CASE OF KHLEBIK v. UKRAINE
(Application no. 2945/16)
25 July 2017
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 Khlebik v. Ukraine,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Vincent A. De Gaetano,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 20 June 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 2945/16) 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 Oleksandr Ivanovych Khlebik (“the applicant”), on 18 December 2015.
2. The applicant, who had been granted legal aid, was represented by Ms I. Koval, Mr D. Mazurok, Ms A. Salyuk and Mr M. Tarakhkalo, lawyers practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna from the Ministry of Justice.
3. The applicant alleged that his detention in circumstances where the courts were unable to examine an appeal he had lodged against his conviction because the domestic case file was in an area that was not under the Ukrainian Government’s control, was contrary to the requirements of Article 5 of the Convention. He also alleged that he did not have an enforceable right to compensation in that respect. He further complained, under Article 6 of the Convention and Article 2 of Protocol No. 7 to the Convention, that he had been waiting in vain for the appellate court to examine his appeal against his conviction because the domestic authorities had failed to enact legislation enabling the examination of appeals in circumstances such as his.
4. On 1 April 2016 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. It was also decided that the application should be given priority under Rule 41 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1974 and lives in Nizhyn in the Chernihiv Region.
6. On 1 May 2010 the applicant was arrested and remanded in custody pending the outcome of the investigation and trial.
7. On 30 April 2013 the Alchevsk Court of the Luhansk Region convicted the applicant and his four co-defendants of armed robbery committed in an organised group, banditry and illegal possession of firearms in connection with a series of armed attacks committed in the Perevalsk District of the Luhansk Region. The court sentenced the applicant to eight years and nine months’ imprisonment, to be counted from 1 May 2010 (the date on which he had been arrested), and to confiscation of his property. It ordered that the applicant remain in detention pending appeal.
8. On 14 May 2013 the applicant’s sister, acting in the capacity of his lay defender, appealed against the judgment to the Luhansk Regional Court of Appeal (“the Court of Appeal”). Other parties lodged appeals as well.
9. From the beginning of April 2014, armed groups started to seize official buildings in the Donetsk and Luhansk regions and announced the creation of self-proclaimed entities known as the “Donetsk People’s Republic” and the “Luhansk People’s Republic” (“DPR” and “LPR”).
10. In response, on 14 April 2014 the Ukrainian Government, who consider those armed groups to be terrorist organisations, authorised the use of force against them in the legal form of an “anti-terrorist operation”.
11. As a result of extensive military action, between May and August 2015 the Ukrainian Government forces recaptured some territory in the Donetsk and Luhansk regions, but certain parts of the regions have remained outside of the Government’s control since that time. The parts of the Luhansk Region not under the Government’s control include the Perevalsk District, where the offences for which the applicant was convicted were committed, Alchevsk, where the applicant was tried and convicted, and Luhansk, where the Court of Appeal was located.
12. A ceasefire was agreed upon within the framework of the Tripartite Contact Group composed of representatives of Ukraine, Russia and the Organisation for Security and Co-operation in Europe (hereinafter, “the OSCE”). An obligation to uphold the ceasefire and to withdraw heavy weaponry from the contact line was enshrined in the Minsk Agreements and the Package of Measures for their Implementation of September 2014 and February 2015 respectively. However, numerous violations of the ceasefire have continued to occur ever since.
13. At the time the events of spring and summer 2014 were unfolding, the applicant was detained in Starobilsk remand prison, located in the part of the Luhansk Region that has remained under the control of the Ukrainian Government. He remained in that prison until his release (see paragraph 30 below).
14. On 6 June 2014 the Court of Appeal, which was still sitting in Luhansk, failed to hear the applicant’s case because the applicant could not attend the hearing on account of the armed conflict. A hearing by video conference was scheduled for 8 August 2014, but it did not take place because as from 1 August 2014 the electricity and water supply and telephone communications were cut off at the Court of Appeal’s building in Luhansk. At some point around that time, the judges of the court moved to the Government-controlled territory. The case files, however, remained at the court’s building in Luhansk.
15. On 2 September 2014 the President of the High Civil and Criminal Court, acting under the Law of 12 August 2014 (see paragraph 44 below), reassigned jurisdiction over cases which would normally have fallen within the jurisdiction of the Alchevsk Court to the Lysychansk Court of the Luhansk Region (“the Lysychansk Court”), located in the Government-controlled area.
16. On 12 November 2014 the President of Ukraine issued a decree defining Sieverodonetsk in the Luhansk Region, also located in the Government-controlled area, as the seat of the Court of Appeal instead of Luhansk.
17. On 25 February 2015 the applicant complained to the Court of Appeal about the delay in the examination of his appeal.
18. On 3 March 2015 the applicant lodged a similar complaint with the office of the Parliamentary Commissioner for Human Rights.
19. On 27 March 2015 the Court of Appeal informed the applicant that his criminal case file was in Luhansk, which was not under the Government’s control, and that this prevented the court from examining his case. In order to resolve the problem, amendments would have to be made to the relevant legislation.
