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FIFTH
SECTION
CASE OF TRETYAKOV v. UKRAINE
(Application
no. 16698/05)
JUDGMENT
STRASBOURG
29
September 2011
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 Tretyakov v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Boštjan M.
Zupančič,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Ann Power,
Ganna
Yudkivska, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 6 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16698/05) 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 Valeriy Valeriyevich
Tretyakov (“the applicant”), on 29 April 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- The
applicant alleged, in particular, that he had been unlawfully
arrested and detained pending trial, that his detention before
conviction and the criminal proceedings against him had been
excessively long and that he had been deprived of an effective
opportunity to bring proceedings by which the lawfulness of his
detention would be decided speedily.
- On
16 November 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1971 and lives in Kharkiv.
- On
22 November 2001 B.’s body affected with injuries was found in
his apartment. On the same date the Dzerzhinsky District Police of
Kharkiv instituted a criminal investigation into the incident.
- On
23 November 2001 A. reported to the police that he had witnessed the
applicant beating B. on the head with a frying pan at a party in B.’s
apartment. He further confessed that after B. had fallen to the floor
unconscious, he and the applicant had taken valuables and left.
- On
26 November 2001 the police drafted a bill of indictment charging the
applicant with B.’s murder. Unable to establish the applicant’s
whereabouts and question him, they subsequently put him on the
“wanted” list.
- On
5 December 2001 the investigation obtained a decision to remand the
applicant in custody from the Dzerzhinsky District Court of Kharkiv
(hereafter “the District Court”). In its decision, the
court referred to the gravity of the charges against the applicant,
his recent criminal record and his disappearance after the incident
with B.
- On
8 December 2001 the investigating authorities added to the case file
a letter of confession addressed by the applicant to the President of
the District Court and dated 26 November 2001. In this letter the
applicant explained, in particular, that he had partied with A. and
B. in B.’s apartment and a fight had started between A. and B.,
during which the applicant had escaped.
- On
4 February 2002 the applicant was arrested. On the same date he
signed the arrest record (протокол),
stating that he had been detained pursuant to the decision of the
District Court of 5 December 2001, on suspicion of murder. According
to the applicant, he was not apprised of the content of the decision
of 5 December 2001. He presented no documents in evidence that he had
lodged any relevant requests or complaints before the commencement of
the trial.
- On
18 February 2002 the applicant was presented with a new bill of
indictment drafted on that day, according to which he was charged
with murdering B. and theft from his apartment.
- On
28 February 2002 the case was transferred to the District Court for
trial.
- On
1 March 2002 the Dzerzhinsky District Prosecutors’ Office of
Kharkiv modified the indictment, having substituted the murder charge
with that of infliction of grievous bodily injuries resulting in
death.
- On
7 March 2002 the District Court held a preparatory hearing and
scheduled the case for trial for 17 April 2002. According to the
Government, at the preparatory hearing the District Court upheld the
decision to keep the applicant in custody, having found no grounds
for his release. The copy of the decision taken by the District Court
on that date provided by the parties contains no reference to any
ruling concerning the applicant’s release or continuing
detention.
- Between
March 2002 and February 2003 the District Court scheduled some nine
hearings; however, none of them took place. On five occasions the
hearings were rescheduled on account of the judge’s inability
to hear the case (sickness, vacations or being occupied in other
proceedings). On other occasions the hearings were adjourned to
accommodate procedural requests made by the parties or on other
grounds.
- On
17 and 18 February 2003 the District Court held the first hearings
and adjourned the proceedings until 18 March 2003 in order for the
expert who had examined B.’s corpse to be summoned.
- Between
March 2003 and June 2004 the court scheduled some ten hearings. Seven
of them were adjourned or rescheduled on various grounds, including
failure of the prosecutor or the witnesses to appear; failure of the
detention-facility authorities to bring the defendants to the
hearings; granting of the parties’ motions for additional time
to study the case-file; and ordering further investigative activities
and an expert assessment.
- On
14 June 2004 the District Court remitted the case for additional
investigation, referring to various procedural and substantive
shortcomings in the pre-trial investigation. The court further
ordered, without providing any reasoning, that the applicant remain
in custody.
