FIFTH SECTION

CASE OF SEMENENKO v. UKRAINE

(Application no. 52819/08)

JUDGMENT

STRASBOURG

20 October 2016

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

In the case of Semenenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Erik Møse, President,
	Yonko Grozev,
	Mārtiņš Mits, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 27 September 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 52819/08) 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 Viktor Mykolayovych Semenenko, on 30 October 2008.
2.  The applicant was represented by Ms G.V. Nazarova, a lawyer practising in Chernivtsi. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr Ivan Lishchyna.
3.  On 15 October 2014 the complaint concerning the alleged unlawfulness of the applicant’s detention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1982 and resides in Vinnytsia.
5.  The applicant suffers from emotional instability and slight mental retardation since childhood. Several forensic psychiatric examinations found him to have sufficient mental capacity to be held criminally liable.
6.  On 17 July 2007 Ms O., a tobacco kiosk seller, was stabbed to death at her working place.
7.  On 19 July 2007 the applicant was apprehended by the police. According to the police reports, that measure was undertaken on at least two different occasions, each time in respect of an administrative (minor) offence formally unrelated to the murder.
8.  Under the first police report, at 2.30 a.m. on 19 July 2007, the applicant was noted in a public place while being in a state of manifest alcohol intoxication, swearing and disturbing passers-by. When the police ordered him to produce his documents and follow them to their vehicle, he resisted in a vehement manner. As indicated in the apprehension report, at 10.30 a.m. on 19 July 2007 the applicant was taken to the court for the examination of the above administrative offence case.
9.  In the morning on the same day the Vinnytsya Leninskyy District Court (“the Leninskyy Court”) found the applicant guilty of the administrative offence of resisting the police and fined him 150 Ukrainian hryvnias (around 14 euros).
10.  It is not known what exactly happened next. The case file contains two more reports on the applicant’s administrative apprehension dated 19 July 2007. According to one of them, he was released at 9.40 p.m. on that date, without any further details being indicated. As noted in the other report, at 10.10 p.m. on that day the applicant was apprehended again in respect of an administrative offence. According to the related judicial ruling of 20 July 2007 (see paragraph 14 below), at 3.25 p.m. on 19 July 2007 the police apprehended the applicant in a street after he resisted to an identity check.
11.  It appears from the materials of the criminal proceedings against the applicant, which were instituted later (see paragraph 19 below), that on 19 July 2007 he was questioned in respect of Ms O.’s murder. He submitted that he had bought cigarettes at her kiosk on 17 July 2007, without anything unusual having happened. The case file does not contain any further information regarding that questioning.
12.  On the same day the applicant had a conversation with his cell-mate in the temporary detention facility, Yu., who convinced him to confess to the murder. He also promised the applicant money in exchange for the information as to where the applicant had thrown the knife. The applicant drew a scheme. Subsequently the police found the knife at the indicated place. Yu.’s statements and the related material evidence were eventually relied on by the trial court in the criminal proceedings against the applicant.
13.  Still on 19 July 2007, from 6.30 to 7.30 p.m., the police carried out a search in the applicant’s flat in the context of the investigation of the murder of Ms O. It appears that they seized his shirt.
14.  On 20 July 2007 the Leninskyy Court found the applicant guilty of the administrative offence of resisting the police at 3.25 p.m. on 19 July 2007 (see also paragraph 10 above) and sentenced him to five days’ administrative detention to be calculated from 19 July (at 3.25 p.m.) to 23 July 2007.
15.  On the same day the applicant was questioned as a witness in the murder case. He reiterated his statement that he had only bought cigarettes at Ms O.’s kiosk.
16.  On 21 July 2007 the applicant was questioned again as a witness concerning the murder of Ms O. He confessed to having stabbed her several times after she had refused to give him cigarettes without payment.
17.  On the same day the applicant repeated his confession during a reconstruction of the crime. He also showed where he had thrown the knife.
18.  Later on 21 July 2007 the applicant was questioned as a criminal suspect. The questioning took place in the presence of a lawyer appointed for him. As noted in the investigator’s decision to that effect, there were sufficient reasons to suspect the applicant of the murder and, given the fact that he suffered from a mental disorder, his legal representation was mandatory. During that questioning the applicant retracted his earlier confession and submitted that he had not been at the tobacco kiosk on the day of the murder. He explained that he had invented his confession being scared that otherwise he would not be released.
