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
PLESHKOV v. UKRAINE
(Application
no. 37789/05)
JUDGMENT
STRASBOURG
10
February 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 Pleshkov v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
Ganna
Yudkivska,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 6 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37789/05) 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 Yevgeniy
Vladislavovich Pleshkov (“the applicant”), on 8 October
2005.
-
The Ukrainian Government (“the Government”) were
represented by their Agent, Mr Y. Zaytsev.
- The
applicant complained, in particular, about the length of his
pre trial detention from 25 May 2004 to 31 July 2006 and about
the alleged lack of an adequate judicial review of its lawfulness. He
also complained about the length of the criminal proceedings against
him.
- By
a partial decision of 7 July 2009, the Court decided to adjourn the
examination of the above complaints, as well as the complaint about
the alleged arbitrariness of the applicant’s remand in custody
on 25 May 2004, and declared the remainder of the application
inadmissible. Under the provisions of Article 29 of the Convention,
it was also decided to examine the merits of the adjourned part of
the application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1960 and lives in Belgorod,
Russia.
- On 29 May 2003 a criminal case was opened against him,
along with some other persons, on suspicion of trafficking in human
beings, and on 31 May 2003 the applicant was arrested.
- On
30 July 2003 the Kyivskyy District Court of Kharkiv (“the
Kyivskyy Court”) released him subject to an undertaking not to
abscond.
- On
21 November 2003 the pre-trial investigation was declared complete
and the case was sent to the trial court, which commenced the
proceedings on 10 December 2003.
- On
25 May 2004 the Kyivskyy Court, in a hearing in which the victims’
representative took part, allowed the prosecutor’s application
for the applicant’s (as well as the other co-defendant) remand
in custody. The court agreed with the prosecutor’s argument
that the applicant had been putting pressure on the victims, which
had led to changes in their testimonies. According to the applicant,
his own argument, on which the court allegedly failed to comment, was
that the changes in the victims’ statements in the court might
have been explained by the investigator’s pressure on them in
the course of the pre-trial investigation, which they were not any
longer subjected to during the trial. The applicant was arrested in
the hearing room.
- He
repeatedly and unsuccessfully requested to be released under an
undertaking not to abscond. The applicant argued that there was no
evidence of his guilt, that he had never faced any criminal charges
before and had received some government awards. Furthermore, he
referred to the facts that he had a permanent place of residence and
elderly parents to take care of, and that his health had deteriorated
in detention.
- On
24 September 2004, 13 and 15 April, 31 May and 5 December 2005 the
Kyivskyy Court rejected the applicant’s requests for release.
The reasoning of those rulings was practically identical. The court
supported the prosecutor’s opinion, which referred to the
serious nature of the charges against the applicant and an inherent
risk of his absconding. It further noted:
“The court considers that the issue of changing
the preventive measure is premature. The issue of the preventive
measure [“of the penalty” – in the rulings of 24
September 2004 and 5 December 2005] will be resolved when the verdict
is pronounced in the case and [the applicant] is convicted or
acquitted.”
- The
applicant unsuccessfully complained about the length of the trial to
the Council of Judges of Ukraine, to the Kharkiv Court of Appeal and
to various other authorities. He was informed in reply that it was
caused by the complexity of the case and the large number of victims,
as well as by the need to handle numerous requests and petitions from
the applicant.
- On
31 July 2006 the Kyivskyy Court found the applicant guilty of
trafficking in human beings and production and distribution of
pornographic materials, and sentenced him to ten years’
imprisonment, with prohibition on working in any film, video or
computer programme production and distribution area.
- Overall,
the Kyivskyy Court held over sixty hearings. It issued rulings
requiring the presence of the victims and witnesses, enforceable by
the police, on some ten occasions.
- On
13 February 2007 the Kharkiv Court of Appeal quashed that verdict and
remitted the case to the same first-instance court for fresh
examination. The main point of criticism was the vagueness of the
verdict, including, in particular, the charges against the
co-defendants, the classification of the films in which the victims
had appeared as pornographic, and the conclusions that the victims
had been both deceived and coerced by the co-defendants. The
appellate court made a general conclusion that the investigation of
the case by the first-instance court had been unbalanced and
incomplete. It released the co-defendants under an undertaking not to
abscond.
- On
13 March 2007 the Kharkiv Court of Appeal decided to examine the case
itself as a court of first instance.
- On
12 April 2007 it remitted the case to the Kharkiv Regional
Prosecutor’s Office for additional investigation.
- On
10 July 2007 the Supreme Court quashed the ruling of 12 April 2007.
- On
27 September 2007 the Kharkiv Court of Appeal started the examination
of the case.
