CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 14 janvier 2016

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UKRAINE   (Application no. 38800/12)                             JUDGMENT     STRASBOURG     14 January 2016       This judgment is final but it may be subject to editorial revision. In the case of Budan v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   André Potocki, President,   Ganna Yudkivska,   Síofra O’Leary, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 15 December 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 38800/12) 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 Eduard Yuriyovych Budan (“the applicant”), on 14   June 2012. 2.     The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr B. Babin, of the Ministry of Justice. 3.     On 22 April 2014 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1996 and before his arrest lived in Zhovten village in the Odessa region. 5.     On 21 May 2012 the applicant and his cousin, M., travelled to Donetsk, approximately seven hundred kilometres from Zhovten. 6.     On 24 May 2012 they snatched a handbag from a lady sitting at a tramway stop in Donetsk. 7.     According to the applicant, on 24 May 2012, the police arrested him and M. at Donetsk bus station while they were trying to sell a mobile phone which they had found in the stolen bag. 8.     According to the detention order available to the Court, the police arrested the applicant and M. on 25 May 2012. 9.     On 25 May 2012 the police questioned the applicant who said that he lived in Zhovten with his mother, Vera Adajie, and two sisters and that he was not working or studying. The applicant also said that “presently he [was leading] a vagrant lifestyle”. The applicant also told the police that on 21   May 2012 he and M. had travelled from Zhovten to Donetsk to “earn some money”. On 22 May 2012 they had arrived in Donetsk and for the following three days had earned money by busking on trams. On 24   May 2012 they had stolen a handbag and had gone to Donetsk bus station because they had intended to return to their homes in Zhovten village. However, at the station they had been apprehended by the police. 10.     On 25 May 2012 the police assigned lawyer L. as the applicant’s defence counsel. 11.     On 26 May 2012 the applicant was sent to the Donetsk ITT (a detention facility). 12.     On 28 May 2012 the police charged the applicant with robbery. On the same day V., an investigator, asked the Kyivskyy District Court of Donetsk to order the applicant’s pre-trial detention. He noted that the applicant was charged with a serious offence punishable by up to seven years’ imprisonment, and that if at liberty he could hinder the investigation, flee or reoffend, because he came from a poor family and did not receive any financial support from it, and also because he was not living at his permanent place of residence but had been “leading a vagrant lifestyle all over the territory of Ukraine from an early age”. The investigator stated, without developing further, that if at liberty the applicant could influence the victim. 13.     On 31 May 2012 the police assigned lawyer P. as the applicant’s defence counsel instead of lawyer L. 14.     On 1 June 2012 the Kyivskyy District Court of Donetsk examined the investigator’s request in the presence of the applicant and his lawyer, who asked the court to choose a non-custodial preventive measure for the applicant. The applicant told the court that the police had not exerted any physical pressure on him. 15.     On the same day the court held that the investigator’s request was well-founded and ordered the applicant’s pre-trial detention. The court noted that, as the applicant did not live at his permanent place of residence and was charged with a serious offence punishable by up to seven years’ imprisonment, if at liberty he could hinder the investigation, flee or reoffend. The applicant was placed in the Donetsk SIZO (a pre-trial detention facility). 16.     Lawyer P. appealed against that decision and asked the Donetsk Regional Court of Appeal to release the applicant subject to an undertaking not to abscond. 17.     On 13 June 2012 the Donetsk Regional Court of Appeal upheld the decision of 1 June 2012. While stating that the applicant had a permanent place of residence in the Odessa region, it held that the fact that he led a vagrant lifestyle, came from a poor family and did not receive any financial support from it warranted his detention and proved that a non-custodial measure was “insufficient to make [him] comply with the procedural obligations of a criminal trial”. 18.     On 1 March 2013 the Kyivskyy District Court of Donetsk sentenced the applicant to one year of imprisonment for robbery. 19.     In his application form, the applicant submitted that on 24, 25 and 26   May 2012, by “depriving [him] of sleep” and “exerting [on him] physical pressure”, the police had forced him to sign documents which did not reflect the oral statements which he had actually made before the police. II.     RELEVANT INTERNATIONAL MATERIAL AND DOMESTIC LAW 20.     