In the case of Ichin and Others 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 30 November 2010,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in two applications (nos.
28189/04 and 28192/04) against Ukraine lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by four Ukrainian nationals, Ms Ichina, Mr Ichin, Ms Dmitriyeva
and Mr Dmitriyev (“the applicants”), on 2 July 2004.
The applicants were represented by Mr R.
Martynovskiy, a lawyer practising in Sevastopol. The Ukrainian Government (“the
Government”) were represented by their Agent, Mr Y. Zaytsev, from the Ministry
of Justice.
The applicants alleged, in particular, that the
detention of Mr Ichin and Mr Dmitriyev was unlawful and the proceedings which
led to the above detention were unfair.
On 1 September 2009 the President of the Fifth
Section decided to give notice of the applications to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
Ms Ichina was born in 1960, Mr Ichin was born in
1991, Ms Dmitriyeva was born in 1969 and Mr Dmitriyev was born in 1990.
They live in Sevastopol.
On 31 December 2003 Mr Ichin, Mr Dmitriyev and
another individual Mr K., all of them minors, stole food supplies and kitchen
appliances from a school canteen.
On 5 January 2004 they were questioned by the police
and confessed to the theft. They returned some of the stolen goods.
On 7 January 2004 the investigator instituted
criminal proceedings into the theft, after having noted that, between 30
December 2003 and 2 January 2003, unknown persons had broken into a school
canteen and stolen food supplies and kitchen appliances.
On 13 January 2004 the investigator, with the
approval of the District Prosecutor, lodged requests with the Sevastopol
Nakhimovskiy District Court (“the Nakhimovskiy Court”) to place Mr Ichin and Mr
Dmitriyev in a juvenile holding facility in accordance with Article 7-3 of the
Code of Criminal Procedure. The investigator noted that Mr Ichin and Mr
Dmitriyev had committed deliberate actions that could be classified as a crime
under part 3 of Article 185 of the Criminal Code, that both of them came from
big families with low incomes, had contact with criminals, had poor references
from school, had a tendency to take part in illegal activities and could not be
influenced by their parents. The investigator noted that, in view of the above
considerations, there were sufficient grounds to believe that Mr Ichin and Mr
Dmitriyev could commit socially dangerous acts (суспільно
небезпечні
діяння) again.
The same day the applicants were summoned by the
investigator to appear before the court on 14 January 2004 as witnesses, with their
lawful representatives, for having committed socially dangerous acts foreseen
by part 3 of Article 185 of the Criminal Code.
On 14 January 2004 the Nakhimovskiy Court
examined the requests in the presence of the applicants and the prosecutor. By
two decisions of the same day, the court ordered Mr Ichin and Mr Dmitriyev to
be placed in a juvenile holding facility. The court noted that Mr Ichin and Mr
Dmitriyev were accused of socially-dangerous acts and that criminal proceedings
had been instigated against them on 7 January 2004. With regard to the reasons given
in the investigator's requests (see paragraph 9 above), the court concluded
that there were sufficient grounds to believe that Mr Ichin and Mr Dmitriyev
could evade the investigation and the course of justice and could continue
their criminal activities. The court's decision was final and not subject to
appeal.
Mr Ichin and Mr Dmitriyev remained in the juvenile
holding facility until 13 February 2004.
On 3 March 2004 the investigator instituted
criminal proceedings against Mr Dmitriyev and Mr Ichin for stealing food
supplies and kitchen appliances from the school canteen.
On 3 and 4 March 2004 respectively, Mrs Dmitriyeva
and Mrs Ichina wrote to the President of the Nakhimovskiy Court
complaining of degrading treatment of their sons by the personnel of the juvenile
holding facility. In his reply of 15 March 2004 the President of that court
informed them that he lacked the power to instigate criminal proceedings
against the personnel of the holding facility.
According to Mrs Ichina, her complaints to the
prosecutor alleging degrading treatment of Mr Ichin in the juvenile holding
facility were answered only by a letter from the prosecutor informing her that
there were no grounds for a criminal investigation regarding the personnel of
the holding facility.