20. On 30 March 2015 the Parliamentary Commissioner’s office responded that there was no way to obtain case files from the territory that was not under the Government’s control, but that the Commissioner was working with the courts, the prosecutor’s office and other authorities to find a way to resolve the problem.
21. In response to another complaint from the applicant, on 19 May 2015 the Court of Appeal informed him that it was unable to apprise him of the state of proceedings in his case because his criminal case file was in the court archives in Luhansk, to which there was no access.
22. On 21 May 2015 the Parliament of Ukraine (Verkhovna Rada) adopted a declaration which read, insofar as relevant, as follows:
“I. Derogation from Obligations
2. In view of the armed aggression of the Russian Federation against Ukraine involving both the regular Armed Forces of the Russian Federation and illegal armed groups guided, controlled and financed by the Russian Federation, since April 2014 an anti-terrorist operation has been conducted by the units of the Security Service of Ukraine, the Ministry of Internal Affairs of Ukraine and the Armed Forces of Ukraine in certain areas of the Donetsk and Luhansk regions (oblasts) of Ukraine. The anti-terrorist operation is part of Ukraine’s inalienable right to individual self-defense against aggression under Article 51 of the UN Charter. The Russian Federation, which has occupied and is exercising control over certain areas of the Donetsk and Luhansk regions, is fully responsible for respect for and protection of human rights in these territories under international humanitarian law and international human rights law.
3. The Russian Federation’s ongoing armed aggression against Ukraine, together with war crimes and crimes against humanity committed both by the regular Armed Forces of the Russian Federation and by illegal armed groups guided, controlled and financed by the Russian Federation, constitutes ‘a public emergency threatening the life of the nation’ in the sense of ... Article 15 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
4. In order to safeguard the vital interests of society and the State in response to the armed aggression of the Russian Federation, the Parliament of Ukraine, the Cabinet of Ministers of Ukraine and other authorities have to adopt decisions which constitute a derogation from certain obligations on the part of Ukraine under the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms.
7. On 12 August 2014, the Parliament of Ukraine adopted the Law on Administration of Justice and Criminal Proceedings in connection with the Anti-terrorist Operation. The Law changed, for the duration of the anti-terrorist operation, the territorial jurisdiction over cases amenable to the courts located in the anti-terrorist operation area and, concerning the situations where it is impossible to conduct a pre-trial investigation in that area, investigative jurisdiction over criminal offences perpetrated there. The application of this law makes it necessary for Ukraine to derogate from certain of its obligations under Article 14 of the International Covenant on Civil and Political Rights and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. However, the courts and pre-trial investigation bodies are not currently functioning in certain areas of the Donetsk and Luhansk regions because of the armed aggression of the Russian Federation and the actions of terrorist groups backed by the Russian Federation. That is why Ukraine has had to change the territorial jurisdiction of the courts and investigative jurisdiction in respect of criminal offences in conditions where the life of the nation is threatened.
23. On 5 June 2015 the Permanent Representation of Ukraine to the Council of Europe transmitted to the Secretary General of the Council of Europe a note verbale containing the text of the above declaration and its translation.
24. On 15 June 2015 the applicant applied to the Lysychansk Court for restoration of the lost case file (відновлення матеріалів втраченого провадження).
25. On 22 June 2015 the Lysychansk Court held a hearing in the presence of a prosecutor but in the applicant’s absence. The prosecutor stated that the case file in question was not in the area of the Luhansk Region controlled by the Ukrainian Government and that it was therefore not possible to furnish the court with any of the material therein. The court found that there was insufficient material available to restore the file. It discontinued the examination of the application, reminding the parties that if sufficient material was provided, the question of restoration could be re-examined.
26. On 22 October 2015 the Court of Appeal again informed the applicant that examination of his case required amendments to the legislation. In this context, it referred to draft law no. 2930 (see paragraph 47 below).
27. On five occasions between May 2015 and February 2016 the applicant applied for release, arguing that his detention was unlawful because his conviction was not final and “would never become final”.
28. The Starobilsk Court of the Luhansk Region rejected the applicant’s applications for release, finding that, contrary to his submissions, there were sufficient legal grounds for continuing to detain him, since he had been convicted and his case was pending before the Court of Appeal. The most recent of those decisions was taken on 25 February 2016. No appeal lay against them.
30. On 18 March 2016 the Lysychansk Court released the applicant. It considered that, as he had been held in pre-trial detention since 1 May 2010, under the Law of 26 November 2015 he could be deemed to have already served his sentence.
31. The regional prosecutor’s office appealed, arguing that the applicant’s conviction had not become final because his domestic case file had remained inaccessible in a non-Government-controlled area and appeals against his conviction were still pending before the Court of Appeal. According to the prosecutor’s office, only convicted persons whose convictions had become final could benefit from the application of the new legislation. By contrast, those whose convictions were not final could be released only once the period for which they had been detained had exceeded half of the maximum sentence for the offence of which they stood accused. Since the applicant was accused of offences, in particular banditry and aggravated robbery, the maximum punishment for which was fifteen years’ imprisonment (see paragraph 41 below), and he had served much less than half of that term, he could not be released.
