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BORISENKO v. UKRAINE - 25725/02 [2012] ECHR 35 (12 January 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/35.html
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[2012] ECHR 35
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FIFTH
SECTION
CASE OF BORISENKO v. UKRAINE
(Application
no. 25725/02)
JUDGMENT
STRASBOURG
12
January 2012
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 Borisenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet
Fura,
Karel
Jungwiert,
Boštjan
M. Zupančič,
Mark
Villiger,
Angelika
Nußberger, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 6 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 25725/02) 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 Sergey Vasilyevich Borisenko (“the applicant”),
on 20 June 2002.
The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.
On
27 March 2007 the Court
declared the application partly inadmissible and decided to
communicate the complaints concerning the length of pre-trial
detention and of criminal proceedings to the Government. It also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 1). Due to the absence of a National
Judge at the relevant time, Mr M. Buromenskiy was appointed to sit as
ad hoc judge (Rule 29 § 1(b)).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1967 and lives in Novotroitske, in the Donetsk
Region.
On
17 February 1999 criminal proceedings were instituted against the
applicant and three other persons on suspicion of having robbed a
café.
On
23 March 1999 a bill of indictment was drafted in the applicant’s
respect and he was placed under an obligation not to abscond.
However, as the applicant’s whereabouts were unknown, he was
placed on the wanted list and the proceedings were suspended.
On
17 July 1999 the applicant was arrested by the police while
attempting to flee after having robbed a store. Following this
incident a new criminal case was initiated against him and he was
remanded in custody.
On
30 December 1999 the Voroshylovsky District Court of Donetsk
sentenced the applicant to four years’ imprisonment for having
robbed a store on 17 July 1999. The court ordered that the term of
imprisonment be calculated from 18 July 1999, when the applicant had
initially been remanded in custody. Following this conviction, the
applicant was detained in the Donetsk Region Correctional Labour
Colony no. 57 (ВТК
№ 57).
On
22 November 2000 the criminal proceedings initiated against the
applicant and three other persons in February 1999 were resumed and
the applicant was presented with the bill of indictment of 23 March
1999.
On
28 December 2000 a decision was taken to transfer the applicant
temporarily (for two months) from the Correctional Labour Colony
where he was serving his sentence of 30 December 1999 to the Donetsk
Temporary Detention Unit (SIZO) no. 5 (СІЗО
№ 5 м. Донецьк)
for questioning in connection with the pending criminal case.
On
23 January 2001 the criminal case against the applicant was joined
with twelve other criminal cases involving nine more defendants and
concerning numerous robberies and other crimes committed by them as
members of a gang.
On
31 January 2001 the applicant’s bill of indictment of 23 March
1999 was updated. Together with three other presumed gang members he
was additionally charged with having robbed another commercial
facility on 14 February 1999.
On
1 February 2001 the Dokuchayevsk Town Prosecutor authorised
the applicant’s detention on remand in SIZO no. 5 until 28
March 2001 in connection with the pending criminal proceedings
against him. By way of reasoning it was noted that the applicant was
a convicted prisoner whose transfer to the SIZO was necessary in view
of the need to investigate the accusations pending against him.
On
22 March 2001 the applicant’s bill of indictment was updated,
in particular to mention his membership of a gang.
In
March 2001 the defendants commenced familiarisation with the
case-file materials.
In
June 2001 the criminal case was transferred to the Dokuchayevsk Town
Court.
On
21 June 2001 the court held a preliminary hearing and found that the
case had been properly investigated and was ready for trial. It
further ordered, without any additional reasoning, that the applicant
should remain in custody in SIZO no. 5 pending trial. It did not
specify for how long. The court scheduled the first hearing for
17 July 2001. This hearing did not take place, however, as the
court allowed the applicant’s and several other defendants’
requests to familiarise themselves with the case file.
A
new hearing was scheduled for 14 November 2001. It was adjourned
because the applicant asked for it to be recorded but the requisite
recording equipment was unavailable. The court also upheld the
previously decided preventive measure – the applicant’s
detention in SIZO no. 5 – without fixing any time-limits
or giving any reasons. The next hearing was eventually scheduled for
4 September 2002. Between that date and August 2004 some
fifty hearings were scheduled. On some fifteen occasions the hearings
were adjourned because of the authorities’ failure to deliver
the accused, who were in custody, for the hearings. On seven
occasions the hearings were adjourned because the prosecutor failed
to appear and on ten occasions because various private parties
(victims, accused, witnesses) failed to appear.
