FIFTH SECTION
CASE OF
RUDNICHENKO v. UKRAINE
(Application no.
2775/07)
JUDGMENT
STRASBOURG
11 July 2013
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 Rudnichenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
Helena Jäderblom,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 11 June 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
2775/07) 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 Sergey Vladimirovich Rudnichenko (“the
applicant”), on 4 December 2006.
The applicant, who had been granted legal aid,
was represented by Mr Sergey Zayets, a lawyer practising in
Sevastopol. The Ukrainian Government (“the Government”) were represented by
their Agent, Mr Nazar Kulchytskyy.
The applicant complained, in particular, that his
pre-trial detention had been unlawful and unreasonably long. He raised these
complaints in his initial application of 4 December 2006. Subsequently, on 23
September 2010, the applicant submitted an additional complaint that the judge
dealing with his criminal case had not been impartial and that he had been unable
to obtain the attendance of a key witness during his trial.
On 14 February 2012 the application was
communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1981. On 9 January 2013
he was due to be released from Sukhodilska Prison no. 36 in the Lugansk Region,
having served his sentence. His current place of residence is unknown.
On 22 October 2005 two people attempted to break
into a car belonging to K., who impeded the thieves and caught one of them (“B.”).
On 6 January 2006, at about 6 p.m., the
applicant broke into a car belonging to N. and tried to dismantle some
equipment therein. N. caught the applicant and handed him over to the police.
On the same date, one of the arresting officers
wrote a report to his superior in the Sevastopol Police Department about the
aforementioned incident, referring to the car theft, the complaint by N. in
that regard, and the applicant’s apprehension and arrest. It was mentioned in
the report that the applicant had been drunk and had to be restrained with
handcuffs.
On 7 January 2006 the Leninskyy District Court of
Sevastopol (“the Leninskyy Court”) ordered that the applicant be placed in administrative
detention for three days for being drunk in a public place at 6 p.m. on
6 January 2006.
On 9 January 2006 an investigator of the
Leninskyy District Police Department, referring to the events of 6 January
2006, arrested the applicant on suspicion of robbery.
On 12 January 2006 the Leninskyy Court remanded
the applicant in custody for two months, allowing an application by the
investigator to that effect. The court noted that the applicant had been caught
in flagrante delicto. Furthermore, he had committed the offence in
question while drunk, and within a year of being released from prison. The
court also noted that the applicant was unemployed. It was mentioned in the
ruling that the decision could be appealed against within three days.
From 13 January 2006 the applicant was
represented by a lawyer.
With regard to the events of 22 October 2005
(see paragraph 6 above), on 7 February 2006 the Leninskyy Court, sitting
in a single-judge formation (“Judge R.”), found B. guilty of robbery while
drunk and following conspiracy by a group. It relied on the factual account
given by B., who had said that he had become acquainted with the applicant
(referred to in the verdict as “the other person” and known to B. as “Sergey”)
shortly before the incident, and that it had been the applicant’s initiative to
steal stereo equipment from cars. According to B., the applicant had undertaken
to teach him car theft techniques.
The court also established that the applicant
had tried to break into K.’s car using scissors, while B. had been standing by.
As the car had had tinted windows, the thieves had not noticed that K. had been
inside. He had opened the door and asked them what they had been doing. The
applicant had threatened K. with the scissors and had rudely told him to leave
the scene, while B. had taken a knife out of his pocket and had pointed it at him.
As the owner of the car resisted, the applicant had hit him with a bottle,
which had been in his other hand. B. and the applicant had then tried to
escape. K. had however managed to catch B.
Judge R. sentenced B. to three years and six
months’ imprisonment. The punishment, being more lenient than the minimum sentence
prescribed by the criminal legislation, was deemed appropriate given that B.
had confessed in full to having committed the crime and had shown genuine
remorse. He had compensated the victim for the pecuniary and non-pecuniary
damage suffered, and K. had submitted that he had no further complaints or
claims against B.
The applicant was not involved in the above
proceedings.
The judgment of 7 February 2006 was not
challenged on appeal and became final.
On 23 February 2006 K. identified the applicant
as the second thief who had tried to break into his car. B. also identified the
applicant as his accomplice.
On 1 March 2006 the applicant requested the
investigator to consider replacing his detention with a less restrictive
preventive measure; however, on the same date the investigator rejected that
request. He noted that the applicant had an extensive criminal record (four
convictions), that his pre-trial detention had been authorised by a reasoned
court decision, and that, having been legally represented from the day after
the decision of 12 January 2006 had been delivered, he could have, but had
chosen not to, appeal.
On 7 March 2006 the applicant was indicted on
two counts of robbery in respect of the incidents involving K. and N.
On 9 March 2006 the case was sent to the
Leninskyy Court for trial.
On 10 March 2006 the applicant’s lawyer, relying
on Article 5 §§ 1 and 5 of the Convention, complained to the Leninskyy
Court that his client had been unlawfully detained between 6 and 12 January
2006 and had a right to compensation. He requested the court to summon N. and
the police officers who had arrested the applicant on 6 January 2006. They had
witnessed the events and could potentially confirm that the applicant had in
fact been detained as a criminal suspect rather than someone who had committed
an administrative offence.
