GAL v. UKRAINE - 6759/11 - Chamber Judgment [2015] ECHR 389 (16 April 2015)

In the case of Gal v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Mark Villiger, President,
          Angelika Nußberger,
          Boštjan M. Zupančič,
          Ganna Yudkivska,
          Vincent A. De Gaetano,
          André Potocki,
          Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 24 March 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 6759/11) 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 Oleksandr Arkadiyovych Gal (“the applicant”), on 19 January 2011.

2. The applicant was represented by Mr O.V. Khrapach, a lawyer practising in Poltava. The Ukrainian Government (“the Government”) were represented by their then Agent, Mr N. Kulchytskyy, from the Ministry of Justice.

3. On 3 July 2012 the application was declared partly inadmissible and the complaints concerning the lawfulness of the applicant’s detention and the promptness and effectiveness of the scrutiny of such lawfulness were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1961 and lives in Poltava.

5. The applicant is a private entrepreneur in the food supply sector.

6. Since November 2009 the Poltava Regional Police Department has been investigating a number of apparent offences related to forgery of food quality certificates and supply of overpriced foodstuffs for school catering in the city of Poltava. As part of this investigation the police ran checks on the applicant’s business and questioned his associates and family members.

7. On 3 November 2010 the police instituted criminal proceedings against the applicant in the context of an investigation of unlawful food supply price increases.

8. On 5 November 2010 the applicant was arrested by the police on suspicion of a financial offence. A record of his arrest was drawn up between 2.45 and 3.30 p.m. on that day.

9. On 8 November 2010 the applicant was taken to the Poltava Oktyabrsky District Court (hereinafter “the District Court”), which remanded him in custody for up to ten days under Article 165-2 of the Code of Criminal Procedure (see paragraph 19 below) without giving any specific reasons for this decision. According to the applicant, the hearing started at 2.55 p.m. and the decision was taken only at 4 p.m., when the maximum period of detention without a court decision (seventy-two hours) permitted under domestic law had expired. The applicant’s lawyer lodged a formal complaint with the judge about unlawful arrest and detention. That complaint was not examined that day.

10. On the same day the police instituted two more sets of proceedings against the applicant on suspicion of other counts of the same crime.

11. On 9 November 2010 the applicant’s lawyer submitted to the court a further complaint about unlawful detention, in addition to the one he had submitted on the date of the hearing (see paragraph 9 above).

12. On 15 November 2010 the District Court remanded the applicant in custody with no maximum duration and on the basis of standard reasoning, referring to gravity of charges, risk of interference with investigation, and personal characteristics without any further explanation. In a separate ruling it rejected the applicant’s lawyer’s complaint (see paragraph 9 above) that from 2.45 p.m. onwards on 8 November 2010 his detention had been unlawful. It noted “Documents [attached] to the application [for a warrant for the applicant’s arrest] refute the allegations regarding the detention of [Mr] Gal O.A. in terms that are not provided by law.”

13. On 23 November 2010 the Poltava Regional Court of Appeal upheld the decision of the first-instance court. In reply to the lawyer’s complaint about the failure to release the applicant after seventy-two hours of initial detention without a court order, the appellate court noted that on 8 November 2010 the applicant’s detention had been extended for up to ten days.

14. On 29 December 2010 the District Court extended the applicant’s detention for up to three months, i.e. until 5 February 2011, on the grounds that the applicant might avoid justice, obstruct the investigation and continue his criminal activities, and that it was necessary to ensure the implementation of procedural decisions.

15. On 18 January 2011 the Poltava Regional Court of Appeal upheld the decision of the first-instance court.

16. On 3 February 2011 the criminal case against the applicant was referred to the court and was received by that court on 4 February 2011. Twenty days later the prosecution authorities called the case back to correct certain shortcomings. On 25 February 2011 the court returned the case to the prosecutor, who sent the case back to the court on the same day.

17. On 25 March 2011 the Poltava Leninskiy District Court examined the application for release lodged by the applicant’s lawyer and allowed it. The applicant’s pre-trial detention was replaced by an obligation not to abscond.

II. RELEVANT DOMESTIC LAW

A. Constitution of Ukraine 1996

18. The relevant provision of the Constitution reads as follows:

Article 29

“Every person has the right to freedom and personal inviolability.

