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VITRUK v. UKRAINE - 26127/03 [2010] ECHR 1297 (16 September 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1297.html
Cite as:
[2010] ECHR 1297
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FIFTH
SECTION
CASE OF VITRUK v. UKRAINE
(Application
no. 26127/03)
JUDGMENT
STRASBOURG
16
September 2010
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 Vitruk v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Rait Maruste,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Ganna
Yudkivska, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 24 August 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 26127/03) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Nikolay Anatolyevich
Vitruk (“the applicant”), on 26 July 2003.
The
applicant was represented by Mr M. Stadnyuk, a lawyer practising in
Kyiv. The Ukrainian Government (“the Government”) were
represented by their Agent, Mr Y. Zaytsev, from the Ministry of
Justice.
The
applicant alleged, in particular, that his pre-trial detention had
been unlawful and excessively long, that the domestic courts had
failed to consider his complaints about the unlawfulness of his
detention properly and that the length of the criminal proceedings
against him had been excessive.
On
7 July 2009 the Court decided to give notice of the application to
the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant, Mr Nikolay Anatolyevich Vitruk, is a Ukrainian national
who was born in 1979 and lives in Kiev.
On
8 May 1999 the Kyiv Vatutinsky District Prosecutor Office instituted
proceedings into the murder of Mr S.
On
10 May 1999 criminal proceedings were instituted against the
applicant and two other individuals – Mr Suptel
and Mr N.
On
13 May 1999 the police apprehended the applicant. According to the
applicant, the police officers severely beat him for several hours,
forcing him to confess to the murder.
On
14 May 1999 a medical expert examined the applicant and established
that he had four scratches on his finger and a black eye. The expert
noted that the applicant could have injured his finger with the knife
used to stab the victim Mr S. Later, at the court hearing, the
applicant claimed that he had injured his finger while moving
furniture.
On
16 May 1999 the Vatutinsky District Prosecutor ordered the
applicant’s detention on the grounds that he was suspected of a
serious crime and that there was a danger that he could abscond and
interfere with the course of justice.
On
24 May 1999 the applicant was questioned in the presence of a lawyer
and claimed his innocence. The same day he was officially charged
with murder.
On
23 June 1999 the applicant sent a complaint to the Kyiv Vatutinsky
District Prosecutor’s Office (the VDPO) alleging ill-treatment
by the police on 13 May 1999.
On
9 July and 7 September 1999 the military prosecutor of the Central
Region extended the applicant’s pre-trial detention to four and
six months respectively.
On
22 September 1999 the applicant complained again to the VDPO with
respect of his alleged ill-treatment on 13 May 1999.
On
29 October 1999 the VDPO refused to institute criminal proceedings
into the applicant’s allegations of ill-treatment. It was
established that the applicant had a black eye which had been
inflicted by the police at the moment of arrest because of the
applicant’s resistance. The only other injuries found were the
scratches on one of the applicant’s fingers which had occurred
prior to the date of his arrest. The decision referred also to the
fact that the applicant’s father who was himself a police
officer had seen his son during the questioning and the applicant had
made no complaints to him about any ill-treatment. On the same day a
copy of this decision was sent to the applicant. It does not appear
from the case-file materials or the applicant’s submissions
that he appealed against this refusal to the court.
On
5 November 1999 the investigation was completed and the applicant was
given access to the case file.
On
23 November 1999 the Vatutinsky District Court rejected the
applicant’s complaint against the detention order having found
that it had been issued in accordance with the law.
On
19 April 2000 the defendants finished examining the case-file
materials.
On
24 April 2000 the criminal case was referred to the Kyiv City Court
of Appeal (the Kyiv Court).
On
10 May 2000 the Kyiv Court held the committal hearing and decided to
maintain the applicant’s detention.
On
5 October 2000 the Kyiv Court refused to change the preventive
measure (detention) in respect of the applicant.
On
31 October 2000 the Kyiv Court found the applicant guilty of murder
and sentenced him to fifteen years’ imprisonment. The court
considered the applicant’s allegations of ill-treatment and
found them unsubstantiated on the ground that his account of the
events did not correspond to the findings of the forensic medical
examination of 14 March 1999. The medical expert confirmed
at the court hearings that he had thoroughly examined the applicant
and found no injuries other than those indicated in his report (see
paragraph 9 above).