33. Following communication of the case to the respondent Government, on 11 August 2016 the regional prosecutor’s office informed the office of the Government Agent that, apart from the applicant, there were seven other individuals still held in the region’s remand prisons against whom criminal proceedings were still pending but whose case files were in the non-Government-controlled areas. The prosecutor’s office stated that it had requested the assistance of the police in gathering the documentation necessary to restore the relevant files. That work had allowed the prosecutor’s office to gather sufficient material to ask the courts to consider the case against one of those individuals. The work was ongoing concerning two other defendants. Assistance had also been requested from the International Committee of the Red Cross, which operated in both the Government-controlled and the non-Government-controlled areas, in facilitating the transfer of files from the Court of Appeal’s building in Luhansk.
34. At the date of last information made available to the Court (19 January 2017), the applicant’s appeal against his conviction remained pending before the Court of Appeal.
II. RELEVANT DOMESTIC LAW, LEGISLATIVE PROPOSALS AND PRACTICE
A. Codes of Criminal Procedure of 1960 and 2012
35. As the criminal proceedings against the applicant started before the entry into force of the 2012 Code, his detention and trial and the appeal proceedings were governed by the 1960 Code of Criminal Procedure.
1. Scope of appellate review
36. Article 362 of the 1960 Code provided that appellate courts may examine and assess evidence in respect of the parts of judgments challenged on appeal, in accordance with the rules of criminal procedure applicable to the trial. Under those rules the court had the power to call witnesses, appoint experts, and examine physical evidence and documentation. Article 367 provided that a judgment could be quashed or amended by an appellate court in the event of: (i) a substantial breach of the rules of criminal procedure; (ii) incorrect application of the criminal law or an error in sentencing; or (iii) an error of fact, namely where a pre-trial investigation or examination of evidence by the trial court had been biased or was incomplete, or where the trial court had drawn erroneous conclusions from the facts of the case.
2. Detention before and after conviction
37. Article 149 of the 1960 Code listed pre-trial detention, along with bail and several other measures, among the preventive measures that could be applied to defendants in the course of criminal proceedings.
38. Article 324 required the convicting court to decide, in particular, on the preventive measure to be applied to a convicted person until the judgment became final.
39. Under Articles 338 and 401 a person sentenced to imprisonment was considered to be serving his or her sentence from the date on which the judgment became final, namely the date on which it was upheld on appeal. However, pursuant to Article 338, if the convicted person had been held in pre-trial detention, the duration of that detention counted towards his or her sentence.
3. Restoration of lost files
40. The applicant’s application for restoration of the case file was examined under Articles 524-31 of the 2012 Code of Criminal Procedure, which set out the procedure for restoration of lost case files in which a judgment has been delivered. Parties to proceedings may apply to the court which delivered the judgment for restoration of a lost case file. Article 527 of the Code requires persons applying for restoration to provide detailed information as to the specific material in the file, the names and addresses of parties to the proceedings, the possible location of the lost material and the circumstances in which it was lost, and to furnish to the court all documentation available to him or her. Article 529 provides that the court, having received the application, must ask the prosecutor’s office for information and documentation which may help in restoring the case file. Under Article 530, the court can examine as witnesses officials and other persons who took part in procedural actions and, where necessary, judges who examined the case. On the basis of the information and documentation so collected, the court may either deem the file restored in its entirety or in part or, if it finds the information available insufficient, discontinue the proceedings and explain to the parties their right to reapply if necessary documentation becomes available (Article 531).
B. Criminal Code of 2001
41. Article 187 § 1 and Article 257 of the Code make robbery committed in an organised group and banditry (namely creation and participation in an armed gang) punishable by up to fifteen years’ imprisonment.
C. Law No. 1207-VII of 15 April 2014 on protection of the rights of Ukrainian citizens and legal regime of the temporarily occupied territory
42. The Law concerns the Autonomous Republic of Crimea and Sevastopol, which it defines as territory temporarily occupied by Russia (sections 2 and 3). Section 12 reassigns jurisdiction over cases which would normally fall within the jurisdiction of the courts of the Autonomous Republic of Crimea and Sevastopol to courts in Kyiv determined in accordance with the rules set out in that section.
D. Law No. 1632-VII of 12 August 2014 on administration of justice and criminal proceedings in connection with the anti-terrorist operation
43. The Law came into force on 20 August 2014.
44. Section 1(1) authorises the President of the High Specialised Civil and Criminal Court to designate the courts with jurisdiction over criminal сases which would normally have been examined by courts located in the area where the anti-terrorist operation is being conducted, but which are prevented from operating.
45. Section 1(3) provides that cases pending before the courts that are prevented from operating will be transferred to the courts which have been designated in accordance with the Law. If the case file cannot be transferred, proceedings are to be conducted on the basis of the material submitted by the parties, “provided that such material is sufficient for the court to decide on the matter”.
