FIFTH SECTION

CASE OF LELYUK v. UKRAINE

(Application no. 24037/08)

JUDGMENT

STRASBOURG

17 November 2016

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 Lelyuk v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
	Angelika Nußberger, President,
	Ganna Yudkivska,
	Khanlar Hajiyev,
	Erik Møse,
	Faris Vehabović,
	Síofra O’Leary,
	Carlo Ranzoni, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 18 October 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 24037/08) 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 Dmytro Volodymyrovych Lelyuk (“the applicant”), on 9 May 2008.
2.  The applicant was represented by Mr V. Gnatyuk, a lawyer practising in Donetsk. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr Ivan Lishchyna.
3.  The applicant alleged, in particular, that he had been unlawfully deprived of his liberty and that he had not had an enforceable right to compensation in that regard. He also complained that, by refusing to examine his appeal on points of law, the Supreme Court had acted in breach of his right of access to a court.
4.  On 16 April 2012 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1979 and lives in Donetsk.
Section 1.01	A.  Criminal proceedings against the applicant
6.  On 29 May 1997 the Donetsk Kirovskyy District Court (“the Kirovskyy Court”) found the applicant guilty of robbery and sentenced him to three years’ imprisonment.
7.  On 18 July 1997 the Donetsk Regional Court of Appeal (“the Regional Court”) granted amnesty to the applicant.
8.  On 26 September 1997 the same court, following an objection (протест) by its president, quashed the decision of 18 July 1997 and upheld the judgment of 29 May 1997 by a final decision. The applicant became aware of the Regional Court’s decision of 26 September 1997 only after his arrest in February 2003 (see paragraph 10 below).
Section 1.02	B.  Service of sentence and proceedings on the lawfulness of the applicant’s arrest and detention
9.  In October 1997 the Kirovskyy Court sent its judgment to the local police with a view to ensuring its enforcement. As submitted by the applicant and eventually established by the domestic courts (see paragraph 12 below), he continued living at his permanent address. Although he was placed on a wanted list for a brief period in December 1997, neither during that period nor thereafter did the police try to contact him.
10.  On 12 February 2003 the Kirovskyy police arrested the applicant at his home and brought him to Dzerzhynsk prison no. 2 to serve his sentence.
11.  Following numerous unsuccessful complaints to the prosecution authorities, in March 2003 the applicant lodged a complaint with the Kirovskyy Court, stating that his arrest and detention had been unlawful and requesting to be released.
12.  After several rounds of proceedings, on 23 March 2006 the Kirovskyy Court allowed the applicant’s claim and found the impugned actions of the police officers unlawful. The court found no evidence in the case file that the applicant had been informed of the court hearing and the final decision of 26 September 1997. He had been arrested more than five years later. By that time his sentence had become time-barred, a fact which the police had been obliged, but had failed, to check. As regards the applicant’s request for release, the Kirovskyy Court stated that the issue was no longer of relevance (see paragraph 14 below).
13.  On 23 June 2006 the Regional Court upheld the above decision.
14.  In the meantime, on 27 April 2005, the Dzerzhynskyy Local Court ordered the applicant’s release on parole. The applicant was released on 4 May 2005 once all the formalities had been completed.
Section 1.03	C.  Compensation proceedings
15.  In 2006 the applicant lodged a claim for damages against the Ministry of the Interior on account of his unlawful arrest and detention. He relied on the Compensation Act, under which a person could claim such compensation if the unlawfulness of his or her arrest and detention had been established by a judicial decision (see paragraph 26 below). The applicant referred in that connection to the court’s decision of 23 March 2006, in which his deprivation of liberty had been found to be unlawful (see paragraph 12 above).
16.  On 3 April 2007 the Kirovskyy Court rejected his claim as unfounded. It noted the existence of the judicial decision referred to by the applicant without, however, commenting on it. The court observed that the applicant had appealed against neither the judgment of 29 May 1997 nor the ruling of 26 September 1997 (see paragraphs 6 and 8 above). It also observed that he had been released without any conclusion about his guilt. Having relied on the above considerations, the Kirovskyy Court concluded that the applicant had failed to prove that he had been deprived of his liberty unlawfully.
