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FIFTH
SECTION
CASE OF NIKOLAY KUCHERENKO v. UKRAINE
(Application
no. 16447/04)
JUDGMENT
STRASBOURG
19
February 2009
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 Nikolay Kucherenko
v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Renate
Jaeger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
Stanislav Shevchuk, ad
hoc judge,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 27 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16447/04) 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 Nikolay Nikolayevich
Kucherenko (“the applicant”), on 3 April 2004.
- The
applicant was represented by Mr P. Dubrovin, a lawyer practising
in Odessa. The Ukrainian Government (“the Government”)
were represented by their Agent, Mr Y. Zaytsev.
- The
applicant alleged, in particular, that his detention between 29 July
2002 and 2 January 2003 had been unlawful and constituted a
violation of Article 5 § 1 of the Convention.
- On
15 June 2006 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1969 and lives in Odessa.
- On
27 April 2002, in the course of a police operation, an undercover
police officer bought a substantial quantity of cannabis from the
applicant. The applicant was immediately arrested in accordance with
Article 263 of the Administrative Offences Code for a violation
of the drug circulation rules which constituted an administrative
offence laid down in Article 44 of that Code. Following a body search
and a search of the applicant's car, the police found further
quantities of the drug.
- On
29 April 2002 the local police office instituted criminal proceedings
against the applicant for drug trafficking.
- On
2 May 2002 the Ovidiopolskyy District Court of Odessa (hereinafter
“the District Court”) considered a request by the
investigator for the applicant to be placed in pre-trial detention
and rejected it. However, it extended the period of the applicant's
arrest up to a total of ten days, ordering the investigative
authorities to obtain more information on the identity of the
applicant and establish further circumstances justifying his
detention pending trial.
- On
8 May 2002 the District Court ordered the applicant's pre-trial
detention on the ground that the applicant was charged with a serious
crime and, if at large, would continue his criminal activity and
abscond from the investigation and trial.
- On
25 June 2002 the District Court extended the period of the
applicant's pre-trial detention until 29 July 2002 as the
investigative authorities needed more time to complete the case file,
namely, to complete the biological expert examination, to order and
carry out a narcotics forensic examination, to question Mr. Sh.,
who was the witness in the case, to familiarise the applicant with
the case file, and to draw up the bill of indictment. The District
Court also found that, given the character of the applicant and the
gravity of the crime that had been committed, the preventive measure
should be left unchanged.
- On
29 July 2002 the applicant was provided with access to the criminal
case file to prepare his defence.
- On
6 August 2002 the applicant lodged a complaint against the
investigation authorities with the District Court, claiming that
there had been no legal basis for his detention, in so far as the
period of his detention, fixed in the District Court's decision of 25
June 2002, had expired on 29 July 2002 and had not been
extended. This complaint was joined to the criminal case file.
- On
17 September 2002 the applicant finished studying the case file.
- On
18 September 2002 the supervising prosecutor approved the bill
of indictment and the case file was referred to the District Court
for adjudication.
- On
2 January 2003 the District Court considered the applicant's
complaint of 6 August 2002 in the course of the preliminary
hearing and found that the applicant's detention after 29 July 2002
had been lawful. In particular, the District Court established that
during the period between 29 July and 17 September 2002 the
applicant had been studying the case file and, in accordance with
Article 156 of the Code of Criminal Procedure, this period was
not taken into account in calculating the overall period of his
detention pending trial. It further noted that on 18 September
2002 the case file had been referred to the District Court and
therefore the applicant's complaint was unsubstantiated. The District
Court did not specify the reasons or legal basis for the applicant's
detention after the case had been referred to the court. At the same
hearing the District Court considered that there had been no grounds
for changing the preventive measure in respect of the applicant, but
did not state this conclusion in the operative part of the decision.
The preliminary hearing was held in the presence of the prosecutor;
the applicant and his lawyer were absent.
- According
to the Government, on several occasions in the course of the trial,
namely 15 July 2003, 22 October 2003, 22 January 2004,
4 February 2004, and 27 April 2004, the District Court
considered the applicant's requests for release and rejected all of
them because he was charged with a serious crime and might abscond
from the investigation and trial if at liberty.
- On
12 May 2004 the District Court found the applicant guilty of drug
trafficking and sentenced him to six years' imprisonment, having
included in the sentence the period of the applicant's detention from
27 April 2002.
- On
the same day the District Court issued a separate ruling to
the effect that the applicant's arrest on 27 April 2002 conducted
under the Administrative Offences Code had not been lawful since
Article 44 of that Code, relied on by the police officers, did not
cover drug trafficking and was therefore evidently inapplicable to
the applicant, who had been arrested when selling the drug to the
undercover agent. The District Court notified the Odessa Regional
Police Department of the established violation of the procedural law
committed by the police officers and ordered that an internal inquiry
into the circumstances of the applicant's arrest be carried out.
