CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 12 février 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sA0A2D76C { width:172.92pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }       FIFTH SECTION             CASE OF PODVEZKO v. UKRAINE   (Application no. 74297/11)             JUDGMENT         STRASBOURG   12 February 2015           This judgment is final but it may be subject to editorial revision.   In the case of Podvezko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Vincent A. De Gaetano, President,   Ganna Yudkivska,   André Potocki, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 20 January 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 74297/11) 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 Anton Vitaliyovych Podvezko (“the applicant”), on 23 November 2011. 2.     The Ukrainian Government (“the Government”) were represented by their Agent, Ms N. Sevostianova. 3.     On 4 December 2013 the complaints Article 5   §§   1, 3 and 4 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1976. 5.     On 29 December 2009 a police investigator initiated criminal proceedings against the applicant and charged him with fraudulent appropriation of property. On the same day the applicant was placed on the list of wanted persons. 6.     On 27 April 2010 the applicant was arrested and informed of the charges. 7.     On 29 April 2010 the applicant’s pre-trial detention was ordered by a court. 8.     On 25 June 2010 the applicant was released under a written undertaking not to abscond. 9.     In February 2011 the case was referred to the Dzerzhynskyy District Court of Kharkiv (“the District Court”) for trial. 10.     On 4 April 2011 the District Court held a preliminary hearing in the case. Following the request of the prosecutor, it ordered that the preventive measure in respect of the applicant should be changed and that the applicant should be placed in pre-trial detention. The court, paying regard to the fact that the applicant denied his guilt, considered that the applicant could influence witnesses, conceal or remove traces and evidence of the crime. It stated that the applicant was charged with a serious crime and his actual place of residence did not coincide with his registered address. It therefore concluded that the applicant could behave negatively and his isolation was necessary. The court noted that the applicant was of middle age, he was not a disabled person, he did not suffer from chronic illnesses, he had a family and a minor son, and that he worked as director of a company. 11.     On a number of occasions during the trial the applicant requested the District Court to change the preventive measure in his respect and release him. 12.     On 5 July, 19 August, 23 November 2011 and 17 January 2012 the District Court dismissed the applicant’s requests maintaining the impugned preventive measure. The court referred to its decision of 4 April 2011 and repeated that the applicant’s actual and registered addresses did not coincide, he was charged with a serious crime, and that there were grounds to believe that the applicant could behave negatively, if released. The court also repeated that the applicant was of middle age, he was not a disabled person, he did not suffer from chronic illnesses, he had a family and a minor son, and that he worked as director of a company. The court then found that there had been no grounds to change the preventive measure for health reasons or to apply bail; furthermore, the applicant showed no remorse and had refused to admit his guilt. 13.     On 30 January 2012 the District Court found the applicant guilty of fraudulent appropriation of property and sentenced him to six years’ imprisonment and ordered confiscation of his property. 14.     The Kharkiv Regional Court of Appeal and the Higher Specialised Civil and Criminal Court of Ukraine upheld the judgment of 30 January 2012 on 9 April 2013 and 6 February 2014 respectively. II.     RELEVANT DOMESTIC LAW 15.     The relevant provisions of the Constitution and the Code of Criminal Procedure, which was applicable at the relevant time, can be found in the judgment in the case of Molodorych v. Ukraine (no. 2161/02, §§ 57-59, 28   October 2010). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 §§   1 and 3 OF THE CONVENTION 16.     The applicant complained that the court decisions concerning his detention during judicial proceedings had been arbitrary and that they had not provided relevant and sufficient reasons for his continued detention. The applicant relied on Article   5   §§   1 and 3 of the Convention, which read 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: ... (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; ... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and 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 17.     The Court notes that this part of application 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 18.     The applicant maintained his complaint. 