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FIFTH
SECTION
CASE OF OSYPENKO v. UKRAINE
(Application
no. 4634/04)
JUDGMENT
STRASBOURG
9
November 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 Osypenko v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Rait Maruste,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva,
Ganna
Yudkivska, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 5 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4634/04) 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, Yaroslav Osypenko (“the
applicant”), on 13 January 2004.
- The
applicant was represented by Mr Denys Osypenko, a lawyer
practising in Kryvyy Rig. The Ukrainian Government (“the
Government”) were represented by their Agent, Mr Y. Zaytsev.
- The
applicant alleged, in particular, that he had been unlawfully
deprived of liberty between 25 and 28 January 2002, and that the
overall length of his pre-trial detention had been excessive.
- On
31 March 2009 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 §
1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1983 and lives in Slovyansk.
- On
1 January 2002 the applicant, with a number of his friends, including
K., celebrated a New Year party at the bar 'Tor' in Slovyansk. At
around 3 a.m. K. picked a quarrel with P., another visitor to the
bar. The quarrel turned into a big fight in which the applicant took
part on the side of K.
- On
14 January 2002 the Slavyansk town police instituted criminal
proceedings for disorderly conduct in relation to the above fight.
- In
the evening of 24 January 2002 the applicant and K. were
attacked by unknown persons. As a result of the attack, the applicant
was injured and K. died.
- At
2.30 a.m. on 25 January 2002 the police officers, in the knowledge
that the applicant and K. were both attacked that night, visited the
applicant's home and took him to the local police station in order to
question him as an eyewitness to K.'s death. According to the
Government, the applicant agreed to go to the police station
voluntarily and there was no coercion on the part of the police
officers. However, according to the applicant, the police officers
forced him to go to the police station without regard for the
injuries he was visibly suffering from.
- Upon
arrival at the police station the applicant was questioned about the
circumstances of K.'s death. That questioning, though with some
pauses, lasted until 1 p.m. of the same day.
- As
from 11 a.m. on that day the police, knowing that on the night of
1 January 2002 the applicant had been present at the bar 'Tor',
decided also to question the applicant as a witness in respect of the
fight which had taken place at the bar that night. The applicant was
questioned in respect of that incident till 7 p.m.
- Between
7 p.m. and 9 p.m. the police also questioned P. and other victims of
the fight, who, when confronted with the applicant, identified him as
one of the persons who had injured them.
- At
9.30 p.m. on that day the police investigator, pursuant to Articles
106 and 115 of the Code of Criminal Procedure (see paragraph 33
below), drew up an arrest order (протокол
затримання)
authorising the applicant's preliminary detention as a suspect in the
crime of disorderly conduct in the bar 'Tor'.
- On
26 January 2002 the police instituted criminal proceedings on account
of K.'s death.
- On
28 January 2002 the applicant was charged with the crime of
disorderly conduct in the bar 'Tor', and brought before the
Slavyanskyy Town Court (the “Town Court”). The Town
Court, relying on Article 165-2 of the Code of Criminal Procedure,
extended the applicant's preliminary detention, as a temporary
preventive measure, up to 31 January 2002. It noted that the case
file did not contain sufficient information characterising the
applicant and, in particular, the evidence that the applicant might
intend to abscond.
- On
31 January 2002 the Town Court ordered the applicant's detention in
custody as a preventive measure. It had regard to the “character
of the applicant”, the circumstances in which the crime had
been committed, the fact that he had been charged with a serious
crime, and the necessity to ensure the execution of procedural
decisions.
- On
26 April 2002, after the investigation had been completed, the case
file was transferred to the Town Court for committing the applicant
for trial.
- On
11 May 2002 the Town Court committed the applicant for trial. It also
upheld the preventive measure, in respect of the applicant, without
giving any reasons.
- On
12 August 2002 the Town Court decided to maintain the preventive
measure (the detention in custody) in respect of the applicant. It
did not provide any specific reasons for that decision.
- On
4 April 2003 the applicant lodged an application with the Town Court
alleging that, on 25 January 2002, he had been unlawfully taken to
the police station and unlawfully held there until 28 January 2002,
despite his bodily injuries and the absence of any medical
assistance. He further contended that his subsequent pre-trial
detention had been unlawful.
- On
22 May 2003 the Deputy President of the Town Court replied to the
applicant and informed him that it was too late to challenge the
lawfulness of his preliminary detention between 25 and 28
January 2002 as the case was at the trial stage. He further stated
that the application of 4 April 2003 would be qualified as an
ordinary request, submitted by a party to the proceedings, and that
therefore it could only be considered in the course of the court
hearing in his criminal case. He informed the applicant that the
application would be considered on 26 June 2003.
- Subsequently,
the judge in charge of the applicant's criminal case confirmed to the
applicant that his application of 4 April 2003 for review of
the lawfulness of his detention would be considered on 26 June 2003
in the course of the court hearing in his criminal case.