On the same date the applicant’s lawyer lodged
an administrative claim against the Governor of the Simferopol Pre-Trial
Detention Centre (SIZO) with the Zaliznychnyy District Court of Simferopol
(“the Zaliznychnyy Court”), alleging that the continued detention of the
applicant after 6 March 2006 (that is, after the expiry of his two months’
pre-trial detention calculated from 6 January 2006) was unlawful. Relying
on Article 5 § 4 of the Convention, the lawyer requested the immediate
examination of his complaint and the applicant’s release.
On 21 March 2006 the applicant’s lawyer again
requested the SIZO administration to release his client immediately. On the
same date he complained to the President of the Zaliznychnyy Court about the
delay in the examination of his claim of 10 March 2006.
On 21 March 2006 a judge of the Leninskyy Court
rejected the applicant’s request to have witnesses summoned with a view to
determining that his detention on 6 January 2006 had been unlawful.
On 29 March 2006 the Leninskyy Court rejected
the applicant’s complaint regarding the alleged unlawfulness of his detention
from 6 to 12 January 2006. The court noted in its ruling as follows:
“The court has established that the pre-trial investigation
authority was clearly aware of the fact that the applicant had been arrested
immediately after having committed a criminal offence on 6 January 2006.
Nevertheless, his arrest [as a criminal suspect] only took place on 9 January
2006. Those circumstances disclose a violation by the pre-trial investigation
authority of the provisions of the Code of Criminal Procedure ... concerning
detention and would justify the delivery of a special ruling”.
Nevertheless, the court arrived at a general
conclusion that there had been no significant violation of the criminal
procedural legislation and rejected the complaint.
The applicant appealed.
On 7 April 2006 the Leninskyy Court held a
preparatory hearing for the trial. It rejected the applicant’s request for
release given, in particular, his criminal record, lack of employment and the
fact that he had no permanent place of residence.
On 1 June 2006 the applicant’s mother was
admitted in the proceedings as his lay representative in her capacity as a
close relative.
On 6 June 2006 the Sevastopol Court of Appeal
(“the Court of Appeal”) upheld the ruling of the Leninskyy Court of 29 March
2006 (see paragraphs 26-27 above). It noted that the issue of the applicant’s
administrative detention from 6 to 9 January 2006 was beyond the scope of the
examination. The subsequent detention was regarded as being in compliance with
the law. As to the applicant’s unsuccessful request to have the witnesses to his
arrest on 6 January 2006 summoned, the appellate court pointed out that such
a request had no basis in the applicable provisions of the Code of Criminal
Procedure.
On 19 September 2006 the applicant requested the
Leninskyy Court to release him subject to him giving an undertaking not to
abscond. He contended that there were no reasons to fear that he would abscond
or impede the investigation if at liberty. The applicant provided his address
and stated that before the arrest he had been working on a construction site. He
further stated that his past criminal convictions should not be used to justify
his pre-trial detention in the ongoing criminal proceedings.
On the same date the Leninskyy Court rejected
the request. It noted that, in the light of all the circumstances, the
applicant could not be trusted to cooperate with the investigation or to not commit
further offences.
On 10 December 2006 the term of office of the
judge dealing with the applicant’s case in the Leninskyy Court expired.
On 25 April 2007 the case was referred to Judge R.,
the same judge who had earlier tried B. (see paragraphs 13-15 above).
On 12 October 2007 Judge R. sought to recuse herself
from the case. Her reasons were as follows:
“Given that I have examined the criminal case of [B.] and that
I have already expressed my opinion as regards the incident involving both [the
applicant] and [B.], I withdraw from the case.”
On 22 October 2007 the President of the
Leninskyy Court rejected Judge R.’s application for self-recusal, having found
no grounds for it under Article 54 of the Code of Criminal Procedure (see
paragraph 56 below).
With regard to the incident involving K., on 14
November 2007 the Leninskyy Court, sitting in a single-judge formation (Judge
R.), found the applicant guilty of robbery following conspiracy with B. and
sentenced him to seven years’ imprisonment with confiscation of all his
personal property. Referring to the judgment of 7 February 2006 in respect of B.,
the court relied on the evidence given by B. during that trial (see paragraphs 13-14
above), which were read out at the hearing. The applicant’s submissions that he
and B. had been merely looking at K.’s car without any intention of breaking
into it, and that the applicant had hit K. with a bottle in self-defence, were
dismissed by Judge R. as untruthful.
As to the incident with N., the Leninskyy Court
classified the applicant’s actions as attempted petty theft, an administrative
(minor) rather than a criminal offence. Accordingly, the applicant was
acquitted in that regard for lack of corpus delicti in his actions.
Lastly, the Leninskyy Court stated that the term
of imprisonment was to be calculated from 9 January 2006. It also decided that
the applicant should remain in detention as a preventive measure pending the
verdict’s entry into force.
In the course of the trial, the applicant had unsuccessfully
requested the attendance and questioning of B. as a witness. According to the
Government, his request had been made at an inappropriate stage of the proceedings
and never repeated thereafter.
The applicant appealed. He submitted, in
particular, that it was unacceptable to rely on the statements B. had made in a
trial in which the applicant himself had not participated. Alleging a breach of
Article 6 § 3 (d) of the Convention, the applicant emphasised that B. had not
been summoned to attend his (the applicant’s) trial, and that he had therefore not
had the opportunity to contest his submissions or to have him questioned as a
key witness. The applicant further pointed out in this connection that Judge R.,
who had dealt with both his and B.’s cases, had in fact admitted to having a
preconceived opinion about the circumstances of the case and had asked to
withdraw from it.
