VYSHNEVSKYY AND OTHERS v. UKRAINE - 72192/12 (Judgment : Article 5 - Right to liberty and security : Fifth Section Committee) [2020] ECHR 365 (28 May 2020)

JUDGMENT STRASBOURG 28 May 2020 This judgment is final but it may be subject to editorial revision. In the case of Vyshnevskyy 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. 72192/12 , 10417/14 and 31184/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Ukrainian nationals, Mr Viktor Viktorovych Vyshnevskyy (“the first applicant”), Mr Vasyl Igorovych Sokil (“the second applicant”) and Mr Sergiy Volodymyrovych Orlov (“the third applicant”), on the dates indicated in the appended table; the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Articles 5 and 6 of the Convention and to declare inadmissible the remainder of the applications; the third applicant’s death on 1 August 2018 and the wish of his mother, Ms Lyubov Orlova, to pursue the proceedings before the Court; 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 unlawfulness and lack of reasoning of the judicial decisions ordering the applicants’ arrest and continued detention, the allegedly unreasonable duration of their detention on remand, the alleged absence of a meaningful review of the lawfulness of their detention, the alleged absence of an enforceable right to compensation for arbitrary detention, and the allegedly unreasonable duration of the criminal proceedings in breach of Article 5 §§ 1, 3, 4, 5 and Article 6 § 1 of the Convention. THE FACTS 1. The applicants’ details are set out in the appended table. 2. The Government were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. I. Facts common to all the applications under consideration 4. On various dates the applicants were arrested in the context of criminal investigations against them. Shortly afterwards the courts ordered their pre-trial detention. The relevant judicial decisions stated that the applicants had been accused of serious crimes and might otherwise escape and hinder the investigation or continue their criminal activity. The courts did not provide specific details explaining the persistence of the above-mentioned reasons. 5. In the course of the proceedings, the courts extended the applicants’ detention a number of times, referring to the reasons stated 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 trial persisted. II. Case-specific facts A. Application no. 72192/12 ( Vyshnevskyy v. Ukraine ) 6. In the course of the applicant’s detention - which had been extended by the court until 27 January 2012 - the criminal case against him, together with the relevant bill of indictment, was submitted to the trial court, which on 9 February 2012 extended the applicant’s detention and remitted the case for additional pre-trial investigation. 7. The applicant remained in detention until 17 December 2012, when he was released on bail. B. Application no. 10417/14 ( Sokil v. Ukraine ) 8. In the course of the applicant’s detention - which had been extended by the court until 25 May 2013 - the criminal case against him, together with the relevant bill of indictment, was submitted to the trial court, which on 10 June 2013 extended the applicant’s detention and committed him for trial. 9. On 22 July 2014 the trial court convicted the applicant and sentenced him to four years and six months’ imprisonment. C. Application no. 31184/16 ( Orlov v. Ukraine ) 10. On 22 December 2015 the Dnipropetrovsk Regional Court of Appeal quashed the decision of the first-instance court of 8 October 2015 and remitted the case for retrial. The Regional Court of Appeal did not rule on the question of the further pre-trial detention of the applicant, who was then taken back to the pre-trial detention centre. 11. On 5 January 2016 the Regional Court of Appeal acknowledged that it had not addressed the issue of the applicant’s pre-trial detention and extended it for a further sixty days. 12. The applicant remained in detention pending retrial until 23 December 2016, when his detention was changed to house arrest. RELEVANT LEGAL FRAMEWORK . The provisions of the Code of Criminal Procedure of 28 December 1960 concerning pre-trial detention can be found in Shavel v. Ukraine ((dec.), no. 25486/03, 8 January 2007). 14. The Code of Criminal Procedure was repealed with effect 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 ) . 15. Article 419 § 1 (3) of the 2012 Code of Criminal Procedure provides that the ruling of the court of appeal contains, inter alia , the decisions on the preventive measure in respect of the accused. THE LAW I. JOINDER OF THE APPLICATIONS 16. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. PRELIMINARY QUESTION (APPLICATION NO. 31184/16 - Orlov v . UKRAINE ) 17. The Government argued that the third applicant’s mother had no locus standi to pursue the application in view of the fact that the rights enshrined in Article 5 of the Convention were eminently personal and non-transferable. 18. The Court notes at the outset that the third applicant died while the application was pending before it. The Court has accepted that, when an applicant dies after the application has been lodged, his or her next of kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014, and the references cited therein). 19. In view of the above, the Court accepts that the third applicant’s mother, Ms Lyubov Orlova, has a legitimate interest in pursuing the application in his stead. It will therefore continue dealing with the case at her request. For convenience, however, it will continue to refer to Mr Sergiy Volodymyrovych Orlov as “the applicant” or “the third applicant” in the present judgment. III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 20. 