- On
26 June 2003 the Town Court, referring to the seriousness of the
charges levelled against the applicant, found, in the presence of his
counsel, that the applicant was being detained lawfully and that
there had been no grounds to change the preventive measure. In this
decision the Town Court did not address the issue of the applicant's
preliminary detention.
- On
4 November 2003 the Town Court considered the applicant's request to
change the preventive measure and rejected it, noting that the
applicant's further detention had been necessitated by the gravity of
the charges levelled against him.
- On
an unspecified date the applicant complained to the Slavyansk Town
Prosecutor's Office seeking to institute criminal proceedings against
the police officers for his unlawful preliminary detention.
- On
26 March 2004 the deputy prosecutor refused to institute criminal
proceedings against the police officers. He found that on 25 January
2002 the applicant had agreed to go to the police station voluntarily
with the purpose of being interviewed concerning the death of K. The
deputy prosecutor further noted that the applicant had later been
questioned as a witness to the fight in the bar 'Tor'. In particular,
at 3 p.m. of that day the applicant had been transferred to the
police officer D. Between 3 p.m. and 7 p.m. the applicant had
been questioned by that police officer following which “the
applicant's guilt in the fight had been established”. Later on,
the applicant had been arrested because there had been enough
evidence of his involvement in the latter crime. The deputy
prosecutor therefore concluded that there had been no actus
reus in the acts of the police officers. The applicant did
not lodge a formal appeal against the prosecutor's decision of 26
March 2004.
- Subsequently,
the Town Court informed the applicant that the lawfulness of his
preliminary detention would be reviewed in the course of the trial in
his criminal case.
- On
24 May 2004 the Town Court considered the applicant's other request
for changing the preventive measure and found that the applicant's
detention had been justified by the gravity of the charges levelled
against him. It therefore held that the preventive measure should be
left unchanged.
- On
7 June 2004 the Town Court found the applicant guilty of disorderly
conduct and sentenced him to four years' imprisonment, but on the
basis of the Amnesty Act released him from serving the sentence. It
also noted that the applicant's preliminary detention had been lawful
and no wrongdoing on the part of the police officers could be
discerned. The Town Court further ordered that the applicant be
released from custody immediately.
- By
letters of 16 July and 4 August 2004 the Town Court informed the
applicant that the lawfulness of his preliminary detention had been
reviewed in the judgment of 7 June 2004.
- On
11 February and 27 October 2005 the Donetsk Regional Court of Appeal
and the Supreme Court upheld the judgment of 7 June 2004 as
substantiated.
II. RELEVANT DOMESTIC LAW
Constitution of 28 June 1996
- The
relevant part of Article 29 of the Constitution reads as follows:
“... In the event of an urgent necessity to
prevent or stop a crime, bodies authorised by law may hold a person
in custody as a temporary preventive measure, the reasonable grounds
for which shall be verified by a court within seventy-two hours. The
detained person shall be released immediately if he or she has not
been provided, within seventy-two hours of the moment of detention,
with a reasoned court decision in respect of the holding in custody.
...
Everyone who has been detained has the right to
challenge his or her detention in court at any time. ...”
B. Code of Criminal Procedure of 28 December 1960 (as worded
at the material time)
- The relevant provisions of the Code read as follows:
Article 70: Obligations of the witness
“A person, summoned as a witness by a body of
inquiry, investigator, prosecutor, or a court, is obliged to appear
at the specified time and place and make truthful statements about
the circumstances of the event to the best of his or her knowledge.
If the witness fails to appear without a valid reason,
the body of inquiry, the investigator, the prosecutor, or the court
may order the witness's compulsory appearance which shall be enforced
by the bodies of internal affairs, pursuant to the procedure provided
for by Articles 135 and 136 of this Code. ...”
Article 97: Obligation to accept statements and
notifications of crimes and the way in which they are considered
“... If it is necessary to verify a statement or
notification of a crime before instituting criminal proceedings, such
verification is made by the prosecutor, investigator, or a body of
inquiry within ten days by taking explanations from specific citizens
or officials or by requesting necessary documents.
A statement or notification of crime can be verified,
prior to instituting criminal proceedings, by means of the search and
seizure activities. ...”
Article 106: Arrest of a suspect by the body of
inquiry
“The body of inquiry shall be entitled to arrest
a person suspected of a criminal offence for which a penalty in the
form of deprivation of liberty may be imposed only on one of the
following grounds:
1. if the person is discovered whilst or immediately
after committing an offence;
2. if eyewitnesses, including victims, directly identify
this person as the one who committed the offence;
3. if clear traces of the offence are found either on
the body of the suspect, or on his clothing, or with him, or in his
home.
If there is other information giving ground to suspect a
person of a criminal offence, a body of inquiry may arrest such a
person if the latter attempted to flee, or does not have a permanent
place of residence, or the identity of that person has not been
established.