The relevant provisions of the Code of Criminal Procedure, as worded at the material time, read as follows: Article 106: Arrest of a suspect by an investigating force “An investigating force shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds: 1. if the person is discovered whilst or immediately after committing an offence; 2. if eyewitnesses, including victims, directly identify this person as the one who committed the offence; 3. if clear traces of the offence are found either on the body of the suspect, or on his/her clothing, or with him/her, or in his/her home. If there is other information giving grounds to suspect a person of a criminal offence, an investigating force may arrest such a person if the latter attempted to flee, or does not have a permanent place of residence, or the identity of that person has not been established. For each incidence of a suspect being arrested, the investigating force shall be required to draw up an arrest order ( протокол затримання ) outlining the grounds, the motives, the day, time, year and month, the place of arrest, the explanatory statements of the person detained and the recorded time that the suspect was informed of his right to meet with defence counsel and of his arrest, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The arrest order shall be signed by the person who drew it up and by the detainee. A copy of the arrest order with a list of his/her rights and obligations shall immediately be handed to the detainee and sent to the prosecutor. At the request of the prosecutor, the evidence which served as the grounds for the arrest shall be sent to him/her as well ... Within seventy-two hours of the arrest, the investigating force shall: (1) release the detainee if the suspicion that he/she committed the crime has not been confirmed, if the term of the preliminary detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article; (2) release the detainee and select a non-custodial preventive measure; (3) bring the detainee before a judge with a request to impose a custodial preventive measure on him/her. If the arrest is appealed against to a court, the detainee’s complaint shall be immediately sent by the head of the detention facility to that court. The judge shall consider the complaint together with the request by the investigating force for application of the preventive measure. If the complaint is received after the preventive measure has been applied, the judge shall examine it within three days of receiving it. If the request has not been received or if the complaint has been received after seventy-two hours of detention, the complaint shall be considered by the judge within five days of receiving it. The complaint shall be considered in accordance with the requirements of Article   165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring that the arrest is lawful or allowing the complaint and finding the arrest to be unlawful. The ruling of the judge may be appealed against within seven days of the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court’s ruling. Preliminary detention of a suspect shall not last for more than seventy-two hours. If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up the order to that effect, and shall inform the official or body that carried out the arrest accordingly.” Article 148: Purpose and grounds for the application of preventive measures “Preventive measures shall be imposed on a suspect, accused, defendant, or convicted person in order to prevent him/her from attempting to abscond from justice, from obstructing the establishment of the truth in a criminal case, from pursuing criminal activities, and in order to ensure the execution of procedural decisions. Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect, accused, defendant or convicted person would attempt to abscond from justice, or if he/she fails to comply with procedural decisions, or obstructs the establishment of the truth in the case or pursues criminal activities.” Article 149: Preventive measures “The preventive measures are as follows: (1) a written undertaking not to abscond; (2) a personal guarantee; (3) the guarantee of a public organisation or labour collective; (3-1) bail; (4) detention; (5) supervision by the commander of a military unit. ...” Article 434: Detention and placement in custody of a minor “Detention and placement in custody as a preventive measure may be applied to a minor only in exceptional circumstances, where this is warranted by the seriousness of the crime he/she is suspected of, with the grounds present and according to the procedures provided in Articles 106 and 148 of this Code. A minor’s parents or guardian must be immediately notified of his/her arrest and pre-trial detention.” Article 436: Release of a minor under supervision of his parents, guardians or administration of a residential facility for children “Apart from the measures enumerated in Article 149 of this Code, a minor can be released under supervision of his/her parents, guardians or the administration of a residential facility for children. In such a case parents, guardians, or the facility’s administration gives a written undertaking stating that they will ensure the proper conduct of the minor and his/her appearance before an investigator, a prosecutor or a court.” 21.     The relevant international material is summarised in Korneykova v.   Ukraine (no. 39884/05, §§ 25-27, 19 January 2012). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 22.     The applicant complained that the Kyivskyy District Court’s finding that he had been a vagrant and might abscond, hinder the investigation or reoffend had not been supported by any evidence and his detention was thus contrary to Article 5 § 1 of the Convention, which in its relevant part 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 23.     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 1.     Arguments of the parties 24.     The Government stated that the court decisions concerning the applicant’s detention pending trial had been lawful and well-reasoned. There had been a reasonable suspicion that the applicant had committed a crime. The fact that he had been a vagrant had proved that his detention was necessary in the circumstances. 25.     The applicant did not comment on the Government’s observations. 2.     General principles 26.     