- On
12 October 2004 the Kharkiv Regional Court of Appeal (hereafter “the
Court of Appeal”) annulled this decision and remitted the case
back to the trial court. The court further ordered that the applicant
remain in custody, without expounding on the reasons for his
detention.
- On
7 February 2005 the District Court allowed the applicant’s
request for additional time to familiarise himself with the case-file
materials and established a schedule for him to do so. It rejected
the applicant’s request to be provided with photocopies of the
case-file materials.
- On
22 March 2005 the applicant requested that the case be transferred to
another judicial panel, alleging numerous procedural irregularities
in the conduct of the proceedings. In particular, he complained that
the present panel had ignored the fact that his detention had been in
breach of applicable law. Namely, the decision to place the applicant
in custody had been taken in his absence and following his arrest he
had not been brought before a judge to present his case, in
contravention of the provisions of Article 165-2 of the Code of
Criminal Procedure of Ukraine (hereafter “the CCP”).
Further, contrary to the requirements of Article 165-1 of the CCP, he
had not been provided with a copy of the decision to remand him in
custody, and had not been afforded an opportunity to appeal against
it. In addition, according to Article 148 of the CCP, the
investigative authorities had to either present him with an
indictment by 14 February 2002 or release him on that date.
However, the bill of indictment in the applicant’s respect had
only been drawn up on 18 February 2002. From 14 February
2002 onwards the applicant had therefore been held in custody
arbitrarily. The applicant also complained that the District Court
had refused to provide him with photocopies of various case-file
materials at his request.
- On
31 March 2005 the District Court rejected the applicant’s
request, having found that it had not been based on law. It further
ruled, without providing reasoning in response to the applicant’s
arguments, that there had been no reasons to release him from
custody. On 19 April 2005 the court rejected a further analogous
request from the applicant without expounding on his arguments
concerning the lawfulness of his detention.
- On
12 April 2005 the applicant requested the District Court to renew the
time-limit for appealing against the decision of 5 December 2001 to
remand him in custody, alleging that he had not been apprised of this
decision within the time-limit normally allowed for the appeal.
- On
21 April 2005 the applicant inquired with the District Court about
the status of the consideration of his request and on 26 April 2005
re-lodged it anew.
- By
letter of 27 May 2005 G., the Judge presiding over the applicant’s
case, notified him that his requests had been received and added to
the case file and that they would be taken into account in
adjudicating his case.
- On
18 July 2005 the applicant’s advocate complained to the
District Court that the applicant had been detained in violation of
Article 165-1 of the CCP and requested his release.
- On
the same day the District Court ruled, without providing any
reasoning, that there were no reasons for releasing the applicant.
- Between
November 2004 and July 2005 the District Court held some five
hearings in the case and on 25 July 2005 convicted A. and the
applicant of infliction of grievous bodily injuries on B. and theft
from his apartment and sentenced the applicant to ten years’
imprisonment.
- On
28 July 2005 T., the applicant’s mother and his defence in the
criminal proceedings, complained to the Kharkiv Regional
Qualification Commission of Judges about the unlawfulness of the
applicant’s detention, the lack of a response to his relevant
complaints by the District Court and its refusal to provide her with
photocopies of documents from the applicant’s case file in
order to submit a case to the Court. On 2 August 2005 she was
informed that the Commission was not competent to consider her
complaints.
- On
12 October 2005 the District Court found that the applicant and his
representatives had been protracting the consideration of the case on
appeal by repeated requests to familiarise themselves with the
case-file materials, and gave them five more days to finish.
- On
16 November 2005 the applicant’s mother complained to the
President of the District Court about the refusals to provide her
with photocopies of documents to be submitted to the Court. She
specified the particular pages of the case-file to be copied (some
sixty pages in total) and expressed her willingness to pay for the
copies made using the court’s equipment. As an alternative, she
requested permission to take the case file off the court premises, if
need be, in presence of a court employee, to order copies from a
commercial copier.
- On
2 December 2005 the President of the District Court informed the
applicant’s mother that the applicable law did not entitle the
parties’ representatives to obtain photocopies of case-file
documents.
- On
23 December 2005 G., the Judge presiding over the applicant’s
case, advised him in a letter that he had been granted twenty more
days to study the case file, following which the case would be
transferred to the Court of Appeal. She noted that, according to the
case-file materials, the applicant and his representatives had
already had three rounds of familiarising themselves with the
case-file.