On
17 May 2001 the Supreme Court of Ukraine quashed the decision of the
city court and remitted the case for further investigation. It
maintained the applicant’s detention without indicating any
grounds.
On
25 June 2001 the Vatutinsky District Prosecutor ordered the
applicant’s detention for one month – up to 25 July 2001.
On
24 July 2001 the prosecutor issued a new decision extending the
applicant’s detention for one month – until 25 August
2001. This decision was cancelled by the Kyiv Prosecutor’s
Office on 6 August 2001 for being unlawful.
On
8 August 2001 the prosecutor requested the Kyiv Court to extend the
applicant’s detention for up to nine months.
On
20 August 2001 the Kyiv Court extended the applicant’s
detention for up to nine months (25 September 2001) on the ground
that he had committed a serious crime and there was a danger that he
could abscond or interfere with the investigation.
The
applicant examined the case-file materials between 18 September
and 13 December 2001 and between 7 February and 13 February
2002.
On
21 February 2002 the investigation was completed and the case
referred to the Kyiv Court.
On
26 March 2002 the Shevchenkivsky District Court of Kyiv rejected the
applicant’s complaint against SIZO no. 13 for failure to
release him after the expiry of the nine-month period of pre-trial
detention ordered by the court. On 4 July 2002 the Kyiv Court quashed
the decision of 26 March 2002 and terminated the proceedings on
the ground that the disputed actions had to be considered under the
criminal, rather than the civil, procedure. On 24 December 2002 the
Supreme Court upheld the decision of the Kyiv Court.
On
10 April 2002 the Kyiv Court held the committal hearing and decided
to remit the criminal case for further investigation. It also
maintained the applicant’s detention on the ground that he was
accused of a serious crime and the possibility that he might attempt
to escape or interfere with the course of justice could not be ruled
out.
On
13 June 2002 the Supreme Court upheld the decision of 10 April
2002. It also noted that the decision on the applicant’s
detention was lawful and well-reasoned.
On
2 July 2002 the VDPO received the criminal case file.
On
15 July 2002 the Vatutinsky District Prosecutor extended the period
of the investigation for one month. It was also indicated in this
decision that the period of detention for the accused should not
exceed two months and should be calculated from the date when the
criminal case arrived at the prosecutor’s office. The
prosecutor also noted that it was impossible to change the preventive
measure (detention) in respect of the applicant and the other accused
since they had committed a serious crime and if released could
reoffend or abscond.
On
16 August 2002 the additional investigation was completed.
From
September 2002 to 4 October 2002 the applicant examined the case-file
materials.
On
1 November 2002 the case was submitted to the Kyiv Court.
On
16 December 2002 the Kyiv Court held a committal hearing. It
maintained the applicant’s detention because of the seriousness
of the accusations against him.
On
25 March, 10 April 2003, 26 June and 21 October 2003, the Kyiv Court
rejected the applicant’s requests for release because of the
seriousness of the accusations against the applicant and the lack of
grounds for changing the preventive measure.
On
6 November 2003 the Kyiv Court remitted the case for further
investigation. It maintained the applicant’s detention on the
grounds of the seriousness of the accusations against the applicant
and the risk of his absconding and interfering with the
investigation.
On
15 April 2004 the Supreme Court of Ukraine remitted the case for
further investigation. It maintained the applicant’s detention
stating that given the seriousness of accusation against him there
were no grounds for changing the preventive measure.
On
21 July 2004 the applicant was released by the prosecutor under an
obligation not to abscond. The decision noted that it was no longer
necessary to hold the applicant in custody and there were no grounds
to believe that he might abscond or influence further investigation.
On
11 October 2006 the criminal proceedings were terminated. The
applicant’s obligation not to abscond was lifted. Later the
same month the criminal proceedings were renewed.
On
28 December 2006 the criminal proceedings were terminated.
On
13 August 2007 the General Prosecutor’s Office quashed the
decision of 28 December 2006 and referred the case for further
pre-trial investigation.
On
27 August 2007 the pre-trial investigation was resumed.
On
11 September 2007 Desnyansky District Prosecutor’s Office
suspended the investigation because of the impossibility of
establishing the whereabouts of the suspect Mr N.
II. RELEVANT DOMESTIC LAW
Relevant
domestic law is summarised in the cases of Shalimov v. Ukraine
(no. 20808/02, § 39-41, 4 March 2010), Solovey and Zozulya
v. Ukraine (nos. 40774/02 and 4048/03, § 43, 27
November 2008), and Kozinets v. Ukraine (no. 75520/01, §§
39-42, 6 December 2007).