For each case of a suspect's arrest, the body of inquiry
shall be required to draw up an arrest order (протокол
затримання)
outlining the grounds, the motives, the day, time, year and month,
the place of arrest, the explanations of the person detained and the
time when it was recorded that the suspect had been informed of his
right to have a meeting with defence counsel as from the moment of
his arrest, in accordance with the procedure provided for in
paragraph 2 of Article 21 of the present Code. The arrest order shall
be signed by the person who drew it up and by the detainee.
A copy of the arrest order with a list of his rights and
obligations shall immediately be handed to the detainee and sent to
the prosecutor. At the request of the prosecutor, the material which
served as a ground for the arrest shall be sent to him as well. ...
Within seventy-two hours of the arrest, the body of
inquiry shall:
(1) release the detainee if the suspicion that he
committed the crime has not been confirmed, if the term of the
preliminary detention established by law has expired or if the arrest
has been effected in violation of the requirements of paragraphs 1
and 2 of the present Article;
(2) release the detainee and select a non-custodial
preventive measure;
(3) bring the detainee before a judge with a request to
impose a custodial preventive measure on him or her.
If the arrest is appealed against to a court, the
detainee's complaint shall be immediately sent by the head of the
detention facility to the court. The judge shall consider the
complaint together with the request by the investigating body for
application of the preventive measure. If the complaint is received
after the preventive measure was applied, the judge shall examine it
within three days after receiving it. If the request has not been
received or if the complaint has been received after the term of
seventy-two hours of detention, the complaint shall be considered by
the judge within five days after receiving it.
The complaint shall be considered in accordance with the
requirements of Article 165-2 of this Code. Following its
examination, the judge shall give a ruling, either declaring that the
arrest is lawful or allowing the complaint and finding the arrest to
be unlawful.
The ruling of the judge may be appealed against within
seven days from the date of its adoption by the prosecutor, the
person concerned, or his or her defence counsel or legal
representative. Lodging such an appeal does not suspend the execution
of the court's ruling.
Preliminary detention of a suspect shall not last for
more than seventy-two hours.
If, within the terms established by law, the ruling of
the judge on the application of a custodial preventive measure or on
the release of the detainee has not arrived at the pre-trial
detention facility, the head of the pre-trial detention facility
shall release the person concerned, drawing up the order to that
effect, and shall inform the official or body that carried out the
arrest accordingly.”
Article 113: Commencement of the pre-trial
investigation
“The pre-trial investigation shall be carried out
exclusively after the criminal proceedings have been instituted and
in accordance with the procedure provided for by this Code. ...”
Article 115: Arrest of a suspect by an investigator
“An investigator may arrest and question a person
suspected of having committed a crime according to procedure
envisaged by Articles 106, 106-1, and 107 of the Code.”
Article 135: The obligation of the accused to appear
“... The valid reasons for failure to appear
before investigator at the requested time shall be the following: a
belated receipt of the summons, illness, and other circumstances
preventing the accused from attending the investigator at the
requested time.”
Article 136: Compulsory appearance of the accused
“Compulsory appearance of the accused shall be
ordered by the investigator's decision. Compulsory appearance of the
accused shall be enforced in the daytime except for emergencies.
Compulsory appearance without prior notice may be
applied only if the accused evades investigation or does not have a
permanent place of residence.
Before its enforcement, the decision on applying the
compulsory appearance shall be announced to the accused.”
Article 148: Purpose and grounds for the application
of preventive measures
“Preventive measures shall be imposed on a
suspect, accused, defendant, or convicted person in order to prevent
him from attempting to abscond from an inquiry, investigation or the
court, from obstructing the establishment of the truth in a criminal
case or to pursue criminal activities, and in order to ensure the
execution of procedural decisions.
Preventive measures shall be imposed where there are
sufficient grounds to believe that the suspect, accused, defendant or
convicted person will attempt to abscond from investigation and the
court, or if he fails to comply with procedural decisions, or
obstructs the establishment of the truth in the case or pursues
criminal activities. ...”
Article 149: Preventive measures
“The preventive measures are as follows:
(1) a written undertaking not to abscond;
(2) a personal guarantee;
(3) the guarantee of a public organisation or
labour collective;
(3-1) bail;
(4) detention in custody;
(5) supervision by the command of a military
unit.
As a temporary preventive measure, a suspect may be
detained on the grounds and pursuant to the procedure provided for by
Articles 106, 115 and 165-2 of this Code.”
Article 165-2: Procedure for selection of a
preventive measure
“At the stage of the pre-trial investigation, a
non-custodial preventive measure shall be selected by the body of
inquiry, the investigator, or the prosecutor.
If there are grounds for applying a custodial preventive
measure, the body of inquiry or the investigator, following the
prosecutor's consent, shall lodge an application with the court. The
prosecutor is entitled to lodge a similar application. In determining
this issue, the prosecutor shall familiarise himself with all the
material in the case file that would justify placing the person in
custody, and verify that the evidence was received in a lawful manner
and is sufficient to bring charges against the person.
