European Court of Human Rights

 

FIFTH SECTION

CASE OF ZAVADSKIY AND OTHERS v. UKRAINE

(Applications nos. 19095/12 and four others)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

18 June 2020

 

This judgment is final but it may be subject to editorial revision.

In the case of Zavadskiy and others v. Ukraine,

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

          Gabriele Kucsko-Stadlmayer, President,
          Mārtiņš Mits,
          Anja Seibert-Fohr, judges,
and Victor Soloveytchik, Deputy Section Registrar,

Having regard to:

the applications (nos. 19095/12, 73451/13, 16561/16, 19635/16 and 44349/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Ukrainian nationals, Mr Igor Borisovich Zavadskiy (“the first applicant”), Mr Oleksandr Vasylyovych Tymchenko (“the second applicant”), Mr Mykola Ivanovych Dubyna (“the third applicant”), Mr Oleksandr Mykolayovych Dubyna (“the fourth applicant”) and Mr Yevgen Yuriyovych Shugaliy (“the fifth applicant”), on the various dates indicated in the appended table;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Article 5 §§ 3 and 5 of the Convention, and to declare inadmissible the remainder of the applications;

the parties’ observations;

Having deliberated in private on 28 April 2020,

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

INTRODUCTION

The case concerns the alleged lack of reasoning of the judicial decisions ordering the applicants’ arrest and continued detention, the allegedly unreasonable duration of their detention on remand and the alleged absence of a right to compensation for the alleged violations of their Article 5 rights.

THE FACTS

1.  The applicants’ details appear in the appended table below.

2.  The Government were represented by their Agent, Mr I. Lishchyna from the Ministry of Justice.

3.  The facts of the case, as submitted by the parties, may be summarised as follows.

4.  On various dates the applicants were arrested in the context of criminal investigations against them. Shortly afterwards the courts ordered their detention on remand. The relevant judicial decisions stated that the applicants were accused of serious crimes and could otherwise escape and hinder the investigation or continue with their criminal activities. The courts did not provide specific details explaining the persistence of the mentioned reasons.

5.  In addition to the reasons mentioned above, the courts noted, without providing specific details, that:

-  in application no. 19095/12, the applicant had no family and permanent job;

-  in application no. 73451/13, the crime imputed to the applicant had been committed by a group, and not all the members of a group had been identified;

-  in application no. 44349/16, the crime imputed to the applicant had been committed while he had been on probation for a similar crime.

6.  In the course of the proceedings the courts extended the applicants’ detention a number of times, referring to the reasons indicated in the initial decisions on the applicants’ detention. The courts furthermore noted that there were no reasons for the applicants to be released, since no new circumstances warranting release had been identified or the circumstances that had led to the decision to place the applicants in detention pending their trial persisted.

7.  The first applicant remained in detention until 13 June 2016, when he was released under a personal commitment not to abscond.

8.  The second applicant remained in detention until 19 November 2015, when he was released in the course of the proceedings.

9.  On 6 December 2017 the trial court convicted the third applicant and sentenced him to eleven years’ imprisonment.

10.  On 8 February 2016 the trial court acquitted the fourth applicant and released him.

11.  On 15 April 2016 the trial court convicted the fifth applicant and sentenced him to four years’ imprisonment.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

12.   The provisions of the 1960 Code of Criminal Procedure concerning pre-trial detention can be found in Yeloyev v. Ukraine (no. 17283/02, § 35, 6 November 2008); Makarenko v. Ukraine (no. 622/11, § 50, 30 January 2018); and Shavel v.Ukraine ((dec.), no. 25486/03, 8 January 2007).

13.  The Code of Criminal Procedure of 28 December 1960 was repealed, losing force from 19 November 2012, when the 2012 Code of Criminal Procedure came into force. The relevant provisions of the new Code concerning pre-trial detention can be found in Ignatov v. Ukraine (no. 40583/15, § 25, 15 December 2016).

THE LAW

I. JOINDER OF THE APPLICATIONS

14.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. SCOPE OF THE CASE

15.  In his response to the Government’s observations, the first applicant complained, under Article 5 § 1 (a) of the Convention, that his detention after the court sentence of 10 July 2014 until the subsequent quashing of that sentence on appeal had been unlawful.

16.  In the Court’s view, this new complaint is not an elaboration of the original complaints on which the parties have commented. It is therefore inappropriate to take this matter up in the context of the present case (see, mutatis mutandis, Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).

