European Court of Human Rights

Information Note on the Court’s case-law No. 178

October 2014

Chanyev v. Ukraine - 46193/13

Judgment 9.10.2014 [Section V] See: [2014] ECHR 1041

Article 46

General measures

Article 46-2

Execution of judgment

Respondent State required to amend legislation governing pre-trial detention in order to ensure compliance with Article 5

Article 5

Article 5-1

Lawful arrest or detention

Detention without a court order: violation

Facts - The applicant was arrested on 30 November 2012 on suspicion of murder and the regional court ordered that he remain in detention for two months. His detention was later extended by the investigating judge until 27 February 2013. On 26 February 2013 the applicant was indicted and the case-file was forwarded to the competent court. Two days later the applicant’s lawyer requested the applicant’s release since the period of detention ordered had expired. The head of the detention facility replied that under the applicable rules, once the case-file had been forwarded to the trial court it was for that court to decide on the applicant’s continued detention. Subsequent requests for release filed by the applicant’s lawyer were ultimately dismissed on the basis of Article 331-3 of the Code of Criminal Procedure, which gave the trial court judge two months to decide whether to prolong detention following indictment. The applicant’s detention was prolonged on 15 April 2013. He was subsequently found guilty of the offence and sentenced to eleven years’ imprisonment.

Law - Article 5 § 1: The applicant complained that he had been detained without a court order between 28 February and 15 April 2013. The Court had previously addressed a number of shortcomings relating to pre-trial detention of criminal suspects in Ukraine, including the practice of detaining persons without a court order during the period between the end of the investigation and the beginning of the trial. Such practice, which violated Article 5 § 1 of the Convention, was recurrent and resulted from legislative lacunae. The applicant’s case had been conducted within the framework of the new 2012 Code of Criminal Procedure, which was designed to eliminate the legislative shortcomings underlying recurrent violations of Article 5. However, the new Code did not regulate in a clear and precise manner the detention of the accused between the end of the investigation and the start of the trial. For example, Article 331-3 of the Code gave the trial court two months to decide on the continued detention of the accused even when the previous detention order issued by the investigating judge had already expired. It thus allowed the continued detention of the accused without a judicial decision for up to two months. The provisions had been applied in the applicant’s case and had resulted in him being detained for a month and a half without a court ruling.

Conclusion: violation (unanimously).

Article 46: In the case of Kharchenko v. Ukraine the Court had noted that the recurrent violations of Article 5 § 1 against Ukraine stemmed from legislative lacunae and invited the respondent State to take urgent action on order to bring its legislation and administrative practice into line with Article 5. As the applicant’s case showed, the new legislation contained a similar shortcoming leading to like violations of Article 5 of the Convention. The most appropriate way to address this situation was thus to amend the relevant legislation in order to ensure compliance of domestic criminal procedure with the requirements of Article 5.

(See also Kharchenko v. Ukraine, 40107/02, 10 February 2011, Information Note 138)

 

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