KANNA AND TSYGANOK v. UKRAINE - 24751/10 (Judgment : Article 5 - Right to liberty and security : Fifth Section Committee) [2019] ECHR 525 (04 July 2019)

In the case of Kanna and Tsyganok v. Ukraine,

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

Yonko Grozev, President,
Gabriele Kucsko-Stadlmayer,
Lado Chanturia, judges,

and Milan Blaško, Deputy Section Registrar ,

Having deliberated in private on 11 June 2019,

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

PROCEDURE

1 . The case originated in two applications (nos. 24751/10and 63824/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by two Ukrainian nationals, Mr Ivan Georgiyevich Kanna and Mr Igor Leonidovych Tsyganok ("the applicants"), on 15 April and 13 October 2010 respectively.

2 . The first applicant was represented by Mr Y.L. Boychenko, a lawyer practising in Strasbourg. The second applicant was represented by Ms O.O. Khatnyuk, a lawyer practising in Kyiv. The Ukrainian Government ("the Government") were represented by their Agent, Mr Ivan Lishchyna of the Ministry of Justice.

3 . The applicants complained under Article 5 of the Convention: that appeal courts, when quashing the sentences of trial courts in respect of them and remitting their cases for retrial, had failed to provide reasons for their decisions authorising the applicants ' detention on remand, and had set no time-limit on that detention; that the length of their pre-trial detention had been unreasonable and unjustified; and that the trial courts had refused their applications for release without providing sufficient reasons . The second applicant further complained, under Articles 5 and 6 of the Convention, that the Pecherskyy District Court of Kyiv ' s decision of 10 July 2006 extending his period of detention in police custody to ten days (see paragraph 20 below) had been in breach of the Convention, and that the criminal proceedings against him had been unreasonably long.

4 . Notice of the above complaints was given to the Government on 25 January 2018 (application no. 24751/10) and 29 January 2018 ( application no. 63824/10) , and the remaining complaints, including the second applicant ' s complaint concerning hi s detention from 15 February to 6 May 2006, were declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

Application no. 24751/10( Kanna v. Ukraine )

5 . The first applicant, Mr Ivan Georgiyevich Kanna, was born in 1960 and lives in Kryvyy Rig.

6 . On 18 May 2008 the applicant was arrested on suspicion of bribery.

7 . On 21 May 2008 the Pecherskyy District Court of Kyiv ordered the applicant ' s pre-trial detention with effect from 18 May 2008. The relevant decision stated that he might otherwise escape and hinder the investigation or continue with his criminal activity. No further details regarding the above-mentioned reasons were provided by the court. The applicant ' s detention was subsequently extended a number of times on similar grounds.

8 . On 7 April 2010 the Leninskyy District Court of Donetsk convicted the applicant as charged and sentenced him to, inter alia , ten years ' imprisonment.

9 . On 6 October 2010 the Donetsk Regional Court of Appeal upheld the district court ' s decision as to the applicant ' s guilt and reduced his term of imprisonment to eight years.

10 . On 14 June 2011 the Higher Specialised Court for Civil and Criminal Matters quashed the ruling of 6 October 2010 and remitted the case to the Donetsk Regional Court of Appeal for reconsideration.

11 . On 22 December 2011 the Donetsk Regional Court of Appeal quashed the sentence of 7 April 2010 and remitted the case to the trial court for fresh consideration. It also ordered the applicant ' s further detention. No reasons for the applicant ' s detention or a time-limit on that detention were set out in the decision of the appeal court.

12 . On 17 December 2012 the Leninskyy District Court of Donetsk convicted the applicant as charged and sentenced him to, inter alia , ten years ' imprisonment.

13 . On 28 May 2013 the Donetsk Regional Court of Appeal upheld the district court ' s decision as to the applicant ' s guilt and reduced his term of imprisonment to eight years.

14 . On 11 February 2014 the Higher Specialised Court for Civil and Criminal Matters upheld the decision of the court of appeal, making slight amendments.

Application no. 63824/10( Tsyganok v. Ukraine )

15 . The second applicant, Mr Igor Leonidovych Tsyganok, was born in 1964 and lives in Kyiv.