- On
9 January 2007 the Kharkiv Regional Court of Appeal quashed the
judgment of 25 July 2005 and remitted the case for a fresh
consideration, referring primarily to procedural omissions in
announcing the modified charges to the defendants.
- Between
9 February and 11 April 2007 the applicant and A. familiarised
themselves with the case-file materials. On 11 April 2007 they signed
affidavits specifying that they had familiarised themselves with the
case-file in full.
- On
30 March 2007 the applicant’s mother requested the District
Court for permission to use portable equipment to photocopy material
from the case-file.
- On
5 April 2007 the District Court noted in a letter that a similar
request had already been granted to her and that T. had already used
the copying equipment as she had wished. It further confirmed that
she could continue using the copying equipment to copy material from
the case file as needed.
- On
11 April 2007 the District Court rejected the applicant’s
request to be released from custody pending trial lodged on 21
February 2007. The court found that this request had been premature,
as the case had been at the preparatory stage following its remittal
from the Court of Appeal, and that the applicant had not been
precluded from re-lodging his request during the trial.
- On
21 August 2007 the District Court rejected a further request by the
applicant to be released, having found that his detention had been in
compliance with Article 148 of the CCP. It further noted, referring
to the same grounds as mentioned in its decision of 5 December 2001
(the gravity of the charges, the applicant’s prior criminal
record and his absconding at the beginning of the proceedings), that
there had been no reasons for releasing the applicant.
- On
7 September 2007 the District Court convicted the applicant and A. of
having inflicted grievous bodily injuries on B. and theft from his
apartment, sentenced the applicant to five year seven month and three
days’ imprisonment and immediately released him from custody,
as he had already served the term to which he had been sentenced.
II. RELEVANT DOMESTIC LAW
- The
text of the relevant provisions of the Constitution of Ukraine of
1996 (Article 29) and the Code of Criminal Procedure of Ukraine of
1960 (the CCP) can be found in the judgment in the case of
Molodorych v. Ukraine (no. 2161/02, §§ 54 and
57, 28 October 2010).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 (C) OF THE
CONVENTION
- The
applicant complained that his arrest and detention pending trial had
been in breach of applicable domestic law. The applicant referred to
Article 5 § 1 (c) of the Convention in respect of the above
complaints, 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:
...
(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
Government presented no comments on the admissibility of this
complaint.
- The Court notes that the applicant never lodged a
formal appeal against the decision of 5 December 2001 to remand him
in custody during the pre-trial investigation stage, while Ukrainian
law generally provides a possibility of appeal against a decision to
remand an individual in custody pending pre-trial investigation (see,
for example, Khayredinov v. Ukraine, no. 38717/04, §§
10-12, 14 October 2010). However, regard being had to the applicant’s
submissions and in the absence of any plea concerning non-exhaustion
on the Government’s part, the Court will normally consider that
in the particular circumstances of the case there was no further
effective remedy for the applicant to exhaust (see Dobrev v.
Bulgaria, no. 55389/00, §§ 112-114, 10 August 2006).
- The
Court notes that the above complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) 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 submitted that he had been remanded and held in custody in
breach of applicable provisions of the CCP. In particular, upon his
arrest, he had not been familiarised with the decision of 5 December
2001 remanding him in custody against his signature and, lacking the
necessary information, was not afforded an opportunity to appeal
against it, contrary to the provisions of Article 165-1 of the CCP.
Secondly, in breach of Article 165-2 of the CCP, he had not been
brought before a judge following his arrest. Thirdly, contrary to the
requirements of Article 148 of the CCP, he had not been issued with a
bill of indictment within ten days of his arrest, namely, on 14
February 2002. Instead, he had been provided with this bill only on
18 February 2002. The applicant argued that, since no bill of
indictment had been presented to him within ten days of his
detention, the decision of 5 December 2001 had automatically lost its
force and he had to be released. Instead, he had been held in custody
until his conviction in the absence of any legal basis whatsoever.
- The
Government did not share this view. They submitted that the
applicant’s detention had been neither unlawful, nor arbitrary.
