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FIFTH
SECTION
CASE OF TKACHEV v. UKRAINE
(Application
no. 39458/02)
JUDGMENT
STRASBOURG
13
December 2007
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 Tkachev v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 20 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39458/02) 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 Kirill Aleksandrovich
Tkachev (“the applicant”), on 14 February 2001.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mrs Valeriya Lutkovska.
- On
30 March 2005 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1977. He is currently serving a life
sentence in Penitentiary no. 47 in the town of Zhvyrka, Lviv
Region.
A. Criminal proceedings against the applicant
- The
applicant was arrested on 7 December 1999.
- On
8 December 1999 the Pridnirpovsky District Court of Cherkassy
(Придніпровський
районний суд
м. Черкаси)
sentenced him to ten days' administrative detention (адміністративний
арешт)
for swearing in public, an act which the court qualified as petty
hooliganism, an offence under Article 173 of the Code of
Administrative Offences. The detention period was calculated to run
from 7 December 1999.
- On
9 December 1999 the applicant confessed to having participated in the
murder of a certain K. On the same day he was placed in police
custody.
- On
10 December 1999 a prosecutor from the Cherkassy Regional
Prosecutor's Office (Прокуратура
Черкаської
області)
instituted criminal proceedings against the applicant for
murder.
- On
11 December 1999 the Prosecutor of the Cherkassy Region (Прокурор
Черкаської
області,
hereafter “the Regional Prosecutor”)
ordered the applicant's pre trial detention. The reasons
given by the prosecutor for issuing the order were that:
“.. the [applicant] has committed a serious
offence and may attempt to evade the investigation and trial, and to
obstruct the establishment of the truth in the case.”
- From
11 to 17 December 1999 the investigator (слідчий)
appointed to deal with the case charged the applicant and his
three co-defendants with further counts of murder, armed robbery,
arson and participation in a criminal gang.
- On 31 January 2000 the Regional Prosecutor decided to
extend the length of the applicant's detention on remand for up to a
maximum of five months on the ground that he was suspected of
particularly serious criminal offences. Citing the same reason, on 28
April 2000 the Regional Prosecutor extended the length of the
applicant's detention up to a maximum of six months.
- On
31 May 2000 the investigator declared that the pre-trial
investigation was complete and granted the defendants access to the
case file.
- On
19 July 2000 the Regional Prosecutor approved the bill of indictment
and sent it with the case file to the Cherkassy Regional Court
(Черкаський
обласний суд,
hereafter “the Regional Court”)
in readiness for the trial proceedings.
- On
2 October 2000 the Regional Court found that the investigator's
conclusions were contradictory and did not correspond to the charges
that had been brought against the applicant. It remitted the case for
further investigations and decided – without stating any
reasons – that the applicant should remain in pre-trial
detention.
- On
25 October 2000 the Regional Prosecutor's Office resumed the
pre trial proceedings in the applicant's case.
- On
21 November 2000 the additional pre-trial investigations were
completed and the applicant and his co-accused were allowed to
consult the case file. Their consultations continued – with a
short interruption on 7 8 February 2001 – until
23 February 2001. On the latter date the Regional Prosecutor
approved the bill of indictment and submitted the case to the
Regional Court for trial.
- On
28 March 2001 the Regional Court remitted the case to the Regional
Prosecutor's Office on the ground that the case file was incomplete.
- On
29 March 2001 the case file was resubmitted to the court in readiness
for the trial proceedings.
- On
25 December 2001, following an adversarial trial during which the
applicant was represented by a lawyer, the Cherkassy Regional Court
of Appeal (Апеляційний
суд Черкаської
області, the
Cherkassy Regional Court, as renamed on 29 June 2001, hereafter “the
Court of Appeal”), found the applicant guilty as charged and
sentenced him to life imprisonment. His conviction was based on his
and his co-defendants' confessions during the pre-trial proceedings,
the statements of two of his co-defendants at the trial, and the
evidence of various witnesses and experts.
- On
16 July 2002 the Supreme Court rejected the applicant's appeal and
upheld the judgment of 25 December 2001.
B. Civil proceedings concerning the broadcasting of the
applicant's photograph on television
- On
9 September 2005 the Sosnivsky District Court of Cherkassy
(Соснівський
районний суд
м. Черкаси)
rejected a defamation claim by the applicant against the
newspapers Misto and Vechirni Cherkassy. The applicant,
who was represented by a lawyer, alleged that in November 2001 and
May 2002, i.e. before his conviction became final, the newspapers had
published articles in which he had been referred to as a “criminal”
and a “murderer”. The applicant claimed that that
information was libellous and abusive.
- The
court found that the statements in the newspaper articles had been
substantiated by the Cherkassy Regional Court of Appeal's judgment of
25 December 2001 and that in any event the applicant's claim was
time barred and he had not applied for an extension of time. The
applicant appealed.
- On
8 December 2005 the Court of Appeal upheld the judgment of
9 September 2005.
II. RELEVANT DOMESTIC LAW
- Article
148 of the Code of Criminal Procedure (hereafter “the CCP”)
provides, in so far as relevant, as follows:
“Preventive measures shall be imposed where
necessary to prevent a suspect, accused, defendant, or convicted
person from attempting to evade an inquiry, investigation or trial,
obstruct the establishment of the truth in a criminal case or pursue
criminal activities, or where necessary to ensure the execution of
procedural decisions.
Preventive measures shall be imposed where there are
sufficient grounds for believing that the suspect, accused, defendant
or convicted person will attempt to evade the investigation or trial,
or if he fails to comply with a procedural decision, or obstructs the
establishment of the truth in the case or pursues criminal
activities.”
- Other
relevant provisions of the CCP are to be found in the judgment of 5
April 2005 in the case of Nevmerzhitsky v. Ukraine
(no. 54825/00, § 54, ECHR 2005 II (extracts)).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the overall length of his detention had not
been “reasonable”. He referred to Article 5 § 3
of the Convention, which provides as follows:
“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
1. Six-month time-limit
- The
Government maintained that the applicant had failed to respect the
six-month time-limit, laid down by Article 35 § 1 of the
Convention. They pointed out that the applicant's initial letter of
14 February 2001 did not contain any complaint under Article 5 §
3. In his application of 14 October 2002 he had not
expressly mentioned Article 5 § 3 either and in any case that
application was lodged more than six months after 25 December 2001,
when the applicant was convicted and sentenced by the Court of
Appeal.
- The applicant disagreed.
- The Court reiterates that, pursuant to Article 35 §
1 of the Convention, it may only deal with a matter “within a
period of six months from the date on which the final decision was
taken”. The running of the six-month time-limit is, as a
general rule, interrupted by the first letter from the applicant
indicating an intention to lodge an application and giving some
indication of the nature of the complaints made. As regards
complaints not included in the initial communication, the running of
the six-month time limit is not interrupted until the date the
complaint is first submitted to the Court (BoZinovski v. the
former Yugoslav Republic of
Macedonia (dec.), no. 68368/01, 1 February 2005).
- The
Court notes that while it is true that the applicant's initial letter
of 14 February 2001 was primarily focused on the alleged
unfairness of the criminal proceedings against him, he did mention
that he had been held in detention for a long period, during which
the authorities had failed to deal with his case with due diligence.
In the Court's view, that statement may be regarded as evincing an
intention to lodge a further complaint about the length of his
detention on remand which is to be considered under Article 5 §
3 and so interrupted the running of the six-month time-limit.
- The
Court, therefore, rejects this objection by the Government.
2. Exhaustion of domestic remedies
- The
Government stated that that each action of the investigator in the
case which allegedly protracted the proceedings could have been
challenged by the applicant either in court or before the higher
prosecution authorities.
- The
applicant disagreed.
- The Court reiterates that the rule of exhaustion of
domestic remedies referred to in Article 35 § 1 of the
Convention obliges applicants to use first the remedies that are
normally available and sufficient in the domestic legal system to
enable them to obtain redress for the breaches alleged. Article 35 §
1 also requires that the complaints intended to be brought
subsequently before the Court should have been made to the
appropriate domestic body, at least in substance, and in compliance
with the formal requirements laid down in domestic law, but not that
recourse should be had to remedies which are inadequate or
ineffective (see Aksoy v. Turkey, judgment of 18 December
1996, Reports 1996-VI, §§ 51-52, and Akdıvar
and Others v. Turkey, judgment of 16 September 1996,
Reports 1996-IV, §§ 65-67).
- As
regards an appeal to a higher prosecutor, the Court finds that this
remedy cannot be considered “effective” and “accessible”
for the purposes of Article 35 of the Convention since the status of
the prosecutor in the domestic law and his participation in the
criminal proceedings against the applicant do not offer adequate
safeguards for an independent and impartial review of the applicant's
complaints effective remedy (see Merit v. Ukraine,
no. 66561/01, §§ 62-63, 30 March 2004).
- With
regard to the possibility of challenging before a court of general
jurisdiction an investigator's conduct at the pre-trial stage of the
proceedings, the Court considers that the Government have failed to
show that such action could have ensured a review of whether the
applicant's continued detention continued to be justified and could
have accelerated the proceedings. Moreover, the question whether an
applicant could and should have availed himself of any procedural
means to accelerate the proceedings seems rather related to the
merits of the complaint about the length of the detention on remand
than to the issue of exhaustion of remedies (see B. v. Austria,
judgment of 28 March 1990, Series A no. 175, § 45
and, mutatis mutandis, Lucas v. France (dec.), no.
37257/97, of 25 January 2000). In this context, the Court
observes that the Government did not contend that the applicant could
have successfully raised the argument concerning the length of his
detention in an application for release.
- The
Court, therefore, rejects this objection of the Government.
3. Conclusion
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds.
B. Merits
1. The parties' submissions
- The applicant alleged a violation of Article 5 §
3 of the Convention on the ground that the overall length of his
detention had been excessive.
- The Government argued that the applicant had been
detained within the meaning of Article 5 § 3 from 9 December
1999, when he was arrested, until the end of the first round of
pre-trial investigations on 31 May 2000, and from 25 October to 21
November 2000, i.e. during the second round of pre trial
investigations. The Government stated that the State could not be
held responsible for the period during which the applicant had
familiarised himself with the case-file and that, therefore, the
periods between 31 May and 19 July 2000 and 21 November
2000 and 23 February 2001 should be excluded from the
calculation. They thus considered that the period to be taken into
consideration had lasted 6 months and 22 days.
- The
Government contended that the applicant's criminal case had concerned
several counts of murder and armed robbery, arson and participation
in a criminal gang and there were three co-defendants. Several expert
reports had had to be obtained and numerous witnesses had been
questioned. The Government considered that the overall term of the
applicant's detention on remand had not exceeded the “reasonable
time” referred to in Article 5 § 3 of the Convention.
2. The Court's assessment
a. Period to be taken into consideration
- The
Court notes that the applicant was placed in police custody on
9 December 1999 and remained in detention until his
conviction by the Court of Appeal on 25 December 2001.
- The
Court is of the opinion that for the purposes of Article 5 § 3
of the Convention which refers back to paragraph 1 (c) of that
Article, the whole period during which the applicant remained in
detention “for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence” should be taken into account. This includes the
periods of detention during which the applicant was given access to
the case file and was detained pending the trial proceedings.
- The
applicant's detention on remand, therefore, lasted two years and
sixteen days.
b. Reasonableness of the length of the
detention
- The Court reiterates that it falls in the first place
to the national judicial authorities to ensure that, in a given case,
the pre-trial detention of an accused person does not exceed a
reasonable time. To this end they must examine all the facts arguing
for or against the existence of a genuine requirement of public
interest justifying, with due regard to the principle of the
presumption of innocence, a departure from the rule of respect for
individual liberty and set them out in their decisions ordering
continued detention. It is essentially on the basis of the reasons
given in these decisions that the Court is called upon to decide
whether or not there has been a violation of Article 5 § 3 of
the Convention (see I.A. v. France, judgment of 23
September 1998, Reports of Judgments and Decisions 1998 VII,
§ 102).
- It
recalls 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” (Labita
v. Italy [GC], no. 26772/95, § 153, ECHR 2000-IV).
- The
Court notes that the prosecutor's detention order of 11 December
1999 was based on strong suspicion that the applicant had committed
the offence with which he had been charged (see paragraph 9 above).
- It
accepts that the fact that the applicant was suspected of a serious
offence initially warranted his detention. In this context, the Court
observes that at the very beginning of the investigations against
him, the applicant had confessed to having participated in the murder
concerned.
- The
Court notes that in addition to strong suspicion, the detention order
of 11 December 1999 also referred to the risk that the applicant
might abscond and obstruct justice if released. The prosecutor,
however, confined himself to repeating in an abstract manner the
formal grounds for detention set forth in Article 148 of the CCP.
These grounds were cited without any attempt to show how they applied
to the applicant's case (see paragraphs 9 and 24 above).
- What is more, neither the possibility of absconding
nor the risk of obstructing justice was mentioned in the decisions of
31 January and 28 April 2000 extending the length of the
applicant's detention pending pre-trial investigations up to a
maximum of six months (see paragraph 11 above). Moreover, the
Regional Court's ruling of 2 October 2000, which was the only court
decision authorising the applicant's detention the parties referred
to in their submissions, did not state any ground for the
prolongation of the applicant's detention pending further pre-trial
investigations (see paragraph 14 above).
- Therefore,
even if those risks were mentioned in the initial detention order,
the Court is unable to assess whether they continued to justify the
applicant's deprivation of liberty during the whole period under
consideration.
- In
the light of the above, the Court finds that that the reasons relied
upon by the domestic authorities in their decisions concerning the
applicant's detention on remand and its prolongation, were not
“relevant and sufficient”. In these circumstances it is
not necessary to examine whether the proceedings were conducted with
“special diligence”.
- There has accordingly been a violation of Article 5 §
3 of the Convention in this respect.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention that he had
been subjected to ill-treatment while in police custody.
He
further contended that his arrest on 7 December 1999 and his
subsequent administrative detention were not lawful within the
meaning of Article 5 § 1 (c) of the Convention.
The
applicant also complained that the criminal proceedings against him
had been unfair, contrary to Article 6 § 1 of the Convention,
since the trial court had failed to question additional witnesses and
had erred in its assessment of the evidence.
He
further complained under Article 6 § 2 of the Convention that in
two newspaper articles published before the judgment in his criminal
case became final, he had been labelled a “criminal” and
a “murderer”.
Finally
the applicant complained that since life imprisonment was not a
sentence provided for by the Criminal Code of Ukraine as it stood on
the date of the offence, the imposition of that penalty had violated
Article 7 of the Convention.
- The Court has examined these complaints as submitted
by the applicant. However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, it finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols.
- Accordingly,
it rejects this part of the application in accordance with Article 35
§§ 3 and 4 of the Convention as being manifestly
ill-founded.
III. 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 Ukrainian Hryvnas (UAH) 30,268 (approximately Euros
(EUR) 4,385) in respect of his alleged loss of earnings during the
detention period and UAH 1,000,000 (approximately EUR 145,000) in
respect of non-pecuniary damage.
- The
Government stated that the applicant's claim for pecuniary damage was
not supported by any evidence. As regards his claims for
non pecuniary damage, the Government maintained that they were
exorbitant.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
-
However, it considers that the applicant must have suffered feelings
of frustration and injustice as a consequence of the domestic
authorities' decision to keep him in custody without sufficient
reason. He thus suffered non-pecuniary damage which would not be
adequately compensated for solely by the finding of a violation.
Accordingly, making its assessment on an equitable basis, the Court
awards him EUR 1,000, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant did not submit any claim under this head within the set
time-limit; the Court therefore makes no award in this respect.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the complaint concerning the excessive
length of the applicant's detention on remand admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- 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, EUR 1,000 (one
thousand euros) in respect of non-pecuniary damage, to be converted
into the national currency of the respondent State at the rate
applicable at the date of settlement, plus any tax that may be
chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
