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FIFTH
SECTION
CASE OF
KHAYREDINOV v. UKRAINE
(Application
no. 38717/04)
JUDGMENT
STRASBOURG
14 October
2010
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 Khayredinov v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Ganna
Yudkivska,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 21 September 2010,
Delivers
the following judgment:
PROCEDURE
- The
case originated in an application (no. 38717/04) 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 Simar Shevketovich
Khayredinov (“the applicant”), on 14 October 2004.
- The
applicant was represented by Mr A. Lesovoy, a lawyer practising in
Simferopol. The Ukrainian Government (“the Government”)
were represented by their Agent, Mr Y. Zaytsev.
- The
applicant alleged, in particular, that his detention in 2004 had been
contrary to Article 5 §§ 1 and 3 of the Convention.
- On
14 September 2009 the Court decided to give notice of the application
to the Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1984 and lives in Dachne village in Crimea.
A. Events prior to the applicant’s detention
- On
23 March 2004 a massive fight between youngsters took place in the
centre of Simferopol in which a number of persons sustained injuries
varying from slight to serious.
- On
the same day the applicant was questioned by the police as a witness
at the hospital where he had accompanied a friend who had been
injured in the fight.
- In
March and April 2004 the applicant was summoned by and appeared
before the investigator on a number of occasions.
B. The applicant’s detention
1. During the pre-trial investigation
- On
28 April 2004 the applicant, having been questioned as a witness by
the investigator, was detained on police premises on suspicion of
armed hooliganism in respect of the events of 23 March 2004.
- On
1 May 2004 the Kyivskyy District Court of Simferopol (“the
Kyivskyy Court”), in allowing the investigator’s
application, remanded the applicant in custody and rejected a request
by him to be placed instead under an undertaking not to abscond. The
court gave as grounds for that decision the seriousness of the
charges against the applicant, his mediocre character reference from
the university where he was studying, his medical fitness for
detention, and the risk that he might abscond or impede the
investigation if at liberty. Although the management of the school
from which he had graduated two years earlier and the authorities of
the village where he had been living before his arrest gave the
applicant positive character references, the court decided that they
“could not provide grounds for the rejection of the
[investigator’s] application, as law-abiding behaviour is a
requisite for life in society, and not an exception to the rule.”
- On
5 May 2004, in the Court of Appeal of the Autonomous Republic of
Crimea (“the Crimea Court of Appeal”), the applicant’s
lawyer challenged the detention of his client, arguing that the
applicant had a permanent place of residence, positive character
references, suffered from Vitiligo (a chronic disorder which causes
depigmentation in patches of skin) which could worsen in detention,
and that he had no criminal record. He further noted that the
applicant had always appeared voluntarily before the investigator and
that his parents could pay bail for his release.
- On
18 May 2004 the Crimea Court of Appeal rejected the appeal, referring
to the seriousness of the charges brought against the applicant.
- On
15 June 2004 the Kyivskyy Court extended the term of his detention to
28 August 2004 on grounds of the necessity to complete the
investigation, the seriousness of the charges and the inherent risk
that the applicant would abscond, influence witnesses or reoffend.
- On
22 June 2004 the applicant was provided access to the case file.
- On
16 July 2004 the Crimea Court of Appeal extended his detention to 28
November 2004 following a request by the investigator, who maintained
that the other co-accused needed more time to study the case file.
The court rejected a request by the applicant to be released under an
undertaking not to abscond, on grounds of the seriousness of the
charges and the risk that he would abscond.
- In
August 2004 the investigation was completed and the applicant,
together with the other co-accused, was committed for trial.
2. During the trial
- On
13 September 2004 the Tsentralnyy District Court of Simferopol (“the
Tsentralnyy Court”) held a preparatory hearing during which the
applicant again asked to be released under an undertaking not to
abscond. He argued that all the evidence in the case had been
collected by that time so there was no risk that he might tamper with
it, that he had a permanent place of residence and well-established
social networks, and that he had never hindered the investigation or
attempted to abscond or reoffend. The court rejected the request with
a final ruling, finding the preventive measure to be in compliance
with the criminal procedural legislation.
C. The applicant’s conviction
- In
a judgment of 29 December 2004 the Tsentralnyy Court found the
applicant guilty of armed hooliganism, as well as of deliberately
inflicting medium and grievous bodily harm, and sentenced him to
eight years’ imprisonment.
- On
22 June 2006 the Crimea Court of Appeal upheld that judgment.
- On
17 May 2007 the Supreme Court changed it, finding the applicant
guilty of hooliganism without the use of arms and of deliberately
inflicting medium bodily harm, and reduced the sentence to three
years and two months’ imprisonment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant provisions of the Code of Criminal Procedure (“the
CCP”), as worded at the material time, read as follows:
Article 156. Duration of pre-trial detention.
“Pre-trial detention during pre-trial
investigations shall not last more than two months.
When it is impossible to complete the investigation
within the period provided for in paragraph 1 of this Article and
there are no grounds for discontinuing the preventive measure or
substituting it with a less restrictive measure, [the pre-trial
detention] may be extended:
up to four months – upon a request of or approved
by the prosecutor supervising the compliance with law by the bodies
of inquiry and investigation, by a judge of the court which applied
the respective preventive measure; ...