16 . On 14 February 2006 a criminal investigation for fraud was instituted in respect of the applicant. On 15 February 2006 he was arrested in the context of the above investigation.

17 . In the course of the investigation, the applicant was held in custody and detained several times by the courts, before being released on 6 May 2006.

18 . On 21 June 2006 the Pecherskyy District Court of Kyiv again ordered the applicant ' s detention. The relevant decision stated that he might otherwise escape and hinder the investigation or continue with his criminal activity.

19 . On 7 July 2006 the Kyiv City Court of Appeal quashed the decision of 21 June 2006 and released the applicant.

20 . On the same day the investigator rearrested the applicant on additional charges of tax evasion within the s ame criminal investigation (see paragraph 16 above). On 10 July 2006 the Pecherskyy District Court of Kyiv extended his period of detention in police custody to ten days with a view to obtaining information on his character.

21 . On 17 July 2006 the Pecherskyy District Court of Kyiv ordered the applicant ' s detention with effect from 7 July 2006. The decision stated that he had no permanent place of residence, had been accused of a serious crime, and might otherwise escape and hinder the investigation or continue with his criminal activity. No further details regarding the above-mentioned reasons were provided by the court.

22 . On 16 March 2009 the Shevchenkivskyy District Court of Kyiv found the applicant guilty of embezzlement and forgery of documents, and sentenced him to eight years ' imprisonment.

23 . On 30 June 2010 the Kyiv City Court of Appeal quashed the above sentence and remitted the case for additional pre-trial investigation. By the same decision, it extended the applicant ' s detention without indicating a time-limit for its duration. The court stated that it had found no reason to change the preventive measure imposed on him, given the seriousness of the charges.

24 . On 1 August 2013, in the course of his trial, the Shevchenkivskyy District Court of Kyiv released the applicant on bail.

25 . According to the applicant, the case is currently being examined by the trial court.

THE LAW

JOINDER OF THE APPLICATIONS

26 . Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment (Rule 42 § 1 of the Rules of Court).

ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

27 . The first applicant complained that his detention on remand from 18 May 2008 to 7 April 2010 and from 22 December 2011 to 17 December 2012 had been unlawful, unjustified and lengthy. The second applicant complained that his detention on remand from 21 June 2006 to 16 March 2009 and from 30 June 2010 to 1 August 2013 had been unlawful, unjustified and lengthy. The applicants relied on Article 5 §§ 1 and 3 of the Convention, which read as follows:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power, and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial ..."

Admissibility

28 . The Government argued that the second applicant ' s complaint concerning his unjustified and lengthy detention from 15 February to 6 May 2006 and from 21 June 2006 to 16 March 2009 fell outside the six-month period for lodging an application, having regard to the fact that his application had been lodged on 13 October 2010. The applicant did not comment on that argument.

29 . The Court notes that the period of the second applicant ' s detention from 15 February to 6 May 2006 is not the subject to be examined in the present case (see paragraph 4 above). As regards the period of detention from 21 June 2006 to 16 March 2009, the Court observes that the second applicant ' s uninterrupted detention during that period, as well as during subsequent periods until his release on 1 August 2013 (see paragraph 24 above), was of the same legal nature, and constituted a continuing situation for the purposes of the Convention. This complaint cannot be dismissed as lodged out of time (see Taran v. Ukraine , no. 31898/06 , § 62 , 17 October 2013, with further references therein ). The Court therefore dismisses the Government ' s objection in this respect.

30 . The Court notes that the above 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.

Merits
1. Article 5 § 1 of the Convention

31 . With reference to the Court ' s case-law, the first applicant submitted that his detention following the decision of the Donetsk Regional Court of Appeal of 22 December 2011 (see paragraph 11 above) had not been in accordance with Article 5 § 1 of the Convention.

32 . The second applicant submitted that his detention following the decision of the Kyiv City Court of Appeal of 30 June 2010 (see paragraph 23 above) had been in breach of Article 5 § 1 of the Convention.