- On
4 and 16 October 2007 the court adjourned hearings on account of the
applicant’s failure to attend.
- On
24 October 2007 it ordered the applicant’s remand in custody,
examination of the case being stayed until his whereabouts had been
established.
- The
case remains pending before the Kharkiv Court of Appeal.
- In
his submissions to the Court, the applicant admitted he had absconded
and gave as the reason that he did not trust the Ukrainian judiciary.
II. RELEVANT DOMESTIC LAW
- The
relevant legal provisions can be found in the Shalimov
v. Ukraine judgment, no. 20808/02,
§§ 40-41, 4 March 2010).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained that his deprivation of liberty on 25 May 2004
had been arbitrary and that his subsequent continued detention had
been unjustifiably long. He further complained that there had been no
adequate judicial review of the lawfulness of his pre-trial
detention. The applicant relied on Article 5 §§ 1, 3 and 4
of the Convention, the relevant parts of which read 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; ...
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.
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
1. Article 5 § 1 of the Convention
- The
Government submitted that the applicant’s remand in custody had
been based on a reasonable suspicion of a serious crime, had been
ordered by a competent court in compliance with the national
legislation and had been a justified measure for securing proper
conduct of the proceedings. They therefore considered his complaint
in that respect to be manifestly ill-founded.
- The
applicant contended that his deprivation of liberty on 25 May 2004
had been an unjustified and excessive measure taken on invented
grounds, such as his allegedly unproven pressure on the victims.
- The
Court notes that Article 5 § 1 of the Convention requires in the
first place that the detention be “lawful”, which
includes the condition of compliance with a procedure prescribed by
law. The Convention here essentially refers back to national law and
states the obligation to conform to the substantive and procedural
rules thereof, requiring in addition that any deprivation of liberty
should be consistent with the purpose of Article 5, namely to protect
individuals from arbitrariness (see Benham v. the United Kingdom,
10 June 1996, § 40, Reports 1996 III). The Court
accepts that a reasonable suspicion that a person has committed a
serious offence may initially warrant his detention. Also, the need
to secure the proper conduct of the proceedings, in particular the
process of obtaining evidence from witnesses, constitutes a valid
ground for such initial detention (see, for example, Jamroży
v. Poland, no. 6093/04, § 37, 15
September 2009).
- Turning
to the facts of the present case, the Court finds no indication of
substantive or procedural unlawfulness of the applicant’s
detention under the domestic law. It was based on a suspicion of his
involvement in trafficking in human beings, which, under the
circumstances, could not be regarded unreasonable. Furthermore, the
Court notes that before ordering the applicant’s detention on
25 May 2004 the Kyivskyy Court examined the major argument of the
investigator in that regard, namely the changes in the victims’
statements coinciding with the applicant’s being at liberty, at
a hearing with participation of the applicant, the victims’
representative and the investigator (see paragraph 9 above). The
Court sees no reason to consider that its decision about replacing
the applicant’s undertaking not to abscond with pre-trial
detention was arbitrary.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected under Article 35 §§ 3 (a) and 4 of the
Convention.
2. Article 5 §§ 3 and 4 of the Convention
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. Article 5 § 3 of the Convention
- The
applicant maintained that his continued detention from 25 May 2004
until the pronouncement of the verdict in his case on 31 July 2006
had been excessively long.
- The
Government contested that view. They pointed out that once released
by the Kharkiv Court of Appeal later on 13 February 2007, the
applicant had not appeared for a single hearing, in which they saw an
illustration of the propriety of his continued pre-trial detention.
The Government also noted that the domestic authorities had been
handling the applicant’s case with due diligence.
- The
Court reiterates that, according to its well-established case-law, a
person charged with an offence must always be released pending trial
unless the State can show that there are “relevant and
sufficient” reasons to justify the continued detention (see
Wemhoff v. Germany, 27 June 1968, § 12, Series A no.
7, and Yağcı and Sargın v. Turkey, 8 June 1995,
§ 52, Series A no. 319 A). It falls in the first place to
the national judicial authorities to ensure that in a given case the
pre-trial detention of an accused person does not exceed a reasonable
length of time. To this end, they must examine all the facts arguing
for or against the existence of a genuine requirement of public
interest justifying, with due regard to the principle of the
presumption of innocence, a departure from the rule of respect for
individual liberty, and set them out in their decisions dismissing
the applications for release. It is essentially on the basis of the
reasons given in these decisions and of the matters included by the
applicant in his appeals that the Court is called upon to decide
whether or not there has been a violation of Article 5 § 3 of
the Convention (see Labita v. Italy [GC], no. 26772/95, §
152, ECHR 2000 IV).