The term of pre-trial detention shall end on the day the
court receives the case file.
... After the completion of the investigation the case
file shall be presented to the detained accused and his defence not
later than a month before the expiry of the pre-trial detention
time-limit set under paragraph 2 of this Article.
... If the accused and his defence received access to
the case file [in due time as noted above], but that time appeared
insufficient, the respective term may be extended by a judge of an
appellate court at the request of the investigator approved by the
Prosecutor General of Ukraine or his deputy, or at the request coming
directly from the [aforementioned prosecutorial officials]. Where
there are several co-accused held in pre-trial detention and if at
least one of them finds [the term for the case file study]
insufficient, a request [for its extension] may also be applicable to
the other co accused who has/have completed his/their study of
the case file, if his/their pre trial detention remains
necessary and there are no grounds for changing that preventive
measure. ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained that his pre-trial detention had been arbitrary.
He relied on Article 5 § 1 (c) of the Convention, which reads 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 ...”
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicant maintained that under the circumstances his placement into
custody had been an unjustified and excessive measure.
- The
Government disagreed submitting that the applicant’s detention
could not be regarded as unlawful or arbitrary, because it had been
based on judicial decisions taken in compliance with the domestic
law.
- The
Court emphasises that Article 5 of the Convention guarantees the
fundamental right to liberty and security, which is of primary
importance in a “democratic society” within the meaning
of the Convention (see De Wilde, Ooms and Versyp v.
Belgium, 18 June 1971, § 65, Series A no. 12, and Winterwerp
v. the Netherlands, 24 October 1979, § 37, Series A no. 33).
All persons are entitled to the protection of that right, that is to
say, not to be deprived, or to continue to be deprived, of their
liberty, save in accordance with the conditions specified in Article
5 § 1 (see Weeks v. the United Kingdom, 2 March
1987, § 40, Series A no. 114). The list of exceptions set
out in the aforementioned provision is an exhaustive one and only a
narrow interpretation of those exceptions is consistent with the aim
of that provision, namely, to ensure that no one is arbitrarily
deprived of his or her liberty (see Labita v. Italy [GC], no.
26772/95, § 170, ECHR 2000 IV).
- In
order for deprivation of liberty to be considered free from such
arbitrariness, it does not suffice that this measure is executed in
conformity with national law; it must also be necessary in the
circumstances (see Nešťák v. Slovakia, no.
65559/01, § 74, 27 February 2007).
- Thus,
for the Court, detention pursuant to Article 5 § 1 (c) must
embody a proportionality requirement (see Ladent v. Poland,
no. 11036/03, § 55, ECHR 2008 ... (extracts)). For
example, in the case of Ambruszkiewicz v. Poland (no.
38797/03, §§ 29-32, 4 May 2006) the Court examined whether
the applicant’s placement in custody was strictly necessary to
ensure his presence at the trial and whether other, less stringent,
measures could have been sufficient for that purpose.
- Turning
to the present case, the Court notes that at the time of his arrest
the applicant was about twenty years old, had no previous convictions
and a permanent place of residence, where – as confirmed by the
local authorities – he was well-integrated socially. As it
transpires from the respective judicial decisions (see paragraphs 10
and 11 above), none of those factors was taken into consideration by
the domestic courts when deciding about his placement into pre-trial
detention. Moreover, in assessing the applicant’s personality,
the domestic courts chose to rely exclusively on his unfavourable
character reference and to disregard those in his favour (see
paragraph 10 above). While relying on the gravity of the charges and
the inherent risk that he would abscond, they failed to give any
assessment to the applicant’s undisputed compliance with the
investigator’s summonses for more than a month prior to his
arrest, as well as the absence of any attempts from his side to
influence the course of the investigation in any manner (see,
conversely, Pavlík v. Slovakia, no. 74827/01, §
95, 30 January 2007). Neither was any consideration given to less
stringent measures, such as an undertaking not to abscond or bail,
which could have ensured the applicant’s availability for the
investigations and the trial.
- In
the light of the foregoing, the Court considers that under the
circumstances of the present case the domestic authorities failed to
advance comprehensive reasoning in justification of the applicant’s
deprivation of liberty, which therefore cannot be regarded as being
free from arbitrariness.
- Accordingly,
the Court finds that there has been a violation of Article 5
§ 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that his continued detention had not been based
on sufficient and relevant grounds. He relied on Article 5 § 3
of the Convention, which reads as follows:
“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.”
- Although
the applicant additionally relied on Article 13 in respect of the
allegedly flawed reasoning behind the refusals by the authorities to
his requests for release pending trial, the Court considers this
complaint to be covered by that raised under Article 5 § 3 of
the Convention and will examine it only under that provision.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. Neither is it
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
applicant maintained his complaint. He contended that the period to
be taken into consideration was from 28 April 2004 to 17 May 2007.
- The
Government submitted that the overall length of the applicant’s
pre-trial detention had not been unreasonable given the seriousness
of the charges against him and the due diligence demonstrated by the
investigation authorities in dealing with the case.