In particular, on 5 December 2001 the decision to remand him in
custody had been taken in the applicant’s absence, as he had
been in hiding. As by that time the investigation had already
collected ample evidence that the applicant had participated in the
killing of B. and stealing his valuables, and as the applicant had
absconded, there were sufficient grounds for taking the decision to
remand him in custody. The provisions of Article 148 of the CCP
concerning the need to produce a bill of indictment within ten days
of the arrest of a suspect were not applicable in the present case,
since the initial bill of indictment in the applicant’s respect
had been drawn up before his arrest (on 26 November 2001) and he
therefore had no longer been a suspect upon his arrest. The decision
of 5 December 2001 had accordingly been valid for holding the
applicant in custody during the two-month period following his arrest
in accordance with Article 156 of the CCP. Should the pre-trial
investigation have lasted longer, the authorities would have needed
to re-apply to the District Court to extend the applicant’s
detention. However, as the investigation ended on 28 February 2002,
the applicant having been committed for trial, his further detention
pending trial had been ordered by the District Court itself.
- The
Court reiterates that the expression “lawful”
in Article 5 § 1 of the Convention essentially refers back to
national law and lays down an obligation to conform to the
substantive and procedural rules thereof. The Court may review
whether national law has been observed for the purposes of this
Convention provision; however, it is in the first place for the
national authorities, notably the courts, to interpret and apply
domestic law (see, among other authorities, Zakharkin v.
Ukraine, no. 1727/04, § 84, 24 June 2010).
For the detention to be lawful, it is further 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).
- Turning
to the facts of the present case, the Court notes that based on the
materials in the case file the applicant first raised the argument
that the decision of 5 December 2001 was unlawful in spring 2005 (see
paragraphs 22, 24 and 25 above). Although the applicant complains
that he was not duly apprised of the decision of 5 December 2001
against his signature, from his signature on the arrest record of 4
February 2002 it follows that he was notified of the existence of the
above decision no later than on that date. In these circumstances it
is unclear why he lodged a relevant complaint only three years later.
- In
any event, the Court notes that the judicial authorities reviewed the
lawfulness of the applicant’s detention on several occasions
before and after he lodged the aforementioned complaints. In
particular, according to the Government, the application of the
custodial measure was first upheld by the District Court on 7 March
2002. According to the materials in the case file, the applicant’s
continuing detention was further upheld on 14 June 2004 when the
case was remitted for additional investigation; on 12 October
2004 when the case was referred back to trial; as well as on
31 March, 19 April and 18 July 2005 and 21 August 2007 in
response to the applicant’s complaints. The Court notes that
the copy of the decision of 7 March 2002 taken at the close of
the preparatory hearing and available to it does not contain any
decision concerning either the applicant’s detention or his
release. No copy of any other decision on the subject taken on that
date has been provided by the parties. However, it appears from the
Government’s submissions that such a decision was taken with
reference to the absence of any reasons for releasing the applicant,
rather than in the form of a statement of reasons for holding him in
custody. The Court further notes that the subsequent decisions
concerning the applicant’s detention lack any express reasoning
for his continuing detention and do not set time-limits for it. The
Court has already held in other cases that such a practice, which is
recurrent in Ukraine, whereby court orders made during the trial
stage set no time-limits for the further detention of a defendant,
and uphold rather than extend his or her previous detention, is not
compatible with the requirements of Article 5 § 1 (c) of the
Convention (see, for example, Kharchenko v. Ukraine, no.
40107/02, § 98, 10 February 2011). The Government have not
provided any arguments warranting the Court’s departure from
this approach in the present case.
- The
Court considers that the above findings are sufficient to conclude
that there has been a violation of Article 5 § 1 (c) of the
Convention in the present case, and that it is not necessary to
examine the applicant’s arguments with respect to the
lawfulness of the decision of 5 December 2001 separately.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF
THE CONVENTION ON ACCOUNT OF THE LENGTH OF DETENTION BEFORE
CONVICTION
- The
applicant next complained that his detention before conviction had
been unreasonably long. He referred to 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.”
A. Admissibility
- The
Government presented no comments on the admissibility of this
complaint.
- The
Court considers that the above complaint is not manifestly
ill founded within the meaning of Article
35 § 3 (a) 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 contended that his pre-trial detention had lasted an
unreasonably long time.
