FIFTH SECTION

CASE OF LIVADA v. UKRAINE

(Application no. 21262/06)

JUDGMENT

STRASBOURG

26 June 2014

This judgment is final but it may be subject to editorial revision.
In the case of Livada v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Angelika Nußberger, President,
	André Potocki,
	Aleš Pejchal, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 3 June 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 21262/06) 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 Vladimir Vitalyevich Livada (“the applicant”), on 3 May 2006.
2.  The applicant, who had been granted legal aid, was represented by Mr T.O. Kalmykov, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent.
3.  On 21 May 2007 the applicant died. His mother, Ms M. Livada, expressed the wish to pursue the application in the applicant’s stead.
4.  On 3 September 2012 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1975 and lived in Balakliya.
6.  On 7 October 2003 the applicant was admitted to hospital to undergo treatment for drug addiction.
7.  On 11 October 2003, in the course of a police operation, an undercover police agent bought a certain amount of cannabis from the applicant when he was in hospital. After the sale was completed it was documented in the presence of two witnesses. The applicant was further searched and some additional quantities of the drug were seized.
8.  On the same day the police officers arrested the applicant under Article 263 of the Administrative Offences Code for a violation of the drug circulation rules. Relying on the provisions of that Code, the police detained the applicant for three days pending the results of an expert examination of the seized drugs.
9.  On 14 October 2003, upon receipt of the expert report confirming that the seized drug was cannabis, the investigator of the Kharkiv Region Police Department decided to arrest the applicant and detain him further under Articles 106 and 115 of the Code of Criminal Procedure, considering that the sale of cannabis in hospital constituted a crime under Article 307 § 2 of the Criminal Code. The applicant was questioned on that day.
10.  On 15 October 2003 the police also opened criminal proceedings against the applicant under Article 309 § 2 of the Criminal Code, noting that on 11 October 2003 they had seized some additional quantities of cannabis from him which he had transported to and kept in the hospital.
11.  On 17 October 2003 the applicant was brought before the Leninskyy District Court of Kharkiv, which ordered his pre-trial detention as a preventive measure. The court noted that the charges against the applicant were serious, that he was not in employment and had committed crimes while being treated in a hospital. For these reasons the court concluded that the applicant might abscond from justice, obstruct the investigation, or reoffend.
12.  On 18 December 2003 the criminal case file arrived at the Kominternivskyy District Court of Kharkiv (“the first-instance court”) for the applicant to be tried.
13.  On 26 December 2003 the first-instance court committed the applicant for trial. It decided that the preventive measure applied in respect of the applicant, namely, custody, should remain the same.
14.  On 4 May 2004 the applicant requested the first-instance court to release him under a written obligation not to abscond.
15.  On 9 June 2004 the first-instance court rejected the applicant’s request. The court noted that there had been no grounds to consider that the reasons justifying the earlier court decision of 17 October 2003 on the applicant’s detention were no longer valid. The applicant’s reference to the illness of his mother and the death of this father was not relevant. Likewise, his acknowledgment of guilt was irrelevant and could only be taken into account for mitigation of sentence.
16.  On 23 December 2004 the first-instance court ruled that the preventive measure in respect of the applicant should remain the same, without specifying the reasons.
17.  On 10 March 2006 the local prosecutor’s office refused to open a criminal investigation in respect of the applicant’s allegations that his initial detention was unlawful.
18.  On 27 April 2006 the applicant lodged a request to have the preventive measure changed. On the same day the first-instance court rejected the request as unfounded. The court noted that there were no grounds to consider that the reasons justifying the earlier court decision of 17 October 2003 on the applicant’s detention were no longer valid; the allegations of the aggravation of the applicant’s health were not confirmed by the materials in the case file and the applicant’s contentions that he was the only source of support for his mother were not convincing.
19.  On 25 May 2006 the applicant and his mother, who had joined the proceedings as the applicant’s defence counsel, lodged a new request for release. The applicant’s mother specified that she could not work for health reasons and the applicant was her only support. On the same day the first-instance court rejected the request, noting that the reasons already given by the court for the applicant’s detention remained valid; the allegations that the applicant was providing support to his mother were not convincing, since at the time of his arrest the applicant had not been in employment, while his mother received a pension; likewise, the applicant could not be released for health reasons as there was no supporting information about his illnesses.
20.  On 25 June 2006 the applicant complained to the Kharkiv Region Court of Appeal (“the Court of Appeal”) arguing that his initial detention had not been lawful.