- The
Court notes that the period to be taken into consideration in the
present case commenced on 28 April 2004 – the date of
the applicant’s arrest, and terminated on 29 December that
same year – the date of his conviction by the first-instance
court (see, mutatis mutandis, Kudła v. Poland
[GC], no. 30210/96, § 104, ECHR 2000 XI). It follows
that the applicant was held in pre-trial detention for eight months.
- Although such duration might appear shorter than that
in most length-of-detention cases, the Court emphasises that the
reasonableness of a period of detention is never assessed in
abstracto. In other words, Article 5 § 3 of the
Convention cannot be seen as authorising pre-trial detention
unconditionally provided that it lasts no longer than a certain
period. Justification for any period of detention, no matter how
short, must be convincingly demonstrated by the authorities (see
Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR
2003 I (extracts)).
- The presumption is in favour of release. As the Court
has consistently held in its case-law, the second limb of Article 5 §
3 does not give judicial authorities a choice between either bringing
an accused to trial within a reasonable time or granting him
provisional release pending trial. Until his conviction, the accused
must be presumed innocent, and the purpose of the provision under
consideration is essentially to require him to be released
provisionally once his continuing detention ceases to be reasonable
(see Vlasov v. Russia, no. 78146/01, § 104, 12 June 2008,
with further references).
- It
is incumbent on the domestic authorities to establish the existence
of specific facts relevant to the grounds for continued detention.
Shifting the burden of proof to the detained person in such matters
is tantamount to overturning the rule of Article 5 of the Convention,
a provision which makes detention an exceptional departure from the
right to liberty and one that is only permissible in exhaustively
enumerated and strictly defined cases (see Rokhlina v.
Russia, no. 54071/00, § 67, 7 April 2005, and Ilijkov
v. Bulgaria, no. 33977/96, §§ 84-85, 26 July 2001).
- The
Court notes that in the present case the domestic courts justified
the applicant’s continued detention essentially by the gravity
of the charges against him. In rejecting his requests for release and
extending his detention, without referring to any concrete facts,
they considered that that sole ground was sufficient for there to be
a presumption that he could abscond or otherwise upset the course of
the investigation (see paragraphs 12 and 13 above). Moreover, a
three-month extension was mainly justified by the need of the other
co-defendants to study the case file (see paragraph 15 above). As to
the applicant’s detention during the trial, until the
pronouncement of the verdict, the only ground relied on by the trial
court was that the preventive measure was considered to be justified,
without any re-assessment of its justification with the passage of
time and the progress in the examination of the case (see paragraph
17 above). The Court does not consider those grounds for the
applicant’s continued detention to be “relevant and
sufficient”.
- Furthermore,
it does not lose sight of the fact that during the entire period
under consideration the authorities never considered the possibility
of ensuring the applicant’s attendance by the use of
alternative “preventive measures” – such as a
written undertaking or bail – which were explicitly requested
by the applicant (see paragraphs 11, 15, 17 and 29 above, and –
for the case-law – see Jabłoński v. Poland,
no. 33492/96, § 83, 21 December 2000).
- These
considerations are sufficient for the Court to find a violation of
Article 5 § 3 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 5,000 euros (EUR) in
respect of non-pecuniary damage.
- The
Government contested that claim.
- The
Court considers that the applicant suffered non-pecuniary damage
which cannot be compensated by the mere finding of a violation of his
Convention rights. Having regard to the circumstances of the case and
ruling on an equitable basis, as required by Article 41, it awards
him the claimed amount.
B. Costs and expenses
- The
applicant also claimed EUR 1,000 for legal
fees. In support of his claim, he submitted a contract of legal
services rendered in the proceedings before the Court of 1 October
2004, according to which he was to pay his representative,
Mr Lesovoy, 10,000 Ukrainian hryvnias (UAH). As it was further
stipulated by the contract and confirmed by a handwritten receipt,
the applicant paid to Mr Lesovoy UAH 1,000 in advance and was bound
to pay the remaining amount upon the completion of the proceedings in
Strasbourg.
- The
Government considered that the applicant had failed to demonstrate
that the claimed costs had been reasonable and had actually occurred.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. The Court notes that, although the
applicant has not yet actually paid the legal fees in full, he was
bound to pay them pursuant to a contractual obligation. As it
transpires from the case file materials, Mr Lesovoy has been
representing the applicant throughout the proceedings before the
Court and is therefore entitled to seek payment of his fees under the
contract, which, according to the present currency exchange rate, are
equal to about EUR 1,000. Accordingly, the Court considers those fees
to have been “actually incurred” (see Tebieti
Mühafize Cemiyyeti and Israfilov v. Azerbaijan,
no. 37083/03, § 106, ECHR 2009 ...). Furthermore,
taking into account the legal work done in the present case, the
Court does not consider that the claim is excessive and awards it in
full.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of
Article 5 § 1 of the Convention;
- Holds that there has been a violation of
Article 5 § 3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into the national currency of the respondent
State at the rate applicable on the date of settlement:
(i) EUR
5,000 (five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 14 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