- The
Government contested this view. They submitted that the length of the
applicant’s pre-conviction detention had been reasonable,
regard being had to the gravity of the charges against him and his
personality, in particular, the fact that he had a prior criminal
record and had absconded at the beginning of the investigation.
- The Court notes that the period
to be taken into account commenced on 4 February 2002 (the date of
the applicant’s arrest) and ended upon his release on 7
September 2007. However, the period between 25 July 2005 (the date on
which the applicant was convicted following the first round of
proceedings) and 9 January 2007 (the date when the
above-mentioned judgment was quashed on appeal) should be deducted
(see, mutatis mutandis, B. v.
Austria, no. 11968/86, §
39, 28 March 1990). The overall period of detention for the
purposes of Article 5 § 3 of the Convention therefore
lasted four years and nearly two months.
- Examining
the present case in light of the general principles established in
its case-law (see I.A. v.
France, judgment of
23 September 1998, Reports
of Judgments and Decisions 1998-VII,
§ 102; Labita
v. Italy [GC],
no. 26772/95, § 153, ECHR 2000-IV; and
Iłowiecki v. Poland,
no. 27504/95, §§ 61-63, 4 October 2001), the Court
notes that the initial decision of 5 December 2001 to
remand the applicant in custody was based on a strong suspicion that
he had committed the offences with which he had been charged (see
paragraph 9 above). It accepts that this fact, along with the
applicant’s disappearance, may have initially warranted
ordering his detention. However, after a certain lapse of time the
judicial authorities were obliged to re-assess the applicant’s
personal situation and to give express grounds for his continued
detention. In the meantime, the only decision citing the grounds for
upholding the applicant’s continued detention, which is
presented in the case file, was taken on 21 August 2007 (see
paragraph 40 above). The reasons, cited in this decision, are
essentially the same as those mentioned in the initial decision given
some five years earlier, without any updated details. Furthermore, at
no stage did the domestic courts consider applying any alternative
preventive measures, and by relying essentially on the gravity of the
charges and the fact that the applicant had absconded at the
beginning of the investigation, the authorities extended the
applicant’s detention on grounds which, regard being had to the
length of the detention at issue, cannot be regarded as “sufficient”.
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of Article 5 § 3 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant further complained that his requests for release pending
trial had not been examined. He relied on Article 5 § 4 of the
Convention, which reads 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
Government presented no comments on the admissibility of this
complaint.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) 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 alleged that during his trial he had lodged numerous
complaints about the unlawfulness of his detention, raising the same
arguments he had put forward with respect to his complaint under
Article 5 § 1 (c). However, his submissions had been
ignored by the District Court.
- The
Government contested this view. They submitted that the applicant’s
complaints had been examined and rejected on 31 March, 19 April
and 18 July 2005, on 11 April and 21 August 2007. They further
maintained that the fact that the applicant’s complaints had
been rejected does not in itself mean that the procedure complained
about lacked effectiveness.
- The
Court notes that in several cases against Ukraine it has already
found that for the purposes of Article 5 § 4 of the Convention
the fact that a detainee’s complaint about the unlawfulness of
his detention was reviewed did not suffice and that it was necessary
that the grounds for detention were examined on the merits in the
circumstances of the applicant’s particular situation (see, for
example, Buryaga v. Ukraine, no. 27672/03, §§
73-74, 15 July 2010; Vitruk v. Ukraine, no. 26127/03, §§
92-93, 16 September 2010; and Kharchenko v. Ukraine, no.
40107/02, § 84-85, 10 February 2011). The Court observes
that in the judicial authorities’ decisions, the applicant’s
arguments concerning the unlawfulness of his detention remained
largely unanswered. In light of this, the Court cannot come to a
conclusion that the procedure by which the lawfulness of the
applicant’s detention was reviewed met the standards required
by Article 5 § 4 of the Convention.
- In
light of the above, there has been a breach of Article 5 § 4 of
the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant further complained that the criminal proceedings against
him had lasted an unreasonably long time. He referred to
Article 6 § 1 of the Convention, which, insofar
as relevant, reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
A. Admissibility
- The
Government presented no comments on admissibility of this complaint.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) 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 the criminal proceedings against him had
lasted an unreasonably long time.