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. The relevant provisions of Article 5 §§ 1 and 3 of the Convention 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.” A. Admissibility 21. The Government submitted that the first and second applicants had failed to comply with the six-month requirement in respect of their complaints concerning the arbitrariness of their detention under Article 5 § 1 of the Convention in so far as they concerned the following periods: – from 27 January to 9 February 2012 (see paragraph 6 above) as regards the first applicant, who lodged his application on 17 October 2012; – from 25 May to 10 June 2013 (see paragraph 8 above) as regards the second applicant, who lodged his application on 13 January 2014. 22. The applicants contested the Government’s argument and stated that they had been continuously detained during the criminal investigations against them until their release or conviction (see paragraphs 7 and 9 above). 23. The Court observes that the applicants’ uninterrupted detention during the periods of time indicated above and in the appended table was of the same legal nature, and constituted a continuing situation for the purposes of the Convention. The applicants’ complaints cannot be dismissed as having been 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. 24. The Court notes that the above complaints are not manifestly ill‑ founded. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. Article 5 § 1 of the Convention 25. The first applicant submitted that his detention from 27 January to 9 February 2012 (see paragraph 6 above) had been arbitrary, as it had not been authorised by a court order. 26. The second applicant submitted that his detention from 25 May to 10 June 2013 (see paragraph 8 above) had been arbitrary, as it had not been authorised by a court order. 27. The third applicant submitted that his detention from 22 December 2015 to 5 January 2016 (see paragraphs 10-11 above) had been arbitrary, as it had not been authorised by a court order. 28. The Government disagreed and stated that there had been no breach of the applicants’ Convention rights. 29. The Court observes that the reason for the first and second applicants’ detention during the periods of time indicated in paragraphs 6 and 8 above was that a bill of indictment had been submitted to the relevant trial court. In that connection, the Court notes that it has previously examined similar situations in other cases against Ukraine and found them to be incompatible with the principles of legal certainty and protection from arbitrariness guaranteed by Article 5 § 1 of the Convention (see Kharchenko v. Ukraine , no. 40107/02 , § 71, 10 February 2011 ) . The Court sees no reason to depart from its earlier findings in the present case. 30. As regards the third applicant, it appears from the material submitted by the parties that the Regional Court of Appeal, when quashing the sentence of the first-instance court on 22 December 2015, did not give a decision on the applicant’s preventive measure, which led to his continued detention in the absence of a court order. The Court will not analyse the reason for that omission. It observes in this connection that a deprivation of liberty will only be “lawful” and “in accordance with a procedure prescribed by law”, as required by Article 5 § 1, if it is effected in conformity with the substantive and procedural rules of the national law (see, among many other authorities, Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004‑II). 31. In the light of the foregoing the Court finds that the Regional Court of Appeal failed to comply with the requirement under domestic law to rule on the third applicant’s preventive measure (see paragraph 15 above). 32. It follows that the third applicant’s detention from 22 December 2015 to 5 January 2016 was not “lawful” and “in accordance with a procedure prescribed by law”. 33. There have accordingly been violations of Article 5 § 1 of the Convention. 2. Article 5 § 3 of the Convention 34. The applicants submitted that their pre-trial detention had not been based on sufficient grounds and that its length had been unreasonable. 35. The Government contested the applicants’ arguments, stating that their detention had been justified and reasonable. 36. 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). 37. Information about the dates and length of the applicants’ detention is set out in the appended table. 38. The Court observes that the seriousness of the charges against the applicants and the risk of their absconding or interfering with the investigations were referred to in the initial orders for their detention (see paragraph 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 give reason to believe that the courts had made an appropriate assessment of facts relevant to the question of whether such a preventive measure was necessary in the circumstances at the respective stages of the proceedings. 39. Moreover, with the passage of time, the applicants’ continued detention required additional justification, but the courts did not provide any. It appears that the domestic courts did not attempt to demonstrate the existence of concrete facts proving that the declared risks outweighed the rule of respect for individual liberty. In fact, the burden of proof was wrongly shifted onto the applicants (compare Khayredinov v. Ukraine , no. 38717/04 , §§ 40-41, 14 October 2010, and Makarenko v. Ukraine , no. 622/11 , § 91, 30 January 2018 ). 40. The Court notes in particular that the domestic courts repeatedly justified the applicants’ further detention by referring to the absence of reasons to release them (see paragraph 5 above), whereas Article 5 § 3 of the Convention implies the opposite approach and requires the national authorities to provide grounds for the person’s continuing detention (see Komarova v. Ukraine , no. 13371/06, § 79, 16 May 2013 ). 