II. RELEVANT DOMESTIC LAW
A. Administrative Offences Code of 7 December 1984 as
worded at the material time (“the AOC”)
- Article
44 of the AOC prohibits the fabrication, purchase, storage,
transport, or dispatch of drugs or psychotropic substances in small
quantities without the purpose of trafficking. A breach of this
provision is punishable by a fine of up to forty-three tax-free
monthly incomes.
- Article
263 of the AOC provides, inter alia, that anyone who violates
drug-circulation rules may be arrested for up to three hours for the
purpose of drawing up a report on the administrative offence.
However, in order to identify the perpetrator of the offence, subject
him to a medical examination, clarify the circumstances of purchase
of the drugs or psychotropic substances and examine them, the arrest
may be extended up to three days. In such cases the prosecutor shall
be informed of the extension in writing within twenty-four hours. In
case the arrested person does not have identity documents, the arrest
may be extended up to ten days pursuant to an order of the
prosecutor.
- Article
267 of the AOC provides, inter alia, that an arrest on grounds
of an administrative offence may be challenged by the aggrieved
person before the supervising authority, the prosecutor or the court.
B. Code of Criminal Procedure 28 December 1960 as
worded at the material time (“the CCP”)
- Article
156 of the CCP provides, inter alia, that the period of
detention during pre-trial investigation shall expire on the day the
court receives the case file; however, the time taken by the accused
and his or her representatives to familiarise themselves with the
materials in the criminal case file shall not be included in the
calculation of the period for which the accused has been detained as
a preventive measure.
Save
where the period has been extended pursuant to the procedure
established by the CCP, in the event of the expiry of the maximum
period of detention as a preventive measure allowed by the CCP, the
body of inquiry, the investigator or the prosecutor shall be obliged
to release the person from custody without delay.
Governors
of pre-trial detention centres shall promptly release from custody
any accused in respect of whom a court order extending the period of
detention has not been received by the time the period of detention
allowed by the CCP expires. They shall notify the person or body
before whom the case is pending and the prosecutor supervising the
investigation.
In
2003 this Article was amended as regards the rules on calculation of
time, taken by the detainee and his or her representative for
studying the case file.
- In
accordance with Article 165 of the CCP, detention as a preventive
measure shall be applied only by a reasoned decision or ruling of the
court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF
THE CONVENTION
- The
applicant complained that he had been unlawfully arrested by the
police officers on 27 April 2002. He further complained that his
detention between 29 July 2002 and 2 January 2003 had been
unlawful in so far as it had not been authorised by a court order.
The applicant relied on Article 5 § 1 of the
Convention, which reads, in so far as relevant, as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so; ...”
A. Admissibility
1. The parties' submissions
- The
Government, referring to Article 267 of the AOC, contended that
the applicant had not challenged before the court his arrest which
took place on 27 April 2002 and, accordingly, had not exhausted
domestic remedies in this respect. They further maintained that the
applicant had failed to comply with the six-month rule when
submitting the complaint to the Court.
- The
applicant disagreed.
2. The Court's assessment
a. As regards the arrest on 27 April
2002
- The
Court observes that under Article 267 of the AOC it was open to the
applicant to challenge before the local court the arrest which took
place on 27 April 2002. The applicant failed to do so however.
Even assuming the applicant complied with requirement of exhaustion
of domestic remedies, this complaint falls in any event outside the
six-month period. It follows that this part of the application must
be dismissed pursuant to Article 35 §§
1 and 4 of the Convention.
b. As to the applicant's detention between
29 July 2002 and 2 January 2003
- The Court has recognised that Article 35 § 1 of
the Convention must be applied with some degree of flexibility and
without excessive formalism (see Akdivar and Others v. Turkey,
16 September 1996, § 69, Reports 1996 IV,
and Ječius v. Lithuania, no. 34578/97, § 44,
ECHR 2000 IX).
- The
Court observes that during the period of the applicant's detention of
which he complains, and during the subsequent period, until his
conviction, the applicant was held in custody as a result of the
preventive measure applied. It follows that the applicant's
uninterrupted detention during those periods was of the same legal
nature and constituted for the purpose of the Convention a continuous
situation which had ceased to exist on 12 May 2004, when the
applicant was convicted. As the applicant was still in custody on
3 April 2004, when he lodged the present complaint, this part of
the application cannot be dismissed as being out of time (see,
mutatis mutandis, Ječius, cited above, § 44).
The Court therefore dismisses the Government's objection in this
respect.
- The
Court further notes that this part of the application is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It also notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
Government maintained that the applicant's pre-trial detention had
been lawful.
- The
applicant disagreed.