17.  On 26 June 2007 the Regional Court upheld that decision.
18.  On 22 August 2007 the applicant’s representative, G., appealed on points of law.
19.  On 6 September 2007 the Supreme Court gave the applicant a deadline of 16 October 2007 to submit the power of attorney. Its ruling referred to the applicant’s case number as registered by the Supreme Court.
20.  As confirmed by a postal acknowledgement of receipt, on 17 October 2007 the Supreme Court received a registered letter from the applicant’s representative, which had been dispatched on 12 October 2007 and which concerned the case under the number indicated in the ruling of 6 September 2007. According to the applicant, his representative had sent the requested authority form by the above-mentioned registered letter. According to the Government, the content of that letter and the documents enclosed, if any, could not be established in the absence of their detailed description on the acknowledgment of receipt.
21.  On 30 October 2007 the Supreme Court returned the applicant’s appeal on points of law without examination. It held that, contrary to its instructions of 6 September 2007, he had failed to submit the power of attorney “within the set time-limit and before the delivery of the present ruling”.
22.  On 9 November 2007 the Supreme Court sent its ruling to the applicant’s representative. According to the applicant, his representative received it on 24 November 2007.
23.  On 3 December 2007 G. requested that the Supreme Court give reasons for the dismissal of the applicant’s appeal on points of law, since the ruling of 6 September 2007 had been complied with. There was no reply to that request.
Article II.	II.  RELEVANT DOMESTIC LAW
24.  Article 80 of the Criminal Code (2001) provided that a sentence would become time-barred if not enforced within an established time-limit after the entry of the judgment into force. The limitation period for a sentence of imprisonment imposed for a medium-level offence and for a prison term of up to five years imposed for a serious offence was five years. The running of the limitation period should be interrupted if the convict absconded from serving his or her sentence.
25.  Pursuant to Article 70 of the Code of Civil Procedure (2004), a deadline was not to be considered missed “if a claim, complaint [or] other [document had] been submitted to the post office or transferred by other means of communication before its expiry”.
26.  Under the Law of Ukraine “On the Procedure for the Compensation of Damage caused to Citizens by the Unlawful Actions of Bodies in charge of Operational Enquiries, Pre-trial Investigation Authorities, Prosecutors or Courts” (1994, as amended on 1 December 2005) (hereinafter “the Compensation Act”), a person was entitled to compensation for damage on account of, in particular, unlawful detention (section 1). A precondition for the entitlement to compensation was “a finding of ... unlawfulness of arrest and detention in a guilty verdict or other judicial decision” (section 2).
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 5 OF THE CONVENTION
27.  The applicant complained under Article 5 §§ 1 and 5 of the Convention of the unlawfulness of his detention and the lack of an enforceable right to compensation in that regard. The provisions relied on read as follows in the relevant part:
“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:
(a)  the lawful detention of a person after conviction by a competent court;
(b)  the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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; ...
5.  Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
Section 3.01	A.  Admissibility
28.  The Government contended that the complaint under Article 5 § 1 of the Convention had been introduced out of time. In their opinion, the six‑month time-limit started running on 23 June 2006 (see paragraph 13 above), as that was the date of the final domestic decision concerning the lawfulness of the applicant’s deprivation of liberty. As regards the subsequent compensation proceedings brought by the applicant, the Government maintained that they concerned his civil rights under Article 6 of the Convention only and were of no relevance for his complaint under Article 5 § 1 of the Convention.
29.  The applicant disagreed. He submitted that the six-month time-limit had started running on 24 November 2007 when he had become aware of the final decision of the Supreme Court on his case (see paragraph 22 above). Accordingly, the applicant argued that, having introduced his application on 9 May 2008, he had complied with the six-month rule.
30.  The Court reiterates that, in accordance with Article 35 § 1 of the Convention, the six-month time-limit requires applicants to lodge their applications within six months of the final decision in the process of exhaustion of domestic remedies. This entitles only remedies which are normal and effective to be taken into account; an applicant cannot extend the strict time-limit imposed under the Convention by seeking to make inappropriate or misconceived applications to bodies or institutions which have no power or competence to offer effective redress for the complaint in issue under the Convention (see Fernie v. the United Kingdom (dec.), no. 14881/04, 5 January 2006).