In
decisions on adjournments of the hearings of 24 September,
29 October, 12 and 22 November, 18 December 2002, 25
December 2003, 13 and 28 January, 9 June and 17 June 2004,
the domestic courts also continued to uphold the applicant’s
detention without giving any reasons or fixing any time-limits.
On
17 August 2004 the Dokuchayevsk Town Court remitted the case for
additional investigation without deciding on the applicant’s
further detention.
On
11 February 2005 the Donetsk Regional Court of Appeal set aside that
decision and remitted the case to the trial court for fresh
consideration.
On
26 April 2005 the applicant requested the Dokuchayevsk Court to
release him from custody under an undertaking not to abscond. He
referred to the incompatibility of his state of health with the
conditions of his detention and to his hope of producing evidence of
his innocence in the event of his release. On the same date the court
rejected his request, citing the general legal provisions applicable,
which authorised detention pending trial for defendants charged with
serious crimes in order to prevent them from absconding, interfering
with the establishment of the facts or continuing their criminal
activities, as well as to ensure compliance with procedural
decisions. It further stated, that the applicant did not substantiate
his request and there were no grounds for his release under the
undertaking not to abscond.
Between
February and June 2005 some twenty-eight hearings were scheduled.
About ten of them did not take place on account of the prosecutor’s
failure to appear and five hearings were adjourned on account of the
failure of various third parties to appear.
On
1 June 2005 the Dokuchayevsk Town Court convicted the applicant as
charged and sentenced him to seven years’ imprisonment. The
court further decided:
“In accordance with part 3 of Article 42 of the
C[riminal] C[ode] of Ukraine in the wording of 1960, the ultimate
punishment shall be determined for the multiple offences, by the
partial addition of the sentences under the judgment of the
Voroshylovsky District Court of Donetsk of 30 December 1999 and under
this judgment, as nine years’ imprisonment with confiscation of
all personal property.
The period of serving the sentence under this judgment
shall include the part of the sentence served under the judgment of
the Voroshylovsky District Court of 30 December 1999, which was
one year, six months and seventeen days, and the ultimate [remaining]
sentence shall be determined as seven years five months and seventeen
days’ imprisonment and confiscation of all personal property.
The term of the sentence of the convict Borisenko S.V.
shall be calculated as from 1 February 2001.”
On
20 January 2006 the Donetsk Regional Court of Appeal upheld the
applicant’s sentence.
The
applicant appealed in cassation, submitting that the courts had
wrongly determined his ultimate sentence as he considered that he had
served his first sentence in full. He considered that he had been
detained as a convicted person, referring to a number of parcels he
had been allowed to receive.
On
14 November 2006 the Supreme Court of Ukraine rejected the
applicant’s cassation appeal against the judgment of 1 June
2005. It noted in particular that the first-instance court had
calculated the applicant’s sentences correctly and in
accordance with the law, namely Article 42 § 3 of the Criminal
Code of 1960, Article 65 of the Criminal Code of 2001 and Article 338
of the Code of Criminal Procedure.
II. RELEVANT DOMESTIC LAW
A. Pre-trial Detention Act
Under
section 4 of the Act, during the investigation and trial suspects may
be kept in a SIZO (temporary detention centre) or a prison acting as
a SIZO. Exceptionally the suspects can be kept in “IVS”
short-stay cells in police stations. If a convicted person is under
investigation in respect of another crime, he or she may be kept in
the disciplinary detention unit of a correctional colony. Section 8
of the Act provides for suspects who have been convicted of a
different offence to be kept separately from other detainees.
B. Correctional Labour Code (in force at the material
time).
The
Code provided for a convicted person normally to be kept in the same
custodial institution (Article 22). Under Article 23 of the Code a
person who was sentenced to imprisonment in a colony could be
temporarily kept in a SIZO or prison in connection with different
criminal proceedings, as a witness (for up to six months with the
authorisation of the prosecutor) or as a suspect, under the general
rules governing detained suspects under Article 156 of the Code of
Criminal Procedure.