No one shall be arrested or held in custody other than pursuant to a reasoned court decision, and only on grounds and in accordance with a procedure established by law.

In the event of an urgent need 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 established 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 time of detention, with a reasoned court decision in respect of the holding in custody.

Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the time of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel.

Everyone who has been detained has the right to challenge his or her detention in court at any time.

Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.”

B. Code of Criminal Procedure 1960 (with amendments)

19. The relevant provisions of the Code read as follows:

Article 106
Detention of a criminal suspect by an investigating body

“An investigating body shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds:

1. if the person is discovered whilst or immediately after committing an offence;

2. if eyewitnesses, including victims, directly identify this person as having committed the offence;

3. if clear traces of the offence are found on the body of the suspect or on the clothing he is wearing or which is kept at his home.

For each case of detention of a criminal suspect, the investigating body shall be required to draw up a record mentioning the grounds, the motives, the day, time, year and month, the place of detention, the explanation given by the person detained and the time when it was recorded that the suspect was informed of his right to consult defence counsel in person before he is questioned, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The record of detention shall be signed by the person who drew it up and by the detainee.

A copy of the record with a list of his rights and obligations shall be immediately handed to the detainee and shall be sent to the prosecutor. At the request of the prosecutor, the material which served as a ground for detention shall be sent to him as well ...

Within seventy-two hours of the arrest the investigating body shall:

(1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of detention established by law has expired, or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article;

(2) release the detainee and select a non-custodial preventive measure;

(3) bring the detainee before a judge with a request for a custodial preventive measure to be imposed on him or her.

If the detention is appealed against to a court, the detainee’s appeal shall be immediately sent by the head of the detention facility to the court. The judge shall consider the appeal together with any request by the investigating body for the preventive measure. If the appeal is received after the preventive measure has been applied, the judge shall examine it within three days of receiving it. If the request has not been received, or if the appeal has been received after the term of seventy-two hours of detention, the appeal shall be considered by the judge within five days of receiving it.

The appeal shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring the detention lawful or allowing the appeal and finding the detention to be unlawful.

The judge’s ruling may be appealed against within seven days of the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court’s ruling.

Detention of a criminal suspect shall not last for more than seventy-two hours.

If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up a record to that effect, and shall inform the official or body that carried out the arrest accordingly.”

Article 165-2
Procedure for the selection of a preventive measure

“... In the event that the investigating body or investigator considers that there are grounds for selecting a custodial preventive measure, with the prosecutor’s consent he shall lodge an application with the court. The prosecutor is entitled to lodge an application to the same effect. In determining this issue, the prosecutor shall be obliged to familiarise himself with all the material evidence in the case that would justify placing the person in custody, and to establish that the evidence was obtained in a lawful manner and is sufficient for charging the person.

The application shall be considered within seventy-two hours of the time at which the suspect or accused is detained ...

Upon receiving the application, the judge shall examine the material in the criminal case file submitted by the investigating bodies or the investigator. A prosecutor shall question the suspect or accused and, if necessary, hear evidence from the person who is the subject of the proceedings, obtain the opinion of the previous prosecutor or defence counsel, if the latter appeared before the court, and issue an order:

(1) refusing to select a custodial preventive measure if there are no grounds for doing so;

(2) selecting a custodial preventive measure.

The court shall be entitled to select a non-custodial preventive measure for the suspect or accused if the investigator or prosecutor refuses to apply a custodial preventive measure.

The judge’s order may be appealed against to the court of appeal by the prosecutor, suspect, accused or his or her defence counsel or legal representative, within three days of the date on which it was made. The lodging of an appeal shall not suspend the execution of the judge’s order.