21.  On 7 and 11 July 2006 the applicant and his mother lodged requests for the release of the applicant with the first-instance court. The applicant’s mother specified that the applicant had been her only support and that his health was seriously deteriorating. The court dismissed the requests on the same days, repeating its earlier findings in respect of similar requests.
22.  On 11 July 2006 the applicant’s mother lodged a complaint with the first-instance court arguing that the applicant’s initial detention under Article 263 of the Code of Administrative Offences, without a court order, had been unlawful.
23.  On 19 July 2006 the Court of Appeal replied to the applicant that his complaint regarding the lawfulness of his initial detention would be considered by the first-instance court in the course of the trial in his criminal case.
24.  On 10 August 2006 the first-instance court found the applicant guilty of the crimes under Articles 307 § 2 and 309 § 2 of the Criminal Code and sentenced him to five years’ imprisonment combined with confiscation of property. The court further found that the applicant’s contentions that his initial detention had been unlawful were unsubstantiated because there had been sufficient grounds to detain the applicant under Article 263 of the Administrative Offences Code. In particular, his detention for the first three days had been justified as the police had been waiting for the expert report confirming that the seized substance was cannabis. The court also decided that the term of the applicant’s imprisonment should be calculated from 11 October 2003.
25.  The applicant appealed against that judgment.
26.  On 10 April 2007 the Court of Appeal upheld the findings of the first-instance court, having amended the reasoning as regards the characteristics of the applicant’s crime under Article 309 § 2 of the Criminal Code. The court further reduced the sentence to three and a half years’ imprisonment.
II.  RELEVANT DOMESTIC LAW
A.  Constitution of 28 June 1996
27.  The relevant part of Article 29 of the Constitution reads as follows:
“... In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of the holding in custody. ...
Everyone who has been detained has the right to challenge his or her detention in court at any time. ...”
B. Criminal Code of 5 April 2001 as worded at the relevant time
28.  Article 307 of the Code provides:
“1. The unlawful production, fabrication, purchase, storage, transport or dispatch of narcotic drugs, psychotropic substances or their analogues with the purpose of trafficking, and the unlawful trafficking of drugs, psychotropic substances or their analogues – are punishable by three to eight years’ imprisonment.
2. The same actions, if committed repeatedly ... or by a person who has committed one of the crimes prohibited by Articles 308 – 310 ... of this Code ..., or if the trafficking of drugs ... was committed in ... public places ..., or if these actions concerned an especially dangerous drug... – are punishable by five to ten years’ imprisonment combined with confiscation of property. ...”
29.  Article 309 of the Code provides:
“1. The unlawful production, fabrication, purchase, storage, transport, or dispatch of narcotic drugs, psychotropic substances or their analogues without the purpose of trafficking – are punishable by restriction of liberty for up to three years or by imprisonment for the same period.
2. The same actions, if committed repeatedly ... or by a person who has committed one of the crimes prohibited by Articles 307, 308, 310, 317 of this Code ... – are punishable by two to five years’ imprisonment ...”
C. Code of Criminal Procedure of 28 December 1960 (in force at the relevant time)
30.  The relevant provisions of that Code can be found in the judgment in the case of Osypenko v. Ukraine (no. 4634/04, § 33, 9 November 2010).
D. Code of Administrative Offences of 7 December 1984 as worded at the relevant time (“the COA”)
31.  Article 44 of the COA prohibits and provides sanctions for the fabrication, purchase, storage, transport, or dispatch of narcotic drugs or psychotropic substances in small quantities without the purpose of trafficking.
32.  Article 260 of the COA lays down the measures which can be applied for the purpose of ensuring that proceedings on an administrative offence can be conducted. Administrative detention is one such measure. Article 261 of the COA provides, inter alia, that in the case of administrative detention a report should be drawn up specifying, among other things, the date, time and reasons for the detention.
33.  Article 263 of the COA provides, inter alia, that anyone who violates drug-circulation rules may be arrested and detained for up to three hours for the purpose of drawing up a report on the administrative offence. However, in order to identify the perpetrator of the offence, subject him to a medical examination, clarify the circumstances of the purchase of the drugs or psychotropic substances and examine them, the detention may be extended for up to three days. In such cases the prosecutor must be informed of the extension in writing within twenty-four hours.
THE LAW
I.  LOCUS STANDI OF Ms M. LIVADA
34.  The Court reiterates that where an applicant dies during the examination of a case his heirs or next of kin may in principle pursue the application on his behalf provided that they have a legitimate interest (see Ječius v. Lithuania, no. 34578/97, § 41, ECHR 2000‑IX and the cases referred to there).