The request shall be considered within seventy-two hours
of the arrest of the suspect or accused.
If the application concerns the detention of a person
who is at liberty, the judge shall have the power to issue a warrant
for the arrest of such a person and for escorting him to the court.
The preliminary detention in such cases shall not exceed seventy-two
hours; and if the person concerned is outside the locality in which
the court operates, it shall not exceed forty-eight hours from the
time the arrested person was brought to the locality.
Upon receiving the application, the judge shall examine
the material in the case file submitted by the body of inquiry, the
investigator, or the prosecutor. A judge shall question the suspect
or the accused and, if necessary, hear evidence from the person who
is in charge of the criminal case, obtain the opinion of the
prosecutor, the defence counsel, if the latter appeared before the
court, and make an order:
(1) refusing to apply the [custodial] preventive measure
if there are no grounds for doing so;
(2) applying the custodial preventive measure.
Having refused to apply the custodial preventive
measure, the court shall have the power to apply a non-custodial
preventive measure in respect of the suspect or the accused.
The judge's order may be appealed against to the court
of appeal by the prosecutor, the suspect, the accused or his or her
defence counsel or the legal representative, within three days of its
delivery. The introduction of an appeal shall not suspend the
execution of the judge's order.
If in order to select a preventive measure in respect of
a detained person it is necessary to examine additional material
concerning the personality of the detained person or to clarify the
other circumstances that are important for the adoption of the
decision on this matter, the judge may extend the applicant's
preliminary detention up to ten days or, if requested by the suspect
or the accused, up to fifteen days. If it is necessary to examine
additional material concerning the person who has not been arrested,
the judge may adjourn the consideration of this issue for up to ten
days and take measures for ensuring the proper conduct of that person
or make an order that that person be arrested and detained for the
same period.”
Article 166: Summoning of the witness for questioning
“The witness shall be summoned by the investigator
with a notice, which shall be given to the witness against receipt.
In case of the witness's temporary absence the notice shall be given
to any adult member of his family... The witness may also be summoned
by a telegram or by a telephone message. ...”
C. The Law “On Search and Seizure Activities”
of 18 February 1992 (as worded at the material time)
- Section
6 of the Law establishes that the grounds for carrying out the search
and seizure activities shall be, among other things, sufficient
information, which has been lawfully obtained but needs to be
verified by means of search and seizure activities, that a crime is
being prepared or has been committed.
- Section 8 of the Law provides, inter alia, that
in the event of the existence of the grounds to carry out search and
seizure activities, the relevant authorities shall have a right to
interview the persons upon their consent.
D. The Law “On Police” of 20 December 1990
- Section
11 of the Law provides that for the purpose of fulfilling its tasks
the police have a right, inter alia, to summon citizens in
connection with the criminal and other cases that the police are
dealing with; to carry out inquiry in criminal cases in accordance
with the legislation on criminal procedure.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF
THE CONVENTION
- The
applicant complained that between 25 and 28 January 2002 he had been
unlawfully deprived of his liberty. He 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:
(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; ...”
A. Admissibility
- The
Government submitted that the applicant had failed to exhaust the
domestic remedies in respect of his complaint since he had not
challenged the decision of 26 March 2004 on the refusal to
institute criminal proceedings before the higher prosecutor's office
and the courts.
- The
applicant disagreed.
- The
Court notes that the applicant raised the present complaint before
the prosecutor's office and, concurrently, before the Town Court.
Following the refusal of the prosecutor's office to institute
criminal proceedings, the Town Court informed the applicant that it
would consider the complaint in the course of trial in the
applicant's criminal case. Indeed, this issue was subsequently
examined on the merits by the Town Court.
- Accordingly,
the Court considers that the applicant reasonably relied on the
procedure, which was expressly suggested by the domestic authorities,
and that he therefore did not find it necessary to follow other
procedures including the one suggested by the Government. In these
circumstances the Court rejects the Government's objection.
- The
Court further notes that this complaint 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
applicant claimed that on 25 January 2002 he was forced to go to the
police station where he was detained unlawfully until
28 January 2002. He asserted that the period of his
preliminary detention as a suspect should be calculated from
2.30 a.m. on 25 January 2002. Given that the court hearing
authorising his preliminary detention was held during the working day
of 28 January 2002, his preliminary detention without a court order
exceeded seventy-two hours, which was in breach of domestic law and,
consequently, of Article 5 § 1 of the Convention.
- The
Government maintained that at 2.30 a.m. on 25 January 2002 the
applicant was invited by the police officers to accompany them to the
police station in order to give evidence as regards the death of K.
The applicant agreed to go to the police station without any coercion
from the police officers.