2. The Court's assessment
- 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 state the obligation to
conform to the substantive and procedural rules thereof. However, the
“lawfulness” of detention under domestic law is not
always the decisive element. The Court must in addition be satisfied
that 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
fashion. The Court must moreover ascertain whether domestic law
itself is in conformity with the Convention, including the general
principles expressed or implied therein. On this last point, the
Court stresses that, where deprivation of liberty is concerned, it is
particularly important that the general principle of legal certainty
be satisfied. It is therefore essential that the conditions for
deprivation of liberty under domestic law be clearly defined and that
the law itself be foreseeable in its application, so that it meets
the standard of “lawfulness” set by the Convention, a
standard which requires that all law be sufficiently precise to allow
the person – if need be, with appropriate advice – to
foresee, to a degree that is reasonable in the circumstances, the
consequences which a given action may entail (see Baranowski v.
Poland, no. 28358/95, §§ 50-52, ECHR 2000-III).
- The
Court reiterates that a period of detention is, in principle,
“lawful” if it is based on a court order (see Ječius,
cited above, § 68, and Nevmerzhitsky v. Ukraine,
no. 54825/00, § 116, ECHR 2005 II (extracts)
§116).
- In
the present case the Court observes that throughout the whole period
of the applicant's detention under consideration there existed no
court decision validating the detention.
- The
Court further notes that during the impugned period the applicant was
initially held in custody on the ground that he was studying the case
file (from 29 July until 17 September 2002) and, subsequently (from
18 September 2002 until 2 January 2003), because he was waiting
for his committal for trial.
- The
Court has held that the legal situation in which an accused person is
detained for an indeterminate period of time without any judicial
authorisation for his prolonged detention purely on the ground that
he or she was studying the case file is not compatible with the
requirements of Article 5 of the Convention (see Ječius,
cited above, §§ 57-59, and Nevmerzhitsky, cited
above, § 133). Likewise, 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 the case file has been
submitted to the trial court. In those cases 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; Khudoyorov v. Russia,
no. 6847/02, §§ 146-48, ECHR 2005 X; and Yeloyev
v. Ukraine, no. 17283/02, § 50, 7 October
2008).
- The
Court therefore concludes that the period of the applicant's
detention between 29 July 2002 and 2 January 2003 was not in
accordance with Article 5 § 1 of the Convention. There
has accordingly been a violation of that provision.
II. THE LENGTH OF THE APPLICANT'S PRE-TRIAL DETENTION
- In
his initial submissions the applicant seemed to raise an issue under
Article 5 § 3 of the Convention as to the length of
his pre-trial detention.
- However,
the applicant did not pursue this complaint further. In particular,
he made no submissions to this effect at the stage of communicating
the application to the Government. It appears that the only matters
of his concern were the issues under Article 5 §§ 1
and 4 and Article 6 § 1 of the Convention.
- In
these circumstances, the Court considers that the applicant may not
be regarded as wishing to pursue the complaint under Article 5 § 3
of the Convention, within the meaning of Article 37 § 1 (a) of
the Convention. Furthermore, in accordance with Article 37 § 1
in fine,
the Court finds no special circumstances regarding respect for human
rights as defined in the Convention and its Protocols which require
the continued consideration of the complaint. In view of the above,
the Court finds it appropriate to discontinue the examination of the
complaint under Article 5 § 3 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant alleged a violation of Article 5 § 4 and
Article 6 § 1 of the Convention in so far as his complaint
about the unlawfulness of his detention, lodged with the District
Court on 6 August 2002, had not been promptly and properly
considered by that court.
- The
Court has examined the remainder of the applicant's complaints and
considers that, in the light of all the material in its possession
and in so far as the matters complained of were within its
competence, they do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols.
Accordingly, the Court rejects them as manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of
the Convention.
IV. 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 50,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government submitted that the amount claimed by the applicant was
exorbitant and unsubstantiated.
- The
Court notes that the applicant must have
suffered distress and anxiety on account of the violation found.
Ruling on an equitable basis, as required by Article 41 of the
Convention, it awards the applicant EUR 1,500 for
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed 170 Ukrainian hryvnias (about EUR 27) for
the costs and expenses incurred before the Court.
- The
Government claimed that this amount had been unsubstantiated.
- According to the Court's case-law, an applicant is
entitled to reimbursement of his costs and expenses only in so far as
it has been shown that these have been actually and necessarily
incurred and were reasonable as to quantum. In the present case,
regard being had to the information in its possession and the above
criteria, the Court considers it reasonable to award the applicant
the sum of EUR 27 for costs and expenses in the proceedings
before the Court.
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
- Decides
to discontinue the examination of the applicant's complaint
under Article 5 § 3 of the
Convention;
- Declares the complaint under Article 5 § 1
of the Convention concerning the lawfulness of the applicant's
detention between 29 July 2002 and 2 January 2003
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
5 § 1 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, the following
sums to be converted into national currency of Ukraine at the rate
applicable at the date of settlement:
EUR 1,500 (one
thousand five hundred euros) in respect of non-pecuniary damage;
EUR 27 (twenty
seven euros) in respect of costs and expenses;
plus any tax that
may be chargeable to the applicant on the above amounts;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 19 February 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
