European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

CASE OF RUSYN v. UKRAINE

 

(Application no. 5462/10)

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

 

 

20 October 2016

 

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Rusyn v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Erik Møse, President,
          Yonko Grozev,
          Mārtiņš Mits, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 27 September 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 5462/10) 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 Mykola Bogdanovych Rusyn (“the applicant”), on 14 January 2010.

2.  The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.

3.  The applicant alleged, in particular, that his pre-trial detention had been unlawful and excessively long, and that it had lacked an adequate and speedy judicial review.

4.  On 13 January 2014 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

5.  The applicant was born in 1981 and lives in Lviv.

6.  On 29 January 2007 the applicant was arrested on suspicion of murder.

7.  On 1 February 2007 the Lviv Shevchenkivskyy District Court (the Shevchenkivskyy Court) ordered his detention as a preventive measure pending trial, for an initial period of two months.

8.  On 28 March 2007 the same court extended the applicant’s pre-trial detention for two more months on the ground that there was a considerable volume of investigative measures to be carried out and there were no reasons for changing the preventive measure.

9.  On 29 May 2007 the investigation was completed and the applicant and his lawyer received access to the case file.

10.  On 6 July 2007 another set of criminal proceedings was instituted against the applicant, for infliction of grievous bodily harm.

11.  On 10 July 2007 the two criminal cases were joined.

12.  On the same day the Lviv Regional Court of Appeal (the Court of Appeal) extended the applicant’s pre-trial detention to six months.

13.  On 27 July 2007 the case was referred to the Shevchenkivskyy Court, which held a preliminary hearing on 31 August 2007. It ordered the applicant’s further detention without fixing any time-limits.

14.  The Shevchenkivskyy Court remitted the case for further investigation three times (on 8 October 2007, as well as on 19 May and 18 November 2008). The appellate court quashed the first two decisions (on 18 December 2007 and 26 August 2008), but upheld the last one (on 27 March 2009). All the judicial rulings in question maintained the applicant’s continued detention without further reasoning.

15.  On 14 May 2009 the investigation was completed and the case was referred for trial, this time to the Court of Appeal as a first-instance court.

16.  On 27 May 2009 the Court of Appeal held a preliminary hearing, at which it decided, among other things, to remit the case for further investigation once again and to maintain the applicant’s detention.

17.  On 4 August 2009 the Supreme Court quashed the above decision in so far as it concerned the remittal issue and rejected the applicant’s request for release on the ground that he was accused of serious crimes.

18.  On 15 June 2010 the Court of Appeal found the applicant guilty of murder and attempted murder and sentenced him to thirteen years’ imprisonment.

19.  On 22 February 2011 the Supreme Court upheld that judgment.

20.  On 29 January 2016 the applicant was released following the legislative amendments pertaining to the enforcement of sentences.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 5 §§ 1, 3 and 4 OF THE CONVENTION

21.  The applicant complained that his pre-trial detention had been unlawful and lengthy. He also complained that there had been no adequate or speedy judicial review of the lawfulness of his detention. The applicant relied on Article 5 §§ 1, 3 and 4 of the Convention, which 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:

... (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 ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

A.  Admissibility

22.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

23.  The applicant insisted that his rights under Article 5 had been infringed.

24.  The Government contested his arguments.

25.  The Court notes that it has frequently found violations of Article 5 §§ 1, 3 and 4 of the Convention in situations similar to the present case (see, among numerous other cases, Molodorych v. Ukraine, no. 2161/02, § 108, 28 October 2010, Kharchenko v. Ukraine, no. 40107/02, §§ 70-76, 80-81, 85 and 100, 10 February 2011, Pleshkov v. Ukraine, no. 37789/05, § 42, 10 February 2011, Tretyakov v. Ukraine, no. 16698/05, §§ 51-52 and 59-60, 29 September 2011, Taran v. Ukraine, no. 31898/06, § 81, 17 October 2013, Temchenko v. Ukraine, no. 30579/10, §§ 107-109, 116 and 117, 16 July 2015, and Kushch v. Ukraine, no. 53865/11, §§ 116-126, 3 December 2015).

26.  The Government have not submitted any new arguments that could persuade the Court to depart from its previous conclusions in this case.

27.  There has therefore been a violation of Article 5 §§ 1, 3 and 4 of the Convention.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

28.  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

29.  The applicant claimed 50,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.

30.  The Government contested the above claim as exorbitant and unsubstantiated.

31.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 5,000 in respect of non-pecuniary damage.

B.  Default interest

32.  The Court considers it appropriate that the default interest rate 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,

1.  Declares the application admissible;

 

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 § 3 of the Convention;

 

4.  Holds that there has been a violation of Article 5 § 4 of the Convention;

 

5.  Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

6.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 20 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Milan Blaško                                                                          Erik Møse
Deputy Registrar                                                                       President