E. Law No. 838-VIII of 26 November 2015 equating one day of pre-trial detention to two days of imprisonment following conviction
46. The Law, which came into force on 24 December 2015, amended the Criminal Code. Prior to the amendment, the Code had provided that, when calculating the final time to be served, one day of pre-trial detention counted for one day of imprisonment. Article 72 § 5 of the Code as amended now provides that one day of pre-trial detention counts for two days’ imprisonment. Accordingly, a convicted person now has to be released if he or she has already spent at least half of the term of imprisonment to which he or she has been sentenced in pre-trial detention. If at any point before a verdict is delivered the person has remained in detention for more than half of the maximum term of imprisonment provided for in the Criminal Code for the offence of which he or she is suspected or accused, the defendant must be released. The court orders release on its own motion or following an application from the defence or the prosecutor. The Law applies to all persons whose convictions have become final (i.e. upheld on appeal) but whose sentences have not been served in full by the date on which the Law came into force.
On 18 May 2017 the Parliament adopted a law repealing the Law of 26 November 2015 and restoring the situation which had existed before that law came into force. According to the repealing law, it shall come into force the day after its official publication. The law was officially published on 20 June 2017.
F. Draft legislation concerning restoration of files
47. On 21 May 2015 Mr G. Nemyrya, Member of Parliament and chairman of the Parliamentary Committee on Human Rights, and four other Members of Parliament introduced a draft law proposing amendments to certain legislation concerning the strengthening of human-rights protection in criminal procedure. The draft law, which was registered in Parliament under no. 2930, proposes, in particular, an amendment to section 1(3) of the Law of 12 August 2014 (see paragraph 45 above). It would remove the proviso that cases can be examined on the basis of the material submitted by the parties, “provided that such material is sufficient for the court to decide on the matter”. According to the most recent publicly available information, the draft law is pending before the relevant parliamentary committee.
48. On 19 October 2015 Mr R. Knyazevych, Member of Parliament and chairman of the Parliamentary Committee on Justice and Legal Policy, introduced a draft law proposing amendments to the Law of 15 April 2014 concerning Crimea and Sevastopol (see paragraph 42 above). The draft law, which was registered under no. 3343, proposes adding a new subsection to section 12 providing that, if it is impossible to obtain the case file from the occupied territory, the competent court to which jurisdiction of the case has been reassigned has to examine the case on the basis of material provided by the parties. The draft law also proposes that the courts before which appeals are pending should be empowered to examine the question of restoration of case-file material at the request of the parties or ex officio. A new section would also provide that if copies of the material from the file left in the occupied territory are insufficient for examination of the case, the prosecutor’s office or other investigating authorities can conduct a new investigation to gather evidence. If the newly gathered material is still insufficient to examine the case, the court may adjourn the proceedings and release the defendants being held in pre-trial detention.
G. Practice concerning transfer of “ordinary” prisoners and case files from certain areas of Eastern Ukraine
49. According to the press reports to which the applicant referred, Ukraine’s Parliamentary Commissioner for Human Rights has organised the transfer of more than a hundred case files concerning criminal defendants detained in the area under the Government’s control from non-Government-controlled territory. Similarly, she has organised the transfer of a number of prisoners detained in connection with “ordinary” criminal offences (i.e. prisoners whose detention was apparently unrelated to the political and/or conflict-related matters) in non-Government-controlled territory to the areas under the Government’s control. However, those transfers concerned only the non-Government-controlled territory in the Donetsk Region. According to public statements made by the Parliamentary Commissioner and the Deputy Minister of Justice, who also took part in the prisoner exchanges, similar contacts have not been established with the forces controlling the parts of the Luhansk Region not under the Government’s control.
50. According to the information provided to the Government Agent’s office by the Luhansk Regional Court of Appeal, there have been no transfers of case files left in the non-Government-controlled areas of the Luhansk Region.
51. According to information published by the International Committee of the Red Cross, in 2016 the latter facilitated the exchange of thirty-seven detainees between non-Government-controlled and Government-controlled areas.
III. RELEVANT INTERNATIONAL MATERIAL
A. Parliamentary Assembly of the Council of Europe
52. The relevant part of Resolution 2133 (2016) on “Legal remedies for human rights violations on the Ukrainian territories outside the control of the Ukrainian authorities”, adopted on 12 October 2016, reads:
“1. The Parliamentary Assembly is deeply worried about the human rights situation in Crimea and in the self-proclaimed ‘people’s republics’ of Donetsk and Luhansk (‘DPR’ and ‘LPR’, respectively).
7. Victims of human rights violations have no effective internal legal remedies at their disposal:
7.1. as far as the residents of the ‘DPR’ and ‘LPR’ are concerned, local ‘courts’ lack legitimacy, independence and professionalism; the Ukrainian courts in the neighbouring government-controlled areas, to which jurisdiction for the non-controlled areas was transferred by Ukraine, are difficult to reach, cannot access files left behind in the ‘DPR’ or ‘LPR’ and cannot ensure the execution of their judgments in these territories;
11. Numerous inhabitants of the conflict zone in the Donbas, on both sides of the contact line, still suffer on a daily basis from numerous violations of the ceasefire that was agreed in Minsk. These violations are documented daily by the OSCE Special Monitoring Mission to Ukraine, despite the restrictions on access imposed mainly by the de facto authorities of the ‘DPR’ and ‘LPR’. The inhabitants also suffer from the prevailing climate of impunity and general lawlessness due to the absence of legitimate, functioning State institutions, and in particular access to justice in line with Article 6 of the European Convention on Human Rights (ETS No. 5).