- The
Government further submitted that the applicant was detained as a
suspect from 9.30 p.m. on 25 January 2005 as it was only at that
time that the police reasonably suspected the applicant of the crime
and the arrest order was drawn up. That being so, the applicant's
preliminary detention as a suspect without a court order could not
exceed seventy-two hours, as required by domestic law.
2. The Court's assessment
a. The period between 2.30 a.m. and 3 p.m.
on 25 January 2002
(i) Whether there was a deprivation of liberty
- According
to the Court's case law, in order to determine whether there has
been a deprivation of liberty, the starting point must be the
specific situation of the individual concerned and account must be
taken of a whole range of factors arising in a particular case such
as the type, duration, effects and manner of implementation of the
measure in question (see Guzzardi v. Italy, judgment of 6
November 1980, Series A no. 39, p. 33, § 92). The
Court must look beyond the appearances and concentrate on the
realities of the situation complained of (see Van Droogenbroeck v.
Belgium, judgment of 24 June 1982, Series A no. 50, p. 20, §
38).
- Even
if it is not excluded that Article 5 § 1 may apply to
deprivations of liberty of a very short length, the Convention
organs' case-law shows that this provision was considered not
applicable in cases where the applicants' stay in a police station
lasted only a few hours and did not go beyond the time strictly
necessary to accomplish certain formalities (see, Foka v. Turkey,
no. 28940/95, § 75, 24 June 2008 with further references).
- The
right to liberty is too important in a “democratic society”
within the meaning of the Convention for a person to lose the benefit
of the protection of the Convention for the single reason that he
gives himself up to be taken into detention. Detention may violate
Article 5 even though the person concerned has agreed to it (see De
Wilde, Ooms and Versyp v. Belgium, 18 June
1971, § 65, Series A no. 12).
- In
the present case it is disputed by the parties whether the applicant
went to the police station of his own free will or as a result of
police coercion. However, the Court will not speculate on this
matter, since the fact remains that during the period under
examination the applicant was held in the police station and the
police carried out interrogations and other procedural actions
related to the incidents involving the applicant. It has not been
contended by the Government and it would be unrealistic to assume
that during that period the applicant had been free to leave the
police station at his will. Having regard to all the circumstances of
the case, the Court considers that the applicant's stay in the police
station during the period in question amounted to de facto
deprivation of liberty (see, mutatis mutandis, I.I. v.
Bulgaria, no. 44082/98, § 87, 9 June 2005).
(ii) Compliance with Article 5 § 1 of
the Convention
- Article
5 § 1 of the Convention requires in the first place that the
detention be “lawful”, which includes the condition of
compliance with a procedure prescribed by law. The Convention here
essentially refers back to national law and states the obligation to
conform to the substantive and procedural rules thereof, but it
requires in addition that any deprivation of liberty should be
consistent with the purpose of Article 5, namely to protect
individuals from arbitrariness (see Benham v. the United Kingdom,
10 June 1996, § 40, Reports of Judgments and Decisions
1996 III). The list of exceptions to the right to liberty
secured in Article 5 § 1 is an exhaustive one and only a narrow
interpretation of those exceptions is consistent with the aim of that
provision, namely to ensure that no one is arbitrarily deprived of
his liberty (see Giulia Manzoni v. Italy, 1 July 1997, §
25, Reports of Judgments and Decisions 1997 IV).
(α) Whether the deprivation of the applicant's
liberty could be justified under sub-paragraph (c) of Article 5 § 1
of the Convention
- The
Court will first examine whether the applicant's detention in the
abovementioned period could be justified under sub-paragraph (c) of
Article 5 § 1 of the Convention.
- The
Court notes that the parties dispute the applicant's status during
that period. The applicant contended that he had been treated as a
suspect while the Government maintained that the applicant had not
yet obtained that status.
- The
Court notes that the applicant had not had the formal status of a
suspect during that period. However, the question remains whether or
not the applicant had been treated de facto as a suspect.
- While
there is certain indication that the domestic authorities started to
treat the applicant as a suspect after 3 p.m. on 25 January
2005 (see paragraph 26 above), there is no evidence to show that
they did so earlier. Moreover, the facts that the police officers
were aware that the applicant was a friend to K. and that they were
both attacked by unknown persons suggest that the applicant was
indeed initially regarded as an eyewitness.
- Accordingly,
the Court accepts the Government's contention in this regard and
finds that from 2.30 a.m. until at least 3 p.m. on
25 January 2005 the applicant had not been treated as suspect.
It follows that the deprivation of the applicant's liberty in that
time could not fall under sub-paragraph (c) of Article 5 § 1
of the Convention.
