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FIFTH
SECTION
CASE OF ROMAN MIROSHNICHENKO v. UKRAINE
(Application
no. 34211/04)
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 Roman Miroshnichenko
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. 34211/04) 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 Roman Grigoryevich
Miroshnichenko, on 15 September 2004.
- The
applicant, who had been granted legal aid, was represented by
Mr A.P. Bushchenko, a lawyer practising in Kharkiv. The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- The
applicant alleged, in particular, that the length of his detention
was excessive.
- On
3 April 2007 the Court declared the application partly inadmissible
and decided to communicate the complaints concerning violations of
Article 5 §§ 3, 4 and 5 to the Government. It
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 1980 and lives in Pavlograd.
- The facts of the case, as submitted by the parties, may
be summarised as follows.
- On 17 November 2000 criminal proceedings were
instituted against the applicant and a certain Mr V.G. on
suspicion of robbery. On the same date the applicant was arrested and
detained.
- On 20 November 2000 the applicant was formally charged
with involvement in a robbery. On the same date a decision was taken
to remand him in custody pending trial based, in particular, on the
seriousness of the charge against him. Subsequently, the applicant
was indicted on several additional charges of robbery and theft,
committed on his own and in association with a certain Mr M.M.
- On 3 July 2002 the Pavlograd City Court (hereafter “the
City Court”) convicted the applicant of several offences of
robbery and theft, and sentenced him to five years' imprisonment.
- The applicant appealed. On 6 December 2002
the Dnipropetrovsk Regional Court of Appeal (“the Court of
Appeal”) quashed the judgment of 3 July 2002, finding that
the conviction was not based on sufficient evidence. The Court
of Appeal ordered that further pre-trial investigations be carried
out. It also decided, without giving any reasons, to extend the
applicant's detention pending the additional investigations.
- On an unspecified date the prosecution submitted the
applicant's case to the City Court for a fresh trial.
- On 6 May 2003 the City Court found at the preparatory
hearing in absence of the applicant that the evidence gathered was
insufficient and that the instructions of the Court of Appeal had not
been followed. The case was remitted for fresh pre-trial
investigations. The court also ordered that the applicant should
remain in custody, without, however, giving any reasons for this
decision. The prosecutor lodged an appeal against the decision to
remit the case for further investigations.
- On 4 July 2003 the Court of Appeal quashed the
decision of 6 May 2003 and referred the case to the City
Court for trial. The Court of Appeal also decided, without giving any
reasons, that the applicant was to remain in custody.
- On 1 April 2004 the City Court convicted the applicant
of theft and robbery and sentenced him to five years' imprisonment
with deduction of the time spent in detention.
- That judgment was upheld by the Court of Appeal on 9
June 2004 and by the Supreme Court on 17 March 2005.
II. RELEVANT DOMESTIC LAW
- Relevant
provisions of the Code of Criminal Procedure 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 OF THE CONVENTION
- In
his initial letter to the Court dated 15 September 2004 the applicant
complained, without referring to any Convention provision, that the
length of his pre-trial detention was excessive. On 10 November 2004
he submitted a formal application to the Court, referring to Article
5 § 3 of the Convention in respect of the above
complaint. Additionally, the applicant complained under Article 5 § 4
that he had not had any effective remedy whereby he could challenge
the lawfulness of his detention and under Article 5 § 5
of the Convention that he had not had any right to compensation for
the alleged violations of his rights under Article 5 of the
Convention. The aforementioned Convention provisions, in so far as
relevant, 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.
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.
5. Everyone who has been the victim of arrest
or detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
A. Admissibility
1. The submissions by the parties
- 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 submitted that the applicant's initial
conviction of 3 July 2002 turned his “pre-trial
detention”, which had started on 17 November 2000,
into a detention following a conviction. A six-month time-limit for
lodging a complaint about this period of detention had thus started
to run on that date and had expired on 3 January 2003. After the
judgment of 3 July 2002 had been quashed on
6 December 2002, a new period of pre-trial detention had
commenced, which lasted until the applicant was convicted on
1 April 2004 for the second time. The six-month period for
lodging a Convention complaint about this period of detention had,
therefore, expired on 1 October 2004. In the meantime, the
Government noted that the first reference to Article 5 of the
Convention had been made by the applicant only in his application
form of 10 November 2004. In their opinion, his complaints
under this provision had, therefore, been lodged out of time. The
Government also contended that in any event the applicant could not
claim to be a victim of a violation of Article 5 § 5
of the Convention, as his detention had not been in contravention of
the provisions of Article 5.