According to Mrs Dmitriyeva, her complaints to
the prosecutor alleging the degrading treatment of Mr Dmitriyev in the holding
facility remained unanswered.
On 26 April 2004 the investigator decided that
the criminal proceedings against Mr Ichin and Mr Dmitriyev should be terminated
as they were under the age of criminal liability and the case should be referred
to a court for the application of compulsory educational measures.
On 14 May 2004 the Sevastopol Nakhimovskiy
District Prosecutor approved the decision of 26 April 2004.
On 4 February 2005 the Nakhimovskiy Court examined
the materials concerning the application of compulsory educational measures
with respect to Mr Ichin and Mr Dmitriyev and decided to limit the punishment
to a warning to both of them. There is no evidence that this decision was
appealed against.
II. RELEVANT DOMESTIC LAW
A. Code of Criminal Procedure
Relevant provisions of the Code as in force at
the material time provide as follows:
Article 7-3
Procedure for
consideration of cases involving socially dangerous acts committed by persons
who have not yet reached the age of criminal responsibility
“Where an investigator establishes in a criminal case that the
socially dangerous act in question was committed by a person between the age of
eleven and the age of criminal responsibility, he or she shall give a reasoned
decision for terminating the case and applying compulsory educational measures
to the minor. The case shall then be sent to the prosecutor together with the
decision.
...
If it has been established that a person aged between eleven
and fourteen who has committed a socially dangerous act resembling an act
punishable under the Criminal Code of Ukraine by more than five years'
imprisonment requires urgent removal from society, then upon the decision of
the investigator or the inquiry body, and with the consent of the prosecutor
and by a reasoned decision of the court, he or she may be placed in a juvenile
holding facility for a period of up to thirty days. The participation of the
defence counsel in such a measure shall be ensured from the time of the placing
of the minor in the juvenile holding facility...”
Article 447
Procedure for the
application of compulsory educational measures to a minor
“When in the course of the criminal case examination the court
finds that the young offender, who had committed a minor offence or an offence
of medium severity, can be corrected, it may issue a decision, by resolution of
the judge, terminating the case and imposing on the minor one of the compulsory
educational measures mentioned in Article 105 § 2 of the Criminal Code of
Ukraine.
The judge or the president of the court shall, within ten days,
schedule the hearing of the case transferred by the prosecutor under the
procedure prescribed by Articles 73 or 9 of this Code if he/she agrees with the
decision reached by the prosecutor or investigator. In the event of
disagreement, the case shall be returned to the prosecutor with the reasoned
decision.
The examination of the case mentioned in paragraph 2 of this
Article shall be held in public with the compulsory presence of a prosecutor
and a defence counsel. In the course of examination, the minor and his/her defence
counsel may argue their case and evidence substantiating or disproving the commitment
of the offence by the person concerned is examined also. The court also
examines other aspects of the circumstances which are essential for the purpose
of making a decision as to the application of the compulsory education
measures. Minutes shall be taken during the court hearing. After the court's
examination is completed, the prosecutor and then the counsel for the defence may
express their opinions.
If there are sufficient grounds to consider that the person,
who, by the court's decision, is to be transferred to the special educational support
institution, will take part in illegal activity, then as well as with the aim of
ensuring the execution of its decision, the court can, for a temporary period
of up to thirty days, place this person in a juvenile holding facility which may
transfer him or her afterwards to a special educational support institution.”
B. The Law of Ukraine on Juvenile Services and
Authorities and on Special Institutions for Minors of 24 January 1995
The relevant provisions of the Law provided as follows:
Article 6 Courts
“The courts examine cases:
concerning minors who have committed a crime;
...
concerning detention of minor-offenders in a juvenile holding
facility...
Cases referred to in the first part of this article shall be
examined by the specifically authorised judges (the panel of judges) with the
participation of juvenile services, unless otherwise provided by law.”