17. The Assembly therefore urges:
17.5. the international community to continue focusing on the human rights and humanitarian situation of the people living in the territories of Ukraine not under the control of the Ukrainian authorities and refrain from placing demands on Ukraine which would cement the unlawful status quo if fulfilled ...”
53. On 21 March 2014 the OSCE decided to deploy a Special Monitoring Mission (hereinafter, “the SMM”) to Ukraine. Its tasks include reporting on the security situation in the area of operation; establishing and reporting facts in response to specific incidents and reports of incidents; and monitoring and supporting respect for human rights and fundamental freedoms.
54. In December 2015 the SMM published a thematic report entitled “Access to Justice and the Conflict in Ukraine”. The report reads, insofar as relevant, as follows:
“5.4. Unlawful Detention or Deprivation of Liberty
The relocation of courts and prosecution offices, and the lack of a developed and legitimate legal system in ‘DPR’ - and ‘LPR’ - controlled areas, has resulted in potentially illegal and arbitrary detention of people in both government- and non-government-controlled areas.
5.4.1. Government-Controlled Areas
In government-controlled areas, due to the loss of case files and difficulties caused by the relocation of judicial services, some individuals are unlawfully detained. People remaining in detention include those who were detained but not convicted of a crime, those who were convicted at a first instance court and awaiting an appeal when the case file was lost and those who have been arrested since court relocation but the court is unable to examine the necessary evidence due to lack of access to non-government-controlled areas ... The relocated Luhansk Regional Prosecution Office, on 20 April 2015, also informed the SMM of four juveniles who were convicted of serious crimes prior to the conflict, but the case files were lost during relocation. At the time of the interview, these people remained imprisoned due to the seriousness of the crimes. The SMM was informed by the Starobilsk District Court (Luhansk region) of 60 persons convicted at a first instance court of serious crimes who are imprisoned in government-controlled areas awaiting an appeal but whose case files remain in non-government-controlled areas...”
“The SMM recorded an approximate 20 per cent decrease in violence between 27 March and 2 April compared with the previous week, and a calmer situation since the renewed commitment to adhere to the ceasefire beginning on 1 April. At the same time, the security situation remained volatile and unpredictable.
From 27 March to 2 April, the Mission observed an almost 90 per cent decrease in the use of heavy weapons. But in the preceding week, from 20 to 26 March, the SMM recorded the second highest use of proscribed weapons since the Addendum to Package of Measures came into force, including at least 3,930 explosions.”
The SMM status report as of 14 June 2017 reads, insofar as relevant:
“Following the re-commitment to ceasefire to mark “International Children’s Day” on 1 June, and an accompanying one-day lull in violence, both Donetsk and Luhansk regions witnessed upsurges in violence. For example, on 3-4 June, the SMM observed artillery and mortar fire exchanges between the Trudivske neighbourhood in Petrovskyi district of Donetsk city and neighbouring Krasnohorivka; and on 5-6 June use of artillery, including multiple-launch rocket systems in the Zholobok-Krymske area of Luhansk region.
Over the period 29 May-12 June, the SMM confirmed 21 civilian casualties, one of whom was killed. This brings the total number of civilian casualties confirmed by the SMM in 2017 to 261, including 45 fatalities.”
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 2 OF PROTOCOL NO. 7
56. The applicant complained that the authorities’ failure to adopt rules and procedures which would allow for his appeal to be effectively examined constituted a violation of Article 6 of the Convention, the relevant part of which reads:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal ...”
He also complained that the same failure constituted a violation of Article 2 of Protocol No. 7 to the Convention which reads, in the relevant part:
“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.”
1. The parties’ submissions
57. The Government submitted that the domestic law provided for a procedure to address situations such as that of the applicant, which was set out in section 1(3) of the Law of 12 August 2014 (see paragraph 45 above). Under that provision, the applicant could have resubmitted his appeal to the Court of Appeal with copies of any material from the case file he had at his disposal. He could also have submitted material in his possession to the Court of Appeal and asked it to restore the file based on that material. In the Government’s opinion, by failing to have recourse to that procedure, the applicant had failed to exhaust domestic remedies.
58. The applicant argued that section 1(3) of the Law of 12 August 2014 concerned the internal organisation of the courts’ work. It did not apply to individual litigants and did not create any separate remedy accessible to them. To the extent the Government could be understood to argue that it had been the applicant’s duty to provide the material for the restoration of his case file, such an obligation would have placed a disproportionate and excessive burden on the applicant, in particular given that at the time, he had been detained. The applicant had in fact applied for the restoration of his case file and had thus done all that the domestic law required of him.
2. The Court’s assessment
59. The Court reiterates that in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Menteş and Others v. Turkey, 28 November 1997, § 57, Reports of Judgments and Decisions 1997-VIII).