The applicant further complained that his
actions had wrongly been classified as robbery following conspiracy by a group.
He contended that he and B. had been surprised that K. had been in the car, and
that they could not have possibly planned to assault him. The applicant also
noted several inconsistencies and changes to B.’s statements. He stated, in
particular, that he had not met B. on the day of the events, but that they had once
served a sentence together in the same prison. That being said, the applicant
denied that it had been his initiative to steal property from cars or that he
had undertaken to teach B. anything in that domain, given that the latter had himself
already had a criminal conviction for several counts of car theft.
On 28 July 2009 the Court of Appeal, following a
hearing with the participation of the applicant’s lawyer, but in the absence of
the applicant, upheld the judgment of 14 November 2007, without undertaking its
own judicial investigation of the witnesses’ statements and other evidence in
the case. At the same time, it invited the first-instance court to clarify the
date from which the term of imprisonment was to be calculated. While
acknowledging that the Leninskyy Court had relied on the statements B. had made
in the framework of a different trial, the Court of Appeal noted that those
statements were concordant with the other evidence and that there was therefore
no reason to question their credibility.
On 16 September 2009 the applicant, relying on
the above-mentioned ruling, requested the Leninskyy Court to rectify the
calculation of his term of imprisonment to have started running from 6 January
2006. On 20 October 2009 his request was rejected as unfounded.
On 30 December 2009 the applicant’s mother,
acting in his interests, lodged an appeal on points of law against the judgment
of 14 November 2007 and the Court of Appeal’s ruling of 28 July 2009. She
complained, in particular, relying on Article 6 §§ 1 and 3 (d) of the
Convention, that the applicant had been deprived of the opportunity to
challenge B.’s depositions, which had been given in a different trial and which
had been used for the applicant’s conviction.
On 14 January 2010 a judge of the Supreme Court,
in written proceedings without the parties’ notification or participation,
rejected the applicant’s mother’s request for leave to appeal on points of law.
According to a letter of the Supreme Court to
the applicant’s lawyer of 28 December 2010, sent in reply to an enquiry by the latter
about how the case was progressing, the aforementioned ruling had been sent to
the applicant’s mother on 14 January 2010.
According to the applicant, his mother had never
received the Supreme Court’s letter with the ruling. The applicant also
submitted a document from the local authorities, which suggested that there was
another street in the town with the same name as the street where his mother
lived.
The applicant submitted that he, his lawyer and
his mother as his lay representative only found out about the Supreme Court’s
ruling of 14 January 2010 in December 2010.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Article 29 of the Constitution of Ukraine on the
right to freedom and personal inviolability can be found in the judgment in the
case of Nechiporuk and Yonkalo v. Ukraine (no. 42310/04, § 121, 21 April
2011).
Under Article 187
of the Criminal Code, robbery is punishable by a term of
three to seven years’ imprisonment (paragraph 1). Robbery following conspiracy
by a group is punishable by seven to ten years’ imprisonment, with confiscation
of property (paragraph 2).
Article 178 of the Code on Administrative
Offences provides that the punishment for being drunk in public is, inter
alia, administrative detention for up to fifteen days. Pursuant to Article
287 (as worded at the material time), a court’s decision imposing a penalty for
an administrative office was final and not amenable to appeal.
The provisions concerning the application of
preventive measures and their types, time-limits for pre-trial detention, and
the grounds for and procedure of detention by an investigation authority can be
found in the judgment in the case of Molodorych v. Ukraine (no. 2161/02,
§§ 56-58, 28 October 2010).
. Under Article 23-2 of the Code of Criminal
Procedure, if the court discovers a violation of law and/or of citizens’ rights
in the course of a pre-trial enquiry or investigation, or during an examination
of a case in a lower-level court, it issues a separate ruling by which it draws
the attention of the respective authorities to the established facts and
directs them to take certain measures to remedy the situation.
. Article 54 of the Code of Criminal
Procedure provides that a judge is precluded from participating in a trial in
the following cases:
“(1) if he or she is a
victim, a civil claimant, a civil defendant, or a relative of anyone of them,
or a relative of the investigator, the inquiry officer, the prosecutor or the accused;
(2) if he or she has
already participated in the proceedings as a witness, an expert, a specialist,
an interpreter, the inquiry officer, the investigator, the prosecutor, a defence
counsel or a representative of the victim, the civil claimant or the civil
defendant;
(2-1) if during the
pre-trial investigation he or she: ordered searches, seizures or inspections; ordered,
changed or discontinued preventive measures or extended time-limits for
detention on remand; examined appeals against arrest warrants or examined
appeals against the discontinuation of criminal proceedings;
(2-2) if during the
pre-trial investigation he or she examined the issue of [the defence counsel’s
removal from the proceedings];
(3) if he or she, or his or
her relatives, are interested in the outcome of the proceedings;
(4) if there are other circumstances
giving rise to doubts about the impartiality of the judge ...”
III. RELEVANT INTERNATIONAL DOCUMENTS
. Relevant international documents
concerning the impartiality of judges can be found in the judgment in the case
of Harabin v. Slovakia (no. 58688/11, §§ 104-110, 20 November 2012).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The applicant complained that his detention from
6 to 12 January 2006 had been unlawful. He relied on Article 5 § 1 of the
Convention which reads, in so far as relevant, 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:
(a) the lawful detention of a person after
conviction by a competent court;
...