C. Criminal Code, 1960 (in force until 1 September
2001)
The
relevant provision of the Code provides:
Article 42
Sentencing for several crimes
“If a person is found guilty of committing two or
more offences under different articles of the criminal law, and has
not been convicted for any of them, the court, having determined the
punishment for each crime separately, shall ultimately determine the
aggregate punishment by absorption of the less severe penalties by
the more severe ones, or through full or partial cumulation of
determined punishments within the limits established by the article
of law that provides for the more severe punishment.
The main punishment may be supplemented by any
additional penalty provided for in the laws governing liability for
the crimes of which the person was found guilty.
The same rules shall apply when, after having been
sentenced in one case, the sentenced person is found guilty of
another crime, committed before the sentence was pronounced in the
first case. In such cases the term of the sentence shall include the
part or all of the sentence not yet served under the first judgment.”
D. Criminal Code, 2001 (in force since 1 September
2001)
The
relevant provision of the Code provides:
Article 65
General principles of imposition of punishment
“1. A court shall impose a punishment:
(1) within the limits prescribed by a
sanction under that article of the Special Part of this Code which
creates liability for the criminal offence concerned;
(2) pursuant to provisions of the General
Part of this Code;
(3) having regard to the degree of gravity of
the offence committed, the character of the offender, the method used
and the motives for the offence, the nature and extent of the damage
done, and any mitigating or aggravating circumstances.
2. The punishment imposed on an offender
should be adequate and sufficient to reform the offender and prevent
new offences.
3. The grounds for imposing a punishment
milder than that prescribed for a given offence in the relevant
article of the Special Part of this Code are specified in Article 69
of this Code.
4. A punishment heavier than that prescribed
for a given offence in the relevant article of the Special Part of
this Code may be imposed pursuant to Articles 70 and 71 of this Code
in the event of cumulative offences and cumulative sentencing.”
E. Code of Criminal Procedure, 1960:
The
relevant provisions of the Code provide:
Article 156 (as worded before 29
June 2001)
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 fresh
investigation, and where the term of remand in custody has expired,
and an alternative preventive measure cannot be applied in the
circumstances of the case, the detention on remand shall be extended
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 extension of such detention before
the case is remitted to the court shall be governed by paragraphs 1,
2 and 6 of this Article.”
After
June 2001 the detention order was given along the same lines, but by
the courts and not the prosecutor.
Article 338
Calculation of the period of serving the sentence
“The beginning of the serving of a sentence in the
form of imprisonment or corrective labour for a defendant who has not
been in custody prior to his conviction shall be calculated from the
date of execution of the sentence.
When the defendant, prior to his conviction, has been in
custody for the purposes of the same case, the period of serving the
sentence shall include the period of pre-trial detention.
When the accused, while in custody, stayed in a medical
institution, the period of stay there shall be included the period of
serving the sentence.
If the defendant, prior to conviction, has been in
custody and is sentenced to correctional labour, the time spent in
custody shall be included in the period of correctional labour at the
rate of one day of custody for three days of correctional labour. If
the defendant was sentenced to correctional labour, and during the
re-hearing of the same cause he is sentenced to imprisonment, the
served period of correctional labour shall be included in the term of
imprisonment at the rate of three days of corrective labour for one
day of imprisonment.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF
THE CONVENTION
The
applicant complained that the length of his pre-trial detention in
the second set of criminal proceedings was excessive, contrary to the
guarantees of Article 5 § 3 of the Convention, which,
insofar as relevant, reads 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.
A. Admissibility
The
Court finds that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention.
It further notes that it is not inadmissible on any other grounds. It
must therefore declare this complaint admissible.
B. Merits
1. The period to be taken into consideration
The
Government alleged that for the purposes of Article 5 § 3
of the Convention the applicant’s detention on remand had not
started until 18 July 2003. The period between 1 February 2001 and 18
July 2003 should not be taken into account, as the applicant had
concurrently been serving his sentence pursuant to the judgment of
30 December 1999 and could not have been released from custody
in any event. Consequently, his detention during the above period
fell under Article 5 § 1(a) and not Article 5 § 1(c).
Article 5 § 3 could therefore not be applied to the
period in question. They further contended that the period of the
applicant’s detention on remand had ended on 1 June 2005, when
he was convicted by the Dokuchayevsk Town Court. It had therefore
lasted one year and nearly eleven months.
