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FIFTH
SECTION
CASE OF SLYUSAR v. UKRAINE
(Application
no. 34361/06)
JUDGMENT
STRASBOURG
8 March
2012
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 Slyusar v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel
Jungwiert,
Boštjan M. Zupančič,
Mark
Villiger,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 14 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34361/06) 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 Dmytro Sergiyovych
Slyusar (“the applicant”), on 1 August 2006.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Ms Valeria Lutkovska.
- The
applicant alleged that the principle of equality of arms had not been
respected in the proceedings brought by him concerning the lawfulness
of his detention.
- On
2 November 2010 the application was communicated to the Government.
It was also decided to rule on its admissibility and merits at the
same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1981 and lives in Hurstville, Australia.
- On 24 February 2006 the applicant, who lived in Ukraine
at the time, was detained by the Kyiv police on suspicion of murder.
On 27 February 2006 he was released.
- On 1 March 2006 the applicant complained to the
Pecherskyy District Court of Kyiv (“the Pecherskyy Court”)
that his detention had been unlawful.
- On 20 March 2006 the Pecherskyy Court rejected his
complaint. Its ruling was delivered following a hearing with the
participation of the applicant and his lawyer on one side and the
prosecutor on the other. The prosecutor advocated rejecting the
complaint on the ground that the applicant’s detention had been
in compliance with the criminal procedural legislation.
- The applicant appealed.
- On 17 April 2006 the Kyiv City Court of Appeal
informed him that the hearing in his case would take place on 8 June
2006.
- However, when the applicant appeared in court on that
date, he found out that the hearing had already been conducted, on 18
May 2006, and that his appeal had been rejected. As noted in the
appellate court’s ruling of 18 May 2006, the prosecutor had
been present and had pleaded the case.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that his appeal in the proceedings concerning
the lawfulness of his detention had been considered in his absence,
whereas the prosecutor had been in attendance. He relied on
Articles 5 § 4 and 6 § 1 of the Convention which read
as follows in their relevant part:
“Article 5 § 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. ...
Article 6 § 1
In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled to a fair
and public hearing ... by [a] ... tribunal ...”
A. Admissibility
- The Court notes at the outset that the proceedings in
question were conducted after the applicant’s release, which
means that Article 5 § 4 was no longer applicable (see
Reinprecht v. Austria, no. 67175/01, § 51,
ECHR 2005 XII). This circumstance in itself is however not
an obstacle to the examination of the application under Article 6 §
1 of the Convention also relied on by the applicant (see Lazoroski
v. “the former Yugoslav Republic of Macedonia”, no.
4922/04, § 66, 8 October 2009).
- The
Government considered that Article 6 § 1 of the Convention was
not applicable either, be it under its civil or criminal head. They
argued that the application was therefore incompatible ratione
materiae with the Convention.
- As
regards the criminal head of Article 6, the Government referred to
the judgment in the case of Reinprecht (cited above), in which
the Court held that “applying Article 6 to the proceedings
reviewing the lawfulness of pre-trial detention would be against its
wording as their subject matter is not the “determination of a
criminal charge” (§ 48). The Government contended that the
proceedings in the present case similarly did not concern the
determination of a criminal charge against the applicant.
- As
to the civil head of Article 6, the Government argued that the
present case had to be distinguished from Aerts v. Belgium
(judgment of 30 July 1998, Reports 1998 V) in that
the present proceedings exclusively concerned the lawfulness of the
applicant’s detention and did not involve any claim for
damages.
- The
applicant did not comment on the Government’s objection as to
the admissibility of the application within the set time-limit.
- The
Court agrees with the Government’s objection as to the
applicability of Article 6 § 1 of the Convention under the
criminal head. It remains to be seen however whether the proceedings
fall under its civil head.
- The
Court notes that, in its judgment on the case of Aerts cited
by the Government, it found that Article 6 § 1 applied under its
civil head to proceedings concerning the lawfulness of deprivation of
liberty, as “the right to liberty is a civil right” (§
59). In the cited case the applicant had been detained as a person of
unsound mind. Following his release, he had requested legal aid in
order to challenge the courts’ assessment of the lawfulness of
his detention and to seek compensation.