(β) Whether the deprivation of the applicant's
liberty could be justified under sub-paragraph (b) of Article 5 § 1
of the Convention
- The
Court next observes that the deprivation of the applicant's liberty
might also potentially fall under sub-paragraph (b) of
Article 5 § 1 of the Convention (see, for
example, Iliya Stefanov v. Bulgaria, no. 65755/01, § 74,
22 May 2008).
- The
Court recalls that detention is authorised under sub-paragraph (b)
of Article 5 § 1 only to “secure the
fulfilment” of the obligation prescribed by law. It follows
that, at the very least, there must be an unfulfilled obligation
incumbent on the person concerned and the detention must be for the
purpose of securing its fulfilment and not punitive in character. As
soon as the relevant obligation has been fulfilled, the basis for
detention under Article 5 § 1 (b) ceases to exist. Furthermore,
a balance must be drawn between the importance in a democratic
society of securing the immediate fulfilment of the obligation in
question and the importance of the right to liberty (see Nowicka
v. Poland, no. 30218/96, §§ 60 and 61, 3 December
2002). The relevant factors in drawing this balance are the nature
and the purpose of the obligation, the detained person, the specific
circumstances which led to his or her detention, and the length of
the detention (see Vasileva v. Denmark, no. 52792/99, §§
37 and 38, 25 September 2003 and Epple v. Germany,
no. 77909/01, § 37, 24 March 2005).
- The
Court notes that in the period under examination the applicant was
held in the police station exclusively for two purposes: questioning
on account of K.'s death and questioning on account of the fight in
the bar 'Tor'.
- As to the questioning in respect of K.'s death
- In
as much as the applicant was held in the police station with the
purpose of being questioned on account of K.'s death, the Court
observes that by virtue of Article 70 of the Code of Criminal
Procedure a witness is under obligation to give evidence. However, in
accordance with Article 113 of the Code of Criminal Procedure, the
investigatory actions, such as questioning of a witness, could be
carried out only after the relevant criminal proceedings had been
commenced. In this context the Court notes that the criminal
proceedings concerning K.'s death were instituted on 26 January
2002 (see paragraph 14 above). It follows that on 25 January 2002 the
applicant could not have any obligation to give witness evidence in
respect of that incident. It appears that the applicant had a status
of an interviewee under section 8 of the Law “On Search and
Seizure Activities”, which provides for a right, but not an
obligation, to make a statement.
- The
Court therefore concludes that there existed no 'obligation
prescribed by law' in the meaning of Article 5 § 1 (b)
of the Convention.
- As to the questioning in respect of the fight in
the bar 'Tor'
- In
as much as the applicant's stay in the police station was determined
by the necessity to question him on account of the fight in the bar
'Tor', the Court notes that at that time the relevant criminal
proceedings had been already instituted (see paragraph 7 above). The
obligation of the applicant to give witness evidence could be
therefore derived from Article 70 of the Code of Criminal
Procedure. However, according to that Article, such an obligation
arises only under the condition that a person has been duly summoned.
The procedure for summoning a witness is foreseen by Article 166
of the Code of Criminal Procedure and there is nothing to suggest
that it was applied in the present case. Moreover, in accordance with
the second paragraph of Article 70 of the Code of Criminal Procedure,
the compulsory appearance of the witness was permissible only after
the witness had earlier failed to appear for questioning without a
valid reason.
- Accordingly,
having regard to these requirements of the domestic law, the Court is
not persuaded that the applicant was under the lawful obligation to
give witness evidence in respect of the fight in the bar and that his
compulsory attendance for that purpose was based on the domestic law.
- Furthermore,
the Court considers that the deprivation of the applicant's liberty
in the relevant time had not been proportionate for the purpose of
Article 5 § 1 (b) of the Convention. The Court
notes that the fight in the bar had taken place some twenty-four days
earlier and there is nothing to show that there existed any pressing
issue in that case connected with the applicant. At the same time, by
11 a.m. of 25 January 2002 the applicant had been present in the
police station for more than eight hours and no attention had been
paid to the length of his stay or to his physical condition, which
must have been inappropriate in view of the night questioning and his
apparent need for medical assistance on account of his recent
injuries. By disregarding those factors the authorities failed to
strike a fair balance between the need to ensure the immediate
questioning of the applicant and the importance of the right to
liberty.
- Conclusion
- In
view of the above considerations, the Court finds that the
deprivation of the applicant's liberty in the period in question
could not be justified under sub-paragraph (b) of Article 5 § 1
of the Convention.
- The
Court further notes that there is nothing in the case file to suggest
that any other sub-paragraph of Article 5 § 1 of
the Convention could apply. It follows that there has been a
violation of Article 5 § 1 of the Convention with
respect to that period.
b. The period after 3 p.m. on 25 January 2002
until the court decision of 28 January 2002
- In
the applicant's opinion he had been detained as a suspect starting
from 2.30 a.m. on 25 January 2002. Based on this assumption, he
asserted that the overall length of his preliminary detention on a
suspicion of a crime without a court order exceeded seventy-two
hours, which was in breach of domestic law and, consequently, of
Article 5 § 1 of the Convention.