33 . The Government disagreed and submitted that there had been no breach of the applicants ' Convention rights.

34 . The Court notes that it has previously examined similar situations in other cases against Ukraine and found them to be incompatible with the requirements of lawfulness under Article 5 § 1 of the Convention (s ee Kondratyev v. Ukraine , no. 5203/09, §§ 109-112 , 15 December 2011, and Gerashchenko v. Ukraine , no. 20602/05 , §§ 93-94, 7 November 2013 ) .

35 . The Court does not see any reason to depart from its findings in the present case. Accordingly, there has been a violation of Article 5 § 1 of the Convention.

Article 5 § 3 of the Convention

36 . The applicants submitted that their pre-trial detention had been excessively long and had not been based on sufficient grounds.

37 . The Government contested the applicants ' argument, stating that their detention had been justified and of a reasonable length.

38 . The applicable general principles are set out in Buzadji v. the Republic of Moldova ([GC], no. 23755/07 , §§ 84-91 and 102, 5 July 2016).

39 . Turning to the circumstances of the present case, the Court observes that the first applicant was detained within the meaning of Article 5 § 1 (c) of the Convention from 18 May 2008 to 7 April 2010 and from 22 December 2011 to 17 December 2012. His pre-trial detention therefore lasted two years and ten and a half months.

40 . The second applicant was detained within the meanin g of Article 5 § 1 (c) of the Convention from 21 June 20 06 to 16 March 2009 and from 30 June 2010 to 1 August 2013. His pre-trial detention therefore lasted around five years and ten months.

41 . The Court further observes that the seriousness of the charges against the applicants and the risk of their absconding or interfering with the investigation were mentioned in the initial orders for their detention (see paragraphs 7 and 18 above). However, that reasoning did not evolve with the passage of time. Moreover, when keeping the applicants in detention after their cases had been remitted for retrial, the appeal courts failed to give any reasons whatsoever for their decisions (see paragraphs 11 and 23 above). The Court also refers to its above findings that the appeal courts ' decisions keeping the applicants in detention without providing any reasons and without setting time-limits were in breach of Article 5 § 1 of the Convention (see paragraph 34 above).

42 . On many occasions the Court has found a violation of Article 5 § 3 of the Convention in cases against Ukraine on the basis of the domestic courts referring to the same set of grounds (or not referring to any grounds) throughout the period of an applicant ' s detention, even in respect of lengthy periods of detention (see, for example, Kharchenko v. Ukraine , no. 40107/02, §§ 80-81 and 99, 10 February 2011).

43 . Having regard to the above, the Court considers that by failing to address specific facts or consider measures other than pre-trial detention, and by relying essentially and routinely on the seriousness of the charges in question, the authorities extended the applicants ' detention pending trial on grounds which cannot be regarded as "sufficient" to justify the duration of such detention.

44 . There has accordingly been a violation of Article 5 § 3 of the Convention.

ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION (APPLICATION No. 63824/10- TSYGANOK V. UKRAINE )

45 . The applicant complained that the length of the criminal proceedings in his case had been incompatible with the "reasonable time" requirement. He relied on Article 6 § 1 of the Convention, which reads as follows:

"In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ..."

Admissibility

46 . The Court notes that the above complaint is not manifestly ill - founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

Merits

47 . The applicant reiterated his initial submissions that the length of the criminal proceedings in his case had been in breach of the "reasonable time" requirement.

48 . The Government contested the applicant ' s argument, arguing that the case had been complex.

49 . In the present case, the proceedings started on 14 February 2006, when a criminal investigation for fraud was instituted in respect of the applicant, and it appears that those proceedings are currently pending before the trial court. They have thus lasted more than thirteen years over two levels of jurisdiction.

50 . 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, and what was at stake for the applicant in the dispute (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999 - II, and Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000 - VII).

51 . In Merit v. Ukraine (no. 66561/01, 30 March 2004), the Court found a violation in respect of issues similar to those in the present case.

