FIFTH SECTION

CASE OF KRAVCHENKO v. UKRAINE

(Application no. 49122/07)

JUDGMENT

STRASBOURG

23 February 2012

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

In the case of Kravchenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a committee composed of:
	Boštjan M. Zupančič, President,
	Ann Power-Forde,
	Angelika Nußberger, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 31 January 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 49122/07) 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 Ivanovich Kravchenko (“the applicant”), on 27 October 2007.
2.  The applicant was represented by Mr A.P. Podgornyy, a lawyer practising in Feodosiya. The Ukrainian Government (“the Government”) were represented by their Agents, Ms Valeria Lutkovska and Mr Yuriy Zaytsev.
3.  On 6 January 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 1968. From November 1997 to June 2004 he held a post of customs inspector in Feodosiya.
5.  On 13 October 2004 the applicant was arrested and placed in the Temporary Investigative Isolation Unit (“SIZO”) of Simferopol. Later on, he was moved to the Zaporizhzhya SIZO.
6.  On 15 October 2004 the Feodosiya Town Court (“the Town Court”) remanded the applicant in custody in view of the pending criminal investigations against him. The court noted in particular that the applicant was charged with a serious crime for which he was liable to a penalty of over three years’ imprisonment, and that he was unemployed. The court held, without giving any further details, that there were grounds to believe that, if left at liberty, the applicant would seek to evade investigation and trial, and obstruct the establishment of the truth in his criminal case.
7.  By resolutions of the Town Court and the Kyiv Court of Appeal of 8 December 2004, 8 February, 30 March, 8 July and 7 December 2005, the maximum period of the applicant’s detention was extended, respectively, to four months, six months, nine months, thirteen months, and fourteen months and twelve days, in view of the pending criminal investigations against him. The courts put forward similar reasons for the applicant’s continued detention as in the order of 15 October 2004, and held that there were no grounds for altering the preventive measure applied in the applicant’s respect. In the resolutions of 8 July and 7 December 2005 the courts also noted that the applicant had been studying the case file. By the latter resolution, he was given a time-limit, until 20 December 2005, to complete his study of the file.
8.  On 25 December 2005, the applicant requested the Simferopol SIZO administration to be released, stating that there was no formal decision authorising his detention after 25 December 2005. On 27 December 2005 the request was refused on the ground that his continuing detention was governed by Article 156 of the Code of Criminal Procedure and that his criminal case had been referred to the court for trial on 23 December 2005.
9.  On an unspecified date the Shevchenkivsky District Court of Zaporizhzhya (“the District Court”) received the case.
10.  On 3 March 2006 the applicant lodged with that court a petition alleging, among other things, that his continuing detention was unlawful.
11.  On 20 March 2006 the District Court rejected his petition and ordered him to remain in detention, stating that there were no grounds for changing the preventive measure. The court’s order, containing no further explanations or a time-limit for the applicant’s detention, was not subject to appeal.
12.  On 25 October 2007 the District Court rejected another petition for his release by the applicant relying, in particular, on a letter written by prosecutors according to which there was intelligence gathered suggesting that the applicant prepared documents to leave the country. It also relied on information obtained during the hearings indicating that the applicant intended to change his citizenship. The court did not set a time-limit for the applicant’s detention. According to the applicant, the case file contained no documents or other evidence corroborating his intention to leave the country. As to the issue of citizenship, he stated that he had applied for renunciation of the Ukrainian citizenship.
13.  In a judgment of 8 November 2007 the District Court convicted the applicant as charged and sentenced him to nine years and six months’ imprisonment with confiscation of all his property. It also stripped him of his service rank and limited his right to serve in law-enforcement agencies.
14.  On 23 June 2008 the Zaporizhzhya Regional Court of Appeal (“the Court of Appeal”) changed the first-instance court’s judgment. While upholding the applicant’s conviction for abuse of office, organised crime, and forgery of official documents, the court discontinued the proceedings concerning the charges of bribery and remitted the case concerning the charges of tax evasion for additional investigation. It also reduced the applicant’s prison sentence to five years.