If the selection of the preventive measure for the detained person requires further examination of information about that person, or if other circumstances relevant to the decision on this matter need to be established, the judge may issue a decision to continue the detention for up to ten days, and, at the request of the suspect or accused, for up to fifteen days. Where such a need arises in respect of a person who has not been apprehended, the judge may postpone the hearing for up to ten days and take measures which would ensure that person’s cooperation or issue a decision to detain a suspect or an accused for that period of time.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

20. The applicant complained under Article 5 §§ 1 and 3 of the Convention that his detention had been unlawful and unreasonable, and that he had not been brought promptly before the court after his arrest. He further complained under Article 5 § 4 and Article 13 that his complaint concerning unlawfulness of his detention had not been examined promptly. The Court considers that the latter complaint falls to be examined solely under Article 5 § 4 of the Convention, which provides a lex specialis in relation to the more general requirements of Article 13 (see Amie and Others v. Bulgaria, no. 58149/08, § 63, 12 February 2013).

The relevant part of Article 5 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 ...

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 bring 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

21. 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 §§ 1 and 3 of the Convention

22. The Court notes that the applicant’s complaint under Article 5 § 1 (c) with respect to the initial period of his detention, that is prior to the judicial review, is coupled with his complaint under Article 5 § 3 about his being brought to court after the maximum statutory period of detention without a court order had already expired. The Court reiterates that Article 5 § 1 (c) of the Convention must be read in conjunction with Article 5 § 3, which forms a whole with it, and that the complaint at issue may be considered under both provisions simultaneously (see, mutatis mutandis, Korneykova v. Ukraine, no. 39884/05, § 38, 19 January 2012. The Court will therefore examine these complaints of the applicant under both aforementioned provisions together.

23. The applicant submitted that he had been held in detention without a judicial decision for more than seventy-two hours and the prosecuting authorities had brought him to court after the above maximum period of detention without a court order allowed under domestic law had already expired, in violation of the Convention and the domestic law. Therefore he considered the court’s decision on his arrest to be unlawful. He further maintained that there had been no reasonable suspicion or other grounds for holding him in custody.

24. The Government noted that the applicant had been brought to the court seventy-two hours and ten minutes after his actual arrest. Article 106 of the Code of Criminal Procedure provided that the authorities had seventy-two hours to bring an arrested person to the court and in the present case they had been ten minutes late in delivering the applicant to the judge. In this connection, they referred to the case of Taş v. Turkey (no. 24396/94, § 86, 14 November 2000), in which the Court stated that only exceptionally could periods of more than four days before release or appearance before the judiciary be justified under Article 5 § 3. The Government submitted that the applicant had been brought before the judge within less than four days, and therefore it had been compatible with the requirements of the Convention. At the same time the ten-minute delay in bringing him to court was insignificant, and could not be considered a violation of the principle of bringing an accused person promptly before a judge. They concluded that there had been no violation of the applicant’s rights under Article 5 § 3.

25. As to the applicant’s complaint about unlawfulness of his detention between 2.45 and 4 p.m. on 8 November 2010, the Government noted that it had been examined by the domestic courts and had been found unsubstantiated (see paragraph 12-13 above). The Government maintained that the applicant’s detention had been lawful, as there had been valid grounds for his arrest and detention established by the domestic courts. They stressed that the applicant’s detention during the period in question could not automatically imply a violation of Article 5 § 1 of the Convention, as this had not constituted a “gross and obvious irregularity” (see Mooren v. Germany [GC], no. 11364/03, § 84, 9 July 2009). They submitted that the judicial review of the applicant’s detention more than seventy-two hours after his arrest had not caused any arbitrariness, as it had not affected the existence of clear and sufficient grounds for application of such a preventive measure to the applicant. They concluded that the applicant’s detention between 2.45 and 4 p.m. on 8 November 2010 had been in compliance with Article 5 § 1 of the Convention.

26. The Court emphasises that Article 5 of the Convention guarantees the fundamental right to liberty and security, which is of primary importance in a “democratic society” within the meaning of the Convention. All persons are entitled to the protection of that right, that is to say not to be deprived, or to continue to be deprived, of their liberty, save in accordance with the conditions specified in Article 5 § 1. The list of exceptions set out in the aforementioned provision is an exhaustive one, and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his or her liberty (see Khayredinov v. Ukraine, no. 38717/04, § 26, 14 October 2010, with further references). No detention which is arbitrary can be compatible with Article 5 § 1, the notion of “arbitrariness” in this context extending beyond a lack of conformity with national law. As a consequence, a deprivation of liberty which is lawful under domestic law can still be arbitrary and thus contrary to the Convention, in particular where there has been an element of bad faith or deception on the part of the authorities (see Mooren, cited above, §§ 72, 77 and 78, with further references) or where such deprivation of liberty was not necessary in the circumstances (see Nešťák v. Slovakia, no. 65559/01, § 74, 27 February 2007). The Court reiterates that when the maximum period of detention is absolute, laid down by the law, and thus known in advance, the authorities responsible for the detention are under a duty to take all necessary precautions to ensure that the permitted duration is not exceeded (see K.-F. v. Germany, 27 November 1997, § 72, Reports of Judgments and Decisions 1997-VII).