III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

17.  The applicants complained under Article 5 §§ 1 and 3 of the Convention that the domestic courts’ decisions ordering their arrest and further detention on remand had been unjustified and unreasonable. Being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos.  37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), and having regard to the substance of the applicants’ complaints, the Court decides to examine them under Article 5 § 3 of the Convention. The applicants also complained that they had not had an effective and enforceable right to compensation for their detention in contravention of Article 5 § 3, as required by Article 5 § 5 of the Convention.

The relevant provisions of Article 5 §§ 3 and 5 of the Convention read as follows:

“3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial...

5.  Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

A.    Admissibility

18.  As regards application no. 16561/16, the Government submitted that when the criminal proceedings against that applicant were at the pre-trail stage, that is between 8 July and 1 December 2014, the decisions of the local court ordering the applicant’s arrest and further detention on remand were subject to appeal. Having not appealed against the respective court decisions, the applicant therefore failed to exhaust the domestic remedies available to him.

19.  The applicant did not comment on that issue.

20.  The Court notes that the appeal procedure, to which the Government have referred, should in principle be regarded as an ordinary and accessible domestic remedy for the purposes of Article 35 § 1 of the Convention. It does not find any special circumstances in the present case which would absolve the applicant from having recourse to it. In the absence of any submissions from the applicant to the contrary, the Court considers that the applicant did not demonstrate that he had appealed against the court decisions ordering his arrest and further detention between 8 July and 1 December 2014, having thus failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention.

21.  Owing to the above facts, the applicant’s complaint under Article 5 § 3 of the Convention as far as it concerns the period between 8 July and 1 December 2014 must be rejected for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.

22.  The Court further notes that the remainder of application no. 16561/16 as well as all other applications under examination 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.    Article 5 § 3 of the Convention

23.  The applicants submitted that their pre-trial detention had not been based on sufficient grounds and had been unreasonable.

24.  The Government contested the applicants’ arguments, stating that their detention had been justified and reasonable.

25.  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).

26.  Information about the period and length of the applicants’ detention is indicated in the appended table.

27.  The Court observes that the seriousness of the charges against the applicants and the risk of their absconding or interfering with the respective investigations were mentioned in the initial orders for their detention (see paragraph 4 above). Those reasons remained the main grounds for the applicants’ detention until their conviction or release. The Court furthermore notes that the decisions on the applicants’ detention were couched in general terms and contained repetitive phrases. They did not suggest that the courts had made an appropriate assessment of the facts relevant to the question of whether such a preventive measure was necessary in the circumstances at the respective stages of proceedings.

28.  Moreover, with the passage of time, the applicants’ continued detention required further justification, but the courts did not provide any further reasoning. It appears that the domestic courts did not attempt to demonstrate the existence of specific facts proving that the declared risks outweighing the rule of respect for individual liberty existed. In fact, the burden of proof was wrongly shifted onto the applicants (compare Khayredinov v. Ukraine, no. 38717/04, §§ 40 and 41, 14 October 2010, and Makarenko v. Ukraine, cited above, § 91).

29.  The Court particularly notes that the domestic courts repeatedly justified the applicants’ further detention by the absence of reasons to release them (see paragraph 6 above), while Article 5 § 3 of the Convention intends that the opposite approach be adopted, requiring the national authorities to indicate grounds for a person’s continuing detention (see Neumeister v. Austria, 27 June 1968, § 4, Series A no. 8).

30.  The Court has often found a violation of Article 5 § 3 of the Convention in cases against Ukraine on the basis that even in respect of lengthy periods of detention the domestic courts referred to the same set of grounds (if there were any) throughout the period of the respective applicant’s detention (see, for example, Kharchenko v. Ukraine, no. 40107/02, §§ 80-81 and 99, 10 February 2011, and Ignatov v. Ukraine, cited above, §§ 41-42).

31.  Having regard to the above, the Court considers that by failing to address specific facts or consider other measures as an alternative to pre‑trial detention and by relying essentially and routinely on the seriousness of the charges, the authorities extended the applicants’ detention pending trial on grounds that cannot be regarded as “sufficient” and “relevant” to justify its duration.

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

2.    Article 5 § 5 of the Convention

33.  The Court observes that the applicants’ complaints in this regard are similar to the complaints examined by the Court in a number of other cases against Ukraine (see, as the most recent example, Sinkova v. Ukraine, no. 39496/11, §§ 79-84, 27 February 2018). The Court concludes that the applicants did not have an enforceable right to compensation for their unjustified detention, as required by Article 5 § 5 of the Convention. There has therefore been a violation of that provision.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

34.  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

35.  In respect of pecuniary damage, the first applicant claimed 50,000 euros (EUR) in compensation for loss of income.

36.  The applicants also claimed the amounts indicated in the appended table in respect of non-pecuniary damage.

37.  The Government considered those claims unsubstantiated and excessive.

38.  As regards the claim for pecuniary damage raised by the first applicant, the Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, making its assessment on an equitable basis, it awards the applicants the amounts indicated in the appended table, in respect of non‑pecuniary damage, plus any tax that may be chargeable.