The
applicant contended that the period of his pre-trial detention had
commenced on 1 February 2001, when the order was issued to remand him
in custody in connection with the criminal proceedings pending
against him, and lasted until his transfer to the colony. Concerning
the nature of his detention between 1 February 2001 and 18 August
2003, he noted, in particular, that his placement in the SIZO had
significantly worsened his situation compared to that of a convicted
prisoner. In particular, the unit lacked facilities for a long-term
stay; the possibilities of receiving visits and parcels from
relatives were extremely limited and, moreover, the applicant had
lost his reasonable expectations of an amnesty or an early release
from serving the sentence of 1999.
The Court reiterates that Article 5 of the Convention
is in the first rank of the fundamental rights that protect the
physical security of an individual, and that three strands in
particular may be identified as running through the Court’s
case-law: the exhaustive nature of the exceptions, which must be
interpreted strictly and which do not allow for the broad range of
justifications under other provisions (Articles 8-11 of the
Convention in particular); the repeated emphasis on the lawfulness of
the detention, procedurally and substantively, requiring scrupulous
adherence to the rule of law; and the importance of the promptness or
speediness of the requisite judicial controls under Article 5 §§
3 and 4 (see McKay v. the United Kingdom [GC], no. 543/03, §
30, ECHR 2006 X). On this latter point, it should be recalled
that Article 5 § 3 applies solely in the situation envisaged in
Article 5 § 1 (c), with which it forms a whole. It ceases to
apply on the day when the charge is determined, even if only by a
court of first instance, as from that day on the person is detained
“after conviction by a competent court” within the
meaning of Article 5 § 1 (a) (see, among many other authorities,
Labita v. Italy [GC], no. 26772/95, §§ 145
and 147, ECHR 2000 IV). Furthermore, a person who has cause to
complain of continuation of his detention after conviction because of
delay in determining his appeal, cannot avail himself of Article 5 §
3 but could possibly allege a disregard of the “reasonable
time” provided for by Article 6 § 1 (see Solmaz v.
Turkey, no. 27561/02, §§ 24 to 26, 16 January 2007,
with further references).
The
Court further reiterates that the applicability of one ground listed
in Article 5 § 1 of the Convention does not
necessarily preclude the applicability of another and detention may
be justified under more than one sub-paragraph of that provision
(see, among many others, Brand v. the Netherlands,
no. 49902/99, § 58, 11 May 2004, and Johnson v. the
United Kingdom, 24 October 1997, § 58, Reports
of Judgments and Decisions 1997 VII). Therefore, the Court
is called upon to decide whether in such circumstances Article 5 §
3 is applicable to the period in question too.
Article 5 § 3 is structurally concerned with two
separate matters: the early stages following an arrest, when an
individual is taken into the power of the authorities, and the period
pending any trial before a criminal court, during which the suspect
may be detained or released with or without conditions. These two
limbs confer distinct rights and are not on their face logically or
temporally linked (see McKay v. the United Kingdom [GC], cited
above, § 31).
Since
the case of Wemhoff v. Germany, the Court, in deciding the
moment from which Article 5 § 3 ceased to apply, has considered
the legal basis for detention “autonomously”. It noted,
among other things, that guarantees of Article 5 § 3 could not
depend on the specificities of the domestic legal system and that the
person complaining of the continuation of his detention after
conviction cannot avail himself of Article 5 § 3. In the above
judgment, Court further noted that it could not be overlooked that
the guilt of a person who was detained during appeal or review
proceedings had been established in the course of a trial conducted
in accordance with the requirements of Article 6 (see Wemhoff v.
Germany, 27 June 1968, p. 23, § 9, Series A no.
7).
Turning
to the circumstances of the present case, the Court notes that the
applicant was detained within the framework of two different sets of
criminal proceedings. By a judgment of 30 December 1999 the applicant
was sentenced to four year’s imprisonment for robbing a store.
His sentence under the said judgment was due to expire on 18 July
2003. While serving his sentence, the applicant was further charged
in a different set of criminal proceedings and transferred to a SIZO
on 1 February 2001 and ultimately convicted on 1 June 2005.
There is no argument between the parties as to the applicability of
Article 5 § 3 of the Convention to the period between 18 July
2003, when the applicant’s original sentence was due to expire,
and 1 June 2005, when the applicant was convicted of a new
crime.