The Court notes that, in order 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. Detention pursuant to Article 5 § 1 (c) must embody a proportionality requirement, which requires a reasoned decision balancing relevant arguments for and against release (see Korneykova v. Ukraine , no.   39884/05, § 43, 19 January 2012, with further reference). The arguments for and against release, including the risk that the accused would hinder the proper conduct of the proceedings, must not be assessed in the abstract, and the reasoned decision must be supported by factual evidence. The authorities must assess whether an applicant’s placement in custody is strictly necessary to ensure his presence at trial and whether other, less stringent, measures could have been sufficient for that purpose (see Lutsenko v. Ukraine , no. 6492/11, § 66, 3 July 2012). Further, a very important factor in the balancing exercise is a defendant’s age: thus, pre-trial detention of minors should be used only as a measure of last resort and for the shortest possible period (see Korneykova v. Ukraine , cited above, §   44, with further reference). 3.     Application of the above principles to the present case 27.     The Court notes that the decision of 1 June 2012 to place the then sixteen-year old applicant in pre-trial detention some seven hundred kilometres from his home was taken during a hearing in which the applicant, assisted by a lawyer, participated in person. The Kyivskyy District Court of Donetsk stated that, as the applicant did not live at his permanent place of residence and was charged with a serious offence punishable by up to seven years’ imprisonment, if at liberty he could hinder the investigation, flee or reoffend. The court of appeal added that the applicant’s pre-trial detention was justified because he led a vagrant lifestyle, came from a poor family and did not receive any financial support from it. 28.     The Court notes that the applicant had a permanent place of residence in the Odessa region, where he lived with his mother, whose financial situation, in the Court’s opinion, was not as such a relevant consideration justifying the applicant’s detention. It was only on 21   May 2012 that the applicant left his home to go to Donetsk. Several days later, on 24 May 2012 (see paragraph 7 above), he decided to return to his home. It does not follow from the material in the case file that the applicant had a history of violent behavior and was involved in criminal activities before 24   May 2012 or that he ran away from home before 21 May 2012 leading a vagrant lifestyle “all over the territory of Ukraine since early age”, as the investigator put it in his request for the applicant to be placed in detention. 29.     The Court observes that, from the material in the case file, it does not appear that the possibility to release the applicant under his mother’s supervision pursuant to Article 436 of the Code of Criminal Procedure was examined by the authorities even though they were aware of her name and place of residence. In particular, there is no evidence that the authorities notified the mother of the applicant’s arrest or made any effort to collect and examine the information about her willingness and ability to ensure his proper conduct during the investigation. If the domestic courts considered that the fact that the applicant had run away from home proved his mother’s inability to control his conduct or if they had other reasons to believe that she was unable to supervise him, this should have been clearly set out in the judicial decisions concerning the applicant’s detention. The Court reiterates that, where circumstances that could have warranted a person’s detention may have existed but were not mentioned in the domestic decisions, it is not the Court’s task to establish them and to take the place of the national authorities which ruled on the applicant’s detention. It falls to them to examine all the facts arguing for or against detention and set them out in their decsions (see Panchenko v. Russia , no.45100/98, § 105, 8   February 2005). 30.     In the light of the foregoing, the Court considers that, in the circumstances of the present case, the domestic authorities failed to properly substantiate their decision to impose on the then minor applicant a custodial preventive measure, which, according to both international and domestic standards, should have been used only as a measure of last resort. There has therefore been a violation of Article 5 § 1. II.     OTHER COMPLAINTS 31.     The applicant complained that on 24, 25 and 26 May 2012, by “depriving [him] of sleep” and “exerting [on him] physical pressure”, the police forced him to sign documents which did not reflect the oral statements which he had actually made before the police. The Court notes that the applicant’s statements are not supported by any evidence or a detailed account of the facts. Moreover, before the Kyivskyy District Court of Donetsk, the applicant submitted that the police had not subjected him to any physical pressure (see paragraph 14 above). The Court thus finds that the present part of the application is unsubstantiated and must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 32.     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.” 33.     The applicant did not submit a claim for just satisfaction or costs and expenses. 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 complaint under Article 5 § 1 of the Convention admissible and the remainder of the application inadmissible;   2.     Holds that there has been a violation of Article 5 § 1 of the Convention. Done in English, and notified in writing on 14 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Milan Blaško   André Potocki Deputy Registrar   President