall be applied in cases concerning offences for which the law envisages a penalty of more than one year’s imprisonment. In exceptional circumstances this preventive measure can be applied also in cases concerning offences for which the law envisages a penalty of up to one year’s imprisonment...”
Article 156 (as worded at the material time): Term for holding a person in custody
“The term for remanding a person in custody during the investigation of criminal offences shall be not more than two months. This term may be extended to four months by district, city or military prosecutors, prosecutors of the fleet or command garrison, or other prosecutors of the same rank, if it is not possible to terminate the criminal investigation, and in the absence of any grounds for changing the preventive measure. A further extension of this term to six months from the time of arrest shall be effected only if the case is exceptionally complex, by the Prosecutor of the Republic of the Crimea, regional prosecutors, Kyiv prosecutors, military prosecutors of the district or fleet, or other prosecutors equal to them in rank.
Further periods of remand in custody may be extended for up to one year by the Deputy Prosecutor General of Ukraine, and up to eighteen months by the Prosecutor General.
Subsequent to the above, no further extensions of detention on remand shall be allowed. The accused must then be immediately released.
If it is impossible to terminate the investigation within these remand periods and there are no grounds for changing the preventive measure, the Prosecutor General or his Deputy shall be entitled to refer the case to a court in the part which relates to accusations which can be proved. As regards the incomplete investigation, the case shall be divided into separate proceedings and completed in accordance with the general rules.
The material relating to the completed part of the criminal case shall be provided to the accused and his representative for examination not later than one month before the expiry of the remand period, as established by paragraph 2 of this Article.
The time taken by the accused and his representative to apprise themselves of the material in the case file shall not be taken into account in calculating the overall term of remand in custody.
If the court refers the case back for a fresh investigation, and where the term of remand in custody has ended, and an alternative preventive measure cannot be applied in the circumstances of the case, the prolongation of detention on remand shall be effected by the prosecutor, whose task is to supervise the lawfulness of the pre-trial investigation in the case, within one month from the time he receives the case file. Further prolongation of such detention, before the case is remitted to the court, shall be governed by paragraphs 1, 2 and 6 of this Article.”
Terms of examination of the case by a single judge or a court in the committal hearing
“A criminal case shall be examined by a single judge or a court in the committal hearing within five days or, in complex cases, ten days after its receipt by the court.”
Article 242 (as worded at the material time): Issues considered when committing the accused for trial
“Single judges or a court in a preparatory sitting shall consider the following issues with respect to each of the accused:
(7) whether the preventive measure with respect to the accused has been selected correctly...”
Article 244 (as worded at the material time): Decision of a court or of a single judge at the preparatory hearing
“... If it is necessary to change the preventive measure, the court in a ruling and the judge in a resolution shall give reasons for the decision taken to that effect.”
I. JOINDER OF THE APPLICATIONS
II. SCOPE OF THE CASE
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;
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.”
1. The Government’s preliminary objection to compatibility ratione personae
The Court therefore dismisses this preliminary objection of the Government.
2. Government’s preliminary objection as to non-observance of six-month rule
The Court also notes that when there are two separate periods of detention on remand, as in the present case, the question whether or not the Court can look into complaints referring to the first period, if such period taken separately falls outside the six-month time-limit, depends on the nature of the complaints and the type of violation alleged. Given that the detention on remand is a continuous situation and that the Court on many occasions has decided that where an accused person is detained for two or more separate periods pending trial, the reasonable-time guarantee of Article 5 § 3 requires a global assessment of the aggregate period (see Kemmache v. France (no. 1 and no. 2), 27 November 1991, § 44, Series A no. 218; Vaccaro v. Italy, no. 41852/98, 16 November 2000, §§ 31 33; Mitev v. Bulgaria, no. 40063/98, 22 December 2004, § 102; and Kolev v. Bulgaria, no. 50326/99, § 53, 28 April 2005). The Court does not see any reason to depart from the above case-law in the present case.
3. Government’s preliminary objection as to non-exhaustion of domestic remedies
B. Lawfulness of the detention under Article 5 § 1 (c)
1. Parties’ submissions
2. Court’s assessment
(a) General principles enshrined in the case-law
(b) The lawfulness of the applicants’ detention
(i) Applicants’ detention under prosecutors’ orders
(ii) Applicants’ detention not covered by any decision
(iii) Lawfulness of the applicants’ detention under the court orders
C. Unreasonable length of detention under Article 5 § 3
1. Parties’ submissions
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
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 Solovey, 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 Zozulya, 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 27 November 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait Maruste
Deputy Registrar President