60. The Court observes that in the present case the Government did not submit any court decisions demonstrating examples of the use of the remedy identified by them (see, mutatis mutandis, Soldatenko v. Ukraine, no. 2440/07, § 49, 23 October 2008, and M. v. Ukraine, no. 2452/04, § 85, 19 April 2012), even though the Court acknowledges that in the present case the Law of 12 August 2014 was relatively recent (see Kudrevičius v Lithuania [GC], no. 37553/05, § 115, 15 October 2015, Huhtamäki v. Finland, no. 54468/09, § 51, 6 March 2012, and the case-law cited therein). More importantly, however, the Court notes that despite the fact that the applicant repeatedly asked the Court of Appeal about the progress in his case, the Court of Appeal in its replies did not point out to him the availability of the remedy put forward by the Government (see paragraphs 19 and 21 above). In any event, section 1(3) of the Law of 12 August 2014 explicitly provides that in a situation such as that of the applicant, that is to say where a case file cannot be transferred to the Government-controlled area, the case can be examined on the basis of material submitted by the parties, “provided that such material is sufficient for the court to decide on the matter”. However, it is apparent that the parties, the applicant and the prosecutor’s office, were unable to furnish sufficient material, which led the Lysychansk Court to reject the applicant’s application for the restoration of the case file (see paragraph 25 above). There is nothing to indicate that the outcome could have been different had the applicant applied to the Court of Appeal.
61. The Court therefore dismisses the Government’s preliminary objection of non-exhaustion of domestic remedies. It further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.
1. Article 6 § 1 of the Convention
(a) The parties’ submissions
62. The applicant submitted that the domestic law did not provide for any algorithm on how stakeholders and judicial authorities should act in situations where it was impossible to restore a lost case file. For the applicant, the appropriate course of action would be either a new investigation and trial or a review of the case by a higher court based on the available material. However, domestic legislation did not allow for that. The context in which this situation had arisen could explain some of the delay in enacting a solution, but the lack of a solution for more than two years had “completely eliminated the guarantees enshrined” in Article 6 of the Convention.
63. The applicant further submitted that the authorities had not fully used even the tools available to them under legislation already in force. In particular, the Lysychansk Court, which examined the question of restoration of the file, held only one hearing with the attendance of only the prosecutor and in the applicant’s absence. The authorities had stopped their inquiry after establishing that the applicant could not produce the case-file material on his own and had failed to consider other avenues of gathering the relevant material: demanding documentation from third parties; carrying out additional investigations; and questioning the applicant and the witnesses. Requests made to the police and the International Committee of the Red Cross (see paragraphs 33 above) were insufficient. In particular, the Parliamentary Commissioner was not involved in resolving the problem, although she had been able to secure the return of files from the non-Government-controlled territory in the Donetsk Region (see paragraph 49 above).
64. The Government submitted that the reasonableness of the length of proceedings had to be assessed in each case according to its circumstances. They stressed that the delay in the examination of the applicant’s appeal was due to the complicated situation in the Luhansk Region and the impossibility of obtaining his case file from Luhansk, which was under the control of a terrorist organisation supported and controlled by the Russian Federation. In addition, legislative proposals pending before the Ukrainian Parliament (see paragraphs 47 and 48 above) were intended to simplify the restoration of case files left in the territory that was not under the Government’s control. Accordingly, the Government were undertaking all possible measures to “ensure” the rights of individuals who found themselves in a situation such as the applicant’s.
65. The Government submitted that Ukraine’s derogation under Article 15 of the Convention did not cover the applicant’s situation since the latter had been created before the declaration had been made and the declaration had no retrospective effect. The applicant submitted that measures described in Ukraine’s derogation declaration were not, by their terms, relevant to the his situation and, therefore the derogation did not cover it.
(b) The Court’s assessment
66. The Court notes at the outset that the scope of its examination of the case is delimited by the fact that the application is directed against Ukraine only (contrast, for example, Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004-VII) and that the applicant did not allege that his rights had been breached due to a deficiency in the mechanisms of international cooperation between Ukraine and any other High Contracting Party.
67. The Court reiterates that while Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation, a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before these courts the fundamental guarantees contained in Article 6 (see Delcourt v. Belgium, 17 January 1970, § 25, Series A no. 11).
68. Article 6 of the Convention guarantees both the right of access to a court, including a court of appeal where this right is recognised by domestic law, and the right to a fair hearing within a reasonable time. The Court considers that in the present case, the questions of whether those two rights were respected are closely interrelated and should be examined together (see, mutatis mutandis, Kristiansen and Tyvik As v. Norway, no. 25498/08, § 51, 2 May 2013).
69. The right of access to a court is not absolute but may be subject to limitations; these are permitted by implication, since the right of access, by its very nature, calls for regulation by the State - regulation which may vary in time and in place according to the needs and resources of the community and of individuals (see Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93). Likewise, in view of the variety of types of proceedings, there are no absolute criteria for determining the point at which the length of proceedings becomes excessive (see Havelka v. the Czech Republic (dec.), no. 42666/10 and 61523/10, 20 September 2011). The reasonableness of the length of proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the applicant’s conduct and the conduct of the competent authorities (see Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). However, certain cases may call for a global assessment in this respect without separate examination of each of those criteria (see, for example, Mączyński v. Poland, no. 43779/98, § 33, 15 January 2002). Finally, the Court reiterates that it is not unaware of the difficulties which sometimes delay the hearing of cases by national courts and which are due to a variety of factors (see Vernillo v. France, 20 February 1991, § 38, Series A no. 198).