35.  The applicant died on 21 May 2007. His mother, Ms M. Livada, expressed the wish to continue the proceedings in the applicant’s stead. The Government did not challenge the right of Ms M. Livada to pursue the application. The Court considers that the applicant’s mother has a legitimate interest in continuing the proceedings in the present case. The Court will, however, refer to Mr V. Livada as the applicant in the case.
II.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
36.  The applicant complained that his initial detention (between 11 and 17 October 2003) without a court order had been unlawful.
37.  The Court will examine the complaint under Article 5 § 1 of the Convention, which provides, in so far as relevant, as follows:
Article 5
“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
38.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
1. The parties’ submissions
39.  The Government submitted that the applicant’s detention between 11 and 17 October 2003 had been compatible with Article 5 § 1 of the Convention. In particular, on 11 October 2003 the applicant was arrested and detained under Article 263 of the Code of Administrative Offences. Further, between 14 and 17 October 2003, the applicant was detained on the basis of the decision of the investigator exercising his power to arrest and detain him under Articles 106 and 115 of the Code of Criminal Procedure. The Government emphasised that between 11 and 14 October 2003 the applicant had not been questioned and had not been involved in any investigatory actions.
40.  The applicant argued that his arrest and detention between 11 and 14 October 2003 had not been documented as required by the COA. He further argued that from the very beginning the sale of drugs to the undercover agent should have been classified as a crime and, consequently, from the very beginning his arrest and detention should have been conducted under the Code of Criminal Procedure. In that regard he specified that Article 44 of the COA did not deal with drug trafficking. Therefore, his administrative detention, allegedly effected for the purpose of conducting proceedings in an administrative case, was unlawful and arbitrary.
41.  The applicant further argued that his arrest and detention as a criminal suspect between 14 and 17 October 2003 on the basis of the investigator’s decision was not lawful either, since by that time the applicant had been detained for several days and there had been no urgency in arresting him without a court order. He argued therefore that the conditions specified in the Code of Criminal Procedure under which a suspect could be arrested without a court order had not been met.
2. The Court’s assessment
42.  The Court reiterates that, in proclaiming the right to liberty, paragraph 1 of Article 5 contemplates the physical liberty of the person, and its aim is to ensure that no one should be deprived of this liberty in an arbitrary fashion (see Creangă v. Romania [GC], no. 29226/03, § 84, 23 February 2012). The list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision (see Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 96, ECHR 2006‑XI, with further references).
43.  In the present case the authorities found that between 11 and 14 October 2003 the applicant was detained on the basis of Article 263 of the COA, as the police had to wait for the results of the expert examination of the seized drugs. It was, allegedly, a measure to ensure the administrative proceedings. Nevertheless, no document has been provided to show that administrative proceedings were opened against the applicant and in respect of which administrative offence they were conducted. With regard to the administrative detention itself, no report on its application was provided. In these circumstances it cannot be concluded that the administrative detention of the applicant was lawfully applied.
44.  It further appears that the applicant’s alleged administrative detention was in reality a means to ensure his availability for further criminal proceedings without seeking judicial authorisation for his detention for a longer period of time. Indeed, in the next period, between 14 and 17 October 2003, the applicant’s detention was not based on a court order, but a decision of the investigator, who considered that there were grounds to arrest and detain the applicant as a suspect in a criminal case. As a result, for the whole period between 11 and 17 October 2003 the applicant’s detention was not based on a court order. After having convicted the applicant, the national court decided that his term of imprisonment for the criminal offences was to be calculated as from 11 October 2003.
45.  The Court has found on many occasions that the use of administrative detention to ensure an individual’s availability for further criminal proceedings amounts to an arbitrary deprivation of liberty (see Doronin v. Ukraine, no. 16505/02, § 56, 19 February 2009; Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, § 88, 24 June 2010; Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 178, 21 April 2011 and Kvashko v. Ukraine, no. 40939/05, § 68, 26 September 2013). The Court considers that these conclusions are pertinent in the present case. The fact that there was no questioning or investigatory action between 11 and 14 October 2003 cannot justify the applicant’s deprivation of liberty at that time.
46.  The foregoing considerations are sufficient for the Court to conclude that there has been a violation of Article 5 § 1 of the Convention.
III.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
47.  The applicant complained that the length of his pre-trial detention had been unreasonable.
48.  The Court decided to examine the complaint under Article 5 § 3, which provides as follows:
“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.”
A.  Admissibility
