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PROKOPENKO v. UKRAINE - 5522/04 [2011] ECHR 79 (20 January 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/79.html
Cite as:
[2011] ECHR 79
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FIFTH
SECTION
CASE OF PROKOPENKO v. UKRAINE
(Application
no. 5522/04)
JUDGMENT
STRASBOURG
20 January
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Prokopenko v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Rait Maruste, President,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 14 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 5522/04) 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 Oleg Mykolayovych
Prokopenko (“the applicant”), on 16 January 2004. The
applicant was represented by his father, Mr Mykola Petrovich
Prokopenko.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
On
15 January 2009 the President of the Fifth Section decided to give
notice of the application to the Government. In accordance with
Protocol no. 14, the application was allocated to a Committee of
three judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1973 and lives in the town of Konotop, Ukraine.
The
applicant worked as a customs officer at the Konotop railway border
checkpoint.
According
to the records provided by the Government, on 18 February 2002
criminal proceedings were instituted against the applicant in
connection with one episode of smuggling forty electronic devices of
the same type, intended for military use. On 9 October 2002 and 18
November 2002 criminal proceedings were instituted against Mr K. and
Ms T., respectively, in connection with the same episode of
smuggling.
On
7 October 2002 the applicant was arrested on the suspicion that he
had committed the above crime. On 10 October 2002 the Shevchenkivsky
District Court of Kyiv ordered the applicant’s detention on
remand relying on the suspicion that he had committed a crime
punishable by imprisonment. It also considered that keeping the
applicant in detention was necessary to secure the proper conduct of
the proceedings, given the risk that he might leave Ukraine and
obstruct the investigation.
On
22 November 2002 the proceedings against the applicant, Mr K. and Ms.
T. were joined.
On
an unspecified date in March 2003 the applicant’s criminal case
was sent to the Konotop Court for consideration.
On
4 April 2003, 22 August 2003, and 10 October 2003 the Konotop Court
dismissed the applicant’s requests for release, having found
that the detention on remand had been ordered at the investigation
stage in accordance with law and that there was no reason to replace
it with another preventive measure.
On 8 December 2003 the Konotop Court convicted the
applicant of smuggling, abuse of authority and tax evasion. The court
sentenced the applicant to eleven years’ imprisonment.
On
15 April 2004 the Sumy Regional Court of Appeal quashed that judgment
and remitted the case for a new consideration to the Krolevetsky
Court. By the same ruling, the court of appeal continued the
applicant’s remand in custody without indicating any reason.
On
5 May 2004 the Supreme Court rejected the applicant’s and
Mr K.’s requests for leave to appeal in cassation against
the decision of 15 April 2004.
On
7 December 2004 the applicant lodged a request for release which was
dismissed the same day. The Krolevetsky Court found that the
detention on remand had been ordered at the investigation stage in
accordance with law and that there was no reason to replace it with
another preventive measure.
On
20 January 2005 the Krolevetsky Court ordered an expert examination
of the smuggled devices.
On
11 April 2005 the applicant lodged a request with the trial court
asking the court to lift the preventive measure of detention. On 14
April 2005 the court dismissed his request, having found that the
detention on remand had been ordered at the investigation stage in
accordance with law and that there was no reason to replace it with
another preventive measure.
On
30 January 2006 the expert report was sent to the court.
According
to the records provided by the Government, between 15 April 2005
and 31 March 2006 the Krolevetsky Court scheduled no hearings.
On
12 May 2006 the Krolevetsky Court convicted the applicant of
smuggling, abuse of authority and tax evasion. The court sentenced
the applicant to four years’ imprisonment with confiscation of
his movable property.
On
10 August 2006 the Sumy Regional Court of Appeal upheld the judgment
of 12 May 2006 with minor amendments.
On
8 May 2007 the Supreme Court rejected the applicant’s request
for leave to appeal in cassation.
While
the criminal proceedings against the applicant were pending, the
applicant unsuccessfully sought institution of criminal proceedings
against the persons who prepared the expert reports in his criminal
case.
II. RELEVANT DOMESTIC LAW
Provisions
of the Code of Criminal Procedure of 28 December 1960 on
preventive measures are set out in Nevmerzhitsky
v. Ukraine (no. 54825/00, §
54, ECHR 2005 II (extracts)).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS
The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
The
Government contested that argument.
The
period to be taken into consideration began on 18 February 2002 and
ended on 8 May 2007 when the Supreme Court adopted a final
decision in the case. Therefore, the proceedings lasted about five
years and three months at three levels of jurisdiction.
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
The
Court reiterates 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).
As regards the complexity of the case, the Court notes
that the proceedings at issue concerned one episode of smuggling and
required questioning witnesses, conducting expert examinations of the
documents and the devices, and examining a
certain amount of documentary evidence. There were three
persons accused in this case. Therefore it
cannot be said that the proceedings were so complex as to justify
their length.