- The
Government contested this view. They alleged that the domestic courts
had scheduled hearings at regular intervals and taken all reasonable
efforts to expedite consideration of the case. The length of the
proceedings could be explained by the fact that the case had been
rather complicated, as it had concerned two serious crimes and
involved two defendants. Moreover, the applicant had added to the
protractions by his own conduct. He had lodged numerous procedural
requests, which had needed to be examined. On many occasions he had
sought adjournments of the proceedings, in particular, demanding
numerous rounds of familiarisation with the case-file materials. He
and his representatives had spent some 110 days studying the
case file. Other delays were attributable to other objective reasons,
such as the failure of the witnesses to appear. In order to ensure
their attendance, the District Court had had to order some witnesses
to be summoned by the police.
- The Court notes that in criminal matters, the
“reasonable time” referred to in Article 6 § 1 of
the Convention begins to run as soon as a person is “charged”,
in other words, given the official notification by the competent
authority of an allegation that he has committed a criminal offence.
This definition also corresponds to the test whether “the
situation of the [suspect] has been substantially affected”. As
regards the end of the “time”, in criminal matters the
period governed by Article 6 § 1 of the Convention covers the
whole of the proceedings in issue, including appeal proceedings
(Vergelskyy v. Ukraine, no. 19312/06, § 114, 12 March
2009).
- As
regards the facts of the present case, the Court considers that the
period to be taken into consideration should be counted from
26 November 2001, when the initial bill of indictment in
the applicant’s respect was drawn up. The period in question
ended on 7 September 2007, when the District Court gave its judgment,
which then became final. The proceedings thus lasted five years and
nine months. During this period the case was reviewed twice by the
second-instance court; however, the final decision of the
first-instance court was not appealed against.
- The
Court observes that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the complexity of the case and the conduct of the
applicant and the relevant authorities (see, among many other
authorities, Pélissier and Sassi v. France [GC], no.
25444/94, § 67, ECHR 1999-II). The Court further points out that
for the entire period of the criminal proceedings at issue the
applicant in the present case was held in custody – a fact
which required particular diligence on the part of the authorities
dealing with the case to administer justice expeditiously (see, for
example, Smirnova v. Russia, nos. 46133/99 and
48183/99, § 83, ECHR 2003-IX and Yurtayev v. Ukraine, no.
11336/02, § 37, 31 January 2006).
- The Court considers that neither the complexity of the
criminal case nor the applicant’s conduct can explain the
length of the aforementioned proceedings. It appears that a number of
delays (including extensive periods of inactivity, rescheduling and
adjournment of hearings on various grounds, in particular, those
referring to the absence of judges, prosecutors, or defendants who
were held in custody and remittals of the case for additional
investigation and re-trial) are attributable to the domestic
authorities.
- The
Court has already found violations of Article 6 § 1 of the
Convention in other cases against Ukraine featuring similar delays
(see, for example, Antonenkov and Others v. Ukraine, no.
14183/02, §§ 45-46, 22 November 2005; Kobtsev v.
Ukraine, no. 7324/02, § 71, 4 April 2006; and Ivanov v.
Ukraine, no. 15007/02, §§ 69, 74-75, 7 December 2006).
It does not find any reason to depart from its jurisprudence in the
present case.
- There
has accordingly been a breach of Article 6 § 1 of the
Convention.
V. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
- The
applicant also complained that the District Court had hindered his
ability to bring his case before the Court by refusing his requests
for photocopying documents from his case file. He invoked Article 34
of the Convention, which reads as follows:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
- The
Government submitted that there had been no hindrance of the
applicant’s right of individual petition. The fact that at one
point the District Court had refused to provide photocopies of the
documents requested by the applicant had been due to a lack of
technical facilities on the court premises. On the whole, the
applicant and his representatives had had ample access to the
case-file materials. Overall, they had been given 110 days to
familiarise themselves with the case file, 66 of which they had spent
copying various materials by hand. Furthermore, once the District
Court had acquired the necessary equipment, it had provided the
applicant with the photocopies requested, albeit with a delay. On 7
September 2007 the applicant had been released and, should he have
needed to obtain further copies of any documents, he could have
applied to the District Court in person.
- The
applicant did not comment on this aspect of the application in his
observations.
