FIFTH SECTION

CASE OF PANKRATYEV v. UKRAINE

(Application no. 49900/11)

JUDGMENT

STRASBOURG

11 December 2014

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

In the case of Pankratyev v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Boštjan M. Zupančič, President,
	Helena Jäderblom,
	Aleš Pejchal, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 18 November 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 49900/11) 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 Sergiy Sergiyovych Pankratyev (“the applicant”), on 3 August 2011.
2.  The applicant was represented by Mr O.V. Zarutskyy, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Ms N. Sevostianova.
3.  On 20 November 2013 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1984.
5.  On 15 October 2009 he was arrested by the Darnytskyy District Police Department of Kyiv on suspicion of having committed a robbery in aggravated circumstances. On the same day he was charged with that crime.
6.  On 16 October 2009 the Darnytskyy District Court of Kyiv (“the Darnytskyy Court”) ordered the applicant’s pre-trial detention for two months.
7.  On 10 November 2009 the applicant was also charged with murder.
8.  On 10 December 2009 the Darnytskyy Court extended the applicant’s pre-trial detention to three months, namely to 15 January 2010.
9.  On 13 January 2010 the Darnytskyy Court extended the applicant’s pre-trial detention to four months, namely to 15 February 2010.
10.  On 13 February 2010 the case was referred to the Kyiv Court of Appeal for consideration on the merits.
11.  On 15 March 2010 the Kyiv Court of Appeal held a preliminary hearing in the case and ordered, inter alia, that the preventive measure in respect of the applicant should be left unchanged.
12.  On 14 April 2011 the Kyiv Court of Appeal found the applicant guilty of robbery and murder. It convicted him to fourteen years’ imprisonment and ordered the confiscation of his property.
13.  On 13 September 2011 the Higher Specialised Court for Civil and Criminal Matters quashed the judgment and remitted the case for a fresh trial.
14.  On 24 December 2013 the applicant was found guilty of robbery and murder and sentenced to twelve years’ imprisonment. The court also ordered the confiscation of the applicant’s property.
15.  The applicant lodged an appeal. No further information was provided.
II.  RELEVANT DOMESTIC LAW
16.  The relevant provisions of the Code of Criminal Procedure of Ukraine of 1960, which was in force at the relevant time, can be found in the judgment in the case of Molodorych v. Ukraine, (no. 2161/02, §§ 56-59, 28 October 2010).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 5 § 1 (c) OF THE CONVENTION
17.  The applicant complained that his pre-trial detention after 15 February 2010 until 14 April 2011 had not been compatible with Article 5 § 1 (с) of the Convention.
18.  Article 5 § 1 (c) of the Convention provides 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
19.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) 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
20.  The Government submitted that the applicant’s detention at the relevant time was based on the provisions of the domestic law and on 15 March 2010 the trial court decided on the issue of preventive measure.
21.  The applicant maintained his complaint.
2.  The Court’s assessment
(a)  The applicant’s detention after 15 February 2010 until 15 March 2010
22.  The Court notes that during that period the applicant was held in detention on account of an indictment having been submitted to the court, even though there was no court decision validating his detention. The Court has already found that such practice is not compatible with Article 5 § 1 (c) of the Convention (see, for example, Nikolay Kucherenko v. Ukraine, no. 16447/04, §§ 35-38, 19 February 2009, Znaykin v. Ukraine, no. 37538/05, § 60, 7 October 2010, Kharchenko v. Ukraine, no. 40107/02, §§ 71 and 98, 10 February 2011, Tsygoniy v. Ukraine, no. 19213/04, § 60, 24 November 2011 and Taran v. Ukraine, no. 31898/06, § 67, 17 October 2013). The Court sees no reason to depart from its previous findings in the present case.
(b)  The applicant’s detention between 15 March 2010 and 14 April 2011
23.  In that period the applicant was held in detention pending the trial in his criminal case. The parties provided no other court decisions concerning the applicant’s detention except for the decision of 15 March 2010. By that decision the Court of Appeal maintained the preventive measure in respect of the applicant for an indefinite period of time and without providing any specific reasons. It follows that that decision did not ensure an adequate guarantee against arbitrary deprivation of liberty (see Yeloyev v. Ukraine, no. 17283/02, §§ 52-55, 6 November 2008; Doronin v. Ukraine, no. 16505/02, § 59, 19 February 2009 and Znaykin, cited above, § 62).
(c)  Conclusion
24.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 5 § 1 (c) of the Convention.
II.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
25.  The applicant complained that after the completion of the pre-trial investigation, he did not have at his disposal an effective procedure to challenge the lawfulness of his detention. He relied on Article 13 of the Convention.
26.  The Court decided to consider the complaint under Article 5 § 4 of the Convention (see Sadaykov v. Bulgaria, no. 75157/01, § 31, 22 May 2008).
27.  Article 5 § 4 of the Convention provides 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
28.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) 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
29.  The Government maintained that there had been no violation of Article 5 § 4 of the Convention.
30.  The applicant disagreed.
2.  The Court’s assessment
31.  The Court has already found that Ukrainian law, as it stood at the relevant time, did not provide a procedure for reviewing the lawfulness of continued detention after the completion of pre-trial investigations that satisfied the requirements of Article 5 § 4 of the Convention (see Molodorych v. Ukraine, cited above, § 108; Pleshkov v. Ukraine, no. 37789/05, § 42, 10 February 2011; Kharchenko, cited above, § 100; Tsygoniy, cited above, § 78 and Taran, cited above, § 81). It considers that the same findings are pertinent in the present case.
32.  There has therefore been a violation of Article 5 § 4 in this respect.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
33.  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
34.  The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.
35.  The Government argued that the claim was unfounded.
36.  The Court considers that the applicant must have suffered distress and anxiety on account of the violations found. Ruling on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage.
B.  Costs and expenses
37.  The applicant also claimed EUR 1,000 for the costs and expenses incurred before the Court.
38.  The Government argued that claim was unsubstantiated since the applicant failed to provide any documents in its support.
39.  The Court rejects that claim as it is not supported by any evidence.
C.  Default interest
40.  The Court considers it appropriate that the default interest rate 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 application admissible;

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

3.  Holds that there has been a violation of Article 5 § 4 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the 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;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 11 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Boštjan M. Zupančič
	Registrar	President