- The
Court notes that the contested pre-trial detention of the applicant
in the present case lasted for two years, two months and six days,
which is not short in absolute terms (see and compare with Doronin
v. Ukraine, no. 16505/02, §
61, 19 February 2009). It is true that serious charges were raised
against the applicant and the case was of a certain complexity, which
influenced the length of the proceedings (see paragraph 52 below).
However, during the impugned period of the applicant’s
detention the court dealing with his case rejected his requests for
release five times in similarly worded rulings (see paragraph 11
above). Its line of reasoning remained unchanged and was twofold:
firstly, the court referred, without any factual references or
comments, to the seriousness of the charges against the applicant as
an indication of the risk he would abscond and, secondly, it repeated
on all five occasions – also without explanation – that
it was premature, before the verdict, to change the preventive
measure.
- While
the major reason for the applicant’s remand in custody on
25 May 2004 was the assumption that he had been pressurising the
victims, it remained without any re-evaluation during the whole
period of his pre-trial detention lasting for over two years.
- The
Court therefore concludes that the domestic authorities failed to
duly justify the applicant’s continued detention from 25 May
2004 to 31 July 2006.
- Accordingly,
there has been a violation of Article 5 § 3 of the Convention.
2. Article 5 § 4 of the Convention
- The
applicant submitted that he had been denied an effective judicial
review of the lawfulness of his pre-trial detention.
- The
Government argued that all the applicant’s requests for release
had been examined with due speediness and diligence. They underlined
that one of them had even been successful and had resulted in the
applicant’s release on 13 February 2007.
- The
Court notes that Article 5 § 4 of the Convention entitles
arrested or detained persons to a review bearing upon the procedural
and substantive conditions which are essential for the “lawfulness”,
in Convention terms, of their deprivation of liberty. This means that
the competent court has to examine not only compliance with the
procedural requirements of domestic law but also the reasonableness
of the suspicion underpinning the arrest, and the legitimacy of the
purpose pursued by the arrest and the ensuing detention (see
Butkevičius v. Lithuania, no. 48297/99, § 43,
ECHR 2002 II (extracts)).
- The
Court notes that the lawfulness of the applicant’s detention
was considered by the domestic courts several times. However, the
respective decisions cannot be regarded as satisfying the
requirements of Article 5 § 4, being in fact limited to the
refusal to deal with the applicant’s arguments. In
this respect the Court recalls that it had already found that
Ukrainian law did not provide for the procedure of review of the
lawfulness of continued detention after the completion of pre-trial
investigations satisfying the requirements of Article 5 § 4 of
the Convention (see Molodorych v.
Ukraine, no. 2161/02,
§ 108, 28 October 2010). The fact that the applicant was
eventually released after the verdict of 31 July 2006 was
quashed on appeal, has not bearing for this finding.
- It
follows that there has been a violation of Article 5 § 4 of the
Convention in this case too.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS
- The
applicant complained that the criminal proceedings against him had
lasted an unreasonably long time. He relied on Article 6 § 1 of
the Convention, which reads, in as far as relevant, 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
Court notes that this part of the application is neither manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention nor inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
- The
applicant maintained his complaint.
- The
Government contested it. They submitted that the period to be taken
into consideration was from 29 May 2003 (the date of the opening of
the criminal case) to 24 October 2007 (the date when the Kharkiv
Court of Appeal established that the applicant was on the run), and
that it was not unreasonable, given the complexity of the case, the
number of people involved, and the parties’ behaviour.
- The
Court agrees with the Government’s view concerning the period
to be taken into consideration, as indeed the time when the applicant
absconded (see paragraph 23 above) should be excluded from the
overall length of the proceedings (see Girolami v. Italy, 19
February 1991, § 13, Series A no. 196 E, and Smirnova v.
Russia, nos. 46133/99 and 48183/99, § 81, ECHR
2003 IX (extracts)).
- The
Court reiterates 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 following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities (see, among
many other references, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999 II). It further
notes that an accused in criminal proceedings should be entitled to
have his case conducted with special diligence, especially where he
is kept in custody (see Nakhmanovich v. Russia, no. 55669/00,
§ 89, 2 March 2006).
- The
Court notes that the criminal proceedings against the applicant in
the present case lasted for four years and almost five months.