49.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
1. The parties’ submissions
50.  The Government submitted that the courts took into account not only the gravity of the charges against the applicant but also other factors, and provided reasons for his pre-trial detention which were relevant and sufficient.
51.  The applicant insisted that the overall length of his pre-trial detention had been excessive and that the courts had failed in their obligations under Article 5 § 3 of the Convention.
2. The Court’s assessments
52.  Article 5 § 3 of the Convention requires that justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities. The arguments for and against release, including the risk that the accused might hinder the proper conduct of the proceedings, must not be taken in abstracto, but must be supported by factual evidence. The danger of an accused’s absconding cannot be gauged solely on the basis of the severity of the sentence risked. It must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify detention pending trial (see Becciev v. Moldova, no. 9190/03, §§ 56 and 59, 4 October 2005, with further references).
53.  The Court notes that the applicant’s pre-trial detention lasted for about two years and ten months. The decisions on the applicant’s detention were couched in general terms. They do not suggest that the courts made an appropriate assessment of the facts relevant to the question whether such a preventive measure was necessary in the circumstances. Moreover, with the passage of time the applicant’s continued detention required more justification, but the courts did not provide any further reasoning in that respect.
54.  The Court has often found violations of this Convention provision in respect of Ukraine in similar circumstances (see, for example, Doronin, cited above, §§ 63-64, Osypenko v. Ukraine, no. 4634/04, §§ 76-80, 9 November 2010, Kharchenko v. Ukraine, no. 40107/02, §§ 79-81, 99 and 101, 10 February 2011). It 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.
55.  There has therefore been a violation of Article 5 § 3 of the Convention.
IV.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
56.  The applicant further complained under Article 5 § 4 of the Convention that his requests to have the preventive measure changed had not been properly examined.
57.  Article 5 § 4 of the Convention provides 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
58.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
1. The parties’ submissions
59.  The Government maintained that effective procedures to challenge the preventive measure had been available to the applicant and that he had made use of those procedures.
60.  The applicant disagreed.
2. The Court’s assessment
61.  The Court has already found that Ukrainian law, as it stood at the relevant time, did not provide a procedure for reviewing the lawfulness of continued detention after the completion of pre-trial investigations that satisfied the requirements of Article 5 § 4 of the Convention (see Molodorych v. Ukraine, no. 2161/02, § 108, 28 October 2010; Pleshkov v. Ukraine, no. 37789/05, § 42, 10 February 2011; Kharchenko, cited above, § 100; Tsygoniy v. Ukraine, no. 19213/04, § 78, 24 November 2011; and Taran v. Ukraine, no. 31898/06, § 81, 17 October 2013). It considers that the same findings are pertinent in the present case.
62.  There has therefore been a violation of Article 5 § 4 in this respect.
V.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
63.  The applicant complained of other violations of his rights by the domestic authorities.
64.  The Court has examined these complaints and considers that, in the light of all the material in its possession and 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 or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
65.  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
66.  The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.
67.  The Government submitted that the claim was excessive and unfounded.
68.  The Court considers that the applicant must have suffered distress and anxiety on account of the violations found. Ruling on an equitable basis, as required by Article 41 of the Convention, it awards the applicant EUR 10,000 in respect of non-pecuniary damage.
B.  Costs and expenses
69.  The applicant also claimed EUR 3,300 for the costs and expenses incurred before the Court.
70.  The Government considered that the claim was not properly substantiated.
71.  Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award, in addition to the legal aid granted, the sum of EUR 500 for costs and expenses for the proceedings before the Court. The latter amount is to be paid directly into the bank account of the applicant’s representative (see, for example, Hristovi v. Bulgaria, no. 42697/05, § 109, 11 October 2011, and Singartiyski and Others v. Bulgaria, no. 48284/07, § 54, 18 October 2011).
C.  Default interest
72.  The Court considers it appropriate that the default interest rate 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 under Articles 5 §§ 1, 3 and 4 of the Convention admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 5 § 1 of the Convention;

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

4.  Holds that there has been a violation of Article 5 § 4 of the Convention;

5.  Holds
(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the bank account of the applicant’s lawyer, Mr. T. Kalmykov;
(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;

6.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 26 June 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Angelika Nußberger
	Deputy Registrar	President