FIFTH SECTION

CASE OF PROKOPENKO v. UKRAINE

(Application no. 5522/04)

JUDGMENT

STRASBOURG

20 January 2011

This judgment is final but it may be subject to editorial revision.

In the case of Prokopenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Rait Maruste, President,
	Mirjana Lazarova Trajkovska,
	Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 14 December 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 5522/04) 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 Oleg Mykolayovych Prokopenko (“the applicant”), on 16 January 2004. The applicant was represented by his father, Mr Mykola Petrovich Prokopenko.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
3.  On 15 January 2009 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol no. 14, the application was allocated to a Committee of three judges.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1973 and lives in the town of Konotop, Ukraine.
5.  The applicant worked as a customs officer at the Konotop railway border checkpoint.
6.  According to the records provided by the Government, on 18 February 2002 criminal proceedings were instituted against the applicant in connection with one episode of smuggling forty electronic devices of the same type, intended for military use. On 9 October 2002 and 18 November 2002 criminal proceedings were instituted against Mr K. and Ms T., respectively, in connection with the same episode of smuggling.
7.  On 7 October 2002 the applicant was arrested on the suspicion that he had committed the above crime. On 10 October 2002 the Shevchenkivsky District Court of Kyiv ordered the applicant’s detention on remand relying on the suspicion that he had committed a crime punishable by imprisonment. 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 leave Ukraine and obstruct the investigation.
8.  On 22 November 2002 the proceedings against the applicant, Mr K. and Ms. T. were joined.
9.  On an unspecified date in March 2003 the applicant’s criminal case was sent to the Konotop Court for consideration.
10.  On 4 April 2003, 22 August 2003, and 10 October 2003 the Konotop Court dismissed the applicant’s requests for release, having found that the detention on remand had been ordered at the investigation stage in accordance with law and that there was no reason to replace it with another preventive measure.
11.  On 8 December 2003 the Konotop Court convicted the applicant of smuggling, abuse of authority and tax evasion. The court sentenced the applicant to eleven years’ imprisonment.
12.  On 15 April 2004 the Sumy Regional Court of Appeal quashed that judgment and remitted the case for a new consideration to the Krolevetsky Court. By the same ruling, the court of appeal continued the applicant’s remand in custody without indicating any reason.
13.  On 5 May 2004 the Supreme Court rejected the applicant’s and Mr K.’s requests for leave to appeal in cassation against the decision of 15 April 2004.
14.  On 7 December 2004 the applicant lodged a request for release which was dismissed the same day. The Krolevetsky Court found that the detention on remand had been ordered at the investigation stage in accordance with law and that there was no reason to replace it with another preventive measure.
15.  On 20 January 2005 the Krolevetsky Court ordered an expert examination of the smuggled devices.
16.  On 11 April 2005 the applicant lodged a request with the trial court asking the court to lift the preventive measure of detention. On 14 April 2005 the court dismissed his request, having found that the detention on remand had been ordered at the investigation stage in accordance with law and that there was no reason to replace it with another preventive measure.
17.  On 30 January 2006 the expert report was sent to the court.
18.  According to the records provided by the Government, between 15 April 2005 and 31 March 2006 the Krolevetsky Court scheduled no hearings.
19.  On 12 May 2006 the Krolevetsky Court convicted the applicant of smuggling, abuse of authority and tax evasion. The court sentenced the applicant to four years’ imprisonment with confiscation of his movable property.
20.  On 10 August 2006 the Sumy Regional Court of Appeal upheld the judgment of 12 May 2006 with minor amendments.
21.  On 8 May 2007 the Supreme Court rejected the applicant’s request for leave to appeal in cassation.
22.  While the criminal proceedings against the applicant were pending, the applicant unsuccessfully sought institution of criminal proceedings against the persons who prepared the expert reports in his criminal case.
II.  RELEVANT DOMESTIC LAW
23.  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.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS
24.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
25.  The Government contested that argument.
26.  The period to be taken into consideration began on 18 February 2002 and ended on 8 May 2007 when the Supreme Court adopted a final decision in the case. Therefore, the proceedings lasted about five years and three months at three levels of jurisdiction.
A.  Admissibility
27.  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
28.  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 authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).
29.  As regards the complexity of the case, the Court notes that the proceedings at issue concerned one episode of smuggling and required questioning witnesses, conducting expert examinations of the documents and the devices, and examining a certain amount of documentary evidence. There were three persons accused in this case. Therefore it cannot be said that the proceedings were so complex as to justify their length.
30.  The Court notes that the complexity of the case and the applicant’s conduct cannot explain the overall length of the proceedings at issue. It finds that a number of delays (in particular, the remittal of the case for a new consideration, the lengthy period of procedural inactivity in the period from April 2005 to March 2006, and lengthy consideration by the Supreme Court of applicant’s request for leave to appeal in cassation) are attributable to the respondent State.
31.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Pélissier and Sassi, cited above).