70. Turning to the circumstances of the present case, the Court observes that it is undisputed that the applicant was able to lodge an appeal against his conviction and this appeal was accepted for examination on the merits. It is also uncontested that the key reason why the applicant’s case has so far not been examined by the Court of Appeal is that his case file is no longer available as a result of hostilities in the areas the Government do not control.
71. Therefore, there is no question that the authorities of the respondent State have intentionally “restricted” or “limited” the exercise of the applicant’s right of access to the Court of Appeal (contrast, for example, Omar v. France, 29 July 1998, §§ 34-44, Reports 1998-V). The question before the Court is, rather, whether the respondent State has taken all the measures available to it to organise its judicial system in a way that would render the rights guaranteed by Article 6 effective in practice in this specific situation (see, for example and mutatis mutandis, Unión Alimentaria Sanders S.A. v. Spain, 7 July 1989, § 38, Series A no. 157, and Davran v. Turkey, no. 18342/03, § 45, 3 November 2009), in the light of the long-established principle that the Convention is intended to guarantee rights that are practical and effective, and not theoretical and illusory (see Artico v. Italy, 13 May 1980, § 33, Series A no. 37, and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, § 272, ECHR 2016). In examining this question, the Court is conscious of the context in which the case arose and notes that it would be artificial to examine the facts of the case without considering that general context (see, mutatis mutandis, Khlaifia and Others v. Italy [GC], no. 16483/12, § 185, ECHR 2016 (extracts)).
72. Adopting this approach, the Court will proceed to determine whether any practical avenues are open to the authorities of the respondent State to proceed with the examination of the applicant’s appeal under the circumstances.
73. The applicant has suggested three such main possible avenues (see paragraphs 62 and 63 above):
(i) to request the assistance of the Parliamentary Commissioner for Human Rights in obtaining the case file from the territory that is not under the Government’s control;
(ii) to conduct a new investigation and trial;
(iii) to review the judgment based on the available material.
74. As to the first option, the Court notes that the effectiveness of that mechanism would depend on the good will and cooperation of the forces controlling the territory not under the Government’s control and not exclusively on the respondent Government’s efforts. In the present case, the applicant did in fact ask for the Commissioner’s assistance, but she was unable to provide any help (see paragraph 20 above), possibly because, unlike in the Donetsk Region (see paragraph 49 above), she has not succeeded in establishing mechanisms for resolving such problems occurring in non-Government-controlled areas of the Luhansk Region, where the applicant’s file was left. The applicant did not argue that the lack of a mechanism for the Luhansk Region was due to a shortcoming on the part of the Ukrainian authorities rather than any other party. Account should also be taken of the fact that hostilities in the area have been continuing throughout the period at issue and no stable and lasting ceasefire has so far been established (see paragraphs 52 and 55 above).
75. As to the second option, the possibility of conducting a new investigation and trial, the Court finds no reason to doubt the domestic court’s conclusion, reached in the case-file restoration proceedings, that no relevant material concerning the case was available to them, given that both the offences of which the applicant was convicted and his trial took place in the areas of the Luhansk Region, which are currently not under the Government’s control (see paragraph 11 above). The Court notes the applicant’s argument (see paragraph 63 above) that he was not present at the hearing at which the question of restoration was examined, but there is no information before the Court showing that the applicant’s absence was attributable to the authorities or that the applicant was prevented from making written submissions to the court, or that his absence from the hearing influenced or was capable of influencing its outcome.
76. Therefore, although a new investigation and trial might be possible in some cases, it has not been shown that they would be effective in practice in the applicant’s case. In this context, the Court reiterates that its task is not to review the relevant law and practice in abstracto, but to determine whether the manner in which they affected the applicant gave rise to a violation of the Convention (see, for example, N.C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002-X).
77. As to the third option, a review of the applicant’s conviction and sentence based on the available material, the Court observes that the applicant did not specify the scope of such a review which he would consider possible and appropriate under the circumstances. It would appear that he wanted the case to be examined on appeal under the standard of review for which the legislation currently in force provides. That would entail an examination of questions of both law and fact, including an assessment of evidence (see paragraph 36 above). However, such an examination would require access to the evidence collected, in the domestic case file and otherwise. As noted above (see paragraph 75 above), the domestic court concluded that no such evidence was currently available to the authorities. It cannot be ruled out, however, that they may come into possession of such evidence in the future. To examine the entirety of the issues in the case before such evidence is available may thus prejudice the possibility of a more informed review in the future.
78. The Court reiterates in this context that in determining the reasonableness of the length of proceedings in criminal cases, the question of whether the applicant is in detention is a relevant factor (see Abdoella v. the Netherlands, 25 November 1992, § 24, Series A no. 248-A). Accordingly, in assessing the Ukrainian authorities’ conduct in respect of the applicant’s appeal, the Court attaches importance to the domestic courts’ decision to adopt an extensive interpretation of the Law of 26 November 2015, to apply it to the applicant and thus release him (see paragraphs 29-32 above).