(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
The Government contended that the applicant’s complaint
regarding the alleged unlawfulness of his detention from 6 to 9 January 2006
had been lodged out of the six-month time-limit, to be calculated from the last-mentioned
date. They noted that during those three days, the applicant had been in administrative
detention on account of his being drunk in public, and that the relevant ruling
had not been amenable to appeal. Accordingly, the Government maintained that
this complaint, which had been lodged on 4 December 2006 (see paragraph 3
above), should be declared inadmissible.
The applicant denied that the six-month rule applied
to that period of his detention. He insisted that in reality it had been a part
of the longer uninterrupted period of his detention as a criminal suspect under
Article 5 § 1 (c). The applicant cited in this connection the Court’s
judgment in the case of Doronin v. Ukraine (no. 16505/02, § 55, 19
February 2009), where a similar situation was examined.
The Court considers that the applicant’s
administrative detention was indeed closely linked to his arrest as a criminal
suspect and his detention in this quality. It therefore joins the Government’s
objection as to this period of the applicant’s detention to the merits of his
complaint under Article 5 § 1 of the Convention (see Doronin, cited
above, § 49).
The Court further notes that this complaint is
not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. Neither is it inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
1. The parties’ submissions
The applicant maintained that his detention
could not be regarded as lawful because from 6 to 9 January 2006 it had been based
on fictitious grounds and from 9 to 12 January 2006 it had not been authorised
by any court order.
The Government contended that the applicant’s
detention had been in compliance with the domestic legislation. Having regard
to the circumstances of his apprehension on 6 January 2006, the Government
noted that there had been a reasonable suspicion to justify the applicant’s arrest
as a criminal suspect on 9 January 2006. As to his detention from 9 to
12 January 2006, which was not covered by any court order, they submitted
that under the Ukrainian Constitution and the Code of Criminal Procedure, no
such order was obligatory for the first seventy-two hours following arrest.
2. The Court’s assessment
(a) The applicant’s detention from 6 to 9 January
2006
The Court observes that, as suggested by the
facts of the case and admitted by the domestic authorities themselves (namely
in the report by the arresting officer of 6 January and the ruling of the
Leninskyy Court of 29 March 2006 - see paragraphs 8 and 26 above), on 6 January
2006 the applicant was arrested on suspicion of having committed a criminal
offence (car theft). Nevertheless, his three-day detention was documented as a
punishment for an administrative (minor) offence, namely being drunk in public.
The Court notes that the practice of placing a
person in administrative detention on an artificial pretext, in order to have
him available for questioning in respect of a criminal offence under
investigation appears to have been a recurring problem in Ukraine, and has been
condemned in a number of the Court’s judgments (see Doronin,
cited above, § 56; Oleksiy
Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, § 88, 24 June
2010; and Nechiporuk
and Yonkalo, cited above, § 264).
In the present case, similarly, the Court
considers that the authorities acted in bad faith and deceitfully in respect of
the applicant, thus breaching the principles of legal certainty and protection
from arbitrariness enshrined in Article 5 § 1 of the Convention.
(b) The applicant’s detention from 9 to 12 January
2006
The Court notes that on 9 January 2006, the
three-day period of the applicant’s detention, documented as being administrative,
expired. The investigator then re-arrested him, this time on suspicion that he
had committed a criminal offence three days earlier.
The Court observes that under Ukrainian law,
deprivation of liberty without a reasoned court order was only possible in a
limited number of situations. Article 29 of the Constitution permitted such a
measure to be applied for a maximum of three days, only in cases where there
was an urgent need to prevent or stop an offence being committed, while
Articles 106 and 115 of the Code of Criminal Procedure provided that an
investigator could arrest a person if the latter was caught in flagrante
delicto, was identified as the perpetrator by eyewitnesses or the victim(s),
or if there was clear evidence on his body or clothing which linked him to the
crime (follow the references given in paragraphs 51 and 54 above).
Turning to the facts of the present case, the Court
notes that on 6 January 2006, the applicant was arrested having been
caught in flagrante
delicto. The procedural three-day time-limit for his detention
without a court order should have started running from that date. The
authorities, however, circumvented it by placing him in administrative
detention on an artificial pretext.
Accordingly, the malpractice regarding his
initial detention criticised above also undermined the lawfulness of his
detention without a court order during the subsequent three days, that is to
say the period between 9 and 12 January 2006.
(c) Conclusion
The Court thus concludes that there has been a
violation of Article 5 § 1 of the Convention as regards the applicant’s
detention from 6 to 12 January 2006. That being so and having regard to
its considerations in paragraphs 65-67 above, the Court dismisses the
Government’s objection as to whether the applicant complied with the six-month
time-limit, which was previously joined to the merits of this complaint (see
paragraph 61 above).
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The applicant further complained about the
length of his pre-trial detention under Article 5 § 3 of the Convention, which reads
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
The Court notes that this 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. The
Court therefore declares it admissible.
B. Merits
The applicant maintained that his pre-trial
detention, having lasted from 6 January 2006 to 14 November 2007, had been
excessively long and unjustified.
The Government submitted that the length of the
applicant’s pre-trial detention - one year, ten months and five days as
calculated from 9 January 2006 to 14 November 2007 - had been reasonable. They also
contended that the investigation had been conducted with the requisite
expedience and that the courts had given relevant and sufficient reasons in
justification of the applicant’s continued detention.
