BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF MOSKALENKO v. UKRAINE
(Application
no. 37466/04)
JUDGMENT
STRASBOURG
20
May 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 Moskalenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Rait
Maruste,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
Mykhaylo
Buromenskiy, ad
hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 27 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 37466/04) 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 Aleksey Aleksandrovich Moskalenko (“the
applicant”), on 5 October 2004.
- The
applicant was represented by Mr A. Kristenko, a lawyer practising in
Kharkiv. The Ukrainian Government (“the
Government”) were represented by their Agent, Mr Y. Zaytsev.
- On
26 May 2009 the Court
declared the application partly inadmissible and decided to
communicate to the Government the complaint under Article 5 § 3
of the Convention concerning the length of the applicant’s
detention on remand. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1982 and lives in Kurakhove, Donetsk region,
Ukraine. He is currently serving his sentence apparently in the
Donetsk Pre-Trial Detention Centre, Ukraine.
- On
16 July 2003 the applicant was arrested on suspicion of aggravated
murder, robbery and arson.
- On 19 July 2003 the Maryinka District Court remanded
him in custody, relying on the suspicion that he had committed the
offences in question. It also considered that keeping the applicant
in detention was necessary to secure the proper conduct of the
proceedings, given the risk that he might go into hiding and obstruct
the investigation, without, however, specifying the grounds for such
an opinion. The court also stressed the severity of crimes allegedly
committed by the applicant.
- In
the course of the investigation, the Maryinka District Court
prolonged the applicant’s detention on 15 September and 15
October 2003. In these decisions the court repeatedly relied on the
original grounds given for the applicant’s detention.
8 The
applicant’s appeal against the detention order was dismissed as
lodged out of time. His further numerous applications for release
were unsuccessful.
- Later,
certain S. and G. were detained and charged in connection with the
investigation against the applicant. Subsequently their cases were
joined to the applicant’s one.
- On
17 November 2003 the Regional Prosecutor lodged a bill of indictment
with the Donetsk Regional Court of Appeal. The applicant was charged
with an aggravated murder, robbery and arson.
- On
12 December 2003 the trial court held the first hearing.
- On
9 December 2004, after several hearings, the court remitted the case
for additional investigation.
- By
1 March 2005 the additional investigation was completed and the case
was sent to the Donetsk Regional Court of Appeal. On 21 March 2005
the latter again remitted the case for additional investigation which
was completed by 30 June 2005.
- During the above additional investigations the
authorities further prolonged the applicant’s pre-trial
detention on 30 January and 27 May 2005. No copy of the
former decision is available. In the latter decision the Donetsk
Regional Court of Appeal repeated the grounds previously given for
the applicant’s continued detention and additionally relied on
the severity of the anticipated sentence. The court also argued that
the applicant could induce witnesses to give false testimony. Again,
it did not specify the grounds for such an opinion.
- On
1 November 2006 the Donetsk Regional Court of Appeal gave judgment.
The applicant was convicted as charged and sentenced to fifteen
years’ imprisonment. The court also convicted S. and G.
- The
parties appealed. The applicant was kept in detention pending appeal.
- On
14 February 2008 the Supreme Court of Ukraine partly quashed the
first-instance judgment and remitted the case for retrial.
- The
retrial started on 27 March 2008.
- In
the retrial proceedings the applicant made several, unsuccessful
applications for release. In his applications he repeatedly contested
the factual basis for the charges against him and invoked the
principle of the presumption of innocence. The court, dismissing his
applications, reasoned that they were either “premature”
or “inappropriate” at that stage of proceedings.
- On
21 September 2009 the Donetsk Regional Court of Appeal convicted the
applicant as originally charged.
- The
applicant and his lawyer appealed to the Supreme Court of Ukraine but
the destiny of their appeals is not known.
II. RELEVANT DOMESTIC LAW
- Provisions
of the Code of Criminal Procedure of 28 December 1960 on
preventive measures are set out in Nevmerzhitsky v. Ukraine
(no. 54825/00, § 54, ECHR 2005 II (extracts)).
THE LAW
I. SCOPE OF THE CASE
- Following
the Court’s admissibility decision, the applicant made further
submissions, in which he reiterated some of his original complaints.
- In
its partial decision on admissibility of 26
May 2009, the Court adjourned its
examination of the applicant’s complaint under Article 5 §
3 of the Convention concerning the length of the applicant’s
detention on remand. The remainder of the
complaints was declared inadmissible.
The scope of the case now before the Court is
accordingly limited to the complaint which was adjourned on 26
May 2009.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of him detention on remand had
been excessive. He relied on Article 5 § 3 of the
Convention, which, in so far as relevant, 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.”