Article 7 Juvenile
holding facility
“...Minors aged between 11 and 18 may be sent to the juvenile
holding facilities for up to thirty days where they:
have committed an offence before reaching the age of criminal
responsibility for such offence if it is considered necessary to isolate them from
society (by a resolution of the body of inquiry and the investigator sanctioned
by the prosecutor or by a resolution of the court);
...
are transferred to the special institutions for minors by a
decision of the court;
are absent without official leave from the special educational support
institution in which they were staying ...”
C. Regulations on the juvenile holding facilities of
the bodies of the Interior Approved by the order of the Ministry of Interiors
of 13 July 1996, no. 384
Relevant provisions of the Regulations read as
follows:
“1.1. Juvenile holding facilities (hereinafter JHF) are special
institutions of the bodies of the Interior for minors, which are designed for
temporary detention of certain categories of minors that need to be isolated.
1.2. Juvenile holding facilities (JHF) are created for
temporary detention of minors under the age of 11 to 18 ...
1.3. The main tasks of the holding facilities are:
prevention of the juvenile offenses;
conducting preventive and educational work with them;
identification of the causes and conditions which lead to
delinquency among the teenagers;
ensure appropriate conditions of their detention.
...
5. Preventive and education work in the holding facilities:
5.1. Preventive and education work with minors, who are held in
the holding facilities, shall be conducted taking into consideration the age,
degree of pedagogical neglect, social danger of the previously committed
offenses and other circumstances that are important for effective preventive
measures of influence.
5.2. In order to prevent juvenile delinquency, identifying and
eliminating causes and conditions that contribute to it, the officials of the holding
facilities:
5.2.1. Shall identify the living conditions and education of
minors in the family, their personal qualities, interests, reasons for absence
without leave from the special educational institution, deficiencies in the
activity of enterprises, institutions and educational institutions that
contributed to the commission of offenses; reasons for committing crimes,
persons participating in them, those places on the list of wanted persons, as
well as those who are missing; places of selling stolen goods, the cases of involving
minors in criminal and other antisocial activities.
5.2.2. Shall immediately notify the local departments of the
Interior in the Crimea, Kiev, Kiev Region, Regional Departments and the City
Department of Sevastopol and the departments on transport about the
identification of persons who have committed crimes or other circumstances that
are important for their successful investigation.
5.2.3. Shall carry out individual educational activities with
minors who are held in the holding facilities, focusing on the development of
positive predispositions and interests, elimination of behavioural deficiencies,
involving them in education and work.
5.2.4. Shall inform the interested government agencies and NGOs
on the causes of juvenile offences, make proposals for elimination of such
causes and conditions, as well as on improving the organization of education
and labour education of minors, who are held in the holding facilities.”
THE LAW
I. JOINDER OF THE APPLICATIONS
The Court considers that, pursuant to Rule 42 §
1 of the Rules of Court, the applications should be joined, given their common
factual and legal background.
II. AS TO LOCUS STANDI OF MS ICHINA AND MS
DMITRIYEVA
The Government maintained that Ms Ichina and Ms
Dmitriyeva could not claim to be victims of any rights guaranteed by the
Convention in the circumstances of the present case.
The applicants claimed that the complaint under
Article 8 of the Convention concerned all of them.
The Court notes that the applicants made a
number of complaints under different provisions of the Convention. The
complaint under Article 8 had been originally made in respect of all of them
− other complaints, like those under Article 5, had been made only in respect
of Mr Ichin and Mr Dmitriyev. The parties did not differ on the last point.
The Court considers that the fact that only one of the complaints concerns Ms
Ichina and Ms Dmitriyeva does not deprive them of the status of applicants in
the present case altogether. Therefore, it dismisses this objection of the
Government concerning the victim status of Ms Ichina and Ms Dmitriyeva.
III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The applicants complained that the detention of
Mr Ichin and Mr Dmitriyev was unlawful. They referred to Article 5 § 1 of
the Convention, which 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;
(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 from fleeing after
having done so;
(d) the detention of a minor by lawful order for the
purpose of educational supervision or his lawful detention for the purpose of
bringing him before the competent legal authority;
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of unsound mind,
alcoholics ,,drug addicts or vagrants;
(f) the lawful arrest or detention of a person to
prevent his effecting an unauthorised entry into the country or of a person
against whom action is being taken with a view to deportation or extradition.”