19.     The Government submitted that the court decisions had been properly reasoned and justified the applicant’s detention in custody. 20.     The Court reiterates that Article 5   §   1 of the Convention requires that for deprivation of liberty to be considered free from arbitrariness, it does not suffice that this measure is executed in conformity with national law; it must also be necessary in the circumstances (see Nešťák v. Slovakia , no. 65559/01, § 74, 27 February 2007). For the Court, detention pursuant to Article 5 §   1   (c) must embody a proportionality requirement, which implies a reasoned decision balancing relevant arguments for and against release (see Ladent v. Poland , no. 11036/03, § 55, ECHR 2008-... (extracts), and Khayredinov v. Ukraine , no. 38717/04, § 28, 14 October 2010). 21.     The Court has also held that Article 5   §   3 of the Convention requires that justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities. The arguments for and against release, including the risk that the accused might hinder the proper conduct of the proceedings, must not be taken in abstracto , but must be supported by factual evidence. The danger of an accused’s absconding cannot be gauged solely on the basis of the severity of the sentence risked. It must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify detention pending trial (see Becciev v. Moldova , no.   9190/03, §§ 56 and 59, 4 October 2005, with further references). 22.     Having regard to the close affinity between the relevant principles developed under Article 5 §§ 1 (c) and 3 of the Convention, the Court will consider the present complaint under both provisions simultaneously (see Korneykova v. Ukraine , no.   39884/05, §   38, 19   January 2012, Sizarev v. Ukraine, no. 17116/04, §§161-164, 17   January 2013 and Taran v. Ukraine, no. 31898/06, § 70, 17 October 2013). 23.     The Court notes that the applicant’s pre-trial detention which is at issue in the present case lasted for about ten months. However, the court decisions on the applicant’s detention were couched in general terms and contained repetitive formulaic phrases. They do not suggest that the courts made an appropriate assessment of the facts relevant to the question whether such a preventive measure was necessary in the circumstances. Moreover, with the passage of time the applicant’s continued detention required more justification, but the courts did not provide any additional reasoning in that respect. Furthermore, in maintaining the applicant’s detention the courts referred to his failure to admit his guilt. This part of reasoning appears to be irrelevant as it runs contrary to such important elements of the fair trial concept as freedom from self-incrimination and the presumption of innocence (see Lutsenko v. Ukraine, no. 6492/11, § 72, 3 July 2012). 24.     Having regard to its well-established case-law, the Court finds that the applicant’s pre-trial detention was not based on the relevant and sufficient reasons and the courts failed to substantiate the necessity of keeping the applicant in custody during the period at issue. 25.     There has therefore been a violation of Article 5 §§   1 and 3 of the Convention. II.     ALLEGED VIOLATION OF ARTICLE 5   §   4 OF THE CONVENTION 26.     The applicant complained that his requests for changing the preventive measure were not considered by court. 27.     The Court decided to examine the complaint under Article   5   §   4 of the Convention, which 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 further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 29.     The applicant maintained his complaint. 30.     The Government submitted that the applicant had been provided with an effective procedure by which he could have challenged his detention at the relevant time. In particular, in accordance with the Code of Criminal Procedure, the applicant had been entitled to submit various requests to the court dealing with his criminal case, including requests to change or lift the preventive measure. 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 , no. 2161/02, § 108, 28 October 2010; Pleshkov v. Ukraine , no. 37789/05, § 42, 10 February 2011; Kharchenko , cited above, §   100; Tsygoniy v. Ukraine , no. 19213/04, § 78, 24 November 2011; and Taran v. Ukraine , no. 31898/06, § 81, 17 October 2013). 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.” 34.     The applicant did not submit a claim for just satisfaction within the time-limit fixed. Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the complaints under Article 5   §§   1, 3 and 4 of the Convention admissible;   2.     Holds that there has been a violation of Article 5   §§ 1 and 3 of the Convention;   3.     Holds that there has been a violation of Article 5   §   4 of the Convention;   Done in English, and notified in writing on 12 February 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen Phillips   Vincent A. De Gaetano   Registrar   President