THE LAW
I. SCOPE OF THE CASE
In
his reply to the Government’s observations, the applicant
submitted new complaints under Article 3 of the Convention, alleging
that the conditions of his detention were poor and he had not
received proper medical treatment − having contracted hepatitis
while in detention. The Court notes that these new belated complaints
are not an elaboration of the applicant’s original complaints
on which the parties have commented. The Court considers, therefore,
that it is not appropriate now to take these matters up separately
(see, mutatis mutandis, Piryanik v. Ukraine,
no. 75788/01, § 20, 19 April 2005).
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained under Article 3 of the Convention that he had
been ill-treated by the police on the day of his arrest and that his
allegedly unlawful detention for a long period of time constituted,
in itself, inhuman and degrading treatment. Article 3 of the
Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Alleged ill-treatment of the applicant
The
Government considered that the applicant’s complaint of alleged
ill-treatment must be rejected as it was submitted too late. They
maintained the last decision, in which this issue had been examined,
had been given by the Supreme Court of Ukraine on 13 June 2002 while
the application had been lodged on 26 July 2003.
The
applicant disagreed. He noted that his complaints of alleged
ill-treatment had been considered by the courts also in further
proceedings in 2003 and not in 2002 as the Government maintained.
The
Court notes that the parties disagreed as to the moment from which
the six-month period should run as regards the applicant’s
case. Both of them refer, however, to the criminal proceedings
against the applicant in which the issue of his alleged ill-treatment
had been raised. The Court notes that examination of allegations of
ill-treatment of the accused in the criminal trial against him or her
may only exceptionally be considered a remedy to be exhausted for the
purpose of Article 35 § 1 of the Convention (see and
compare, Yakovenko v. Ukraine, no. 15825/06, § 72, 25
October 2007 and Yaremenko v. Ukraine, no. 32092/02, §
65, 12 June 2008), but at this stage of examination it is for the
Government to raise any objection regarding the exhaustion of
domestic remedies. Nevertheless, the Court does not see a need to
discuss the above issues in the present case, given that this
complaint of the applicant must be declared inadmissible for the
reasons which follow.
The
applicant maintained that after his arrest he had been severely
beaten by the police for hours, although the following day when he
was examined by a medical expert it was established that he had a
black eye and scratches on one of his fingers. The latter injury was
examined by the law enforcement and judicial authorities as
possible proof of his involvement in the crime, while at the court
hearing the applicant claimed that he had caused it himself when he
had been moving furniture. According to the forensic examination
which was conducted within hours of the alleged ill-treatment and the
conclusions of which the applicant did not dispute, the only injury
that could have been caused by the police was the black eye and this
injury alone does not appear to match the applicant’s
description of his alleged ill-treatment, namely, long severe
beatings by the police on different parts of his body. The domestic
authorities therefore rejected this complaint and it remains
unsubstantiated before this Court.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
B. Lawfulness and length of the applicant’s
detention
The
Government noted that the applicant had not complained about the
conditions of his detention, but only about its unlawfulness and
length. However, in their opinion, these issues fall to be examined
under Article 5 of the Convention.
The
applicant made no further comments.
The Court, which is master of the characterisation to
be given in law to the facts of the case, decides to examine this
problem raised by the applicant under Article 5 of the Convention
which is the relevant provision.
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The
applicant complained under Article 5 § 1 (a) of the Convention
that he remained in custody for more than five years without being
convicted by a court. The applicant complained under Article 5 §
4 of the Convention that his detention was not extended by the courts
as required by domestic law. Under Article 5 § 5 of the
Convention, he complained that his numerous complaints about the
unlawfulness of his detention were unsuccessful. He also complained
that he was detained unlawfully and for an excessive period of time
in violation of Article 5 § 3 of the Convention.
The Court reiterates that Article 34 requires that
individual applicants should claim to be a victim “of a
violation of the rights set forth in the Convention”; it does
not oblige them to specify which Article, paragraph or sub-paragraph,
or even which right, they are praying in aid. Any greater strictness
would lead to unjust consequences; for the vast majority of
“individual” petitions are received from laymen applying
to the Court without the assistance of a lawyer (see, mutatis
mutandis, Guzzardi v. Italy, 6 November 1980,
§ 61, Series A no. 39).