A. Admissibility
The Court notes that this complaint 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
1. Parties' submissions
The applicants submitted that the domestic law
was not respected and the court decisions on the placing of Mr Ichin and Mr
Dmitriyev in the juvenile holding facility had not been justified while the
purpose of such detention remained unclear. No investigative actions had been
conducted in respect of them while in detention and no charges had been brought
against them at that time. Furthermore, they had not formally been considered
as suspects at the time when the decision on their detention had been taken.
The Government considered that the detention of
Mr Ichin and Mr Dmitriyev was in accordance with Article 5 § 1. Such
detention had been based on clear and foreseeable provisions of the domestic
law, namely Article 7-3 of the Code of Criminal Procedure. They further noted
that the decision on detention of Mr Ichin and Mr Dmitriyev had been given by
the domestic courts which had the competence to interpret the domestic law and
to apply it in the circumstances of the particular case within their
discretion. They submitted that the applicants' detention had been effected for
the purpose of bringing them before the competent legal authority within the
meaning of Article 5 § 1 (c).
2. The Court's assessment
(a) General principles
The Court reiterates that Article 5 of the
Convention guarantees the fundamental right to liberty and security. That right
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 not to continue to be
deprived, of their liberty (see Weeks v. the
United Kingdom, 2 March 1987, § 40, Series A no. 114), save in
accordance with the conditions specified in paragraph 1 of Article 5. The list
of exceptions set out in Article 5 § 1 is an exhaustive one (see Labita v. Italy [GC], no. 26772/95,
§ 170, ECHR 2000-IV, and Quinn v. France,
22 March 1995, § 42, Series A no. 311) 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 Engel and Others v. the Netherlands, 8
June 1976, § 58, Series A no. 22, and Amuur v. France,
25 June 1996, § 42, Reports 1996-III).
The Court further reiterates that where
deprivation of liberty is concerned it is particularly important that the general
principle of legal certainty be satisfied. It is therefore essential that the
conditions for deprivation of liberty under domestic law be clearly defined and
that the law itself be foreseeable in its application, so that it meets the
standard of “lawfulness” set by the Convention −a standard which requires
that all law be sufficiently precise to allow the person - if need be, with
appropriate advice - to foresee, to a degree that is reasonable in the
circumstances, the consequences which a given action may entail (see Baranowski
v. Poland, no. 28358/95, § 52, ECHR 2000-III).
The Court further reiterates that the
authorities must also conform to the requirements imposed by domestic law in
the proceedings concerning detention (see Van
der Leer v. the Netherlands, 21 February 1990, §§ 23-24, Series A
no. 170-A; Wassink v. the Netherlands,
27 September 1990, § 27, Series A no. 185-A; and Erkalo
v. the Netherlands, 2 September 1998, § 57, 1998-VI).
It is in the first place for the national
authorities, notably the courts, to interpret and apply domestic law. However,
since under Article 5 § 1 failure to comply with domestic law entails a breach
of the Convention, it follows that the Court can, and should, exercise a
certain power of review of such compliance (see Benham
v. the United Kingdom, 10 June 1996, § 41, Reports 1996-III).
(b) Application of the general
principles to the present case
The Court notes that the procedure for placement
of a minor in a special holding facility is foreseen by Article 7-3 of the Code
of Criminal Procedure. From the wording of the said article, as the Government have
argued, it appears that the purpose of such detention may correspond to the one
described in subparagraph (c) of paragraph 1 of Article 5, namely “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”.