The Court notes from the outset that the period
to be taken into consideration commenced on 6 January 2006 - the date of the
applicant’s arrest, and terminated on 14 November 2007 - the date of his
conviction by the first-instance court (see, mutatis mutandis, Kudła
v. Poland [GC], no. 30210/96, § 104, ECHR 2000-XI). It follows
that the applicant was held in pre-trial detention for one year, ten months and
eight days.
As the Court has held in its case-law on many
occasions, the reasonableness of a period of detention is never assessed in abstracto.
In other words, Article 5 § 3 of the Convention cannot be seen as authorising
pre-trial detention unconditionally, provided that it lasts no longer than a
certain period. Justification for any period of detention, no matter how short,
must be convincingly demonstrated by the authorities (see, for example, Shishkov
v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I).
The Court further emphasises that the
persistence of reasonable suspicion that the person arrested has committed an
offence is a condition sine qua non for the lawfulness of the continued
detention, but after a certain lapse of time it no longer suffices. In such
cases, the Court must establish whether the other grounds given by the judicial
authorities continued to justify the deprivation of liberty. Where such grounds
were “relevant” and “sufficient”, the Court must also ascertain whether the
competent national authorities displayed “special diligence” in the conduct of
the proceedings (see Labita v. Italy [GC], no. 26772/95, § 153,
ECHR 2000-IV).
As regards the present case, the Court accepts,
given the context of the applicant’s initial arrest, that it was based on a
reasonable suspicion that he had committed an offence (see paragraphs 7 and 11 above).
The Court notes that, in justification of the applicant’s remand in custody on
12 January 2006 the Leninskyy Court also referred to the fact that he had
committed the offence in question while on probation following an earlier
criminal conviction and that he was unemployed (see paragraph 11 above).
The Court observes, however, that those reasons
did not evolve with the passage of time. Thus, the applicant’s argument about
his permanent place of residence and employment remained without assessment,
and his further pre-trial detention continued to be justified solely by his
extensive criminal record (see paragraphs 19, 29 and 32-33).
Although the applicant’s criminal past could
indeed be regarded by the authorities as an indication regarding his
personality, the Court is not convinced that this reason alone, which in
principle was not susceptible of reassessment with the passage of time as it
concerned the past events, was sufficient for keeping the applicant in
pre-trial detention for over one year and ten months.
The Court also does not lose sight of the fact
that about a year after the beginning of the applicant’s trial the examination
of his case in the first-instance court had in fact to be started anew
following its reassignment to a different judge (see paragraphs 29 and 34-35
above). Furthermore, during about four months of the mentioned period there
appeared to be no judge in the trial court responsible for the proceedings, as
the office term of the one, who had earlier been in charge, expired on
10 December 2006 and a new judge was assigned only on 25 April 2007 (see
paragraphs 34-35 above). Having regard to these delays, the Court does not
consider that the national authorities displayed “special diligence” in the
conduct of the proceedings during which the applicant was remaining in
pre-trial detention.
In the light of the foregoing considerations the
Court concludes that the applicant’s right to “trial within a reasonable time
or to release pending trial” was breached.
There has thus been a violation of Article 5 § 3
of the Convention in this regard.
III. ALLEGED VIOLATIONS OF ARTICLE 6 §§ 1 AND 3
(d) OF THE CONVENTION
The applicant next complained that it had been
impossible for him to obtain the attendance and examination of one of the key witnesses,
and that Judge R. had not been impartial in dealing with his case. He relied on
Article 6 §§ 1 and 3 (d) of the Convention which, in so far as relevant,
read as follows:
“1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an independent
and impartial tribunal established by law. ...
3. Everyone charged with a criminal offence has the
following minimum rights:
... (d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him.”
A. Admissibility
The Government argued that these complaints, which
were raised by the applicant for the first time on 23 September 2010 (see
paragraph 3 above), should be rejected as having been lodged outside the
six-month time-limit. They referred in this connection to the Supreme Court’s
letter of 14 January 2010, by which its final ruling of the same date had been
sent to the applicant’s mother (see paragraph 48 above). Assuming that the
aforementioned letter had reached her on 1 February 2010, the Government submitted
that the six-month period had expired on 1 August 2010.
The applicant contested this objection. He noted
that the Government had not provided any evidence proving that he, his mother
or his lawyer had received the aforementioned ruling of the Supreme Court. The
applicant insisted that he had only found out about the ruling as a result of
his lawyer’s enquiries on 28 December 2010 (see paragraph 48-50 above).
The Court notes that, as a rule, the six-month
period runs from the final decision in the process of exhaustion of domestic
remedies. The date of such final decision is the day on which the judgment is
rendered orally in public, or, where judgment has not been publicly pronounced,
the day on which the applicant or his representative are informed of it,
whichever is earlier (see Loveridge v. the
United Kingdom (dec.), no. 39641/98, 23 October 2001).
The Court further reiterates that the six-month
time-limit is an autonomous rule which must be interpreted and applied in a
given case in such a manner as to ensure the effective exercise of the right of
individual petition (see Balogh v. Hungary (dec.), no. 47940/99, 13 May
2003).
Turning to the present case, the Court notes from
the outset that the final ruling of the Supreme Court of 14 January 2010 was
not pronounced in a public hearing (see paragraph 47 above). Accordingly, the
applicant could have only become aware of it once it had been served on him or
his representative. There is no evidence, however, that a written copy, even if
sent by the Supreme Court to the applicant’s mother on 14 January 2010 by
regular post, in fact reached her and, if so, when. Accordingly, the Court
finds no reason to question the applicant’s submission that he had only found
out about the ruling in December 2010 after his lawyer had made an enquiry to
that end.