31.  Accordingly, the determination of the compliance or otherwise of an applicant with the six-month rule is intrinsically connected to the issue of exhaustion of domestic remedies (see Benzer and Others v. Turkey, no. 23502/06, § 121, 12 November 2013).
32.  The Court notes that it is not called upon to decide whether an applicant complied with the requirement to exhaust domestic remedies where the respondent Government have not raised an objection on those grounds in their observations (see, for example, Yordanov v. Bulgaria, no. 56856/00, § 76, 10 August 2006, and Iskandarov v. Russia, no. 17185/05, § 121, 23 September 2010). However, even in such circumstances the Court might need to determine the starting point for the calculation of the six-month period (see, for example, Shokkarov and Others v. Russia, no. 41009/04, §§ 129 and 130, 3 May 2011).
33.  It follows that, even in the absence of a plea of inadmissibility based on non-exhaustion of domestic remedies in the present case, the Court must examine the effectiveness of the domestic remedies used by the applicant with a view to establishing the dies a quo of the six-month time-limit.
34.  The Court accepts the Government’s argument that the proceedings for judicial review of the applicant’s detention were distinct from the ensuing proceedings for damages. It does not agree, however, that the compensation proceedings were unnecessary for the purpose of the exhaustion of domestic remedies and that, accordingly, they should not be regarded as having extended the six-month time-limit.
35.  The Court notes that, where a violation of Article 5 § 1 is in issue, Article 5 §§ 4 and 5 of the Convention constitutes leges speciales in relation to the more general requirements of Article 13, with Article 5 § 4 providing for a preventive remedy and Article 5 § 5 providing for a compensatory remedy (see Svetoslav Dimitrov v. Bulgaria (dec.), no. 55861/00, 9 May 2006, with further references). As regards the remedy under Article 5 § 4, it must be made available during a person’s detention with a view to that person obtaining a speedy judicial review of the lawfulness of his or her detention capable of leading, where appropriate, to his or her release (see Kadem v. Malta, no. 55263/00, § 41, 9 January 2003, and Raza v. Bulgaria, no. 31465/08, § 76, 11 February 2010). However, if proceedings for judicial review of the lawfulness of a person’s detention take place after his or her release, taken in isolation they are usually not capable of providing sufficient redress because all they can achieve is an ex post facto judicial declaration that the detention was unlawful (see Dzhabarov and Others v. Bulgaria, nos. 6095/11, 74091/11 and 75583/11, § 58, 31 March 2016). Likewise, if taken in isolation, a remedy of purely compensatory nature under Article 5 § 5 cannot secure the applicant’s release if his or her confinement is unlawful, as required by Article 5 § 4 (see Aden Ahmed v. Malta, no. 55352/12, § 114, 23 July 2013, and the references cited therein).
36.  Accordingly, in order to decide whether an applicant was required to make use of a particular domestic remedy in respect of his or her complaint under Article 5 § 1 of the Convention, the Court must evaluate the effectiveness of that remedy from the standpoint of both Article 5 §§ 4 and 5 (see Ruslan Yakovenko v. Ukraine, no. 5425/11, § 30, ECHR 2015).
37.  Turning to the present case, the Court notes that the Government did not reproach the applicant for having complained to the courts of the unlawfulness of his deprivation of liberty. They did, however, consider that he had exhausted the effective domestic remedies once he had obtained a judicial declaration of the unlawfulness of his detention. The Court observes that the proceedings in question lasted for more than three years and by the time they were completed the applicant had been released on different grounds (see paragraphs 11-14 above). The Government did not explain and the Court finds it difficult to see how such a belated judicial declaration, which neither led to the applicant’s release nor implied any pecuniary compensation for him, could be regarded as constituting sufficient redress.
38.  Furthermore, the Court observes that, by having raised this objection, the Government contradicted their own position in a number of other Ukrainian cases. Thus, where the unlawfulness of the applicants’ detention had been acknowledged at the domestic level and where the applicants had not brought a claim for damages, the Ukrainian Government considered that the effective domestic remedies had not been exhausted (see, for example, Savin v. Ukraine, no. 34725/08, § 75, 16 February 2012; Lopatin and Medvedskiy v. Ukraine, nos. 2278/03 and 6222/03, § 72, 20 May 2010; Taran v. Ukraine, no. 31898/06, § 58, 17 October 2013; Kotiy v. Ukraine, no. 28718/09, § 38, 5 March 2015; and Orlovskiy v. Ukraine, no. 12222/09, § 52, 2 April 2015). In the Orlovskiy case, cited above, the Court accepted the Government’s objection and declared the respective complaint inadmissible on those grounds (§ 61).