19.  On 23 July 2007 at 9.20 p.m. the applicant was formally arrested on suspicion of Ms O.’s murder. The arrest report noted that there were eyewitnesses who had directly pointed at him as the offender. During his questioning on that and the following day the applicant confessed to that crime.
20.  On 26 July 2007 the Leninskyy Court ordered the applicant’s pre‑trial detention as a preventive measure pending trial.
21.  The trial court remitted the case for additional investigation many times. According to the case-file materials, the most recent such remittal took place on 31 October 2013. There is no information about any subsequent developments.
II.  RELEVANT DOMESTIC LAW
22.  The relevant provisions of the Constitution and the Code of Criminal Procedure, as worded at the material time, can be found in Belousov v. Ukraine (no. 4494/07, §§ 41-42, 7 November 2013).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
23.  Relying on various provisions of Article 5 of the Convention, the applicant complained that his detention until 26 July 2007 had been unlawful and arbitrary. The Court considers that this complaint falls to be examined solely under paragraph 1 of Article 5 of the Convention, the relevant part of 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
24.  The Court notes that this complaint is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
1.  The parties’ submissions
25.  The applicant submitted that both his arrest at the night from 18 to 19 July 2007 and his subsequent detention had been unlawful and arbitrary. He further noted that his detention from 23 to 26 July 2007 had not been covered by any judicial decision. The applicant observed in this connection that the term of his administrative detention had expired on 23 July 2007, whereas he had remained detained thereafter until 26 July 2007, when the court ordered his pre-trial detention pending trial.
26.  The Government contested the above arguments. They maintained that the applicant’s detention had been in compliance with the domestic legislation which, in turn, was clear and foreseeable.
27.  The Government admitted that the applicant had been questioned as a criminal suspect during his administrative detention. They argued, however, that this did not imply any denial of his procedural rights. The Government observed in this connection that already on 21 July 2007 a lawyer had been appointed for the applicant.
28.  The applicant did not submit any observations in reply to those of the Government.
2.  The Court’s assessment
(a)  The applicant’s detention from 19 to 23 July 2007
29.  The Court notes that, as confirmed by documents and not disputed by the parties, the applicant was apprehended by the police at 2.30 a.m. on 19 July 2007. His apprehension was formally based on suspicion of an administrative (minor) offence of no relevance to the investigated murder, for which he was fined by a court at about 10.30 a.m. on that day (see paragraphs 8 and 9 above).
30.  The Court further observes that, according to the ruling of the Leninskyy Court of 20 July 2007, the applicant was apprehended again at 3.25 p.m. on 19 July 2007 for resisting to having his identity checked by the police in a street (see paragraph 14 above).
31.  It follows from the above-mentioned ruling that the applicant had been released at an unspecified time after 10.30 a.m. and that at 3.25 p.m. the police decided to check his identity when he was walking in a street, to which he resisted.
32.  Having regard to all the other case-file materials pertaining to the events of 19 July 2007, the Court has serious doubts that the applicant was ever released, even for a brief period, after his apprehension at the night from 18 to 19 July 2007. The Court takes note, in particular, of the contradictions in the available police reports: according to one of them, the applicant was released at 9.40 p.m. on that day; according to another one, he was arrested at 10.10 p.m.; whereas according to the judicial ruling mentioned above (relying on yet another police report), the applicant was arrested at 3.25 p.m. on 19 July 2007 and remained detained thereafter (see paragraphs 10 and 14 above).
33.  There is unequivocal evidence in the case file that from the beginning of his detention the applicant was treated as a suspect in the case of Ms O.’s murder. Thus, he was questioned in that respect, but did not confess. Subsequently, his cell-mate, in a private conversation, made him confess to that murder and indicate the place where he had thrown the knife, and that conversation was reported to the police. Finally, in the evening on that day the police conducted a search at the applicant’s home and seized his shirt (see paragraphs 11-13 above). Accordingly, looking beyond the appearances and the language used, and concentrating on the realities of the situation, the Court considers that the applicant’s administrative detention was in reality part of his detention on remand under Article 5 § 1 (c) as a criminal suspect in the murder case without, however, safeguarding his procedural rights as a suspect (see Kafkaris v. Cyprus [GC], no. 21906/04, § 116, ECHR 2008, and Doronin v. Ukraine, no. 16505/02, §§ 55-56, 19 February 2009).