- The
Court does not accept the Government’s proposal to distinguish
the present case and to interpret Aerts, despite the general
wording, as only meaning that the civil head of Article 6 applied to
proceedings concerning compensation for allegedly unlawful detention.
Thus, in two cases subsequent to Aerts, which also concerned
proceedings relating to the lawfulness of detention, the Court found
Article 6 to be applicable under its civil head with reference to
Aerts (see Vermeersch v. France (dec.), no. 39277/98,
30 January 2001, and Laidin v. France (no. 2), no.
39282/98, §§ 73-76, 7 January 2003). In both those cases
the Court explicitly dismissed the Government’s objection of
incompatibility ratione materiae, despite the fact that some
of the proceedings in issue concerned only the lawfulness of the
detention, without involving any related pecuniary claims. The Court
reiterated this position in Reinprecht (cited above, §
50), with reference to the aforementioned two cases.
- Accordingly,
the fact that the applicant did not bring any claim for damages in
the present case does not rule out the applicability of Article 6 § 1
of the Convention to the proceedings concerning the lawfulness of his
detention.
- The
Court notes that, having brought the proceedings in question, the
applicant sought a judicial declaration that his detention as a
murder suspect had been unlawful. Therefore, his civil right to
liberty was at stake (see Aerts, cited above, § 59, and
Shulepova v. Russia, no. 34449/03, § 60, 11 December
2008).
- This
consideration is sufficient for the Court to conclude that Article 6
§ 1 of the Convention is applicable under its civil head to the
proceedings complained of.
- The
Court therefore rejects the Government’s objection on the basis
of incompatibility of the application ratione materiae with
the Convention.
- It
further notes that 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
Government argued that the appellate court did not require the
applicant’s presence for it to adjudicate, in a comprehensive
and fair manner, his appeal on the basis of the case file alone. They
further noted that the prosecutor had not brought forward any new
arguments at that stage.
- The
applicant did not comment on the Government’s observations
within the set time-limit.
- The
Court notes that the requirement of equality of arms, in the sense of
a “fair balance” between the parties, applies to both
criminal and civil cases (see Dombo Beheer B.V. v. the
Netherlands, 27 October 1993, §§ 32-33, Series A,
no. 274).
- As
one of the elements of the broader concept of a fair trial, this
principle requires each party to be given a reasonable opportunity to
present his case, under conditions that do not place him at a
substantial disadvantage vis-à-vis his opponent. This
implies, in principle, an opportunity for the parties to a trial to
have knowledge of and comment on all evidence adduced or observations
submitted, even by an independent member of the national legal
service, with a view to influencing the court’s decision (see
Kress v. France [GC], no. 39594/98, §§ 72 and
74, ECHR 2001-VI).
- The
requirement of equality of arms would however be devoid of substance
if a party to the case were not notified of the hearing in such a way
as to have an opportunity to attend it, should he or she decide to
exercise a right to appear established in domestic law (see
Zagorodnikov v. Russia, no. 66941/01, § 30, 7 June
2007, and Fyodorov and Fyodorova v. Ukraine, no.
39229/03, § 99, 7 July 2011).
- Turning
to the present case, the Court is satisfied that the prosecutor acted
as the applicant’s adversary in the proceedings in question,
even though those were of a civil nature within the meaning of
Article 6 § 1 of the Convention and did not concern the
determination of a criminal charge against the applicant (see
paragraphs 8 and 23 above and, for comparison, Zhuk v. Ukraine,
no. 45783/05, § 30, 21 October
2010).
32. The
Court notes that the appellate court examined the applicant’s
appeal after hearing the prosecutor’s arguments, while the
applicant, who had been given a wrong date of the hearing, was not
able to contest those arguments or to make his own submissions.
33. The
Court therefore considers that the applicant’s absence from the
hearing before the Kyiv City Court of Appeal was
in breach of the principle of equality of arms guaranteed by Article
6 § 1 of the Convention.
34. There
has therefore been a violation of this provision.
II. 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.”
- The
applicant did not submit a claim for just satisfaction within the
established time-limit. Accordingly, the Court considers that there
is no call to award him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention.
Done in English, and notified in writing on 8 March 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann Registrar President