32.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
II.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
33.  The applicant complained that the length of his 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.”
A.  Admissibility
34.  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
35.  The applicant’s detention started on 7 October 2002, when he was arrested on suspicion of having committed the above-mentioned crime. On 8 December 2003 the Konotop Court convicted the applicant. 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. Kudla v. Poland [GC], no. 30210/96, § 104, ECHR 2000‑XI).
36.  On 15 April 2004 the Sumy Regional Court of Appeal quashed the applicant’s conviction. Following that date his detention was again covered by Article 5 § 3. It continued until 12 May 2006 when the applicant was again convicted.
37.  Accordingly, the total period to be taken into consideration amounts to three years, two months and twenty-eight days.
2.  Reasonableness of the length of the applicant’s detention on remand
38.  The Government maintained that the domestic authorities had grounds for holding the applicant in custody, given that he was suspected of a serious crime and could abscond from justice and obstruct investigation. They considered that the domestic authorities conducted the investigation with due diligence given the complexity of the case.
39.  The applicant disagreed.
40.  The Court recalls that the issue of whether a period of detention is reasonable cannot be assessed in abstracto. This must be assessed in each case according to its special features, the reasons given in the domestic decisions and the well-documented facts mentioned by the applicant in his applications for release. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among others, Labita v. Italy [GC], no. 26772/95, § 153, ECHR 2000‑IV).
41.  The Court notes that the applicant’s pre-trial detention lasted three years and almost three months. It observes that the seriousness of the charges against the applicant and the risk of his absconding had been advanced in the initial order on the applicant’s detention. Thereafter, the prosecutors and the courts did not advance any grounds whatsoever for maintaining the applicant’s detention, simply stating that the previously chosen preventive measure was correct. However, Article 5 § 3 requires that after a certain lapse of time the persistence of a reasonable suspicion does not in itself justify deprivation of liberty and the judicial authorities should give other grounds for continued detention (see Jablonski v. Poland, no. 33492/96, § 80, 21 December 2000, and I.A. v. France, no. 28213/95, § 102, Reports of Judgments and Decisions 1998-VII). Those grounds, moreover, should be expressly mentioned by the domestic courts (see Iłowiecki v. Poland, no. 27504/95, § 61, 4 October 2001). No such reasons were given by the courts in the present case. Lastly, the Court notes that no alternative preventive measures were effectively considered by the domestic authorities.
42.  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.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
43.  The applicant submitted that the judge of the Konotop Court had no right to sit in his case and that she had allegedly violated his rights guaranteed by Article 6 §§ 1, 3 (c) and (d) of the Convention. The applicant further alleged that in June 2004 he asked the trial court to admit Mr M., the counsel of his co-accused Mr K., as his counsel. However, the request was dismissed. He relied on Article 6 § 3 of the Convention.
44.  The applicant further complained, referring to Articles 6§ 1 and 13 of the Convention about unfairness and the outcome of the proceedings in his case. He also alleged that lack of access to the expert report and refusal by the court to call experts and witnesses in his favour amounted to a violation of his defence rights as guaranteed by Article 6 of the Convention. The applicant submitted that his efforts to institute criminal proceedings against the experts had no success. Lastly, he invoked Article 5 § 1 of the Convention.
45.  Having carefully examined the applicant’s 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.
46.  It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
47.  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
48.  The applicant claimed 120,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. This amount included EUR 100,000 in respect of non-pecuniary damage.
49.  The Government contested this claim.
50.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, ruling on an equitable basis, it awards the applicant EUR 2,600 in respect of non-pecuniary damage.
B.  Costs and expenses
51.  The applicant also claimed 1,000 Ukrainian hryvnias (UAH, about EUR 93) for legal expenses incurred in connection with the domestic proceedings.
52.  The applicant further claimed UAH 6,400 (about EUR 582) in respect of transport expenses, expenses for postage, photocopying, and phone communication. The applicant produced, inter alia, receipts for mailing correspondence and calling to this Court amounting to UAH 313,53 (about EUR 29) and 763,90 Russian roubles (about EUR 19).
53.   The Government did not object to compensate the applicant’s expenses incurred in connection with the proceedings before the Court. They contested the remainder of his claims.
54.  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 considers it reasonable to award the sum of EUR 48 under this head.
C.  Default interest
55.  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.  Declares the complaints concerning the length of pre-trial detention and of criminal proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the criminal proceedings;

3.  Holds that there has been a violation of Article 5 § 3 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months EUR 2,600 (two thousand six hundred euros) in respect of non-pecuniary damage and EUR 48 (forty-eight euros) in respect of costs and expenses, plus any tax that may be chargeable, to be converted into the national 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 20 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Rait Maruste
	Deputy Registrar	President