39.  The Court notes that, under the Compensation Act relied on by the applicant in substantiation of his claim for damages before the domestic courts, a precondition for the entitlement to compensation was “a finding of ... unlawfulness of arrest and detention in a ... judicial decision” (see paragraphs 15 and 26 above). In other words, obtaining a judicial declaration of the unlawfulness of detention was the first step in a two-step system of remedies rather than being entirely distinct from the claim for damages to which they open the way. The “final decision” is therefore not that given at the end of the proceedings for judicial review of the lawfulness of his detention, but the one given at the end of the ensuing proceedings for damages (see and compare with Dzhabarov and Others, cited above, § 58).
40.  The Court observes that the applicant’s claim for damages was not examined on the merits by the Supreme Court, which dismissed his appeal on points of law on the grounds that he had failed to comply with certain formalities (see paragraph 21 above). If this matter were to be examined purely from the standpoint of the exhaustion of domestic remedies, the Court would consider joining it to the merits of the applicant’s related complaint under Article 5 § 5 and/or Article 6 § 1 of the Convention. This is not required, however, as the Government’s objection is confined to the issue of the applicant’s compliance with the six-month rule. In order to reply to this objection, it is sufficient to note that the compensation proceedings did extend the six-month time-limit for the applicant’s complaint under Article 5 § 1 of the Convention. Accordingly, the Court agrees with the applicant that the starting point for the calculation of the six-month period in this case is 24 November 2007.
41.  The Court therefore rejects the Government’s objection.
42.  It further notes that the applicant’s complaints under Article 5 §§ 1 and 5 of the Convention are neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. They must therefore be declared admissible.
Section 3.02	B.  Merits
(a)	1.  Unlawfulness of the applicant’s arrest and detention
43.  The applicant complained under Article 5 § 1 of the Convention that his arrest on 12 February 2003 and his subsequent detention until 27 April 2005 had been unlawful.
44.  The Government did not submit any observations on the merits of this complaint.
45.  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 enshrine the obligation to conform to the substantive and procedural rules thereof. Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 a failure to comply with domestic law entails a breach of the Convention and the Court can and should review whether this law has been complied with (see, among many other references, Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004‑II).
46.  Turning to the present case, the Court notes that, as established by the domestic courts, the applicant was deprived of his liberty with a view to having him serve his sentence, which had become time-barred by that time (see paragraph 12 above).
47.  In these circumstances, it is clear that the applicant was deprived of his liberty unlawfully as there was no legal basis for his arrest and detention with a view to serving a sentence which was time-barred. There has accordingly been a violation of Article 5 § 1 of the Convention.
(b)	2.  Lack of an enforceable right to compensation
48.  The applicant complained under Article 5 § 5 of the Convention that he had had no effective and enforceable right to compensation for his unlawful detention.
49.  The Government contested the above argument. They submitted that the domestic courts had duly adjudicated on the applicant’s civil claim. Accordingly, they maintained that the applicant’s rights under Article 5 § 5 of the Convention had not been violated.
50.  The Court reiterates that Article 5 § 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (see Stanev v. Bulgaria [GC], no. 36760/06, § 182, ECHR 2012, with further references). The right to compensation set forth in paragraph 5 therefore arises only if a breach of one of its other four paragraphs has been established, directly or in substance, by the Court or by the domestic courts (see, for example, Svetoslav Dimitrov v. Bulgaria, no. 55861/00, § 76, 7 February 2008, and Çağdaş Şahin v. Turkey, no. 28137/02, § 34, 11 April 2006).
51.  The Court further emphasises that the effective enjoyment of the right to compensation guaranteed by Article 5 § 5 must be ensured with a sufficient degree of certainty (see Lobanov v. Russia, no. 16159/03, § 54, 16 October 2008, with further references).
52.  The Court notes that the issue of compensation for unlawful detention is regulated in Ukraine by the Compensation Act. The right to compensation arises, in particular, where the unlawfulness of the detention has been established by a judicial decision (see paragraph 26 above).