- A
closer look is to be given to the events within that time span. The
pre-trial investigation lasted for about half a year (see paragraphs
6–8 above), after which the Kyivskyy Court spent two years and
eight months examining the case, holding some sixty hearings (see
paragraphs 8, 13 and 14 above). Thereafter, the Kharkiv Court of
Appeal quashed the verdict as vague and based on an unbalanced and
incomplete investigation (see paragraph 15 above); a month later, it
took the case over as a first-instance court (a delay of seven
months) and unsuccessfully attempted to remit it for additional
investigation (another delay of five months).
- The
Court accepts that, given a considerable number of victims and
several co-defendants involved, the case was of a certain complexity.
At the same time, it notes that the investigation and the trial,
which had lasted for three years and two months in total, were
recognised by the domestic authorities as seriously flawed (see
paragraph 15 above). The attempt of the Kharkiv Court of Appeal to
remedy the situation (taking the case over for its own examination
and its eventually overturned remittal for additional investigation)
took another year. In sum, as it appears from the facts of the case,
the delay was attributable to the authorities rather than the
applicant.
- The
Court therefore finds a violation of Article 6 § 1 of the
Convention on account of the length of the criminal proceedings
against the applicant.
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 EUR 750,000 in respect of non-pecuniary and
pecuniary damage.
- The
Government considered that there was no causal link between the
pecuniary damage claimed and the violations alleged. They further
considered the claim for non-pecuniary damage unsubstantiated and
excessive.
- The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it considers that the applicant must have suffered
non pecuniary damage and, ruling on an equitable basis, awards
him EUR 4,000 in that regard.
B. Costs and expenses
- The
applicant made no claim for costs and expenses. Accordingly, the
Court 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
- Declares unanimously the complaints under
Article 5 §§ 3 and 4 and Article 6 § 1 (length of
proceedings) admissible and the remainder of the application
inadmissible;
- Holds unanimously that there has been a
violation of Article 5 § 3 of the Convention;
- Holds unanimously that there has been a
violation of Article 5 § 4 of the Convention;
- Holds by four votes to three that there has been
a violation of Article 6 § 1 of the Convention on account
of the length of the proceedings;
- Holds unanimously
(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, EUR 4,000 (four
thousand euros) in respect of non-pecuniary damage, to be converted
into the national currency of the respondent State at the rate
applicable on the date of settlement, plus any tax that may be
chargeable;
(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 unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 10 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following joined partially
dissenting opinion of Judges Berro-Lefèvre,
Kalaydjieva and Yudkivska is annexed to this judgment.
P.L.
C.W.
JOINED PARTIALLY DISSENTING OPINION OF JUDGES
BERRO-LEFEVRE, KALAYDJIEVA AND YUDKIVSKA
Whilst
we fully share the majority’s conclusions concerning complaints
under Article 5 of the Convention, we are unable to conclude that the
length of proceedings in the present case failed to meet the
reasonable time requirement.
The
criminal proceedings against the applicant lasted four years and five
months until the Kharkiv Court of Appeal found out that he evaded
justice in October 2007. During that time a pre-trial investigation
was completed and three levels of jurisdictions were further
involved.
The
Court’s case-law always takes into account the complexity of
the case. It is remarkable that the present case concerned human
trafficking: investigation of this type of crime is particularly
complex primarily because of the difficulties in obtaining evidence
from victims. Victims in this category of cases are vulnerable; they
mostly belong to disadvantaged social groups and try to avoid
proceedings, fearing repressions against their close ones.
The
present case is a good illustration - at least ten times the court
had to order a compulsory attendance of victims and witnesses in
court room, as they ignored summonses. It is true that Article 6
commands that judicial proceedings should be expeditious, but it also
lays down the more general principle of the proper administration of
justice (see Boddaert v. Belgium, 12 October 1992, § 39,
Series A no. 235-D). In this situation we find it inappropriate to
blame national judicial authorities that they held more than sixty
hearings and even after that the investigation still appeared to be
incomplete and the judgment was quashed by the Court of Appeal. Such
an attempt to assure a thorough and elaborate investigation should be
found compatible with good administration of justice, as “a
concern for speed cannot dispense ... judges in the system of
criminal procedure ... from taking every measure likely to throw
light on the truth or falsehood of the charges” (see Neumeister
v. Austria, 27 June 1968, p. 43, § 21, Series A no. 8).
No significant period of inactivity attributable to the authorities
can be marked here.
Therefore
we remain convinced that in the particular circumstances of this
case, even taking into consideration the interests at stake, the
length of the proceedings was not excessive and the fair balance
between the various aspects of Article 6 requirements was not upset.
For that reason we voted against finding a violation of Article 6 of
the Convention.