15.  On 22 October 2009 the Supreme Court quashed the appellate court’s judgment and remitted the case for fresh appellate review.
16.  On 19 April 2010 the Court of Appeal quashed the first-instance judgment and remitted the case to the District Court. It also ordered further detention of the applicant. According to the latter’s submissions, the case is pending before the District Court.
II.  RELEVANT DOMESTIC LAW
17.  According to Article 89 of the Code of Criminal Procedure, when time limits are calculated, the day from which they start running are not taken into account. When a time limit is expressed in days, it ends at midnight of the last day.
18.  Other materials pertinent to the issue of lawfulness of the applicant’s detention are summarised in the judgments in the cases of Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 53-54, ECHR 2005‑II (extracts)) and Yeloyev v. Ukraine (no. 17283/02, § 35, 6 November 2008).
THE LAW
I.  SCOPE OF THE CASE
19.  In his submissions of 14 May 2010, the applicant raised a new complaint under Article 5 of the Convention, alleging that his detention ordered on 19 April 2010 was unlawful. In his just satisfaction claims lodged on 10 July 2010, he further complained about poor conditions of his detention from 26 December 2005 to 8 November 2007.
20.  The Court notes that these new, belated complaints are not an elaboration of the applicant’s original complaints, on which the parties have commented. The Court considers, therefore, that it is not appropriate now to take these matters up separately (see Vitruk v. Ukraine, no. 26127/03, § 49, 16 September 2010). The new complaints will be dealt with in application no. 35122/11.
II.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
21.  The applicant complained that his detention from 26 December 2005 to 8 November 2007 was contrary to the requirements of Article 5 § 1 (c) of the Convention, which reads 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
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 Government contended that the applicant’s detention had been lawful. In particular, before 20 March 2006, the applicant had been detained under a clear and foreseeable provision of national law, while after that date his detention had been duly and reasonably authorised by the courts.
24.  The Court observes that the period of the applicant’s detention authorised by courts was fourteen months and twelve days (see paragraph 7 above). Calculated according to the domestic law (see paragraph 17 above), its last day was 25 December 2005. The ensuing period until 20 March 2006 was not covered by any formal decision. On that date the District Court warranted the applicant’s continued detention, not giving, however, any reasons for his detention and not setting any time-limit for his detention. This situation remained unchanged until 25 October 2007, when the District Court found that the applicant could leave the country if released. Even if there is a disagreement between the parties whether the District Court adduced relevant and sufficient reasons for that finding, the Court finds that the court again omitted to set a time-limit for the applicant’s detention which lasted, for the purposes of Article 5 § 1 (c) of the Convention until 8 November 2007, the date of his conviction.
25.  The Court recalls that it has previously examined similar situations in other cases against Ukraine and found them to be incompatible with the requirements of lawfulness under Article 5 § 1 of the Convention. In particular, there were instances when continued detention before or during trial were not covered by any judicial decision (see, for example, Yeloyev v. Ukraine, cited above, §§ 48-51; Solovey and Zozulya v. Ukraine, nos. 40774/02 and 4048/03, §§ 70-73, 27 November 2008; Nikolay Kucherenko v. Ukraine, no. 16447/04, §§ 37-38, 19 February 2009; and Doronin v. Ukraine, no. 16505/02, § 58, 19 February 2009). There were also instances of the failure of the judicial authorities to give reasons for their decisions authorising detention or to fix a time-limit for such detention (see see, e.g., Yeloyev, cited above, §§ 52-55, and Doronin, cited above, § 59). Moreover, in the judgment of Kharchenko v. Ukraine (no. 40107/02, §§ 98 and 101, 10 February 2011), the Court held that the situation where there are periods of detention not covered by any court order or the court orders made during the trial stage fix no time-limits for further detention, is a recurrent problem of structural nature in Ukraine. There are no arguments in this case capable of persuading the Court to reach a different conclusion. It concludes that the applicant’s detention from 26 December 2005 to 8 November 2007 was unlawful.
26.  There has accordingly been a violation of Article 5 § 1 (c) of the Convention in this respect.