53.  In the present case the applicant tried to obtain compensation on this basis, but to no avail. The courts at two levels of jurisdiction examined his claim on the merits, but found that there were no grounds for awarding him compensation. The Court cannot but observe that they failed to give any meaningful response to the key argument advanced by the applicant that the unlawfulness of his detention had been unequivocally acknowledged by a judicial decision. The mere fact that the applicant had been released on different grounds was relied on as negating that finding (see Emin v. the Netherlands, no. 28260/07, §§ 22 and 25, 29 May 2012).
54.  The Court notes that the regular judicial procedure was not confined to the above-mentioned courts of two levels. Thereafter the applicant could and did submit an appeal on points of law to the Supreme Court, an effective remedy in the context of civil proceedings in Ukraine (see Mala v. Ukraine, no. 4436/07, § 39, 3 July 2014, with further references). However, his appeal on points of law was dismissed without being examined on the grounds that he had failed to submit the authority form on time.
55.  Having regard to the information in the case file, the Court considers that the dismissal of the applicant’s appeal on points of law was not justified. Thus, it is an established fact that within the set time-limit his representative sent a registered letter concerning the case in question to the Supreme Court (see paragraphs 20 and 25 above). Contrary to the Government’s doubts as to the contents of that letter, the Court finds no reasons not to believe the applicant that it contained the required authority form. It appears that, due to a technical error or for some other reason, the Supreme Court merely omitted that letter. Otherwise, its existence would have been mentioned in its subsequent ruling of 30 October 2007 dismissing the applicant’s appeal on points of law (see paragraph 21 above).
56.  Accordingly, the Court considers that the applicant cannot be reproached for a failure to comply with any formal or procedural requirements in his attempts to obtain compensation for his unlawful detention at the domestic level (see Boris Popov v. Russia, no. 23284/04, § 84, 28 October 2010, with further references, and Michalák v. Slovakia, no. 30157/03, § 206, 8 February 2011).
57.  It follows that – in the specific circumstances of this case (see paragraphs 53-55 above) – the applicant was not able to enforce his right to compensation under the Compensation Act even though the unlawfulness of his detention had been established by the domestic courts (see paragraph 12 above). Furthermore, as stated in the Court’s previous case-law, once the Strasbourg Court has found a breach of one of the paragraphs of Article 5, there is no legally envisaged procedure in Ukraine for bringing proceedings to seek compensation on that ground (see, in particular, Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 233 in fine, 21 April 2011).
58.  The foregoing considerations are sufficient to enable the Court to conclude that the applicant did not have an enforceable right to compensation for the violation of his rights under Article 5 § 1 of the Convention.
59.  There has accordingly also been a violation of Article 5 § 5 of the Convention.
Article IV.	II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
60.  The applicant complained that the refusal of the Supreme Court to examine his appeal on points of law in the compensation proceedings had been in breach of his right of access to a court. He relied on Article 6 § 1 of the Convention, which reads as follows in its relevant part:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
61.  The Government contested that argument.
62.  The Court notes that this complaint is linked to the one under Article 5 § 5 of the Convention examined above and must therefore likewise be declared admissible.
63.  Having regard to the findings relating to Article 5 § 5 (see paragraphs 53-59 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 6 § 1 of the Convention.
Article V.	III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
64.  The applicant also complained under Article 5 § 2 of the Convention that the reasons for his arrest on 12 February 2003 had not been explained to him. He also raised a general complaint about a violation of his rights under Article 5 § 4. Furthermore, the applicant complained under Article 6 § 1 about the length of the proceedings concerning the lawfulness of his detention. Lastly, he referred to Articles 13 and 17 of the Convention, as well as Article 1 of Protocol No. 1 to the Convention, without being more specific.
65.  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 or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
Article VI.	IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
66.  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.”
67.  The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaints concerning the unlawfulness of the applicant’s deprivation of liberty and the lack of an enforceable right to compensation in that regard, as well as the complaint concerning the violation of his right of access to a court, admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 5 § 1 of the Convention;

3.  Holds that there has been a violation of Article 5 § 5 of the Convention;

4.  Holds that there is no need to examine the complaint under Article 6 § 1 of the Convention.
Done in English, and notified in writing on 17 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Milan Blaško	Angelika Nußberger
	Deputy Registrar	President