- However,
the Court has concluded above that the applicant was not treated as a
suspect until at least 3 p.m. on 25 January 2002.
- Even
assuming that the applicant's preliminary detention as a suspect
commenced immediately after 3 p.m. on 25 January 2002, the Court,
reviewing that period under sub-paragraph (c) of Article 5 § 1
of the Convention, notes that the applicant failed to specify whether
the judicial decision, authorising the applicant's preliminary
detention as a suspect, had been taken before or after 3 p.m. on
28 January 2002. The Court therefore cannot determine whether the
applicant's detention in that period had been in compliance with the
seventy-two hour rule provided by domestic law. The Court further
notes that the applicant did not complain as to the lawfulness of his
detention after the court decision of 28 January 2002. In these
circumstances it dismisses the relevant contention of the applicant
as unsubstantiated. In the absence of any other submissions by the
applicant, the Court does not find it appropriate to examine other
possible issues under this head of its own motion.
- It
follows that there has been no violation of Article 5 § 1
of the Convention in respect of the period after 3 p.m. on 25
January 2002 until the court decision of 28 January 2002.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF
THE CONVENTION
- The
applicant complained that the length of his detention before and
during the trial had been excessive. He relied on Article 5 § 3
of the Convention, which reads 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
applicant insisted that the crime he had been charged with had not
been serious enough to justify the length of his detention pending
investigation and trial.
- The
Government maintained that the length of the applicant's detention
had been reasonable given the seriousness of the crime the applicant
had been charged with, the complexity of the case and the large
number of investigative measures that had had to be taken. They
further insisted that that preventive measure had been necessitated
by the risk that the applicant might abscond from justice.
- The Court will examine the complaint in the light of
general principles emerging from its case-law (see Nevmerzhitsky
v. Ukraine, no. 54825/00, §§ 131 and 132, ECHR
2005 II (extracts) and Sergey Volosyuk v.
Ukraine, no. 1291/03, § 38,
12 March 2009).
- The
Court first observes that, for the purpose of Article 5 § 3
of the Convention, the applicant's detention began on 25 January
2002, that is when the applicant was arrested as a suspect of the
crime, and continued uninterruptedly until his release by the Town
Court on 7 June 2004 (see, among other authorities, Piotr
Baranowski v. Poland, no. 39742/05, § 45, 2 October
2007). Thus, the applicant's detention lasted a total of two years,
four months and twelve days.
- The
Court accepts that the applicant's detention may have been primarily
warranted by a reasonable suspicion that he was involved in a serious
crime and by the necessity to ensure the proper conduct of the
investigation. Accordingly, the initial references by the Town Court
to the gravity of the charges and the necessity to ensure the
execution of procedural decisions could justify keeping the applicant
in custody.
- However,
with the passage of time those grounds inevitably became less and
less sufficient. Accordingly, the domestic authorities were under an
obligation to analyse the applicant's personal situation in greater
detail and to give specific reasons for holding him in custody.
- Meanwhile,
in its subsequent decisions the Town Court had either made no
reference to any ground for the applicant's detention, or noted that
it had been justified by the gravity of the charges levelled against
him.
- The Court considers it unacceptable that the Town
Court found it possible to warrant the applicant's detention in
custody without giving any reasons for such decisions. It further
holds that, by failing to address concrete relevant facts and by
relying in some of its decisions exclusively on the gravity of the
charges, the Town Court prolonged the applicant's detention several
times on grounds which cannot be regarded as 'sufficient'.
Furthermore, in no decision did the Town Court refer to any
particular circumstances explaining why alternative preventive
measures could not be applied instead of detention, as required by
Article 5 § 3 of the Convention.
- The
Court therefore finds that there has been a violation of
Article 5 § 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF
THE CONVENTION
- The
applicant complained that his application of 4 April 2003, by which
he challenged the lawfulness of his preliminary detention between 25
and
28 January 2002 and his subsequent detention, had not been
properly and speedily considered by the Town Court. He relied on
Article 5 § 4 of the Convention, which reads as
follows:
“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
Government submitted that Article 5 § 4 of the
Convention could not cover the proceedings concerning the
consideration of the application of 4 April 2003 since, in those
proceedings, the applicant had raised the issues of his preliminary
detention, whereas, at the relevant time, he had been detained on
other grounds, namely pursuant to the court order of 12 August
2002. The application of 4 April 2003 therefore did not raise a
question of the lawfulness of the ongoing detention and did not fall
within the ambit of Article 5 § 4 of the
Convention.
- The
applicant did not put forward any specific arguments.
- The
Court reiterates that Article 5 § 4 of the Convention deals only
with those remedies which must be made available during a person's
detention with a view to that person obtaining speedy judicial review
of the lawfulness of the detention capable of leading, where
appropriate, to his or her release. The provision does not deal with
other remedies which may serve to review the lawfulness of a period
of detention which has already ended, including, in particular, a
short-term detention (see Slivenko v. Latvia [GC], no.