52 . The Court further reiterates that it is the role of the domestic courts to manage their proceedings so that they are expeditious and effective (see Silin v. Ukraine , no. 23926/02, § 34, 13 July 2006). However, having regard to the applicant ' s situation, in the Court ' s opinion, the national courts did not act with due diligence.

53 . Having examined all the material submitted to it, in the light of 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.

54 . There has accordingly been a violation of Article 6 § 1 of the Convention.

OTHER ALLEGED VIOLATIONS OF THE CONVENTION

55 . The applicants also complained under Article 5 § 4 of the Convention that the trial courts had refused their applications for release without providing sufficient reasons . The second applicant further complained, under Article 5 of the Convention, that the Pecherskyy District Court of Kyiv ' s decision of 10 July 2006 extending his period of detention in police custody to ten days (see paragraph 20 above) had been in breach of the Convention .

56 . Having regard to the facts of the case, the submissions of the parties, and its findings under Articles 5 and 6 of the Convention (see paragraphs 35 , 44 and 54 above), the Court considers that it has examined the main legal questions raised in the present application, and that there is no need to give a separate ruling on the admissibility and merits of the other complaints mentioned in the preceding paragraph (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

57 . 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."

Damage
1. Application no. 24751/10(Kanna v. Ukraine)

58 . In respect of pecuniary damage, the first applicant claimed 12,482 euros (EUR) in compensation for loss of salary. He further claimed EUR 104,700 in respect of non-pecuniary damage.

59 . The Government considered these claims unsubstantiated and excessive.

60 . The Court finds that the first applicant ' s claim in respect of pecuniary damage is not substantiated; it therefore rejects it. On the other hand, it awards him EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

Application no. 63824/10(Tsyganok v. Ukraine)

61 . In respect of pecuniary damage, the second applicant claimed EUR 49,958,780 in compensation for loss of salary and loss of income. He further claimed EUR 5,097,930 in respect of non-pecuniary damage.

62 . The Government considered these claims unsubstantiated and excessive.

63 . The Court finds that the second applicant ' s claim in respect of pecuniary damage is not substantiated; it therefore rejects it. On the other hand, it awards him EUR 6,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.

Costs and expenses

64 . The first applicant claimed EUR 1,000 for the legal costs he had incurred before the Court. The Government left the issue to the Court ' s discretion.

65 . The second applicant claimed EUR 250,000 for the legal costs he had incurred before the Court. The Government considered the amount claimed excessive and unsubstantiated.

66 . Regard being had to the documents in its possession, the Court awards each of applicants EUR 850 under this head, plus any tax that may be chargeable to the applicants.

Default interest

67 . 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,

Decides to join the applications;
Declares admissible the first applicant ' s complaints under Article 5 §§ 1 and 3 of the Convention regarding the unlawfulness of his detention following the decision of the Donetsk Regional Court of Appeal of 22 December 2011 and the unreasonable duration of his detention on remand ;
Declares admissible the second applicant ' s complaints under Article 5 §§ 1 and 3 and Article 6 § 1 of the Convention regarding the unlawfulness of his detention following the decision of the Kyiv City Court of Appeal of 30 June 2010, the unreasonable duration of his detention on remand, and the length of the criminal proceedings against him;
Holds that it is not necessary to examine the admissibility and merits of the second applicant ' s complaints under Article 5 § 1 of the Convention regarding the extension of his detention in police custody in breach of the Convention requirements, and of both applicants ' complaints under Article 5 § 4 of the Convention regarding the trial courts ' failure to properly examine their applications for release;
Holds that there has been a violation of Article 5 § 1 of the Convention in respect of both applicants;
Holds that there has been a violation of Article 5 § 3 of the Convention in respect of both applicants;
Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the second applicant, on account of the length of the criminal proceedings against him;
Holds

(a) that the respondent State is to pay, 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 6,000 (six thousand euros) to the first applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 6,500 (six thousand five hundred euros) to the second applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 850 (eight hundred and fifty euros) to each of the applicants, plus any tax that may be chargeable to them, 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;

Dismisses the remainder of the applicants ' claims for just satisfaction.

Done in English, and notified in writing on 4 July 2019 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Yonko Grozev Deputy Registrar President

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