The Court notes that the
complexity of the case and the applicant’s conduct cannot
explain the overall length of the proceedings at issue. It finds that
a number of delays (in particular, the remittal of the case for a new
consideration, the lengthy period of procedural inactivity in the
period from April 2005 to March 2006, and lengthy consideration by
the Supreme Court of applicant’s request for leave to appeal in
cassation) are attributable to the respondent State.
The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Pélissier and Sassi, cited above).
Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant complained that the length of his detention on remand had
been excessive. He relied on Article 5 § 3 of the
Convention, which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article 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. 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. Period to be taken into consideration
The
applicant’s detention started on 7 October 2002, when he was
arrested on suspicion of having committed the above-mentioned crime.
On 8 December 2003 the Konotop Court convicted the applicant. As
from that date he was detained “after conviction by a competent
court”, within the meaning of Article 5 § 1 (a) and,
consequently, that period of his detention falls outside the scope of
Article 5 § 3 (cf. Kudla v. Poland [GC], no. 30210/96,
§ 104, ECHR 2000 XI).
On
15 April 2004 the Sumy Regional Court of Appeal quashed the
applicant’s conviction. Following that date his detention was
again covered by Article 5 § 3. It continued until 12 May 2006
when the applicant was again convicted.
Accordingly,
the total period to be taken into consideration amounts to three
years, two months and twenty-eight days.
2. Reasonableness of the length of the applicant’s
detention on remand
The
Government maintained that the domestic authorities had grounds for
holding the applicant in custody, given that he was suspected of a
serious crime and could abscond from justice and obstruct
investigation. They considered that the domestic authorities
conducted the investigation with due diligence given the complexity
of the case.
The
applicant disagreed.
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], no. 26772/95, § 153, ECHR 2000 IV).
The
Court notes that the applicant’s pre-trial detention lasted
three years and almost three months. It observes that the seriousness
of the charges against the applicant and the risk of his absconding
had been advanced in the initial order on the applicant’s
detention. Thereafter, the prosecutors and the courts did not advance
any grounds whatsoever for maintaining the applicant’s
detention, simply stating that the previously chosen preventive
measure was correct. However, Article 5 § 3 requires that
after a certain lapse of time the persistence of a reasonable
suspicion does not in itself justify deprivation of liberty and the
judicial authorities should give other grounds for continued
detention (see Jablonski 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 mentioned 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.
Lastly, the Court notes that no alternative preventive measures were
effectively considered by the domestic authorities.
The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of Article 5 § 3 of the
Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant submitted that the judge of the Konotop Court had no right
to sit in his case and that she had allegedly violated his rights
guaranteed by Article 6 §§ 1, 3 (c) and (d) of the
Convention. The applicant further alleged that in June 2004 he asked
the trial court to admit Mr M., the counsel of his co-accused Mr K.,
as his counsel. However, the request was dismissed. He relied on
Article 6 § 3 of the Convention.
The
applicant further complained, referring to Articles 6§ 1 and 13
of the Convention about unfairness and the outcome of the proceedings
in his case. He also alleged that lack of access to the expert report
and refusal by the court to call experts and witnesses in his favour
amounted to a violation of his defence rights as guaranteed by
Article 6 of the Convention. The applicant submitted that his efforts
to institute criminal proceedings against the experts had no success.
Lastly, he invoked Article 5 § 1 of the Convention.
Having
carefully examined the applicant’s submissions in the light of
all the material in its possession, and in so far as the matters
complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention.
It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 of the Convention.
IV. 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 120,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage. This amount included EUR 100,000 in respect of
non-pecuniary damage.
The
Government contested this claim.
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, ruling on an equitable basis, it awards the applicant
EUR 2,600 in respect of non-pecuniary damage.
B. Costs and expenses
The
applicant also claimed 1,000 Ukrainian hryvnias (UAH, about EUR 93)
for legal expenses incurred in connection with the domestic
proceedings.
The applicant further claimed UAH 6,400 (about EUR
582) in respect of transport expenses, expenses
for postage, photocopying, and phone communication. The
applicant produced, inter alia, receipts
for mailing correspondence and calling to this Court amounting to UAH
313,53 (about EUR 29) and 763,90 Russian roubles (about EUR 19).
The
Government did not object to compensate the applicant’s
expenses incurred in connection with the proceedings before the
Court. They contested the remainder of his claims.
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
48 under this head.
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
the length of pre-trial detention and of criminal proceedings
admissible and the remainder of the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention on account of the length of the criminal
proceedings;
Holds that there has been a violation of Article
5 § 3 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months EUR
2,600 (two thousand six hundred euros) in respect of non-pecuniary
damage and EUR 48 (forty-eight euros) in respect of costs and
expenses, plus any tax that may be chargeable, to be converted into
the national currency of the respondent State 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 20 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait Maruste
Deputy Registrar President