III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
27.  The applicant also complained under Articles 6 § 1 and 7 § 1 of the Convention about the outcome of the criminal proceedings brought against him, disagreeing with the courts’ assessment of the evidence and application of national law in his case.
28.  It should be noted that the proceedings giving rise to the issues under the Convention are still pending before domestic courts. Thus the Court concludes that domestic remedies have not been exhausted as required by Article 35 § 1 of the Convention (see, mutatis mutandis, Arkhipov v. Ukraine (dec.), no. 25660/02, 18 May 2004).
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
29.  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, costs and expenses
30.  The applicant claimed 1,320 euros (EUR) in respect of pecuniary and EUR 68,600 in respect of non-pecuniary damage. He also claimed EUR 2,300 EUR for the costs and expenses.
31.  In particular, he based the pecuniary damage claim on the salary allegedly lost due to his unlawful detention. The non-pecuniary damage claim was intended to compensate for unlawfulness and inhuman conditions of his detention. As regards the costs and expenses, he claimed, submitting no relevant documents, EUR 400 in legal fees to be paid directly to his lawyer and EUR 1,900 of his relatives’ expenditure incurred on additional food and its delivery to him held in detention.
32.  The Court recalls that according to its established case-law there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention (see, amongst other authorities, Cakıcı v. Turkey, judgment of 8 July 1999, Reports 1999-IV, § 127). In the present case, the applicant did not submit documents indicating what employment contract had been concluded, for what duration and why it was terminated in October 2004. The mere indication of his pre-detention salary is not sufficient to enable the Court to conclude that the applicant would have earned the claimed salary, had he not been unlawfully detained. Moreover, the applicant’s unlawful detention started after about fourteen months since that contract may have been terminated or suspended, which renders a causal link between the alleged damage and the violation found to be even more speculative. The applicant’s claim should therefore be rejected. As regards the expenditure on additional food, the Court notes that the issue of the conditions of the applicant’s detention was not considered in the present case. It therefore rejects these claims (see, mutatis mutandis, Molodorych v. Ukraine, no. 2161/02, § 119-122, 28 October 2010).
33.  As regards the legal fees, the Court reiterates that, in order for costs and expenses to be included in an award under Article 41, it must be established that they were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were reasonable as to quantum (see, among many other authorities, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII). In the instant case, which is not particularly complex, the applicant furnished no contract concluded with the lawyer, or any other documents specifying the lawyers tasks, remuneration and what services had been actually performed. Nor were documents proving the payment for the services provided. Nevertheless, the Court can not overlook the fact that the lawyer concerned filed observations and handled correspondence with the Court after the application had been communicated to the Government. Regard being had to the Court’s case-law and the information in its possession, the Court awards the amount of EUR 200 for costs and expenses to be paid into the representatives’ bank account, as identified by the applicant (see mutatis mutandis, Romanchenko v. Ukraine, no. 5596/03, § 38, 22 November 2005).
34.  Lastly, even if the claimed non-pecuniary damage is partly based on allegations that have not been examined in the present case, the applicant has suffered distress and frustration on account of the unlawful detention. Ruling on an equitable basis, the Court awards him EUR 6,000 in respect of non-pecuniary damage.
B.  Default interest
35.  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 § 1 (c) of the Convention admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 5 § 1 (c) of the Convention;

3.  Holds
(a)  that the respondent State is to pay, within three months, the following amounts to be converted into Ukrainian hryvnias at the rate applicable on the date of settlement:
(i)  EUR 6,000 (six thousand euros), plus any tax that may be chargeable, to the applicant in respect of non-pecuniary damage;
(ii)  EUR 200 (two hundred euros) in respect of the applicant’s costs and expenses to be paid into his representatives’ bank account;
(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 23 February 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Boštjan M. Zupančič
	Deputy Registrar	President