The
issue arises, however, as to the applicability of Article 5 § 3
to the period between 1 February 2001 and 18 July 2003, when the
applicant’s deprivation of liberty could be argued to have
fallen within the ambit of both sub-paragraphs (a) and (c) of Article
5 § 1. In this regard the Court notes that despite the fact that
on 1 February 2001 the prosecution authorities issued an order for
the applicant’s detention in the SIZO in connection with the
new set of criminal proceedings against him, no formal decision on
suspending or terminating the applicant’s original imprisonment
under the judgment of 30 December 1999 was taken at that time. Nor
could it be seen from the relevant domestic law referred to by the
courts (see paragraphs 27, 30, 31 and 32 above) that the applicant’s
transfer to the SIZO and the selection of that preventive measure in
a different set of proceedings implied automatic suspension of the
original sentence. Therefore, during the period in question there
were no objective grounds to consider that the applicant stopped
serving his prison sentence on 1 February 2001 and that his
continued detention required any additional justification prior to 18
July 2003. The subsequent interpretation by the domestic courts of
the legal basis for the applicant’s detention could not
retroactively create an obligation to justify the applicant’s
deprivation of liberty with a view to his “conviction by the
competent court”. Therefore, the applicant’s detention
during the period in question was justified under Article 5 § 1
(a) of the Convention.
The
applicant’s complaint concerns the detention pending trial, in
respect of which this Court has constantly held that the presumption
under Article 5 is in favour of release. As established in Neumeister
v. Austria (27 June 1968, § 4, Series A no. 8), the
second limb of Article 5 § 3 does not give judicial authorities
a choice between either bringing an accused to trial within a
reasonable time or granting him provisional release pending trial.
Until conviction, he must be presumed innocent, and the purpose of
the provision under consideration is essentially to require his
provisional release once his continuing detention ceases to be
reasonable (as confirmed in McKay, cited above, § 41).
Indeed,
the Court finds it difficult to see any practical purpose in
requesting the State authorities to justify the applicant’s
detention under Article 5 §§ 1 (c) and 3 of the Convention
in the circumstances, when such detention was justified under Article
5 § 1 (a). Any request for release would thus be limited to the
purely hypothetical question whether the person could be released if
he was not already serving a prison sentence. Therefore, even if the
applicant’s continuing detention within the meaning of Article
5 § 1 (c) ceased to be reasonable, it would not automatically
cease to be lawful and justified under Article 5 § 1 (a). In
short, the applicant cannot argue that while serving his prison
sentence, he was “entitled ... to release pending trial”
in the parallel judicial proceedings which did not concern his
original conviction. Accordingly, Article 5 § 3 of the
Convention does not apply to the applicant’s detention between
1 February 2001 and 18 July 2003, which amounted to “lawful
detention after conviction by a competent court” within the
meaning of Article 5 § 1 (a) of the Convention.
As
to the applicant’s arguments that in the pre-trial detention
centre he was placed in harsher conditions of detention that he would
have in a colony, the Court considers that such harsher conditions of
detention, as well as restrictions on family visits and on
correspondence could effect the applicant’s rights under
Articles 3, 8 or 9 of the Convention (see, for example, Visloguzov
v. Ukraine, no. 32362/02, §§ 59 and 60, 20 May 2010;
Shalimov v. Ukraine, no. 20808/02, §§ 89 and 91, 4
March 2010; and Poltoratskiy v. Ukraine, no. 38812/97,
§§ 170 and 171, ECHR 2003 V), but all these
considerations cannot, in the Court’s opinion, affect the
classification of the applicant’s detention for the purposes of
Article 5 § 1.
Accordingly,
the period to be taken into consideration started on 18 July
2003 and ended on 1 June 2005. It therefore lasted one year and ten
and a half months.
2. Reasonableness of the duration of the pre-trial
detention
The
applicant considered that the duration of his pre-trial detention was
excessively long.
The
Government alleged that the length of the applicant’s detention
on remand had not been excessive, regard being had to the complexity
of the case and the likelihood that the applicant, charged with
several serious offences, would have absconded.
The
Court reiterates that the issue of whether a period of detention is
reasonable cannot be assessed in abstracto. It must be
assessed in each case according to its special features, the reasons
given in the domestic decisions and the well-documented matters
referred to 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 one
year and ten and a half months. This period can not be considered
excessive per se. However, throughout the period in question
the courts simply stated that the previously ordered preventive
measure was correct, although under Article 5 § 3, 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. Those
grounds, moreover, should be expressly mentioned by the domestic
courts (see Yeloyev v. Ukraine, no. 17283/02, § 60,
6 November 2008). No such reasons were given by the courts in the
present case.