- The
applicant disagreed in part. He specified that his complaints under
Article 5 related only to the period between the quashing of his
initial conviction on 6 December 2002 and until his second
conviction on 1 April 2004. He further maintained that he
had initially informed the Court of his intention to lodge an
application on 15 September 2004, and, therefore, within six months
of the termination of his detention.
- The
applicant further contended that his detention during this period was
contrary to the requirements of Article 5 §§ 3
and 4 of the Convention. He could, therefore, claim to be a victim of
Article 5 § 5, as there had not been any procedure for
him to claim compensation for having been kept in pre-trial
detention.
2. The Court's assessment
a. Article 5 § 3
- 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 (see 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 made no reference to Article 5 of the Convention in his
initial letter of 15 September 2004, 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 the
applicant's intention to lodge a further complaint about the length
of his detention, which is to be considered under Article 5 §
3 and so interrupted the running of the six-month time-limit (see
Tkachev v. Ukraine, no. 39458/02, § 30,
13 December 2007).
- The
Court considers 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. Articles 5 §§ 4 and
5
- The
Court observes that the applicant first complained about having been
unable to challenge the lawfulness of his detention and about
unavailability of a procedure for seeking compensation for violations
of his rights under Article 5 of the Convention in his application
form of 10 November 2004. Referring to the general
principles outlined in paragraph 22 above, the Court finds that the
applicant's complaints under Article 5 §§ 4 and 5
were introduced outside the six-month time-limit provided for by
Article 35 § 3 of the Convention. They should
therefore be rejected for having been lodged out of time.
B. Merits
- The applicant alleged a violation of Article 5 §
3 of the Convention on the ground that the length of his detention
between 6 December 2002 and 1 April 2004 had been
excessive.
- The
Government provided no comments on the merits of his complaint.
- The
Court notes that although the applicant was initially placed in
police custody on 17 November 2000 and remained in
detention until his first conviction on 3 July 2002, which was
subsequently quashed on 6 December 2002, no complaint has been
lodged about this period. Instead, the applicant complained only
about the length of the period of detention, which lasted from
6 December 2002 until his second conviction on
1 April 2004. This period lasted one year and four months.
However, when assessing the reasonableness of that period of
detention on remand, the Court will have regard to the reasons given
in the earlier detention order of 17 November 2000.
- Having
regard to general principles established in its case-law (see I.A. v.
France, judgment of 23 September 1998, Reports of Judgments
and Decisions 1998-VII, § 102, Labita v. Italy
[GC], no. 26772/95, § 153, ECHR 2000-IV and Iłowiecki
v. Poland, no. 27504/95, § 61, 4 October 2001) the
Court notes that the initial order of 17 November 2000 to
remand the applicant in custody was based on strong suspicion that he
had committed the offence with which he had been charged (see
paragraph 8 above). It accepts that the fact that the applicant was
suspected of a serious offence may have initially warranted his
detention. However, after a certain lapse of time the judicial
authorities were obliged to give other express grounds for continued
detention, which they did not do in the present case. Furthermore, at
no stage did the domestic courts consider application of any
alternative preventive measures, and by relying essentially on the
gravity of the charges, the authorities extended 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.
II. 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 10,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government maintained that this amount was exorbitant and
unsubstantiated.
- The
Court 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 (see Tkachev, cited above, § 61).
B. Costs and expenses
- The
applicant also claimed EUR 1,000 in legal fees.
- The
Government submitted that this claim should be rejected as the
applicant had failed to provide any supporting documents.
- 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. In the present case, the Court notes that
the applicant obtained legal aid of EUR 850 and that he failed
to provide any documents supporting his claim. Regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses.
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 pre-trial detention 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), plus any tax that may be chargeable, in respect
of non-pecuniary damage, to be converted into the currency of Ukraine
at the rate applicable at the date of settlement;
(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 19 February 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
