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FIFTH
SECTION
CASE OF VINOKUROV v. UKRAINE
(Application
no. 2937/04)
JUDGMENT
STRASBOURG
15 July 2010
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 Vinokurov v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Ganna Yudkivska, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 22 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 2937/04) 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 Konstantin Eduardovich
Vinokurov (“the applicant”), on 24 November 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
16 October 2007 the Court declared the application partly
inadmissible and decided to communicate the complaint under Article 5
§ 3 concerning the length of the
applicant’s detention on remand 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 1962 and lives in the city of Lugansk, Ukraine.
- On 30 March 1998 criminal proceedings were instituted
against the applicant, being a director of
a small private company, and Ms E., a chief accountant of the
company, on suspicion of credit fraud.
6. According to the materials in the case-file, on 3 September 1998
the Prosecutor of the Leninsky District of Lugansk ordered the
applicant’s detention on remand. The parties did not provide a
copy of that order.
- On 4 September 1998 the proceedings were suspended
since the applicant failed to appear before the investigator. On the
same date he was put on the list of wanted persons.
- On 27 September 2001 the applicant, who at that time
resided in Russia, was arrested by the Russian police pursuant to an
international warrant for his arrest issued by the Ukrainian
authorities.
- According to the Government’s observations, on 2
October 2001 the preventive measure of detention on remand was
upheld. The Government failed to provide a copy of that order.
- On 22 October 2001 the Prosecutor General’s
Office of Ukraine made a request to the Prosecutor General’s
Office of the Russian Federation for the applicant’s
extradition under the 1993 Convention on Legal Assistance and Legal
Relations in Civil, Family and Criminal Cases (the “Minsk
Convention”). On 25 October 2010 the request was granted.
- On 1 February 2002 the Prosecutor of the Leninsky
District of Lugansk extended the applicant’s detention on
remand until 15 March 2002.
- Once in Ukraine on 6 February 2002, the applicant was
detained on remand.
- On 5 March 2002 the applicant was charged with
financial fraud and forgery.
- Between 5 March 2002 and 21 May 2002 the applicant was
acquainted himself with the case-file.
- On 21 May 2002 the applicant asked the investigator to
replace the detention with another preventive measure alleging that
he had health problems. On the same date the request was dismissed
since the applicant failed to provide any proves in support of his
allegations.
16. On 2 July 2002 the
Leninsky District Prosecutor’s Office of Lugansk submitted the
applicant’s case to the court for examination on the merits.
- On 15 August 2002 the Leninsky District Court of
Lugansk (hereafter “the Leninsky Court”) held a
preparatory hearing. It found that the bill of indictment needed
redrafting. The case-file was sent back to the Prosecutor’s
Office. The Leninsky Court also rejected the applicant’s
request for release, having found that the detention on
remand had been ordered at the investigation stage in accordance
with law and that there was no reason to replace it with another
preventive measure.
- On 20 September 2002 the applicant’s criminal
case was sent to the Leninsky Court. On 4 November 2002 the latter
terminated the criminal proceedings against Ms E.
- On 4 October 2002, 9
December 2002, 10 December 2002, 19 December 2002 and on an
unspecified date in June 2003 the applicant asked the Leninsky Court
to replace the detention on remand with another preventive measure.
On 4 November 2002, 9 December 2002, 16
December 2002, 10 January 2003 and 27 June 2003 the Leninsky Court
respectively dismissed his requests, having found that the
detention on remand had been ordered at the investigation stage in
accordance with law and that there was no reason to replace it with
another preventive measure.
- On 21 July 2003 the Leninsky
Court convicted the applicant of financial fraud and sentenced him to
one year, nine months and twenty four days’ imprisonment, less
the time spent in detention pending extradition in Russia and in
detention on remand in Ukraine. This
sentence meant the applicant’s immediate release since he had
already served it.
II. RELEVANT DOMESTIC LAW
- Provisions
of the Code of Criminal Procedure of 28 December 1960 on
preventive measures are set out in 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 duration of his pre-trial detention was
excessive. He invoked Article 5 § 3 of the Convention, which
provides, in so far as relevant, as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article 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
- 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 domestic authorities had grounds for
holding the applicant in custody, given that he had absconded from
justice. They further considered that the domestic authorities
conducted the investigation with due diligence given the complexity
of the case.
- The
applicant made no observations.
- The Court observes that in the present case, while the
applicant had already been detained in Russia prior to his
extradition, the period to be taken into consideration for the
purposes of Article 5 § 3 of the Convention started on 6
February 2002, when the applicant was detained on remand in Ukraine,
and ended on 21 July 2003. Therefore it lasted one year, five months,
and thirteen days. The time of the applicant’s detention is not
short in absolute terms (see and compare, Nedyalkov v. Bulgaria,
no. 44241/98, § 61, 3 November 2005, and Rokhlina
v. Russia, no. 54071/00, § 60, 7 April 2005).
- The
Court recalls that the issue of whether a period of detention is
reasonable cannot be assessed in abstracto. This must be
assessed in each case according to its special features, the reasons
given in the domestic decisions and the well-documented facts
mentioned by the applicant in his applications for release. Continued
detention can be justified in a given case only if there are specific
indications of a genuine requirement of public interest which,
notwithstanding the presumption of innocence, outweighs the rule of
respect for individual liberty (see, among others, Labita v. Italy
[GC], no. 26772/95, § 153, ECHR 2000-IV).
- The Court observes that the risk of the applicant’s
absconding might have justified the initial orders on the applicant’s
detention. However, the Court notes that, thereafter, the Leninsky
Court did not advance any grounds whatsoever for maintaining the
applicant’s detention, simply stating that the previously
chosen preventive measure was correct. The Court reiterates that
Article 5 § 3 of the Convention requires that after a
certain lapse of time the persistence of a 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, § 102,
Reports of Judgments and Decisions 1998-VII). 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 authorities consider any
alternative preventive measures instead of detention.
- 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.”
- The
applicant did not submit a claim for just satisfaction within the
time-limit allotted by the Court. 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 § 3 of the Convention;
Done in English, and notified in writing on 15 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