The circumstances of the present case, however,
cast doubts as to whether the scope and manner of application of this procedure
is sufficiently well-defined so as to avoid arbitrariness. Mr Ichin and Mr Dmitriyev
had committed a theft to which they confessed, a few days later, within the
framework of the preliminary inquiry. Following this, the investigators
instigated criminal proceedings into the crime of theft committed by unknown
persons, although the identity of the offenders and their age had been
established by that time. Nevertheless, they were summoned to the court as
witnesses and the decision to place them in the juvenile holding facility does
not appear to be for any of the purposes listed in subparagraph (c) of
paragraph 1 of Article 5. The Government suggested that the applicants'
detention had been effected for the purpose of bringing them before the
competent legal authority, but it remained without answer which authority had
been meant. Furthermore, there were no investigative actions taken in their
respect during the detention and the criminal proceedings against them,
although the applicants could not be criminally liable (see paragraph 17
above), were nonetheless introduced twenty days after their release from the holding
facility. Therefore, the Court considers that the applicants' detention did not
fall under the permissible exception of Article 5 § 1 (c).
The Court will next examine whether, although
not referred to by the Government, Article 5 § 1 (d) may
apply to the applicants' detention on the ground that the applicant were minors
and their placement in the juvenile holding facility could be conducted under
domestic law (see paragraphs 20-22 above) in order to isolate them from society
or to be held pending transfer to special education institutions. Furthermore, the
regulations governing the juvenile holding facilities appear to provide for
educational work to be conducted with the minors concerned. The Court,
therefore, shall consider whether the applicants' detention was “for the
purpose” of education supervision (see Bouamar v. Belgium, 29 February
1988, § 50, Series A no. 129).
The Court reiterates that, in the context of the
detention of minors, the words “educational supervision” must not be equated
rigidly with notions of classroom teaching, it must embrace many aspects of the
exercise, by the authority, of parental rights for the benefit and protection
of the person concerned (see, mutatis mutandis, D.G. v. Ireland, no. 39474/98, § 80, ECHR 2002-III). However, the Court does not
consider, and indeed, it does not appear to be argued by the Government, that
the juvenile holding facility itself constituted “educational supervision”. As
it transpires from the domestic law, the centre is designed for temporary
isolation of different categories of minors, including those who have committed
an offence. The regulations on the juvenile holding facilities do not provide
with sufficient clarity what educational activities must be organised in the
centre and the preventive and educational work envisaged in the regulations
includes purely investigative actions of data collection about possible
involvement of minors in criminal activities. In the circumstances of the
present case, it was not argued by the Government that the placement in the holding
facility had been for the purpose of “educational supervision” and it does not
appear from the case-file materials that the applicants' detention was anyhow
related to any such purpose or that the applicants participated in any
educational activities during their stay in the holding facility. Therefore,
the Court considers that the applicants' detention did not fall under the
permissible exception of Article 5 § 1 (d) either. Nor have any of the other
exceptions to Article 5 been shown to apply in the present case.
The foregoing considerations are sufficient to
enable the Court to conclude that Mr Ichin and Mr Dmitriyev had been detained
in an arbitrary manner and there has accordingly been a violation of Article 5
§ 1 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
The applicants also complained that the
proceedings concerning the holding of Mr Dmitriyev and Mr Ichin in the juvenile
holding facility were unfair, given that the applicants had not been informed
in advance about the true reasons for their summons to appear in court and
therefore could not prepare their defence and arrange for their legal
representation. They invoked Articles 5 § 4, 6 §§ 1 and 3 (c) of the
Convention.
The Government considered that Article 5 § 4 of
the Convention was not applicable in the present case, given that the case concerned
issues covered by Article 5 § 3 of the Convention, which was directly connected
to the reasons for the applicants' arrest under Article 5 § 1 of the
Convention.
The Court reiterates its findings above that the
applicants' detention did not fall within any of the permissible exceptions to
the right to liberty of person listed in Article 5 § 1 of the Convention.
Therefore, the Government's contention about the necessity to examine the
applicants' complaint under Article 5 § 3 of the Convention must be rejected.
Furthermore, the Court, which is master of the characterisation to be given in
law to the facts of the case, considers that the relevant provision for the
problem raised by the applicants is Article 5 § 4 of the Convention which
provides as follows:
“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
The Court notes that this complaint 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
Mr Ichin and Mr Dmitriyev stated that when the
decision regarding their detention had been taken they were not represented by
a lawyer and could not prepare their defence. Furthermore, since they were
minors, a representative of the Juvenile Service was required to be present
during the proceedings.