27. The Court further reiterates that prompt judicial scrutiny is an essential feature of the guarantee embodied in Article 5 § 3, which is intended to minimise the risk of arbitrariness and to secure the rule of law, one of the fundamental principles of a democratic society (see Brogan and Others v. the United Kingdom, 29 November 1988, § 58, Series A no. 145-B). While promptness has to be assessed in each case according to its specific features (see, among other authorities, Aquilina v. Malta [GC], no. 25642/94, § 48, ECHR 1999-III), the strict time constraint imposed by this requirement of Article 5 § 3 leaves little flexibility in interpretation, otherwise there would be a serious weakening of a procedural guarantee, to the detriment of the individual and risking impairing the very essence of the right protected by this provision (see McKay v. the United Kingdom [GC], no. 543/03, § 33, ECHR 2006-X).

28. The Court notes that the relevant provisions of the Constitution of Ukraine and the Code of Criminal Procedure clearly provide that the maximum period of detention without a judicial decision is seventy-two hours, during this period the relevant authorities must present an apprehended person to a member of the judiciary (see paragraphs 18 and 19 above). In the present case, the applicant claimed that he had been deprived of his liberty for more than the said period before the court had ordered his detention. Neither the domestic authorities within the criminal proceedings against the applicant, nor the Government in the proceedings before this Court, denied that the applicant had been held in detention for more than seventy-two hours without a judicial decision. The domestic courts merely replied to the applicant’s complaints by saying that they did not discern any violation in this respect, without giving any details. For the Court, however, it is clear that this guarantee against arbitrariness of detention, enshrined in the Constitution, was not respected in the present case, and the authorities made no attempt to acknowledge this breach or to provide any explanation as to the reason for it. In this respect, the Court considers that the case-law quoted by the Government shall not be understood as requiring no justification whatsoever for a period of less than four days between the applicant’s arrest and his appearance before the judge. The foregoing considerations are sufficient to enable the Court to conclude that the applicant’s detention outside the seventy-two-hour period without a court decision rendered such detention both arbitrary and unlawful. Furthermore, it considers that by failing to bring the applicant before the judiciary within the time-limit envisaged by the domestic law, and also by failing to provide any justification for the delay, the domestic authorities fell short of the requirements of Article 5 § 3.

There has accordingly been a violation of Article 5 §§ 1 and 3 of the Convention in respect of the applicant’s initial detention prior to judicial review.

2. Article 5 § 1 of the Convention

29. The Court notes that the applicant’s further pre-trial detention can be divided into several periods; it will examine their compatibility with the requirements of Article 5 § 1 consecutively.

(a) Lawfulness of the applicant’s detention between 8 and 15 November 2010

30. The applicant considered his further detention to be equally unlawful.

31. The Government maintained that the domestic court had extended the applicant’s detention for up to ten days on the basis of a clear provision in the domestic legislation, namely Article 165-2 of the Code of Criminal Procedure. In its decision the domestic court considered that certain matters had to be established, and took into account that the applicant might obstruct the establishment of truth in the case, hide assets obtained through criminal activities, and destroy pieces of evidence. In the Government’s opinion, the applicant’s detention during this period was lawful, necessary and free of arbitrariness.