- The
Government contested that argument.
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. Period to be taken into consideration
- The
applicant’s detention started on 16 July 2003, when he was
arrested on suspicion of having committed an aggravated murder,
robbery and arson. On 1 November 2006 the Donetsk Regional Court of
Appeal convicted him as charged.
As
from that date he was detained “after conviction by a competent
court”, within the meaning of Article 5 § 1 (a) and,
consequently, that period of his detention falls outside the scope of
Article 5 § 3 (cf. Kudła v. Poland [GC], no.
30210/96, § 104, ECHR 2000 XI).
On 14
February 2008 the Supreme Court of Ukraine quashed the applicant’s
conviction. Following that date his detention was again covered by
Article 5 § 3. It continued until 21 September
2009 when the applicant was again convicted.
- Accordingly,
the period to be taken into consideration amounts to four years, ten
months and 25 days.
2. Reasonableness of the length of the applicant’s
detention on remand
- The
Government contended that the length of the applicant’s
detention on remand had been reasonable given the complexity of the
case and the large number of investigative measures that had had to
be taken. They concluded that the proceedings had been conducted with
due diligence and the authorities had had sufficient grounds for the
applicant’s continued detention.
- The
applicant disagreed.
- The
Court points out that the general principles regarding the right “to
trial within a reasonable time or to release pending trial”, as
guaranteed by Article 5 § 3 of the Convention were stated in a
number of its previous judgements (see, among many other authorities,
Kudła v. Poland, cited above, § 110 and
Nevmerzhitsky v. Ukraine, cited above, § 130 et
seq.).
- In
their detention decisions, the authorities, in addition to the
reasonable suspicion against the applicant, relied principally on
three grounds, namely (1) the serious nature of the offences with
which he had been charged, (2) the severity of the penalty to which
he was liable and (3) the need to secure the proper conduct of
the proceedings, given the risk that the applicant might go into
hiding and induce witnesses to give false testimony.
- The
Court accepts that the reasonable suspicion against the applicant of
having committed serious offences could initially warrant his
detention. Also, the need to secure the proper conduct of the
proceedings (in particular the process of obtaining evidence from
witnesses) constituted valid grounds for the applicant’s
initial detention.
- However,
with the passage of time, those grounds became less and less
relevant. The Court must then establish whether the other grounds
adduced by the courts – namely, the severity of the anticipated
sentence, the risk of the applicant’s going into hiding and the
risk that the applicant would induce witnesses to give false
testimony – were “sufficient” and “relevant”
(see Kudła v. Poland, cited above, § 111).
- The
Court notes that the judicial authorities continuously relied on the
likelihood that a heavy sentence might be imposed on the applicant,
given the serious nature of the offences with which he had been
charged. In this respect, the Court recalls that the severity of the
sentence faced is a relevant element in the assessment of the risk of
absconding or re-offending. It acknowledges that in view of the
seriousness of the charges against the applicant the authorities
could justifiably consider that such a risk existed. However, the
Court has repeatedly held that the gravity of the charges cannot by
itself serve to justify long periods of detention on remand (see
Ilijkov v. Bulgaria, no. 33977/96, §§ 80-81,
26 July 2001).
- As
regards the risk that the applicant might go into hiding and induce
witnesses to give false testimony, the Court points out that in their
decisions to remand the applicant in detention or to prolong it the
authorities did not specify any concrete grounds justifying their
opinion (see paragraphs 6 and 14 above). Moreover, as the proceedings
progressed and the collection of evidence neared completion, the risk
of his intimidating certain witnesses would also have become less
relevant (see Nevmerzhitsky, cited above, § 136).
- Lastly,
the Court notes that no alternative measures were effectively
considered by the domestic authorities to ensure the applicant’s
appearance at trial (ibid., § 137 with further references).
- Having
regard to the foregoing, the Court concludes that the grounds given
by the domestic authorities could not justify the overall period of
the applicant’s detention. In these circumstances it is not
necessary to examine whether the proceedings were conducted with
special diligence.
There
has accordingly been 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 250,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government did not comment on the claim.
- The
Court, making its assessment on an equitable
basis, awards the applicant EUR 4,100 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant did not submit any claim under this head. The Court
therefore makes no award.
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 complaint under Article 5 § 3
of the Convention concerning the length of the applicant’s
detention on remand admissible;
- 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
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,100
(four thousand one hundred euros) in respect of non-pecuniary damage,
plus any tax that may be chargeable, to be converted into the
currency of the respondent State at the rate applicable at the date
of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done
in English, and notified in writing on 20 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