- According to the Court’s case-law, a complaint
under Article 34 of the Convention is of a procedural nature and
therefore does not give rise to any issue of admissibility under the
Convention (see, among other authorities, Chaykovskiy v. Ukraine,
no. 2295/06, § 83, 15 October 2009).
- The
Court has established that Article 34 of the Convention may impose on
the State authorities an obligation to provide copies of documents to
applicants who find themselves in situations of particular
vulnerability and dependence and are unable to obtain the documents
needed for their files without State support (see, as a recent
authority, Naydyon v. Ukraine, no. 16474/03, § 63, 14
October 2010). On the other hand, it has also found that the
obligation not to hinder the right of individual petition does not
automatically mean that the State has a duty to provide applicants
with copies of all or any desired documents or to furnish them with
the technical facilities of their choice to make their own copies
(see Kornakovs v. Latvia, no. 61005/00, §§ 171-174,
15 June 2006, and Chaykovskiy, cited above, § 96, 15
October 2009).
- The
Court notes with concern that, as it transpires from the case-file,
for a certain period of time the applicant appears to have been in a
difficult situation with respect to receiving copies of the documents
he deemed necessary to support his application (see paragraphs 32-33
above). In particular, requesting copies of documents on the
applicant’s behalf, his mother unsuccessfully approached the
District Court with a number of options, including a request for
permission to obtain those copies at her expense using the court’s
equipment or a commercial copier. It appears that no satisfactory
solution was proposed to her at the material time.
- On
the other hand, the Court notes that it is unclear from the
applicant’s submissions which documents he had wanted
photocopied, what their significance for the Convention proceedings
was, and why it was necessary that they be photocopied, as opposed,
for example, to being photographed or copied by hand. The applicant
did not contest the Government’s submission that he and his
representatives had had ample access to the case-file materials and
had not been precluded from copying them by hand. It further appears
that the applicant’s representatives were allowed to use
portable equipment for copying the documents on the District Court’s
premises (see paragraph 38 above). Finally, it appears that
eventually the applicant was able to submit to the Court all the
documents he deemed to be of relevance, while the Registry of the
Court, in turn, never indicated a need for any such documents for the
examination of the application.
- In
the light of the foregoing, the Court finds that the refusal of the
District Court to provide the applicant with photocopies of
unspecified documents from his case file did not amount to a
hindrance of the exercise of his right of individual petition.
Accordingly, Ukraine has not failed to comply with its obligations
under Article 34 of the Convention with respect to this complaint.
VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 5 § 3 of the Convention
that he had not been brought promptly before a judge following his
arrest and invoked Articles 1, 5 § 2, 13, 17 and 53 to the facts
of the present case.
- Having
considered the applicant’s submissions in the light of all the
material in its possession, the Court finds that, in so far as the
matters complained of are within its competence, 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
§§ 3 (a) and 4 of the Convention.
VII. 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 200,000 euros (EUR) in respect of “moral and
physical harm” and a further amount of EUR 100,000 “for
other infringements of [his] rights ... including every day of [his]
unlawful detention”.
- The
Government alleged that insofar as the applicant’s claim
related to pecuniary damage, it was wholly unsubstantiated. As
regards non-pecuniary damage, this claim should also be rejected, as
the applicant’s right to liberty had not been breached.
- The
Court notes that, insofar as the applicant may be understood to be
claiming pecuniary damage, his claim should be rejected as
unsubstantiated. On the other hand, the applicant must have suffered
anguish and distress on account of the facts giving rise to the
findings of violations of his Convention rights in the present case.
Ruling on an equitable basis, the Court awards the applicant EUR
8,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant submitted no 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 complaints concerning the
unlawfulness and unreasonable length of the applicant’s
detention before conviction, inability to take proceedings to have
the lawfulness of his detention decided speedily and unreasonable
length of criminal proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
5 § 1 (c) of the Convention;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds that there has been a violation of Article
5 § 4 of the Convention;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that Ukraine has not failed to comply with
its obligations under Article 34 of the Convention with respect to
the refusal of the judicial authorities to provide the applicant with
copies of documents for his application before the Court;
- 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 8,000 (eight thousand
euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the national currency of
Ukraine 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 29 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