The
Court observes that prior to communication of the application to the
respondent Government the applicant had not been represented by a
lawyer. The Court, as master of the characterisation to be given in
law to the facts of the case, will look at the substance of the
complaints made by the applicant under Article 5, rather than the
provisions to which he referred. The Court has decided, therefore, to
examine the applicant’s complaints about the unlawfulness of
his pre-trial detention under Article 5 § 1 (c), his complaints
about length of his pre-trial detention under Article 5 § 3, and
his complaints about the ineffectiveness of the review of his
applications for release under Article 5 § 4 of the Convention.
The
relevant provisions of Article 5 read as follows:
“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.
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.”
A. Admissibility
The
Government maintained that the applicant’s detention on remand
had consisted of two separate periods which were interrupted by the
applicant’s conviction on 31 October 2000. Given that the
application had been lodged on 26 July 2003, in the Government’s
opinion the complaints about the length of the applicants’
detention on remand prior to 31 October 2000 were inadmissible under
the six-month rule.
The
applicant made no comments.
The
Court first points out that, in determining the length of detention
pending trial under Article 5 § 3 of the Convention,
the period to be taken into consideration begins on the day the
accused is taken into custody and ends on the day when the charge is
determined, even if only by a court of first instance (see, among
other authorities, Labita v. Italy [GC], no. 26772/95, §§
145 and 147, ECHR 2000 IV).
Furthermore,
the Court observes that, in view of the essential link between
Article 5 § 3 of the Convention and paragraph 1 (c) of that
Article, a person convicted at first instance cannot be regarded as
being detained “for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed
an offence”, as specified in the latter provision, but is in
the position provided for by Article 5 § 1 (a), which authorises
deprivation of liberty “after conviction by a competent court”
(see Kudła v. Poland [GC], no. 30210/96, § 104, ECHR
2000 XI, and Panchenko v. Russia, no. 45100/98, §
93, 8 February 2005). Accordingly, the applicant’s detention
from 31 October 2000, the date of his original first-instance
conviction, to 17 May 2001, the date on which that conviction was
quashed and the case remitted, cannot be taken into account for the
purposes of Article 5 § 3.
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 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; Solovey and Zozulya
v. Ukraine, cited above, § 56) the Court does not
see any reason to depart from the above case-law in the present case.
The Court therefore dismisses this objection of the Government.
The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Lawfulness of the detention under Article 5 § 1
(c)
1. Parties’ submissions
The
applicant complained that his pre-trial detention had been unlawful.
The
Government maintained that the grounds of the applicant’s
pre trial detention were clearly defined and the law itself was
foreseeable in its application, so that it met the standard of
“lawfulness” set by the Convention. They maintained that
the applicant had been detained on the ground of suspicion of having
committed a serious crime and with the aim of ensuring his continued
participation in the legal process. Furthermore, the periods of the
applicant’s detention covered by the court decisions protected
the applicant from “arbitrariness”, which protection is
intrinsic to the meaning of “lawfulness” of detention
under Article 5 of the Convention.
2. Court’s assessment
(a) General principles enshrined in the
case-law
The
Court reiterates that the expressions “lawful” and “in
accordance with a procedure prescribed by law” in Article 5 §
1 essentially refer back to national law and lay down an obligation
to conform to the substantive and procedural rules thereof. While it
is for the national authorities, notably the courts, to interpret and
apply domestic law, the Court may review whether national law has
been observed for the purposes of this Convention provision (see,
among other authorities, Assanidze v. Georgia [GC], no.
71503/01, § 171, ECHR 2004 II).
However,
the “lawfulness” of detention under domestic law is the
primary, but not always the decisive element. The Court must, in
addition, be satisfied that the detention, during the period under
consideration, was compatible with the purpose of Article 5 §
1 of the Convention, which is to prevent persons from being
deprived of their liberty in an arbitrary manner. Moreover, the Court
must ascertain whether domestic law itself is in conformity with the
Convention, including the general principles expressed or implied
therein (see Winterwerp v. the Netherlands, 24 October
1979, § 45, Series A no. 33).
(b) Application to the present case
The
Court notes that the applicant’s pre-trial detention falls into
three categories: the period during which the applicant’s
custody was covered by the detention orders issued by prosecutors;
the period during which the applicant’s detention was not
covered by any decision; and the period during which his detention
was covered by the court decisions.