41. The Court has found a violation of Article 5 § 3 of the Convention in many cases against Ukraine on the basis that, even in respect of lengthy periods of detention, the domestic courts had referred to the same set of grounds (if there were any) throughout the detention of the applicant in question (see, for example, Kharchenko , cited above , §§ 80-81 and 99 , and Ignatov , cited above , §§ 41-42). 42. 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 and on the risk that the applicants might escape and hinder the investigations, the authorities extended the applicants’ detention pending trial on grounds that cannot be regarded as “sufficient” and “relevant” to justify its duration. 43. There have accordingly been violations of Article 5 § 3 of the Convention. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 44. The second and third applicants also complained under Article 5 § 4 of the Convention that their right to a review of the lawfulness of their detention had been breached. The third applicant furthermore complained, under Article 5 § 5 of the Convention, that he had had no enforceable right to compensation for his arbitrary detention and, under Article 6 § 1 of the Convention, that the length of the criminal proceedings against him had been excessive. 45. Having regard to the facts of the case, the submissions of the parties and its findings under Article 5 §§ 1 and 3 of the Convention (see paragraphs 33 and 43 above), the Court considers that it has examined the main legal questions raised in the present applications, and that there is no need to give a separate ruling on the admissibility and merits of the other complaints mentioned above (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu , cited above, § 156). V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 46. 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 47. The applicants claimed the amounts indicated in the appended table in respect of non-pecuniary damage. 48. The Government considered those claims unsubstantiated and excessive. 49. Making its assessment on an equitable basis, the Court awards the first and second applicants and the mother of the third applicant the amounts indicated in the appended table in respect of non‑pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 50. The second applicant claimed 12,450 euros (EUR) and the third applicant claimed EUR 1,000 for the costs and expenses incurred before the Court. 51. The Government contested those claims. 52. 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. 53. Regard being had to the documents in its possession, the Court awards the second applicant EUR 1,000 in respect of costs and expenses. 54. As regards the third applicant’s claims, the Court notes that they are not supported by any evidence and therefore rejects them. C. Default interest 55. 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; 1. Declares that the third applicant’s mother, Ms Lyubov Orlova, has standing to continue the present proceedings in the applicant’s stead; 3. Declares admissible, under Article 5 §§ 1 and 3 of the Convention, the complaints by the first applicant regarding the arbitrariness of his detention from 27 January to 9 February 2012 and the lack of relevant and sufficient reasons for his pre-trial detention; 4. Declares admissible, under Article 5 §§ 1 and 3 of the Convention, the complaints by the second applicant regarding the arbitrariness of his detention from 25 May to 10 June 2013 and the lack of relevant and sufficient reasons for his pre-trial detention; 5. Declares admissible, under Article 5 §§ 1 and 3 of the Convention, the complaints by the third applicant regarding the arbitrariness of his detention from 22 December 2015 to 5 January 2016 and the lack of relevant and sufficient reasons for his pre-trial detention; 6. Holds that there have been violations of Article 5 § 1 of the Convention in respect of all the applicants; 7. Holds that there have been violations of Article 5 § 3 of the Convention in respect of all the applicants; 8. Holds that it is not necessary to examine the admissibility and merits of the second and third applicants’ complaints under Article 5 § 4 of the Convention regarding the courts’ failure to carry out a proper examination of their applications for release, and the third applicant’s complaints under Article 5 § 5 of the Convention regarding the lack of an enforceable right to compensation for his arbitrary detention and under Article 6 § 1 of the Convention regarding the excessive length of the criminal proceedings against him ; 9. 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 the first and second applicants and the mother of the third applicant, 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 to the second applicant; (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; 10. Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 28 May 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 72192/12 Vyshnevskyy v. Ukraine 17/10/2012 Viktor Viktorovych VYSHNEVSKYY Oleksandrivka Ukrainian Tetyana Anatoliyivna VYSHNEVETSKA Embezzlement Chervonozavodskoy District Court of Kharkiv, 30/09/2011 27/09/2011-17/12/2012 1 year and 2 months EUR 20,000 EUR 6,000 10417/14 Sokil v. Ukraine 13/01/2014 Vasyl Igorovych SOKIL Chervonograd Ukrainian Yuriy Volodymyrovych OGORILKO, Dmytro Igorovych MAZUROK Murder Sokal Local Court of Lviv Region, 07/02/2013 07/02/2013- 22/07/2014 1 year and 5 months EUR 75,000 EUR 6,000 31184/16 Orlov v. Ukraine 20/05/2016 Sergiy Volodymyrovych ORLOV Ukrainian Myroslava Volodymyrivna DYOMINA Drug-related crime Babushkinskyi District Court of Dnipropetrovsk, 30/12/2014 28/12/2014-08/10/2015, 22/12/2015-23/12/2016 1 year and 9 months EUR 20,000 EUR 6,000 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII