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FIFTH
SECTION
CASE OF YELOYEV v. UKRAINE
(Application
no. 17283/02)
JUDGMENT
STRASBOURG
6
November 2008
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 Yeloyev v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait Maruste, President,
Volodymyr
Butkevych,
Renate Jaeger,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 7 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17283/02) 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 Aleksandr
Vladimirovich Yeloyev (“the applicant”), on 18 March
2002.
- The
applicant, who had been granted legal aid, was represented by Mr S.
Shevchenko, a lawyer practising in Kharkiv. The Ukrainian Government
(“the Government”) were represented by their Agent,
Mr Y. Zaytsev.
- The
applicant alleged, in particular, that his pre-trial detention had
been unlawful and excessively long, that there had been no review of
its lawfulness and that the length of the proceedings against him had
been excessive.
- On
5 September 2006 the Court declared the application partly
inadmissible and decided to communicate the complaints under Article
5 of the Convention and the complaint concerning the excessive length
of the proceedings 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 1968 and lives in Kherson.
- On
26 April 1995 the investigator of the Kharkiv Regional Department for
Combating Organised Crime of the Ministry of the Interior instituted
criminal proceedings for tax evasion against officials of the
Bystryye Dengi open joint-stock company, managed by the applicant. At
that time the applicant was also a member of the Dzerzhinskiy
District Council of Kharkiv (“the District Council”) and
enjoyed immunity from criminal prosecution.
- On
30 January 1996 the Ordzhonikidzevskiy District Police Department
instituted criminal proceedings against the applicant for tax
evasion.
- On
14 March 1996 the investigator charged the applicant with tax evasion
and ordered him not to leave his place of residence. The same day,
having established that the applicant’s whereabouts were
unknown, the investigator suspended the investigation and placed him
on the wanted list.
- On
2 October 1996 the Prosecutor of the Kharkiv Region requested the
District Council to lift the applicant’s immunity. On 1
November 1996 the Council rejected this request by a secret vote.
Following this, the criminal proceedings against the applicant were
discontinued and the order relating to his obligation not to abscond
was cancelled.
- On
12 March 1997 the prosecutor repeatedly requested the District
Council to lift the applicant’s immunity.
- On
20 March 1997 the applicant was stopped while crossing the
Ukrainian-Russian border and was sent back to Kharkiv. On his way
there he escaped.
- On
17 April 1997 the Kharkiv City Council decided to lift the
applicant’s immunity.
- The
same day the investigator ordered the applicant’s arrest.
- On
18 April 1997 the preliminary investigation was suspended as the
applicant’s whereabouts were unknown. The applicant was placed
on the wanted list.
- On
8 August 1998 the applicant was arrested and charged with tax evasion
under Article 148-2 of the Criminal Code. On the same day the Deputy
Prosecutor of the Kharkiv Region ordered his pre-trial detention.
- The
applicant’s detention was extended on successive occasions: to
six months on 6 October 1998 by the Prosecutor of the Kharkiv Region,
to ten months on 25 January 1999 and to twelve months on 25 May 1999
by the Deputy Prosecutor General of Ukraine. The period of the
applicant’s detention on remand pursuant to the prosecutors’
decisions expired on 8 August 1999.
- On
15 January 1999 the investigator reclassified the charges against the
applicant and instituted criminal proceedings against him for fraud,
tax evasion, illegal business activities, embezzlement and abuse of
power.
- On
4 August 1999, four days before the approved period of the
applicant’s detention on remand was due to expire (8 August
1999), the investigation was completed and the applicant was given
access to the case file.
- On
30 May 2000 both the applicant and his lawyer finished consulting the
case file.
- On
2 June 2000 the case was referred to the Dzerzhinskiy District Court
of Kharkiv (“the District Court”).
- On
13 July 2000 a judge of the District Court committed the applicant
and three other individuals for trial. In her decision, the judge
noted that “[t]he preventive measure with respect to the
accused was chosen in accordance with the material in the case file”
and ruled that the preventive measure chosen by the investigating
authorities should be maintained.
- On
15 December 2000 and on several further occasions in November 2002
and February and May 2003 the court granted the applicant several
days to study the case file further.
- On
11 January 2000, following numerous health complaints by the
applicant, the court ordered a forensic medical examination to
establish whether he suffered from any chronic illnesses that would
prevent his participating in the trial. The examination revealed no
such disease or medical condition.
- On
29 January 2002 the District Court rejected a request by several
aggrieved parties to replace the applicant’s detention with an
obligation not to abscond. The necessity to maintain the preventive
measure of deprivation of liberty for the applicant was explained by
the fact that he was charged with a crime which was punishable by
imprisonment for a term of more than three years. This ruling was not
subject to appeal.
- During
the trial the applicant’s lawyer applied for the applicant’s
release. She complained that the case file contained no reasoned
decision by a court on the applicant’s detention and that the
original charges against him no longer constituted a criminal
offence. On 25 March 2002 the District Court rejected the
application. It noted that the applicant had been detained on the
prosecutor’s orders and that the court, when committing the
applicant for trial, had agreed with and maintained the preventive
measure of detaining him. The court further noted that the applicant
had been on the wanted list. Taking this into account, as well as the
fact that the applicant was charged with several crimes punishable by
imprisonment for a term of more than three years, the court rejected
the lawyer’s application. This ruling was not subject to
appeal.
- On
25 October 2002 the detention centre provided information that the
applicant had been taken to the court 246 times, including 110 times
for court hearings and 91 times to study the case file.
- On
18 November 2002 the judge issued a separate ruling that the absence
of the applicant’s lawyer in court without good reason was to
be regarded as unwillingness to defend him.
- On
9 December 2002 the court rejected a request by the applicant for
release, applying the same reasoning as in the ruling of 25 May 2002
(see paragraph 25 above).
- On
16 December 2002, following numerous disturbances in court by the
applicant, the court issued him with a final warning for contempt of
court.
- On
31 March 2003 the judge ordered the applicant’s removal from
the hearing room until the end of examination of his case on account
of frequent infringements of law and order during the hearings.
- In
May 2003 the applicant’s lawyer submitted one more application
for his release, stressing that the applicant had been detained for
more than four years without legal grounds. On 12 May 2003 the
District Court rejected the application, stating that this issue had
been already considered by the court.
- On
1 September 2003 the District Court convicted the applicant of fraud,
embezzlement and abuse of power, and sentenced him to eleven years’
imprisonment.
- On
27 April 2005 the Kharkiv Regional Court of Appeal upheld the
judgment with minor changes.
- On
20 June 2006 the Supreme Court of Ukraine upheld the decisions of the
lower courts.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of the CCP read as follows:
Article 148 (as worded at the material time): Grounds
for the application of preventive measures
“If there are sufficient grounds to consider that
the accused, if at liberty, will abscond from an investigation or the
court, or will obstruct the establishment of the truth in a criminal
case or will pursue criminal activities, and in order to ensure the
execution of the sentence, the investigator and prosecutor shall be
entitled to impose on the accused one of the preventive measures
envisaged by Article 149 of the Code...”
Article 149 (as worded at the material time):
Preventive measures
“The preventive measures shall be as follows:
(1) a written undertaking not to abscond;
(2) a personal surety;
(3) the surety of a public organisation or
labour collective;
(3-1) bail;
(4) remand in custody;
(5) supervision by the command of a military
unit.”
Article 155 (as worded at the material time):
Detention on remand
“Detention on remand as a preventive measure shall
be applied in cases concerning offences for which the law envisages a
penalty of more than one year’s imprisonment. In exceptional
circumstances this preventive measure can be applied also in cases
concerning offences for which the law envisages a penalty of up to
one year’s imprisonment...”
Article 156 (as worded at the material time): Term
for holding a person in custody
“The term for remanding a person in custody during
the investigation of criminal offences shall not be more than two
months. This term may be extended to four months by district, city or
military prosecutors, prosecutors of the fleet or command garrison,
or prosecutors of the same rank, if it is not possible to terminate
the criminal investigation, and in the absence of any grounds for
changing the preventive measure. A further extension of this term to
six months from the moment of arrest shall be effected only if the
case is exceptionally complex, by the Prosecutor of the Republic of
the Crimea, regional prosecutors, Kyiv prosecutors, military
prosecutors of the district or fleet, or prosecutors equal to them in
rank.
Further periods of remand in custody may be extended for
up to one year by the Deputy Prosecutor General of Ukraine, and up to
eighteen months by the Prosecutor General.
After that, no further extensions of detention on remand
shall be allowed. The accused must then be immediately released.
If it is impossible to terminate the investigation
within these remand periods and there are no grounds for changing the
preventive measure, the Prosecutor General or his Deputy shall be
entitled to refer the case to a court in the part which relates to
accusations which can be proved. As regards the incomplete
investigation, the case shall be divided into separate proceedings
and completed in accordance with the general rules.
The material relating to the completed part of the
criminal case shall be provided to the accused and his representative
for examination not later than one month before the expiry of the
remand period, established by paragraph 2 of this Article.
The time taken by the accused and his representative to
familiarise themselves with the materials in the case file shall not
be taken into account in calculating the overall term of remand in
custody.
If the court refers the case back for a fresh
investigation, and where the term of remand in custody has ended, and
an alternative preventive measure cannot be applied in the
circumstances of the case, the prolongation of detention on remand
shall be effected by the prosecutor, whose task is to supervise the
lawfulness of the pre-trial investigation in the case, within one
month from the moment he receives the case file. Further prolongation
of the detention, before the case is remitted to the court, shall be
governed by paragraphs 1, 2, and 6 of this Article.”
Article 236 (as worded prior to 21 June 2001):
Complaints in respect of the prosecutor’s actions
“Complaints in respect of the prosecutor’s
actions during the conduct of the pre-trial investigation or other
individual investigative actions in the case shall be submitted to
the superior prosecutor, who shall consider them in accordance with
the procedure and within the terms prescribed by Articles 234 and 235
of this Code.
A complaint about the prosecutor’s actions may be
lodged with the court.
Complaints about the prosecutor’s actions shall be
considered by the first-instance court in the course of the
preliminary consideration of the case or in the course of its
consideration on the merits, unless otherwise provided for by this
Code.”
Article 242 (as worded at the material time): Issues
considered when committing the accused for trial
“Single judges or a court in the preparatory
sitting shall consider the following issues with respect to each of
the accused:
...
(7) whether the preventive measure with respect to the
accused has been selected correctly;
...
(9) whether measures have been taken to ensure
compensation for damage caused by the crime...”
Article 244 (as worded at the material time):
Decision of a court or of a single judge at the preparatory hearing
“... If it is necessary to change the preventive
measure, the court in a ruling and the judge in a resolution shall
give reasons for the decision taken to that effect.”
- Article
148-2 of the Criminal Code provides in so far as relevant:
Article 148-2. Evasion of taxes, fees or other
compulsory payments
“1. Wilful evasion of taxes, fees or other
compulsory payments, by an official of an enterprise, institution or
organisation of any ownership status, or by a physical person, ...
3. Any such actions as referred to in paragraph 1 of
this Article, ... where they resulted in non-receipt of especially
large amounts by budgets or special State funds, shall be
punishable by imprisonment of five to ten years, together with
confiscation of property and deprivation of the right to occupy
certain positions or engage in certain activities for a term of up to
five years.
Note: ... an especially large amount means any amount of
taxes, fees or other compulsory payments which equals or exceeds
1,000 times the tax-free minimum income as established by law.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained that his detention on remand had been
unreasonably long and unlawful. He further complained that the
lawfulness of his detention had not been reviewed. He relied on
Article 5 §§ 1 (c), 3 and 4 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:
...
(b) the lawful arrest or detention of a
person for non- compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation 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.
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful...”
A. Admissibility
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. 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
(a) The parties’ submissions
- The
Government maintained that the applicant’s detention was in
accordance with the law and was necessary to prevent his escape. They
noted that the applicant had been originally placed under an
obligation not to abscond, but he had failed to appear for
questioning and had tried to leave for abroad. Furthermore, he had
strong links abroad, including business and financial resources.
Therefore, in accordance with Articles 148, 149 and 155 of the Code
of Criminal Procedure, the law-enforcement authorities and the courts
had had grounds to deprive the applicant of his liberty as a
preventive measure to ensure his appearance at the trial. They
further maintained that given the substantial amount of civil damage
caused by the applicant, his detention had also been justified under
Article 5 § 1 (b) of the Convention.
- The
applicant made no comments.
(b) General principles enshrined in the
case-law
- The
Court reiterates that the expressions "lawful" and "in
accordance with a procedure prescribed by law" in Article 5 §
1 essentially refer back to national law and lay down an obligation
to conform to the substantive and procedural rules thereof. While it
is for the national authorities, notably the courts, to interpret and
apply domestic law, the Court may review whether national law has
been observed for the purposes of this Convention provision (see,
among other authorities, Assanidze v. Georgia [GC],
no. 71503/01, § 171, ECHR 2004 II).
- However,
the "lawfulness" of detention under domestic law is the
primary, but not always the decisive element. The Court must, in
addition, be satisfied that the detention, during the period under
consideration, was compatible with the purpose of Article 5 §
1 of the Convention, which is to prevent persons from being
deprived of their liberty in an arbitrary manner. Moreover, the Court
must ascertain whether domestic law itself is in conformity with the
Convention, including the general principles expressed or implied
therein (see Winterwerp v. the Netherlands, judgment of
24 October 1979, Series A no. 33, pp. 19-20, § 45).
(c) The lawfulness of the applicant’s
detention
- The
Government maintained that the applicant’s detention could be
justified under Article 5 § 1 (b) “in order to secure the
fulfilment of any obligation prescribed by law”. This
contention was based on the large number of civil claims and
decisions of the civil courts against the applicant in the context of
the business activities which served as the basis of the criminal
proceedings against him. The Court notes, however, that according to
the material in the case file, this reason was never advanced by the
domestic courts when they were deciding on the lawfulness of the
applicant’s detention. Moreover, the Government did not contest
the applicability of Article 5 § 1 (c) to the whole period of
the applicant’s detention. The Court will therefore proceed to
examine this complaint under Article 5 § 1 (c) of the Convention
(see, mutatis mutandis, Harkmann v. Estonia,
no. 2192/03, § 35, 11 July 2006).
- The
Court further notes that the applicant’s pre-trial detention
can be divided into three periods. The first period, covered by the
detention orders issued by the prosecutors, lasted from the day of
the applicant’s arrest on 8 August 1998 until 8 August
1999, when the last extension of his detention ordered by the
prosecutor expired (see paragraph 16 above). The second period, which
was not covered by any decision, lasted from 8 August 1999 until 13
July 2000, when the judge ordered the applicant’s detention
pending trial. Finally, the third period, which was covered by the
above-mentioned court decision of 13 July 2000 and several
consecutive court orders, started on 13 July 2000 and finished with
the applicant’s conviction on 1 September 2003.
(i) Lawfulness of the applicant’s
detention from 8 August 1998 to 8 August 1999
- The
Court notes that the applicant’s detention was initially
ordered by the Deputy Prosecutor of the Kharkiv Region on 8 August
1998. Detention under this procedure was covered by a reservation to
Article 5 § 1 (c) of the Convention that had
been entered by Ukraine in accordance with Article 57 of the
Convention with the intention of preserving the procedure governing
arrest and detention in force at the material time until 29 June
2001. The Court refers to its findings in the Nevmerzhitsky case
that under the terms of the above reservation, Ukraine was under no
Convention obligation to guarantee that the initial arrest and
detention of persons such as the applicant were ordered by a judge.
The Court further found in that case, however, that the issue of
continued detention was not covered by the reservation (see
Nevmerzhitsky v. Ukraine, no. 54825/00, §§ 112-114,
ECHR 2005 II).
- The
applicant’s detention was extended on three successive
occasions by the relevant prosecutors from six to twelve months. The
last decision to extend the applicant’s detention was given on
25 May 1998 by the Deputy Prosecutor General (see paragraph 16
above).
- The
Court notes that there were no court decisions taken as to the
applicant’s continued detention from 6 October 1998 to 8 August
1999. The decisions to prolong the applicant’s detention were
taken by prosecutors, who were a party to the proceedings, and cannot
in principle be regarded as “independent officers authorised by
law to exercise judicial power” (see Merit v. Ukraine,
no. 66561/01, § 63, 30 March 2004). In these circumstances,
the Court concludes that the applicant’s continued detention
from 6 October 1998 to 8 August 1999 was not lawful, within the
meaning of Article 5 § 1 (c) of the Convention.
(ii) Lawfulness of the applicant’s
detention from 8 August 1999 until 13 July 2000
- The
Court notes that no domestic decision was required to validate a
period of detention during which a person had been given access to
the case file, in accordance with Article 156 of the Code of Criminal
Procedure as then in force. In the present case, the final order by
the prosecutor for the applicant’s continued detention expired
on 8 August 1999, four days after he received the case file for
examination. Even though the statutory time limit could be
prolonged for another six months by the Prosecutor General, no such
prolongation had been ordered and the applicant remained in custody
between 8 August 1999 and 30 May 2000 without any decision being
taken as to his detention while he studied the case file, and then
until the case file was transmitted to the first-instance court for
examination.
- The
Court further notes that the applicant’s detention on remand
from 30 May 2000 to 13 July 2000 was justified by the sole fact that
the investigating authorities were completing the preparation of the
bill of indictment (30 May 2000 to 2 June 2000) and the case file was
being transmitted to the court for examination (2 June 2000 to 13
July 2000). However, no decision was taken as to the applicant’s
detention during this period as well, even though, as the present
case demonstrates, a significant period could elapse between the time
when the applicant finished studying the case file and the time when
the court ruled on his further detention pending trial.
- The
Court has already examined and found a violation of Article 5 § 1
of the Convention in a number of cases concerning the practice of
holding defendants in custody solely on the basis of the fact that a
bill of indictment has been submitted to the trial court. It has held
that the practice of keeping defendants in detention without a
specific legal basis or clear rules governing their situation –
with the result that they may be deprived of their liberty for an
unlimited period without judicial authorisation – is
incompatible with the principles of legal certainty and the
protection from arbitrariness, which are common threads throughout
the Convention and the rule of law (see Korchuganova
v. Russia, no. 75039/01, § 57,
8 June 2006; Nakhmanovich v. Russia, no. 55669/00, §§
67-68, 2 March 2006; and Khudoyorov v. Russia, no.
6847/02, §§ 146-148, ECHR 2005 X).
- Therefore,
the period of the applicant’s detention between 8 August 1999
and 13 July 2000 was not in accordance with Article 5 § 1 of
the Convention.
(iii) Lawfulness of the applicant’s
detention from 13 July 2000 until 1 September 2003
- The
Court further observes that under Article 242 of the Code of Criminal
Procedure, a domestic court, when committing a person for trial, must
check whether the preventive measure that was selected at the
investigation stage is appropriate (see paragraph 35 above). Reasons
for the preventive measure are required from the court only when it
decides to change the measure (Article 244 of the CCP). It does not
appear that the court is required to give reasons for continuing the
accused’s detention or to fix any time-limit when maintaining
the detention.
- The
Court considers that the absence of any precise provisions laying
down whether – and if so, under what conditions –
detention ordered for a limited period at the investigation stage
could properly be prolonged at the stage of the court proceedings
does not satisfy the test of "foreseeability" of a "law"
for the purposes of Article 5 § 1 of the Convention. The
Court also reiterates that the practice which developed in response
to the statutory lacuna, whereby a person may be detained for an
unlimited and unpredictable time without the detention being based on
a concrete legal provision or on any judicial decision, is in itself
contrary to the principle of legal certainty, a principle which is
implied in the Convention and which constitutes one of the basic
elements of the rule of law (see Baranowski v. Poland,
no. 28358/95, §§ 55-56, ECHR 2000-III, and Kawka v.
Poland, no. 25874/94, § 51, 9 January 2001).
- The
Court observes that, although the District Court upheld the pre trial
detention measure in respect of the applicant on 13 July 2000, it did
not set a time-limit for his continued detention and did not give any
reasons for its decision (see paragraph 21 above). This left the
applicant in a state of uncertainty as to the grounds for his
detention after that date. In this connection, the Court reiterates
that the absence of any grounds given by the judicial authorities in
their decisions authorising detention for a prolonged period of time
is incompatible with the principle of the protection from
arbitrariness enshrined in Article 5 § 1 (see Nakhmanovich,
cited above, §§ 70-71, and Stašaitis v.
Lithuania, no. 47679/99, § 67, 21 March 2002). In
these circumstances, the Court considers that the District Court’s
decision of 13 July 2000 did not afford the applicant the adequate
protection from arbitrariness which is an essential element of the
“lawfulness” of detention within the meaning of Article
5 § 1 of the Convention, and that, therefore, the
applicant’s detention on remand after 13 July 2000 was likewise
not in accordance with Article 5 § 1 of the Convention.
- There
has accordingly been a violation of Article 5 § 1 (c) of the
Convention.
2. Article 5 § 3 of the Convention
- The
Government maintained that the length of the applicant’s
pre-trial detention had been reasonable in view of the complexity of
the case and the large number of investigative measures that had had
to be taken. The Government further contended that they could not be
held responsible for the long period taken by the applicant to study
the case file. They further maintained that the length of the
examination of the case by the first-instance court could also be
explained by the complexity of the case, as well as by the behaviour
of the applicant and his lawyers. On several occasions the lawyers
had failed to appear before the court. Moreover, the applicant
himself had on many occasions complained of health problems (see
paragraph 23 above). The doctors who had been called to examine the
applicant had found his complaints to be groundless. The applicant
had also often misbehaved in the courtroom, thus preventing the court
from conducting the hearings. This behaviour had ultimately resulted
in his removal from the courtroom (see paragraphs 29 and 30 above).
- The
applicant made no comments.
- The
Court notes that the investigating authorities placed the applicant
on the wanted list on 18 April 1997, after his escape. The applicant
absconded until 8 April 1998, when he was apprehended. He was
sentenced to imprisonment on 1 September 2003; thus the period of his
detention on remand lasted five years and five months (see B.
v. Austria, judgment of 28 March 1990, Series A no. 175, §
39).
- The
Court further reiterates that it is necessary, when examining the
question whether Article 5 § 3 has been observed, to
consider and assess the reasonableness of the grounds which persuaded
the judicial authorities to decide, in the case brought before the
Court, on this serious departure from the rules of respect for
individual liberty and of the presumption of innocence which is
involved in every detention without a conviction (see Stogmüller
v. Austria, judgment of 10 November 1969, Series A no. 9,
§ 4).
- The
Court notes that, although the applicant’s absconding for a
period of one year appears to have given the authorities a good
reason for keeping him imprisoned during the pre-trial investigation
and trial, the seriousness of the charges against him and the risk of
his absconding remained the only reasons for the court not to change
the preventive measure imposed on him. The first judicial ruling to
that effect was adopted two years and three months after his arrest.
However, Article 5 § 3 requires that after a certain
lapse of time the persistence of reasonable suspicion does not in
itself justify deprivation of liberty and the judicial authorities
should give other grounds for continued detention (see Jabłoński
v. Poland, no. 33492/96, § 80, 21
December 2000, and I.A. v. France, no. 28213/95, Reports of
Judgments and Decisions 1998-VII, § 102). Those
grounds, moreover, should be expressly mentioned by the domestic
courts (see Iłowiecki
v. Poland, no. 27504/95, § 61, 4 October
2001). No such reasons were given by the courts in the present case.
Furthermore, at no stage did the domestic courts consider any
alternative preventive measures instead of detention on remand, and
by relying essentially on the gravity of the charges, the authorities
prolonged the applicant’s detention on grounds which cannot be
regarded as “relevant and sufficient”.
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of Article 5 § 3 of the
Convention.
3. Article 5 § 4 of the Convention
- The
Government maintained that all requests by the applicant during the
proceedings to change his detention to a less strict preventive
measure had been expeditiously and carefully examined by the courts.
Furthermore, two requests by other parties to the proceedings to
change the preventive measure in respect of the applicant had
likewise been examined by the court, a fact which, in the
Government’s opinion, demonstrated that the applicant’s
right to a review of the lawfulness of his detention had been ensured
to an even larger extent than that required by Article 5 § 4 of
the Convention.
- The
applicant made no comments.
- The
Court reiterates that Article 5 § 4 of the Convention entitles
arrested or detained persons to a review bearing upon the procedural
and substantive conditions which are essential for the “lawfulness”,
in Convention terms, of their deprivation of liberty. This means that
the competent court has to examine not only compliance with the
procedural requirements of domestic law but also the reasonableness
of the suspicion underpinning the arrest, and the legitimacy of the
purpose pursued by the arrest and the ensuing detention (see
Butkevičius v. Lithuania, no. 48297/99, § 43,
ECHR 2002 II).
- As
regards the facts of the present case, the Court observes that after
several reviews of the reasons for the applicant’s continued
detention (see paragraphs 25, 28, 60, and 61 above), on 12 March 2003
the domestic court refused to look again into the reasonableness of
the applicant’s detention on the ground that it had ruled on
the lawfulness of his detention on several previous occasions,
therefore denying the applicant’s right to a review of the
lawfulness of his detention as guaranteed by Article 5 § 4.
In the Court’s view, there was thus no adequate judicial
response to the applicant’s complaints, contrary to the
requirements of Article 5 § 4.
- The
Court considers that there has accordingly been a violation of
Article 5 § 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
- The
period to be taken into consideration began only on 11 September
1997, when the recognition by Ukraine of the right of individual
petition took effect. However, in assessing the reasonableness of the
period that elapsed after that date, account must be taken of the
state of proceedings at the time.
- Furthermore,
the period during which the applicant was on the run (11 September
1997 to 8 August 1998) should be excluded from the overall length of
the proceedings (see Girolami v. Italy, judgment of 19
February 1991, Series A no. 196-E, § 13, Smirnova v. Russia,
nos. 46133/99 and 48183/99, § 81, ECHR 2003 IX).
The
period in question started on 8 August 1998 and ended on
20 June 2006. It thus lasted 7 years 10 months and 12 days
for three levels of jurisdiction.
A. Admissibility
- 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. It must therefore be declared admissible.
B. Merits
- The
Government maintained that the criminal case against the applicant
had concerned several accused persons and a large number of aggrieved
parties. Moreover, it had involved very complicated issues of
financial fraud that required numerous forensic examinations,
interviews and requests for legal assistance from the countries in
which the applicant conducted his business and held his assets.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Pélissier and Sassi, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Despite the fact that the applicant contributed to the length of the
proceedings, his behaviour cannot justify the overall length of the
proceedings. Having regard to its case-law on the subject, the Court
considers that in the instant case the length of the proceedings was
excessive and failed to meet the “reasonable time”
requirement.
There
has accordingly been a breach of Article 6 § 1.
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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the remainder of the application
admissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds that there has been a violation of Article
5 § 4 of the Convention;
- Holds that there has been a violation of Article
6 § 1 of the Convention.
Done in English, and notified in writing on 6 November 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Rait Maruste
Registrar President