Having lodged the respective complaints with the
Court on 23 September 2010, the applicant cannot therefore be regarded as
having missed the six-month time-limit under Article 35 § 1 of the Convention.
The Court dismisses this objection of the
Government.
It further notes that these complaints are neither
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention nor inadmissible on any other grounds. They must therefore be
declared admissible.
B. Merits
1. Examination of B. as a witness in the applicant’s
trial (Article 6 §§ 1 and 3 (d))
(a) The parties’ submissions
The applicant maintained that the judgment of
14 November 2007 was based on the facts established in the framework of B.’s
trial, and that he had been unable to examine or have examined Mr B., as one of
the key witnesses in his case, in the court proceedings. In his opinion, B.’s statements
were of importance for the legal classification of the incident of 22 October
2005, its background and the applicant’s real intents and motives. The
applicant also noted that he had insisted on the attendance of this witness
during the examination of his case by courts at all three levels of
jurisdiction.
The Government noted that, in accordance with
the Court’s case-law, it is for the national courts to assess the evidence
before them and to decide whether it is appropriate to call witnesses. They
emphasised that the applicant had never denied his involvement in the incident
of 22 October 2005 and had only disagreed with its classification as
robbery following conspiracy by a group. However, the testimonies of B., which
had been read out in the applicant’s trial, refuted those arguments. In the
Government’s opinion, the situation was quite straightforward for the court and
did not warrant an examination of B.
The Government further observed that the
applicant had requested the attendance of Mr B. only once, without success and at
an inappropriate stage of the proceedings, and that he had not repeated that
request later on in the course of his trial (see paragraph 41 above).
Lastly, the Government contended that, given all
the circumstances of the case, the attendance and examination of B. could not
have been decisive for the outcome of the applicant’s trial.
(b) The Court’s assessment
Given that the guarantees in paragraph 3 of
Article 6 are specific aspects of the right to a fair trial set forth in
paragraph 1, it is appropriate to examine the complaint under the two
provisions taken together (see, among other authorities, Asch v. Austria,
26 April 1991, § 25, Series A no. 203).
The Court notes that the admissibility of
evidence is primarily a matter for regulation by national law and, as a general
rule, it is for the national courts to assess the evidence before them. The
Court’s task under the Convention is not to give a ruling as to whether statements
of witnesses were properly admitted as evidence, but rather to ascertain
whether the proceedings as a whole, including the way in which evidence was
taken, were fair (see, among other authorities, Doorson v. the Netherlands,
26 March 1996, § 67, Reports of Judgments and Decisions 1996-II).
The Court reiterates that Article 6 § 3 (d) of
the Convention enshrines the principle that, before an accused can be
convicted, all evidence against him must normally be produced in his presence
at a public hearing with a view to adversarial argument. Exceptions to this
principle are possible but must not infringe the rights of the defence, which,
as a rule, require that the accused should be given an adequate and proper
opportunity to challenge and question a witness against him, either when that
witness makes his statement or at a later stage of proceedings (see Delta v.
France, 19 December 1990, § 36, Series A no. 191-A; Van
Mechelen and Others v. the Netherlands, 23 April 1997, § 51, Reports 1997-III;
and Lucà v. Italy, no. 33354/96, § 39, ECHR 2001-II).
The term “witness” referred to above has an
“autonomous” meaning in the Convention system. Thus, where a deposition may
serve to a material degree as the basis for a conviction, then, irrespective of
whether it was made by a witness in the strict sense or by a co-accused, it
constitutes evidence for the prosecution to which the guarantees provided by
Article 6 §§ 1 and 3 (d) of the Convention apply (see Lucà v. Italy,
cited above, § 41, with further references).
There are two requirements which follow from
the above general guarantees. First, there must be a good reason for the
non-attendance of a witness. Second, when a conviction is based solely or to a
decisive degree on depositions that have been made by a person whom the accused
has had no opportunity to examine or to have examined, whether during the
investigation or at the trial, the rights of the defence may be restricted to
an extent that is incompatible with the guarantees provided by Article 6 (see Al-Khawaja
and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06,
§ 119, ECHR 2011).
The requirement that there be a good reason for admitting the evidence of an
absent witness is a preliminary question which must be examined before any
consideration is given as to whether that evidence was sole or decisive. Even
where the evidence of an absent witness has not been sole or decisive, the
Court has still found a violation of Article 6 §§ 1 and 3 (d) when no
good reason has been shown for the failure to have the witness examined. This
is because, as a general rule, witnesses should give evidence during the trial
and all reasonable efforts should be made to secure their attendance. Thus,
when witnesses do not attend to give live evidence, there is a duty to enquire
whether that absence is justified (ibid., § 120).
Turning to the present case, the Court notes
that the applicant was found guilty of robbery following conspiracy with B. It
therefore accepts B.’s status as a witness in the applicant’s trial. It remains
to be seen whether there were good reasons for the non-attendance of this
witness.
On the facts of the case, it appears that B.
did not attend the applicant’s trial simply because Judge R. had not summoned
him.