(i) Applicant’s detention under
prosecutors’ orders
The
Court notes that the applicant’s detention was initially
ordered by the Kyiv Vatutinsky District Prosecutor on 16 May 1999.
The relevant period covered by this decision of the prosecutor was
between 13 May and 13 July 1999. Detention under this procedure was
covered by a reservation to Article 5 § 1 (c) of the
Convention that had been entered by Ukraine in accordance with
Article 57 of the Convention with the intention of maintaining the
procedure governing arrest and detention in force at the material
time until 29 June 2001. It refers to its findings in the
Nevmerzhitsky case that under the terms of the above
reservation, Ukraine was under no Convention obligation to guarantee
that the initial arrest and detention of persons such as the
applicants should be ordered by a judge. The Court also found in that
case, however, that the issue of continued detention was not covered
by the above reservation (see Nevmerzhitsky v. Ukraine,
no. 54825/00, §§ 112-114, ECHR 2005 II).
The
Court notes that several further periods of the applicant’s
detention were also covered by the decisions of a prosecutor. These
were the periods between 13 July and 13 November 1999, between 13
September and 13 November 1999 and between 25 June and 20 August
2001.
The
Court notes that there were no court decisions taken as to the
applicant’s continued detention during the above periods. The
decisions to extend the applicant’s detention were taken by
prosecutors, who were a party in the proceedings, and cannot in
principle be regarded as “independent officers authorised by
law to exercise judicial power” (see Merit v. Ukraine,
no. 66561/01, § 63, 30 March 2004). In these circumstances,
the Court concludes that the applicant’s continued detention as
ordered by the prosecutors was not lawful within the meaning of
Article 5 § 1 (c) of the Convention.
(ii) Applicant’s detention not
covered by any decision
The
Court notes that no domestic decision was required to validate a
period of detention during which a person had been given access to
the case file, in accordance with Article 156 of the Code of Criminal
Procedure as then in force. Furthermore, the periods of transmittal
and transfer of the case from the prosecutor to the court and back
were often not covered by any decision either. In the present case,
these periods were between 13 November 1999 and 10 May 2000 and
between 25 September 2001 and 10 April 2002.
The
Court notes that relevant domestic law regulates procedural steps
concerning the study of the case-file, the committal proceedings and
transmittals of the case for further investigation, but it does not
set clear rules as to by what authority, on what grounds and for what
term the detention of the accused can be extended (see Solovey and
Zozulya v. Ukraine, cited above, § 72). The
Court has held on many occasions that the practice of keeping
defendants in detention without a specific legal basis or clear rules
governing their detention – with the result that they may be
deprived of their liberty for an unlimited period without judicial
authorisation – is incompatible with the principles of legal
certainty and protection from arbitrariness, which are common threads
throughout the Convention and the rule of law (see Korchuganova v.
Russia, no. 75039/01, § 57, 8 June 2006; Nakhmanovich
v. Russia, no. 55669/00, §§ 67-68, 2 March 2006;
and Khudoyorov v. Russia, no. 6847/02, §§ 146-148,
ECHR 2005 X).
Therefore,
those periods of the applicant’s detention without any decision
ordering such detention were not in accordance with Article 5 §
1 of the Convention.
(iii) Lawfulness of the applicant’s
detention under the court orders
The
Court observes that under Article 242 of the Code of Criminal
Procedure, a domestic court, when committing a person for trial, must
assess whether the preventive measure that was selected at the
investigation stage is appropriate. Reasons for the preventive
measure are required from the court only when it decides to change
the measure (Article 244 of the CCP). It does not appear that the
court is required to give reasons for continuing the accused’s
detention or to fix any time-limit when maintaining the detention
(see Solovey and Zozulya v. Ukraine, cited above, §§
43, 74-76).
The
Court considers that the absence of any precise provisions laying
down whether – and if so, under what conditions –
detention ordered for a limited period at the investigation stage
could properly be extended at the stage of the court proceedings does
not satisfy the test of “foreseeability” of a “law”
for the purposes of Article 5 § 1 of the Convention (see
Baranowski v. Poland, no. 28358/95, § 55,
ECHR 2000 III, and Kawka v. Poland, no.
25874/94, § 51, 9 January 2001).