34.  The Court does not accept the Government’s argument that the procedural rights of the applicant were sufficiently protected by the fact that a lawyer was appointed for him for one of his questionings during the administrative detention (see paragraphs 18 and 27 above). The Court notes that the applicant did not have the status of a criminal suspect then. That being so, the role of the appointed lawyer was unclear. Furthermore, the participation of that lawyer was confined to an isolated questioning, whereas numerous other investigative measures were carried out without his involvement (see paragraphs 11 and 15-17 above). Lastly, but particularly importantly from the standpoint of Article 5 § 1 of the Convention, the failure to duly document the applicant’s detention as being on suspicion of a criminal offence implied for him the absence of a timely judicial control (see also paragraph 40 below).
35.  In the Doronin case cited above (§ 56), as well as in a number of other cases against Ukraine (see, for example, Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, § 88, 24 June 2010, and Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 178, 21 April 2011), the Court condemned such conduct by the authorities as being incompatible with the principle of legal certainty and arbitrary, and as running counter to the principle of the rule of law.
36.  In the present case, the Court finds no reason for it to depart from its findings under Article 5 § 1 of the Convention in the cases cited above and, accordingly, considers that the applicant’s detention between 19 to 23 July 2007 was in breach of that provision.
(b)  The applicant’s detention from 23 to 26 July 2007
37.  The Court observes that from 23 to 26 July 2007 the applicant was detained upon the investigator’s order, on suspicion of murder (see paragraph 19 above).
38.  The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and enshrine the obligation to conform to the substantive and procedural rules thereof. Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should review whether this law has been complied with (see, among many other references, Benham v. the United Kingdom, 10 June 1996, § 41, Reports 1996‑III, and Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004‑II).
39.  The Court notes that, under Ukrainian legislation (see the reference in paragraph 22 above and also Rudnichenko v. Ukraine, no. 2775/07, § 69, 11 July 2013), deprivation of liberty without a reasoned court decision was possible only in a limited number of situations defined with sufficient precision. Thus, Article 29 of the Constitution permitted such a measure for a maximum of three days only as a response to an urgent need to prevent or stop a crime. According to further indications in Articles 106 and 115 of the Code of Criminal Procedure, an investigator could arrest a person if the latter was caught in flagrante delicto, was pointed out as the offender by eyewitnesses/victims, or had clear traces of the crime on his body or clothing.
40.  Having regard to the circumstances of the applicant’s apprehension and noting the fact that, by the time he was formally detained as a criminal suspect he had already been in detention without judicial supervision for three days, the Court considers that his deprivation of liberty by the investigator from 23 to 26 July 2007 was in breach of the national legal safeguards and therefore unlawful within the meaning of the Convention.
(c)  Conclusion
41.  In the light of the foregoing, the Court concludes that there has been a violation of Article 5 § 1 of the Convention in respect of the applicant’s detention from 19 to 26 July 2007.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
42.  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
43.  The applicant claimed 5,900 euros (EUR) in respect of pecuniary damage. He also claimed compensation in respect of non-pecuniary damage, leaving the amount at the Court’s discretion.
44.  The Government contested the above claims.
45.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 5,000 in respect of non‑pecuniary damage.
B.  Costs and expenses
46.  The applicant also claimed 8,436 Ukrainian hryvnias (at the material time equivalent to about EUR 1,000) in costs and expenses. In substantiation of this claim, he submitted copies of postal receipts for his correspondence to various Ukrainian authorities and to the Court, as well as several train tickets. He also submitted a remittance receipt in confirmation of his payment to the lawyer “for the preparation of the application to the European Court of Human Rights”.
47.  The Government contested the above claim as insufficiently substantiated.
48.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 600 covering costs under all heads.
C.  Default interest
49.  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 of the Convention in respect of the applicant’s detention from 19 to 26 July 2007;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 600 (six hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Milan Blaško	Erik Møse
	Deputy Registrar	President