48321/99, § 158, ECHR 2003 X).
- Having
regard to this case-law, the Court considers that the part of the
application of 4 April 2003 which dealt with the issues of the
deprivation of the applicant's liberty between 25 and 28 January 2002
falls outside the scope of Article 5 § 4 of the
Convention, since at the time of the application the period in
question had already ended.
- However,
the application of 4 April 2003 also raised the question of the
lawfulness of the subsequent pre-trial detention of the applicant.
Accordingly, in as much as the application referred to the lawfulness
of the ongoing detention of the applicant, the Court considers that
it falls within the scope of Article 5 § 4 of the
Convention.
- The
Court, however, notes that on 26 June 2003 that issue was determined
by the Town Court in the presence of the applicant's representative.
Given that the applicant submitted his first letter to the Court only
on 13 January 2004, the Court finds that he failed to comply
with the six-month rule with respect to this complaint (see Hristov
v. Bulgaria (dec.), no. 35436/97, 19 September 2000 and
Mello v. Slovakia (dec.), no. 67030/01, 21 June 2005).
- It
follows that the complaint should be rejected as inadmissible in
accordance with Article 35 §§ 1, 3 and 4 of
the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the
Convention that the proceedings in his criminal case had been unfair
and had lasted too long.
- The
Court has examined those complaints and considers that, in the light
of all the material in its possession and in so far as the matters
complained of are 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.
V. 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 2,967 euros (EUR) in respect of
pecuniary damage and EUR 300,000 in respect of non-pecuniary damage.
- The Government considered those claims
unsubstantiated.
- The Court does not discern any causal link between the
violation found and the pecuniary damage alleged; it therefore
rejects this claim. However, it awards the applicant EUR 2,500
in respect of non-pecuniary damage.
B. Costs and expenses
- The applicant did not submit any
claim under this head. The Court therefore makes no award.
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
- Declares unanimously the complaints under
Article 5 §§ 1 and 3 admissible and the remainder
of the application inadmissible;
- Holds unanimously that there has been a
violation of Article 5 § 1 of the Convention in
respect of the deprivation of the applicant's liberty between
2.30 a.m. and 3 p.m. on 25 January 2002;
- Holds by 6 votes to 1 that there has been no
violation of Article 5 § 1 of the Convention in
respect of the period after 3 p.m. on 25 January 2002 until the
court decision of 28 January 2002;
- Holds unanimously that there has been a
violation of Article 5 § 3 of the Convention;
- Holds unanimously
(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 2,500 (two
thousand five hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Ukrainian
hryvnias 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 unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 9 November 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge
Kalaydjieva is annexed to this judgment.
P.L.
C.W.
PARTIALLY DISSENTING OPINION OF JUDGE KALAYDJIEVA
To my
regret I am unable to join the majority's conclusions on the overall
length of the applicant's detention on a suspicion of a crime without
a court order. The applicant was not represented by a lawyer and
failed to specify the exact period of such detention and/or its
classification under Article 5 of the Convention. The Court
considered it as falling under Article 5 §
1 of the Convention – purpose and
lawfulness of deprivation of liberty under the national law –
and limited its consideration of the length of detention in the
absence of a court order to the period which ended on 25 January
2002 with the order of the Town Court. In my view the question
whether the applicant substantiated the exact hour (before or after 3
p.m. on 25 January 2002) when the first order was issued appears
irrelevant for the actual period of detention without a court's
order, since on this date the Town Court did not adopt any such
decision.
Pursuant
to Art. 165-2 of the Criminal Procedure Code the Town Court found
itself unable “to select a preventive measure in respect of
[the applicant] and not only considered it necessary to
examine additional material concerning [his] personality... or to
clarify the other circumstances that are important for the adoption
of the decision on this matter” (see Relevant
Domestic Law), but also “requested the investigator to
provide more evidence that the applicant might abscond”
(see paragraph 15). I would not dwell on the impartiality of this
instruction, but only on the fact that on 25 January 2002 the court
extended the order issued at “9.30 p.m. on that day by
the police investigator (see paragraph 13)” for three more
days – until 31 January 2002, when it determined the necessity
of the applicant's detention for the first time. The extension
of the applicant's detention on the order of an investigation officer
was permissible by the domestic law provisions and resulted in an
overall period of over 6 days of deprivation of personal liberty
in the absence of a court's decision propriu moto. I have
certain misgivings as to the compatibility of this situation both
with Article 5 § 1 (c) as concerns the
purpose of the detention and with the Article 5 §
3 of the Convention, which deals properly with the question whether
the applicant was “brought promptly before a judge
authorised by law to exercise judicial functions” in regard
of the necessity of detention.
I
find it important to express this opinion as it seems important for
the Court to deal with issues which, in view of the on-going reform
of the national system of criminal justice, may result in the
necessary steps for harmonisation of the national law with the
Convention.