79. The Court concludes that, in view of the foregoing considerations and in particular the fact that the authorities duly examined the possibility of restoring the applicant’s case file, the domestic authorities have done all in their power under the circumstances to address the applicant’s situation. The applicant has not been able to point to any other particular action which it would still be in the respondent Government’s power to take at the present time (see, mutatis mutandis, Azemi v. Serbia (dec.), no. 11209/09, § 47, 5 November 2013).
80. The Court also welcomes the initiatives undertaken by the authorities to attempt to gather evidence in areas under their control, to solicit the help of the International Committee of the Red Cross in facilitating recovery of the files located in the territory not under their control, and the legislative proposal intended to facilitate examination of appeals in situations where part of a case file remains unavailable (see paragraphs 33, 47 and 48 above).
81. In the light of the above, and taking into account the objective obstacles that the Ukrainian authorities had to face, the Court finds that there has been no violation of Article 6 of the Convention in the circumstances of the present case.
82. The Court notes that the parties did not request the Court to apply Article 15 of the Convention in the applicant’s case (see paragraph 65 above). Accordingly, and in view of the Court’s conclusion above under Article 6 of the Convention, it is not necessary to assess whether the situation complained of was covered by a valid derogation made by Ukraine under Article 15 of the Convention (see, mutatis mutandis, Ireland v. the United Kingdom, 18 January 1978, § 191, Series A no. 25, and A. and Others v. the United Kingdom [GC], no. 3455/05, § 161, ECHR 2009).
2. Article 2 of Protocol no. 7
83. The Court considers that, given that the applicant’s complaint under Article 2 of Protocol No. 7 concerns the same facts and raises the same issues as those examined under Article 6 of the Convention, there is no need to examine it separately (see, for example and mutatis mutandis, Nedzela v. France, no. 73695/01, §§ 59-61, 27 July 2006).
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
84. The applicant complained that from 31 April 2013 to 18 March 2016 he had been detained in violation of Article 5 § 1 of the Convention. He also complained, under Article 5 § 5, that he had had no enforceable right to compensation in that respect.
In so far as relevant, Article 5 of the Convention 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:
(a) the lawful detention of a person after conviction by a competent court;
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.”
85. The applicant complained that, while normally his detention from 31 April 2013 to 18 March 2016 would constitute lawful detention after conviction within the meaning of Article 5 § 1 (a) of the Convention, the peculiar circumstances of the case meant that Article 5 § 1 (a) had been breached. He submitted that under domestic law the relevant period of detention constituted pre-trial detention. However, as his case file was blocked in non-Government-controlled territory, the domestic courts had rejected his requests for release without giving detailed reasons, had failed to set a time-limit on his pre-trial detention and had failed to exercise effective judicial control over his deprivation of liberty.
86. Agreeing that the applicant’s deprivation of liberty constituted detention after conviction within the meaning of Article 5 § 1 (a) of the Convention, the Government contested the applicant’s arguments.
87. The Court, like the parties, finds that the relevant period of the applicant’s detention falls within the ambit of Article 5 § 1 (a) (see Yaroshovets and Others v. Ukraine, nos. 74820/10, 71/11, 76/11, 83/11, and 332/11, §§ 134-35, 3 December 2015). As the applicant was detained following conviction by a competent court (see paragraph 7 above), it is clear that his detention was lawful in terms of domestic law and that its length did not exceed his sentence (contrast ibid., § 150). There is no other indication that his detention was not in conformity with the purposes of the deprivation of liberty permitted by Article 5 § 1 (a) (see, mutatis mutandis, V. v. the United Kingdom [GC], no. 24888/94, § 104, ECHR 1999-IX).
88. Accordingly, and also in light of its findings under Article 6 of the Convention, the Court considers that the applicant has failed to make out an arguable case that his detention did not comply with Article 5 § 1 of the Convention.
89. The Court observes that different considerations could conceivably apply had the applicant been able to show that as a result of the delay on the part of the domestic courts in the examination of his appeal, he had spent or would assuredly spend more time in detention than he would under normal circumstances. That would have been the case, for instance, if his detention had exceeded the term of imprisonment to which he had been sentenced (compare Yaroshovets, cited above, §§ 149 and 150) or if the failure to examine his appeal had deprived him of access to early release on parole. However, no such considerations apply in this case.
90. It follows that the applicant’s complaint under Article 5 § 1 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. Accordingly, his complaint under Article 5 § 5 is equally ill-founded (see, for example, Ławniczak v. Poland (dec.), no. 22857/07, § 76, 23 October 2012).
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the applicant’s complaints under Article 6 § 1 of the Convention and Article 2 of Protocol No. 7 admissible and the remainder of the application inadmissible;
2. Holds that there has been no violation of Article 6 § 1 of the Convention;
3. Holds that there is no need to examine separately the applicant’s complaint under Article 2 of Protocol No. 7.
Andrea Tamietti Vincent A. De Gaetano
Deputy Registrar President