Furthermore,
in reply to the request for release lodged by the applicant on
26 April 2005, the Dokuchayevsk Town Court not only gave no
reasons for the applicant’s continued detention but rejected
his request for release as unsubstantiated. In the Court’s
opinion, the domestic court’s decision requesting the detainee
to justify his right to liberty runs contrary to the very essence of
Article 5 § 3, which enshrines the presumption in favour of
liberty and requires the authorities to justify detention.
The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION
The
applicant next complained that the length of the criminal proceedings
against him had been incompatible with the “reasonable time”
requirement laid down in Article 6 § 1 of the Convention, which,
insofar as relevant, 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 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
In
his submissions, the applicant complained about the length of the
criminal proceedings in their entirety, without specifying the period
to be taken into account.
According
to the Government, the period in question commenced on 22 November
2000, when the applicant was presented with the bill of indictment of
23 March 1999, and lasted until the final judgment of the Supreme
Court of 14 November 2006.
The
Court observes that Article 6 § 1 applies throughout the
entirety of proceedings for “the determination of ... any
criminal charge” (see Phillips v. the United Kingdom,
no. 41087/98, § 39, ECHR 2001-VII). It considers that the period
to be taken into consideration in the present case began on 17
February 1999, when the criminal proceedings were initiated, and
ended on 14 November 2006, when the final judgment was taken by the
Supreme Court. However, the period during which the applicant was on
the run (23 March to 17 July 1999) should be excluded from the
overall length of the proceedings (see Girolami v. Italy,
judgment of 19 February 1991, Series A no. 196-E, § 13, and
Smirnova v. Russia, nos. 46133/99 and 48183/99,
§ 81, ECHR 2003 IX). At the same time, from 17 July
1999 the applicant was in the hands of the authorities and he could
not be held responsible for any further delay in the resumption of
the criminal proceedings in question. The period to be taken into
account thus lasted seven years and some five months before the
investigating authorities and the courts at three levels of
jurisdiction.
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 complexity of the
case and 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
considers that an accused in criminal proceedings should be entitled
to have his case conducted with special diligence, particularly,
where he is kept in custody (see Nakhmanovich v. Russia, no.
55669/00, § 89, 2 March 2006, and Yurtayev v. Ukraine,
no. 11336/02, § 37, 31 January 2006).
The Court appreciates that the criminal proceedings at
issue in the present case, which concerned numerous counts of robbery
and other offences with which ten defendants stood charged, were of a
certain complexity and required the collection of voluminous
evidence. It also notes the tight schedule of hearings scheduled by
the trial court between September 2002 and August 2004 and between
February and June 2005.
On
the other hand, the Court observes that nearly two-thirds of these
hearings were eventually adjourned for various reasons, including
some seventeen adjournments in connection with the prosecutor’s
failure to appear and some fifteen in connection with the
authorities’ failure to ensure the delivery of the defendants,
who were in custody, for the hearings. It further notes that
according to the case-file materials no investigative activities were
carried out in the case between March 1999 and November 2000 (one
year and eight months), apparently because the applicant was
unavailable. In the meantime, the applicant’s whereabouts were
established no later than 17 June 1999, when he was arrested and
subsequently detained and charged with a new crime. Another
significant delay (one year and two months) can be observed in the
period from June 2001, when the case was transferred to the court, to
September 2002, when the hearings eventually started taking place.
The
Court has frequently found violations of Article 6 § 1
of the Convention in cases where the authorities were responsible for
repeated adjournments of hearings and significant periods of
unjustified inactivity (see, among other authorities, Kobtsev v.
Ukraine, no. 7324/02, § 71, 4 April 2006;
Antonenkov and Others v. Ukraine, no. 14183/02, § 46,
22 November 2005; and Mazurenko v. Ukraine, no. 14809/03,
§ 47, 11 January 2007).
Having
regard to the material submitted to it and to its case-law on the
subject, the Court considers that the Government have not provided
sufficient explanation for the delay in the present case. The Court
considers therefore that the duration of the criminal proceedings
against the applicant was excessive and failed to meet the
“reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
III. 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, without providing any substantiation, 50,000
hryvnias (UAH) in medical expenses and UAH 150,000 in lost
profits. He further requested the Court to determine compensation for
non-pecuniary damage on an equitable basis, suggesting that the total
amount of just satisfaction should be no less than 100,000 euros
(EUR).