Indeed, there is nothing in the case file to
suggest that any efforts were made whatsoever to ensure B.’s attendance in the
proceedings against the applicant, at least at the pre-trial investigation
stage if not at a court hearing. Given that B. was at the time serving a prison
sentence in Ukraine (see paragraph 15 above), the authorities could have identified
his whereabouts and ensured his attendance without any difficulties had they
wished to do so (see and compare with Gabrielyan v. Armenia, no. 8088/05, § 81, 10 April 2012). Furthermore, there
is no evidence to suggest that B. was asked, but refused, to make depositions
in the framework of the applicant’s trial for whatever reason, such as, for
example, a fear of negative repercussions (see and compare with Al-Khawaja
and Tahery, cited above, §§ 122-124).
The Court takes note of the Government’s
submission that the applicant had sought the attendance of B. at an
inappropriate stage of the proceedings, and that he had not sufficiently persisted
with that request (see paragraphs 41 and 97 above). It does not consider,
however, that the applicant’s behaviour indicated his eventual consent to the
statements of B. given in different proceedings being read out in the trial
court. Even had that been the case, it is not sufficient for the Court to
conclude that he thereby waived his right to examine this witness. The Court
notes that the applicant complained both before the appellate court and before
the cassation court that he had been unable to examine B. as a witness (see
paragraphs 42 and 46 above and, for the case-law, see Gabrielyan,
cited above, § 85).
. The foregoing considerations
are sufficient to enable the Court to conclude that there were no reasons, let
alone good reasons, for the restriction of the applicant’s right to obtain the examination
of the witness whose testimony had been used for his conviction. In these
circumstances, the Court does not consider it necessary to proceed with the
second part of the test as to whether the applicant’s conviction was based
solely or to a decisive degree on B.’s depositions (see paragraph 104 above).
Accordingly, there has been a violation of Article 6 § 3 (d) taken together
with Article 6 § 1 of the Convention.
2. Alleged lack of impartiality of Judge R.
(a) The parties’ submissions
The applicant further complained that Judge R.
of the Leninskyy Court, who had dealt with his case, could not be regarded as
impartial, given that she had already given her assessment as to the circumstances
of the case in the framework of B.’s trial and had therefore had a preconceived
opinion about them. Moreover, the applicant emphasised that the judge herself had
admitted her lack of neutrality, having sought her own withdrawal from the
case, a request which was however rejected.
The Government submitted that the President of
the Leninskyy Court had examined and rejected Judge R.’s withdrawal and that
there were no reasons to question the soundness of that decision. Overall, they
did not discern any indication that the judge had been impartial.
(b) The Court’s assessment
The Court reiterates that Article 6 § 1 of the
Convention requires a court to be impartial. Impartiality denotes the absence
of prejudice or bias. According to the Court’s case-law, there are two tests
for assessing whether a tribunal is impartial within the meaning of Article 6 §
1. The first test (subjective) consists in seeking to determine the personal
conviction of a particular judge in a given case. The personal impartiality of
a judge must be presumed until there is proof to the contrary. As to the second
test (objective), it means determining whether, quite apart from the personal
conduct of a judge, there are ascertainable facts which may raise doubts as to
his/her impartiality (see, for example, Gautrin and Others v. France,
20 May 1998, § 58, Reports 1998-III, and Padovani v. Italy,
26 February 1993, § 26, Series A no. 257-B).
The Court notes that in the vast majority of
cases raising impartiality issues it has focused on the objective test.
However, there is no watertight division between subjective and objective
impartiality since the conduct of a judge may not only prompt objectively held
misgivings as to impartiality from the point of view of the external observer
(objective test) but may also go to the issue of his or her personal conviction
(subjective test) (see Kyprianou v. Cyprus [GC], no. 73797/01, § 119,
ECHR 2005-XIII). Thus, in some cases where it may be difficult to procure
evidence with which to rebut the presumption of the judge’s subjective
impartiality, the requirement of objective impartiality provides a further
important guarantee (see Pullar v. the United Kingdom, 10 June 1996, §
32, Reports of Judgments and Decisions 1996-III).
The Court also emphasises that in this respect
even appearances may be of a certain importance or, in other words, “justice
must not only be done, it must also be seen to be done” (see De Cubber v.
Belgium, 26 October 1984, § 26, Series A no. 86). What is at stake is
the confidence which the courts in a democratic society must inspire in the
public. Thus, any judge in respect of whom there is a legitimate reason to fear
a lack of impartiality must withdraw (see Castillo Algar v. Spain, 28
October 1998, § 45, Reports of Judgments and Decisions 1998-VIII,
and Micallef v. Malta [GC], no. 17056/06, § 98, ECHR 2009).
Turning to the present case, the Court notes
that Judge R., who convicted the applicant as a single-judge formation, had
earlier examined the merits of the case of the applicant’s co-defendant, B., in
the framework of which she had expressed her view on the involvement and roles
of both B. and the applicant, having held, in particular, that they had acted in
conspiracy and that it had been the applicant’s initiative to steal, together
with B., equipment from cars (see paragraph 13 above). Both aforementioned
cases concerned the same event and implied the evaluation of the same evidence.
Moreover, as the applicant pointed out,
Judge R. had herself admitted this as a ground for her self-recusal
application, which, however, had been dismissed with a formalistic wording that
the withdrawal of this judge was not called for under the applicable legal
provisions (see paragraphs 36-37 above).
The Court therefore accepts that this situation
could raise objectively justified doubts in the applicant’s mind concerning the
impartiality of that judge (see Morel v. France, no. 34130/96, § 44,
ECHR 2000-VI). Indeed, the very fact that the applicant was tried by the
judge who herself raised doubts on her impartiality in his case undermined
appearances of a fair trial.