The Government considered that the judicial
decisions concerning the placing of Mr Ichin and Mr Dmitriyev in the juvenile
holding facility were reasonable and complied with Article 5 § 3 of the
Convention.
The Court considers that, having concluded that the
detention of Mr Ichin and Mr Dmitriyev has not been justified under
Article 5 § 1 of the Convention, it is not necessary to consider separately whether
the basic requirements of procedural fairness under Article 5 had been met in the
judicial proceedings leading to the placing of Mr Ichin and Mr Dmitriyev in the
juvenile holding facility.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicants complained, under Article 5 § 2,
that Mr Ichin and Mr Dmitriyev had not been given reasons for their detention
because there was no criminal case against them at that time. With reference to
Articles 5 § 4 and 13 of the Convention and Article 2 of Protocol No. 7, the
applicants complained that the decision of 14 January 2004 was not subject to
appeal. They also considered that the placement of Mr Ichin and Mr Dmitriyev in
the juvenile holding facility had unlawfully interfered with their family life
within the meaning of Article 8 of the Convention. They complained, finally,
under Article 3 of the Convention of the degrading treatment of Mr Ichin
and Mr Dmitriyev by the personnel of the juvenile holding facility. In reply to
the Government's observations, the applicants raised new complaints under
Article 3 of the Convention in respect of Ms Ichina and Ms Dmitriyeva and under
Article 6 § 2 of the Convention in respect of Mr Ichin and Mr Dmitriyev.
Having carefully examined the applicants'
submissions 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. It follows that this part of the
application must be declared inadmissible as being manifestly ill-founded,
pursuant to Article 35 §§ 1, 3 and 4 of the Convention.
VI. 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 applicants claimed the following amounts in
respect of non-pecuniary damage:
Ms Ichina - EUR 4,000;
Mr Ichin - EUR 12,000;
Ms Dmitriyeva - EUR 4,000;
Mr Dmitriyev - EUR 9,000.
The Government considered that there was no call
for any award in the present case.
The Court notes that it found no violation in
respect of Ms Ichina and Ms Dmitriyeva, it, therefore, rejects their claim. As
to Mr Ichin and Mr Dmitriyev, in the light of the violations found, the
Court, acting on equitable basis, awards each of them EUR 6,000 in respect of
non-pecuniary damage.
B. Costs and expenses
The applicants also claimed EUR 1,500 for the
costs and expenses incurred before the Court in each of the applications.
The Government considered that these claims were
not supported by sufficiently detailed documentary evidence.
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 were
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court awards the
claimed amounts to Mr Ichin and Mr Dmitriyev 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
1. Decides to join the applications;
2. Dismisses the Government's objection
concerning the victim status of Ms Ichina and Ms Dmitriyeva;
3. Declares the complaints of Mr Ichin and Mr
Dmitriyev under Article 5 §§ 1 and 4 admissible and the remainder of the applications
inadmissible;
4. Holds that there has been a violation of
Article 5 § 1 of the Convention in respect of Mr Ichin and Mr Dmitriyev;
5. Holds that it is not necessary to consider
separately the allegation of procedural unfairness under Article 5 § 4 of the
Convention;
6. Holds
(a) that the respondent State is to pay Mr Ichin,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 6,000 (six
thousand euros) in respect of non-pecuniary damage and EUR 1,500 (one thousand
five hundred euros) in respect of costs and expenses, plus any tax that may be
chargeable to the applicant, to be converted into Ukrainian hryvnias at the
rate applicable at the date of settlement;
(b) that the respondent State is to pay Mr
Dmitriyev, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention, EUR 6,000
(six thousand euros) in respect of non-pecuniary damage and EUR 1,500 (one
thousand five hundred euros) in respect of costs and expenses, plus any tax
that may be chargeable to the applicant, to be converted into Ukrainian
hryvnias at the rate applicable at the date of settlement;
(c) 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;
7. Dismisses the remainder of the applicants'
claim for just satisfaction.
Done in English, and notified in writing on 21 December
2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