32. The Court notes that when the applicant was taken to court he was not remanded in custody, but his detention was extended for up to ten days with reference to Article 165-2 of the Code of Criminal Procedure, which provided that a court might extend a person’s detention for up to ten days (and up to fifteen days at the request of the suspect or accused) in order to study all the information necessary to take a balanced decision on the person’s detention. The Court has previously held that an extension under Article 165-2 may be justified in particular circumstances where the court requires time to establish the person’s identity and collect other information crucial for taking a decision on his or her pre-trial detention. At the same time, the Court noted that the reasons not to release the person should be compelling (see Barilo v. Ukraine, no. 9607/06, § 93, 16 May 2013). In the present case no reasons for such an extension were advanced by the national court in its decision of 8 November 2010, and therefore the decision in question must be considered arbitrary and unjustified (see and compare Barilo, cited above, §§ 91-98).

33. The Court thus considers that the applicant was detained in breach of Article 5 § 1 of the Convention between 8 and 15 November 2010.

(b) Lawfulness of the applicant’s detention between 15 November and 29 December 2010

34. The applicant considered his detention unlawful.

35. The Government submitted that during the period in question the applicant’s detention was covered by the judicial decision of 15 November 2010. They pointed out that under the Code of Criminal Procedure pre-trial detention could not last for more than two months; thus, the validity of the detention order could not exceed the above period. They concluded that the clearly defined term had been applied, and thus there had been no violation of the applicant’s rights under Article 5 § 1 of the Convention during the period in question.

36. The Court reiterates that the practice whereby a person may be detained for an unlimited and unpredictable time without the detention being based on a specific legal provision or on any judicial decision is in itself contrary to the principle of legal certainty, a principle which is implied in the Convention and which constitutes one of the basic elements of the rule of law (see Baranowski v. Poland, no. 28358/95, §§ 55-56, ECHR 2000-III; Kawka v. Poland, no. 25874/94, § 51, 9 January 2001; and Feldman v. Ukraine, nos. 76556/01 and 38779/04, § 73, 8 April 2010).

37. The Court has previously found court orders made during a trial which fix no time-limits for further detention to be one of the recurrent problems in the case-law against Ukraine (see Kharchenko v. Ukraine, no. 40107/02, § 98, 10 February 2011). In the present case, however, the court order was made at the pre-trial stage, at which the national courts usually fix the time-limit for further extension. The Government noted that the domestic court did not have the right to order detention at that stage for a period longer than two months. In the Court’s opinion the failure of the court to indicate a time-limit, even when the maximum possible duration of detention is known, does not eliminate the elements of arbitrariness and uncertainty in which the applicant had found himself during the period in question. Moreover, the court decision seems to reiterate a standard set of grounds for the applicant’s detention without any examination of the plausibility of such grounds in the circumstances of the applicant’s particular situation (see, mutatis mutandis, Kharchenko v. Ukraine, cited above, §§ 75 and 85).

38. There has accordingly been a violation of Article 5 § 1 of the Convention in respect of this period of the applicant’s detention too.

39. The applicant considered his detention unlawful.

40. The Government noted that on 29 December 2010 the court extended the applicant’s detention until 5 February 2011. On 3 February 2011 the criminal case against the applicant was referred to the court and was received by that court on 4 February 2011. Twenty days later the prosecution authorities called the case back to correct certain shortcomings. On 25 February 2011 the court returned the case to the prosecutor, who sent the case back to the court on the same day. The Government submitted that during the period in question the applicant’s case had been referred to the trial court, which had to decide on the issue of the applicant’s detention. They stressed that there had thus been lawful grounds for the applicant’s detention during the period in question.

41. The Court has already examined and found a violation of Article 5 § 1 of the Convention in a number of cases concerning the practice of holding defendants in custody solely on the basis of the fact that a bill of indictment has been submitted to the trial court. It has held that the practice of keeping defendants in detention without a specific legal basis or clear rules governing their situation - with the result that they may be deprived of their liberty for an unlimited period without judicial authorisation - is incompatible with the principles of legal certainty and protection from arbitrariness, which are common threads throughout the Convention and the rule of law (see Kharchenko, cited above, §§ 71, 72 and 98)).

42. Therefore, the period of the applicant’s detention between 5 February and 25 March 2011 was not in accordance with Article 5 § 1 of the Convention.

(d) Overall conclusion

43. The Court finds a violation of Article 5 § 1 of the Convention in respect of the applicant’s detention, namely from 8 November through 29 December 2010 and between 5 February and 25 March 2011 (see paragraphs 30-42 above).