The
Government submitted that the applicant’s claims were
exorbitant and unsubstantiated.
The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects that claim. On
the other hand, ruling on an equitable basis,
it awards the applicant EUR 1,700
in respect of non-pecuniary damage.
B. Costs and expenses
The
applicant also claimed UAH 100,000 for unspecified costs and
expenses.
The
Government contended that this claim was exorbitant and
unsubstantiated.
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 information in its possession and the above criteria, the Court
rejects the claim for costs and expenses.
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 remainder of the application
admissible;
Holds that there has been a violation of
Article 5 § 3 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 1,700 (one thousand seven
hundred 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;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 12 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Dean Spielmann Registrar President
In accordance with Article 45 § 2 of the Convention and Rule
74 § 2 of the Rules of Court, the separate opinion of Judge
Buromenskiy is annexed to this judgment.
D.S.
C.W.
CONCURRING OPINION OF JUDGE BUROMENSKIY
There
is no doubt that in the case of Borisenko v. Ukraine a violation of
Article 5 § 3 of the Convention takes place. Thus, I fully
support the decision of the Court. However, thinking about legal
consequences of applying of preventive detention regime in the
context of Article 5 § 3, which concerns the person who is
imprisoned according to the court sentence, caused me to express some
thoughts in this Opinion.
The
main purpose of Article 5 is to protect the person from wilful
infringement on personal freedom. At the same time, in my opinion,
the concept of "personal freedom" cannot be examined
abstractly. Article 5 protects the rights of "everyone",
including arrested or detained persons (Weeks v. the United
Kingdom, 2 March 1987, § 40, Series A no. 114), as well as
"restrictions of freedom" or "imprisonment" must
have a specific content (Engel and Others v. the Netherlands,
8 June 1976, § 59, Series A no. 22). Therefore, there cannot be
an abstract notion of deprivation of liberty. Each kind of
deprivation of liberty has its goals and is associated with the
inherent limitations of freedom. All these restrictions are possible
when based only on legal grounds and their applying is the subject to
effective judicial control.
As
the considered case witnesses, the prisoner’s guarding at place
of preceding detention (SIZO) instead of the colony while the
preliminary investigation is ongoing, is traditionally considered in
the context of Article 5 § 1 (a) of the Convention.
In my
opinion, there is a substantial difference in the legal nature of
pre trial detention and imprisonment based on conviction, and
therefore, in the legal consequences of these two types of
deprivation of liberty. And the fact of deprivation of liberty in the
first and second case does not allow speak about the identity of its
grounds and conditions.
Pre-trial
detention, as a kind of deprivation of liberty must be entirely
subordinate to the goal of fair trial within a reasonable time.
Correspondent legal guarantees are foreseen in Article 5 § 3 of
the Convention. The period of preventive measure of pre-trial
detention should be the minimum necessary to complete the
proceedings, and I think, regardless of whether the measure is
applied to a person not deprived of his liberty at the moment or to a
person who has been imprisoned by a court sentence.
Imprisonment
under a court sentence is also legitimate infringement of personal
freedom, but of completely different type. The imprisoned person is
deprived of his liberty within the regime defined in the court
sentence. But the regime of imprisonment can not deprive of personal
liberty as such. An imprisoned person always has and enjoys a certain
level of freedom. (For example, according to Ukrainian legislation a
person who committed for the first time a crime of medium severity
should be sent to a colony with minimal or medium security level. In
such colonies detainees have, although restricted, but adequate
freedom of movement during the daytime, they receive money, they have
right to spend their money, they have right to correspondence and
right to visits of family members.) This fact is important, even when
assessments of the level of freedom are purely subjective
There
is no doubt that the need to transfer of the prisoner to a place of
preventive detention (SIZO) due to new criminal proceedings against
him may arise. But that is always associated with an interference in
the process of enforcement of the sentence. The court that makes such
a decision, in the nature of things, affects the level of freedom
which the prisoner has - and to which he is entitled throughout the
term of the sentence - but that does not affect the finding in the
present case that, for the period from 1 February 2001 to
18 July 2003, Article 5 § 3 did not apply.