The
Court observes that, although the domestic courts upheld the
pre-trial detention measure in respect of the applicant on 10 May
2000, 17 May 2001, 10 April and 16 December 2002, 6 November
2003, they did not set a time-limit for his continued detention and
sometimes did not give any reasons for their decisions (see
paragraphs 20, 23, 31, 38 and 40 above). This left the applicant in a
state of uncertainty as to the grounds for his detention. In this
connection, the Court reiterates that the absence of any grounds
given by the judicial authorities in their decisions authorising
detention for a prolonged period of time is incompatible with the
principle of protection from arbitrariness enshrined in Article 5 §
1 (see Nakhmanovich, cited above, §§ 70-71, and
Stašaitis v. Lithuania, no. 47679/99, § 67,
21 March 2002). In these circumstances, the Court considers that the
above decisions did not afford the applicant the adequate protection
from arbitrariness, which protection is intrinsic to the meaning of
“lawfulness” of detention under Article 5 § 1
of the Convention, and that, therefore, the applicant’s
detention on remand during the periods covered by the judicial
decisions was likewise not in accordance with Article 5 § 1
of the Convention.
(c) Conclusion
The
Court concludes that there has been a violation of Article 5 § 1
of the Convention in the above respects.
C. Unreasonable length of detention under Article 5 §
3
The
applicant complained that his detention on remand had been
excessively long.
The
Government maintained that the length of the applicant’s
detention had been reasonable and that there had been sufficient
grounds for holding the applicant in custody during the whole period
of his detention given that the applicant was suspected of having
committed a serious crime and could abscond or interfere with the
course of justice.
The
Court reiterates its above reasoning as to the necessity of a global
assessment of the aggregate duration of two or more separate periods
of detention on remand for the purposes of the reasonable-time
guarantee of Article 5 § 3 and finds that the period to be taken
into consideration in the present case consisted of two separate
terms, the first lasting from 13 May 1999 to 31 October 2000 and the
second from 17 May 2001 to 21 July 2004, and amounted, in total, to
four years and almost eight months.
The
Court recalls that the issue of whether a period of detention is
reasonable cannot be assessed in abstracto. This must be
assessed in each case according to its special features, the reasons
given in the domestic decisions and the well-documented facts
mentioned by the applicant in his applications for release. Continued
detention can be justified in a given case only if there are specific
indications of a genuine requirement of public interest which,
notwithstanding the presumption of innocence, outweighs the rule of
respect for individual liberty (see, among others, Labita v. Italy
[GC], cited above, § 153).
The
Court notes that the seriousness of the charges against the applicant
and the risk of his absconding and interfering with the course of
justice had been put forward in the initial order on the applicant’s
detention (see paragraph 10 above). Thereafter, the prosecutors and
the courts put forward the same grounds or did not put forward any
grounds whatsoever for maintaining the applicant’s detention
but simply stated that the previously chosen preventive measure was
the correct one. However, Article 5 § 3 requires that,
after a certain lapse of time, the persistence of a reasonable
suspicion does not in itself justify the deprivation of liberty and
the judicial authorities should give other grounds for continued
detention (see Jabłoński v. Poland, no.
33492/96, § 80, 21 December 2000, and I.A. v. France,
no. 28213/95, § 102, Reports of Judgments and
Decisions 1998-VII). Those grounds, moreover, should be
expressly stated by the domestic courts (see Iłowiecki v.
Poland, no. 27504/95, § 61, 4 October 2001). No such
reasons were given by the courts in the present case. Furthermore, at
no stage did the domestic courts consider any alternative preventive
measures instead of detention on remand, and by relying essentially
on the gravity of the charges, the authorities extended the
applicant’s detention on grounds which cannot be regarded as
“relevant and sufficient”.
The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of Article 5 § 3 of the
Convention.
D. Lack of review of the lawfulness of the detention
under Article 5 § 4 of the Convention
The
applicant considered that the courts did not review his complaints
about the unlawfulness of his detention properly but referred to the
correctness of the previously selected preventive measure.
The
Government noted that the lawfulness of the applicant’s
detention had been reviewed on many occasions between November 1999
and April 2004 and the courts always came to the conclusion that
there were sufficient grounds for maintaining the applicant’s
detention. They considered that the applicant had an effective
procedure for challenging the lawfulness of his detention.