B.     Costs and expenses

39.  The second, third and fifth applicants claimed EUR 3,500, EUR 2,600 and EUR 2,000 respectively for the costs and expenses incurred before the Court. Those three applicants asked that the respective awards be paid directly into their representative’s bank account. The remaining applicants did not make a claim under this head.

40.  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.

41.  Regard being had to the documents in its possession, the low level of complexity of the cases, the fact that the second, third and fifth applicants were represented by the same lawyer Mr O. Ignatov, and the fact that he intervened in application no. 73451/13 at the communication stage only, the Court awards those three applicants jointly the aggregate sum of EUR 1,000, to cover all their costs and expenses, plus any tax that may be chargeable to them. The award is to be paid into Mr O. Ignatov’s bank account, as indicated by the applicants (see, for example, Belousov v. Ukraine, no. 4494/07, §§ 116‑17, 7 November 2013, and Khlaifia and Others v. Italy [GC], no.  16483/12, § 288, ECHR 2016 (extracts)).

C.    Default interest

42.  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 applications;

2.      Declares admissible the applicants’ complaints under Article 5 § 3 of the Convention concerning the lack of justification of their detention on remand during the periods of time indicated in the appended table and the complaints under Article 5 § 5 of the Convention concerning the absence of an enforceable right to compensation for their allegedly unjustified detention, and the remainder of application no. 16561/16 inadmissible;

3.      Holds that there have been violations of Article 5 § 3 of the Convention in respect of all the applicants;

4.      Holds that there have been violations of Article 5 § 5 of the Convention in respect of all the applicants;

5.      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) the amounts indicated in the appended table in respect of each of the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of costs and expenses, to be paid into the bank account of Mr O. Ignatov, legal representative of the second, third and fifth applicants;

(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 applicants’ claims for just satisfaction.

Done in English, and notified in writing on 18 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Victor Soloveytchik                                            Gabriele Kucsko-Stadlmayer
   Deputy Registrar                                                              President

APPENDIX

No.	Application no. Case name Lodged on	Applicant Date of Birth Place of Residence Nationality Represented by	Nature of charges against the applicant	Name of court ordering the applicant’s arrest, date	Period of detention under consideration, length	Amount of non-pecuniary damage claimed	Amount of non-pecuniary damage awarded
1.	19095/12   Zavadskiy v. Ukraine   01/04/2012	Igor Borisovich ZAVADSKIY 20/01/1966 Kyiv Ukrainian	Child molestation and the violent and unnatural gratification of sexual desire	Shevchenkivskyy District Court of Kyiv, 26/03/2012	23/03/2012-10/07/2014, 20/04/2016-13/06/2016   2 years 6 months	EUR 50,000	EUR 1,600
2.	73451/13   Tymchenko v. Ukraine   14/11/2013	Oleksandr Vasylyovych TYMCHENKO 04/01/1978 Solone Ukrainian Oleksandr Anatoliyovych IGNATOV	Gang robbery	Zhovtnevyi District Court of Dnipropetrovsk, 09/03/2013	07/03/2013-15/09/2014,   1 year 6 months	EUR 6,000	EUR 1,000
3.	16561/16   Dubyna v. Ukraine   17/03/2016	Mykola Ivanovych DUBYNA 04/04/1956 Orikhiv Ukrainian Oleksandr Anatoliyovych IGNATOV	Terrorism activity	Zhovtnevyi District Court of Zaporizhzhya, 10/07/2014	01/12/2014-08/02/2016 08/06/2016-06/12/2017   2 years 7 months	EUR 6,000	EUR 1,600
4.	19635/16   Dubyna v. Ukraine   17/03/2016	Oleksandr Mykolayovych DUBYNA 24/07/1990 Orikhiv Ukrainian Oleksandr Anatoliyovych IGNATOV	Terrorism activity	Zhovtnevyi District Court of Zaporizhzhya,   10/07/2014	09/07/2014-08/02/2016   1 year 7 months	EUR 6,000	EUR 1,000
5.	44349/16   Shugaliy v. Ukraine   11/07/2016	Yevgen Yuriyovych SHUGALIY 28/01/1992 Dniprodzerzynsk Ukrainian Oleksandr Anatoliyovych IGNATOV	Robbery	Dniprovskyi District Court of Dniprodzerzhynsk,   21/01/2015	21/01/2015-15/04/2016   1 year 3 months	EUR 6,000	EUR 800