3. Article 5 § 4 of the Convention

44. The applicant maintained that on 8 November 2010, while examining the request for the applicant’s detention, the judge received a complaint from the applicant’s lawyer concerning unlawfulness of his arrest and detention, but failed to examine it immediately within those proceedings; he did so only during the next sitting, on 15 November 2010.

45. The Government noted that on 9 November 2010 (8 November 2010 according to the applicant and to the Government’s own submissions in their reiteration of the relevant facts) the applicant’s counsel lodged a complaint of unlawful detention and of an unlawful decision on 8 November 2010. The said complaint was considered on 15 November 2010 and dismissed. Thus, the applicant’s complaint was examined within seven days. This period, in the Government’s opinion, complied with the requirement of promptness under Article 5 § 4 of the Convention. They further noted that on 8 November 2010 the judicial authority reviewed the lawfulness of the applicant’s detention, thus satisfying the main requirement of this provision of the Convention. In their opinion, in the light of that review, any issue of unlawful arrest and detention between 5 and 8 November 2010 had lost its urgency. Furthermore, the Government considered that only the said period and not the applicant’s continued detention could be the subject of a review under the complaint of 9 November 2010, and therefore could not lead to the applicant’s release. They maintained that the applicant’s complaints had been reviewed in accordance with Article 5 § 4 of the Convention.

46. The Court reiterates that Article 5 § 4 of the Convention, in guaranteeing to detained persons a right to institute proceedings to challenge the lawfulness of their deprivation of liberty, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of the detention and ordering its termination if it proves unlawful. In order to determine whether the requirement that a decision be given “speedily” has been complied with, it is necessary to effect an overall assessment where the proceedings were conducted at more than one level of jurisdiction. The question whether the right to a speedy decision has been respected must - as is the case for the “reasonable time” stipulation in Articles 5 § 3 and 6 § 1 of the Convention - be determined in the light of the circumstances of each case, including the complexity of the proceedings, the conduct of the domestic authorities, the conduct of the applicant and what was at stake for the latter (for recapitulation of the applicable principles, see Mooren, cited above, § 106).

47. The Court notes that the applicant’s lawyer submitted a complaint on the date when the applicant was brought before the judge and when the lawfulness of his arrest and detention had to be examined, that is on 8 October 2010. His complaint, however, was not examined on that day and was dealt with by the court seven days later. The Court considers that there are no special circumstances leading to a conclusion that this period was already too long or that the review of the applicant’s detention did not comply with the requirement of “speediness” (see and compare Herz v. Germany, no. 44672/98, § 73, 12 June 2003; Klishyn v. Ukraine, no. 30671/04, § 84, 23 February 2012; and Shannon v. Latvia, no. 32214/03, § 74, 24 November 2009, in which the periods of eleven, thirteen and fourteen days respectively were found to be in compliance with the requirement of “speediness”).

48. In the light of the foregoing considerations the Court concludes that there has been no violation of Article 5 § 4 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

49. 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

50. The applicant claimed 14,520 euros (EUR) in respect of non-pecuniary damage.

51. The Government considered this claim excessive and unsubstantiated.

52. Having regard to the violations found and acting in an equitable manner, the Court awards the applicant EUR 4,500 in respect of non-pecuniary damage.

B. Costs and expenses

53. The applicant also claimed EUR 2,032 for costs and expenses incurred before the domestic courts and this Court.

54. The Government considered that the above claim should be rejected as insufficiently documented.

55. 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 are 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 claimed sum of EUR 2,032 in full.

C. Default interest

56. 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 remainder of the application admissible;

2. Holds that there has been a violation of Article 5 §§ 1 and 3 of the Convention in respect of initial period of the applicant’s detention;

3. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the applicant’s detention from 8 November through 29 December 2010 and between 5 February and 25 March 2011;

4. Holds that there has been no violation of Article 5 § 4 of the Convention;

5. 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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,032 (two thousand and thirty-two euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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 16 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Mark Villiger
Registrar President

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> GAL v. UKRAINE - 6759/11 - Chamber Judgment [2015] ECHR 389 (16 April 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/389.html Cite as: [2015] ECHR 389