The
Court reiterates that Article 5 § 4 of the Convention entitles
arrested or detained persons to a review bearing upon the procedural
and substantive conditions which are essential for the “lawfulness”,
in Convention terms, of their deprivation of liberty. This means that
the competent court has to examine not only compliance with the
procedural requirements of domestic law but also the reasonableness
of the suspicion underpinning the arrest, and the legitimacy of the
purpose pursued by the arrest and the ensuing detention (see
Butkevičius v. Lithuania, no. 48297/99, § 43, ECHR
2002 II).
The
Court notes that in the circumstances of the present case the
lawfulness of the applicant’s detention was considered by the
domestic courts on many occasions. However, the court decisions on
the applicant’s detention do not fully satisfy the requirements
of Article 5 § 4. The decisions in questions seem to reiterate
the standard set of grounds for the applicant’s detention
without any examination of the plausibility of such grounds in the
circumstances of the applicant’s particular situation (see,
mutatis mutandis, Belevitskiy v. Russia, no. 72967/01,
§§ 111-112, 1 March 2007).
The
Court considers that there has accordingly been a violation of
Article 5 § 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant further complained about the length of the criminal
proceedings against him. He referred to Article 6 §§ 1 and
2 of the Convention. Article 6 § 1, which is a relevant
provision to the above complaint, reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The period to be taken into account
The
Court notes that, in criminal matters, the “reasonable time”
referred to in Article 6 § 1 of the Convention
begins as soon as a person is “charged”, in other words,
upon the official notification to the applicant by the competent
authority of the allegation that he has committed a criminal offence.
This definition also applies to the question of whether or not “the
situation of the [suspect] has been substantially affected”. As
regards the end of the “relevant period”, in criminal
matters the period governed by Article 6 § 1 of the
Convention covers the whole of the proceedings in issue, including
appeal proceedings (see Merit v. Ukraine, cited above, § 70).
As
regards the facts of the present case, the Court notes that criminal
proceedings against the applicant were instituted on 10 May 1999.
According to the information submitted by the Government these
proceedings were still at the preliminary-investigation stage. They
have lasted to date almost eleven years.
2. Reasonableness of the length of the proceedings
The
Court observes that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II). It further notes
that an accused in criminal proceedings should be entitled to have
his case conducted with special diligence, especially when he is kept
in custody (see, among other authorities, Yurtayev v. Ukraine,
no. 11336/02, § 37, 31 January 2006; Nakhmanovich v. Russia,
cited above, § 89; and Ivanov v. Ukraine, no. 15007/02, §
71, 7 December 2006).
The
Court appreciates that the criminal proceedings at issue, which
concerned multiple defendants, involved evidential and procedural
aspects of a certain complexity.
On
the other hand, the Court observes that the delays in resolving the
matter have been primarily due to the numerous remittals of the case
for reinvestigation and the rectification of procedural errors. After
some eleven years of inquiries, the pre-trial investigation
concerning the murder was still pending.
Having
examined all the material submitted to it in the light of its
jurisprudence (see, among other authorities, Ivanov v. Ukraine,
cited above, § 74; and Benyaminson v. Ukraine, no.
31585/02, §§ 104 and 106, 26 July 2007) the Court considers
that the Government have not provided a plausible explanation for the
delay. The length of the criminal proceedings against the applicant
has thus been excessive and fails to meet the “reasonable-time”
requirement.
There
has accordingly been a breach of Article 6 § 1.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“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.”
A. Damage
The
applicant claimed 26,653.00 euros (EUR) in respect of pecuniary
damage and EUR 700,000.00 in respect of non-pecuniary damage.
The
Government maintained that there is no causal link between the
alleged violations and the pecuniary damage claimed. They also
considered that the applicant’s claim for non-pecuniary damage
should be rejected as his rights had been not violated.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 6,000 in respect of
non pecuniary damage.
B. Costs and expenses
The
applicant also claimed EUR 132 for making copies from his criminal
case file to submit them to the Court.
The
Government maintained that this claim is exaggerated and the expenses
not necessarily incurred.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 20 covering the
claimed costs.
C. Default interest
The
Court considers it appropriate that the default interest 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
Declares the complaints concerning unlawfulness
and length of the applicant’s pre-trial detention, lack of
proper review of lawfulness of such detention and the length of
criminal proceedings in the case admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
5 § 1 of the Convention;
Holds that there has been a violation of Article
5 § 3 of the Convention;
Holds that there has been a violation of Article
5 § 4 of the Convention;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds
(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 6,000 (six
thousand euros), in respect of non-pecuniary damage and EUR 20
(twenty euros) in respect of costs and expenses, plus any tax that
may be chargeable to the applicant, 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;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 16 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