The Court finds this sufficient to conclude
that the tribunal which convicted the applicant could not be regarded as
impartial.
There has accordingly been a violation of
Article 6 § 1 of the Convention on this account too.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Complaint under Article 5 § 4 of the Convention
The applicant also complained under Article 5 §
4 of the Convention that he could not obtain a judicial review of the lawfulness
of his detention from 6 to 9 January 2006.
The Court observes that, while the applicant’s
complaints under Article 5 §§ 1 and 3 of the Convention complied
with the six-month time-limit given that he had been convicted by the
first-instance court’s judgment on 14 November 2007 (see paragraphs 61, 72 and
74 above), the same cannot be said of his complaint under Article 5 § 4.
The Court notes that the detention in question
was formally classified under the domestic legislation as penalty for an
administrative offence not amenable to appeal (see paragraph 53 above). This
means that the six-month time-limit under Article 35 § 1 of the Convention,
within which the applicant should have introduced this complaint before the
Court, is to be calculated from 9 January 2006, even though the initial period
of his detention did not fall into any separate legal category of detention for
the purposes of the Convention (see paragraphs 65-67 above, and, for the
case-law, see Jamroży v. Poland, no. 6093/04, § 45, 15 September
2009).
Given that the applicant lodged his application
on 4 December 2006 (see paragraph 1 above), his complaint under Article 5 § 4
of the Convention must be dismissed as belated.
B. Other complaints
The applicant also complained under Article 6
that he had not been given prompt access to the case file after the judgment of
14 November 2007 had been pronounced, that his sentence had been too severe,
and that the criminal proceedings against him had lasted too long. Lastly, he
complained under Article 7 that he had received a conviction despite not having
committed a criminal offence.
In the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be rejected as
being manifestly ill-founded, pursuant Article 35 §§ 3 (a) and 4 of the
Convention.
V. 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.”
A. Damage
The applicant claimed 43,500 euros (EUR) in
respect of non-pecuniary damage, having submitted separate calculations of the
respective amounts as regards each of the alleged violations.
The Government contested this claim.
The Court considers that the applicant must
have suffered non-pecuniary damage, which cannot be sufficiently compensated by
the finding of a violation alone. Ruling on an equitable basis, it awards him
EUR 10,000 under that head.
Furthermore, given the Court’s findings
regarding the unfairness of the domestic proceedings resulting in the applicant’s
conviction (see paragraphs 110 and 120 above), the Court considers it
indispensable for the proper protection of human rights that a retrial (the
possibility of which is envisaged in the Ukrainian legislation) be provided
forthwith should the applicant so request (see, for example, Leonid
Lazarenko v. Ukraine, no. 22313/04,
§ 65, 28 October 2010). Any such trial must observe, strictly, the
substantive and procedural safeguards enshrined in Article 6 of the Convention (see Nechiporuk and Yonkalo, cited
above, § 297).
B. Costs and expenses
The applicant also claimed the following
amounts in respect of his legal representation: EUR 247 as regards the domestic
proceedings and EUR 880 as regards the proceedings before the Court. In
substantiation of this claim, he submitted copies of contracts dated 9 March
and 24 March 2006 for his legal representation in the domestic proceedings,
with the lawyer’s fee being 500 and 1,000 Ukrainian hryvnias (UAH) respectively.
The applicant also submitted a copy of the contract for his legal
representation in the proceedings before the Court, in which the lawyer’s hourly
rate was set at UAH 250. According to calculations by the applicant’s legal
representative, he spent thirty-two hours on the case before the Court. The
legal fees thus totalled UAH 9,500, or EUR 1,127 (under the exchange rate of
the National Bank of Ukraine as at the date of the just satisfaction claim (9
August 2012)).
The applicant also claimed EUR 23 for
postal expenses in respect of his correspondence to the Court, which he
confirmed by postage receipts.
The Government contested the above claims as
exorbitant and unsubstantiated. They however agreed to the Court awarding the
applicant EUR 18 in respect of postal expenses.
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 applicant’s claims for costs and expenses in full, less
EUR 850 as the sum received by way of legal aid, and plus any value-added tax
that may be chargeable to the applicant. Accordingly, the Court awards the applicant
EUR 300 under this heading (EUR 277 in respect of his legal representation
and EUR 23 in respect of the postal expenses).
C. Default interest
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. Decides to join the Government’s objection as to the compliance of the
applicant’s complaint under Article 5 § 1 of the Convention regarding the
lawfulness of his detention from 6 to 9 January 2006 with the six-month
rule to the merits of this complaint, and dismisses it after having examined
this complaint on the merits;
2. Declares the applicant’s complaints under
Article 5 §§ 1 and 3, as well as Article 6 § 1 (the “impartial tribunal”
requirement) and Article 6 §§ 1 and 3 (d) of the Convention, admissible and the
remainder of the application inadmissible;
3. Holds that there has been a violation of
Article 5 § 1 of the Convention as regards the lawfulness of the applicant’s detention
from 6 to 12 January 2006;
4. Holds that there has been a violation of
Article 5 § 3 of the Convention;
5. Holds that there has been a violation of
Article 6 §§ 1 and 3 (d) of the Convention on account of the non-attendance of B.
as a witness;
6. Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the lack of impartiality of the
first-instance court which convicted the applicant;
7. 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 10,000 (ten thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 300 (three hundred 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;
8. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 11 July 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Mark
Villiger
Registrar President
