FIFTH SECTION

CASE OF MIROSHNICHENKO v. UKRAINE

(Application no. 19805/08)

JUDGMENT

STRASBOURG

20 October 2011

This judgment is final but it may be subject to editorial revision.

In the case of Miroshnichenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a committee composed of:
	Boštjan M. Zupančič, President,
	Ganna Yudkivska,
	Angelika Nußberger, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 27 September 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 19805/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Aleksandr Vyacheslavovich Miroshnichenko (“the applicant”), on 8 April 2008.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Ms Valeria Lutkovska, of the Ministry of Justice.
3.  On 27 September 2010 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1972.
5.  On 16 January 2006 the police arrested him on suspicion of several drug-related crimes.
6.  On 19 January 2006 the Kostyantynivka Court ordered the applicant’s detention on remand pursuant to Article 165-2 of the Code of Criminal Procedure (“CCP”) on the grounds of gravity of charges and that, if the applicant remained at liberty, he might abscond and obstruct justice. It rejected the applicant’s lawyer’s request for the applicant’s release under bail having stated that there were no grounds for choosing that preventive measure, without any further details.
7.  On 17 March 2006, following the completion of the pre-trial investigation, the case was referred to the same court for trial.
8.  On 5 April 2006 during the preliminary hearing the court ordered that the applicant should remain in detention, without any further details.
9.  On 12 October 2006 it found the applicant guilty as charged and sentenced him to six years’ imprisonment with confiscation of property.
10.  The applicant and his lawyer appealed against the above judgment requesting, inter alia, the applicant’s release.
11.  On 23 February 2007 the Donetsk Regional Court of Appeal instructed the local prosecutor to carry out some further investigatory actions in the case. It also ruled that the applicant should remain in detention, without any further details.
12.  Following the completion of the investigatory actions, the case was sent back to the Court of Appeal, which on 6 July 2007 quashed the judgment of 12 October 2006 and remitted the case for fresh consideration. It stated that the applicant should remain in detention, without any further details.
13.  On 3 October 2007 the Kostyantynivka Court examined the applicant’s and two other co-defendants’ requests for the release and rejected them on the ground of the gravity of charges.
14.  On 27 March 2008 the same court convicted the applicant of two counts (repeated production, purchase, storage and sale of narcotics and precursors by a group of persons) and sentenced him to eight years’ imprisonment with confiscation of property.
15.  The applicant’s lawyer appealed against the above judgment requesting, inter alia, the applicant’s release.
16.  On 22 August 2008 the Court of Appeal quashed that judgment and remitted the case for fresh consideration. It stated that the applicant should remain in detention, without any further details.
17.  On 21 August 2009 the Kostyantynivka Court convicted the applicant of the same counts as in its judgment of 27 March 2008 and sentenced him to five years’ and eight months’ imprisonment with confiscation of property. The applicant did not appeal.
18.  In the course of the proceedings apart from the applicant two other co-defendants and thirty four witnesses were interrogated and heard. Five hearings were adjourned due to the defendants’ lawyers’ failure to appear. Twenty one hearings were adjourned due to the witnesses’ and victims’ failure to appear, in respect of which the courts applied compulsory summonses.
II.  RELEVANT DOMESTIC LAW
19.  Provisions of the CCP 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
20.  The applicant complained that the length of his detention on remand had been excessive. He relied on Article 5 § 3 of the Convention, which reads, 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.”
21.  The Government contested that argument, stating that the length of the applicant’s detention had not been unreasonable, that the courts had given relevant and sufficient grounds for his detention and that the proceedings had been conducted with due diligence.
A.  Admissibility
22.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
23.  The Court notes that the period to be taken into account lasted for about two years and five and a half months in total and consisted of three separate periods (see, mutatis mutandis, Kudła v. Poland [GC], no. 30210/96, § 104, ECHR 2000‑XI): from 16 January 2006 (the applicant’s arrest) to 12 October 2006 (his first conviction); from 6 July 2007 (first conviction quashed) to 27 March 2008 (second conviction) and from 22 August 2008 (second conviction quashed) to 21 August 2009 (third conviction). Such period is not short in absolute terms.
24.  Examining the case in light of the general principles established in its case-law (see, for instance, I.A. v. France, 23 September 1998, Reports 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 observes that the applicant’s initial detention was mainly based on the possibility that he might abscond and on the gravity of charges against him (see paragraph 6 above). Although the applicant’s detention may have initially been justified based on these grounds, after a certain lapse of time the courts were obliged to give other express grounds for his continued detention. Instead, they either relied on the gravity of charges against him or did not advance any grounds at all (see paragraphs 8, 11-13 and 16 above). Besides, apart from the initial decision ordering the applicant’s detention on remand, the courts did not subsequently consider applying any alternative preventive measures.
25.  The Court has frequently found violations of Article 5 § 3 of the Convention in similar circumstances (see, among many other authorities, Yeloyev v. Ukraine, no. 17283/02, §§ 60-61, 6 November 2008; Doronin v .Ukraine, no. 16505/02, §§ 63-64, 19 February 2009; and Kharchenko v. Ukraine, no. 40107/02, §§ 79-81, 99 and 101, 10 February 2011). It considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.
26.  There has accordingly been a breach of Article 5 § 3 of the Convention.
II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
27.  The applicant also complained that the length of the criminal proceedings against him had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:
“In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
28.  The Government contested that argument, stating that the consideration of the case had been complicated by the number of the participants in the proceedings and that the hearings had been scheduled regularly and without significant delays.
29.  The period to be taken into account began on 16 January 2006 and ended on 21 August 2009. The proceedings thus lasted for about three years and seven months before two judicial instances.
30.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pelissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).
31.  Turning to the circumstances of the case, the Court considers that the case was not particularly complex, even thought its consideration might be somewhat prolonged due to the number of participants. As to the conduct of the applicant, it does not appear that any significant delays could be attributed to him, apart from his lawyer’s failure to attend several hearings (see paragraph 18 above). As far as the domestic authorities are concerned, while certain delays could be attributed to them (two remittals of the case and the failure to secure the presence of witnesses and victims at the hearings), those delays were not such as to warrant the conclusion that there had been a violation, especially given the overall duration of the proceedings (see, for example, Shavrov v. Ukraine (dec.), no. 11098/03, 11 March 2008).
32.  It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
33.  The applicant further complained under Articles 6 § 1 and 13 of the Convention about the unfairness of the proceedings.
34.  The Court notes that the applicant did not appeal against the judgment of 21 August 2009 and has not, therefore, exhausted the remedies available to him under the domestic law.
35.  It follows that these complaints must be rejected for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
36.  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
37.  The applicant claimed 150,000 euros (EUR) in respect of non-pecuniary damage.
38.  The Government contested this claim.
39.  The Court considers that the applicant must have sustained non-pecuniary damage on account of the violation found and, ruling on an equitable basis, awards him EUR 2,000 under this head.
B.  Costs and expenses
40.  The applicant did not make any claim for costs and expenses. Accordingly, the Court makes no award.
C.  Default interest
41.  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
1.  Declares the complaint under Article 5 § 3 of the Convention concerning the length of the applicant’s pre-trial detention admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 5 § 3 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the national currency of the respondent State 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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 20 October 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Boštjan M. Zupančič
	Deputy Registrar	President