CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 22 avril 2021

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UKRAINE (Application no. 8562/13)       JUDGMENT This version was rectified on 18 May 2021 under Rule 81 of the Rules of Court.   STRASBOURG   22 April 2021     This judgment is final but it may be subject to editorial revision. In the case of Illyashenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Arnfinn Bårdsen, President,   Ganna Yudkivska,   Mattias Guyomar, judges, and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.   8562/13) 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   Bogdan Oleksandrovych Illyashenko (“the applicant”), on 26   January 2013; the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Article 5 §§ 1, 3 and 4 of the Convention and to declare the remainder of the application inadmissible; the parties’ observations; Having deliberated in private on 1 April 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the alleged unrecorded detention of the applicant, the justification for his pre-trial detention and the alleged absence of a meaningful review of the lawfulness of his detention, in breach of Article   5 §§ 1, 3 and 4 of the Convention. THE FACTS 2.     The applicant was born in 1980 and lives in Sumy. The applicant, who had been granted legal aid, was represented by Mr D.V. Pekhterev, a lawyer practising in Sumy. 3.     The Government were represented by their Agent, Mr   I.   Lishchyna, of the Ministry of Justice. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     According to the applicant, at around 11 a.m. on 26 July 2011 officers of the State Security Service of Ukraine (“the Security Service”) arrested the applicant, who was a police officer at the material time, on suspicion of bribery. 6.     At 3.20 p.m. on 27 July 2011 the record of the applicant’s arrest was drawn up. 7 .     On 29 July 2011 the Zarichnyi District Court of Sumy ordered the applicant’s detention; its decision indicated 27 July 2011 as the date of his arrest, and stated that if he were not detained he might flee and hinder the investigation, influence other participants in the proceedings, or hinder the establishment of the truth in the case. The court did not provide any further details regarding the above-mentioned reasons for the applicant’s detention. 8.     The applicant’s detention was extended by the court on 26 September and 25 October 2011 in the course of the pre-trial investigation. No specific details of the reasons for the applicant’s detention were provided in those court decisions. 9.     On 8 November 2011 the Sumy Regional Court of Appeal dismissed an appeal lodged by the applicant against the Zarichnyi District Court’s decision of 25 October 2011 on the extension of his detention. The hearing at the Court of Appeal was held in the absence of the applicant and his lawyer, but in the presence of the public prosecutor. 10 .     On 19 December 2011 the Sumskyi District Court admitted the criminal case against the applicant for trial. By the same decision it extended the applicant’s detention without indicating any time-limit for it, having noted that there was no reason to change the preventive measure imposed on the applicant. 11.     In the course of the trial the applicant lodged an application for release on the grounds of ill health. On 11 April 2012 the Sumskyi District Court dismissed that application, stating that no proof of any deterioration in the applicant’s health had been submitted which would justify his release. The court’s decision did not provide any other reasons for refusing the applicant’s request. 12 .     On 6 September 2012 the Sumskyi District Court found the applicant guilty of bribery and sentenced him to five years and six months’ imprisonment. In the operative part of the judgment the court ordered that the term of imprisonment should be counted from 26 July and not from 27   July 2011, as indicted in the arrest record. Following appeals by the applicant, that decision was upheld, with minor amendments, by the Sumy Regional Court of Appeal and by the Higher Specialised Civil and Criminal Court, on 11 December 2012 and 28 March 2013 respectively. 13.     The applicant complained before the law-enforcement authorities that, inter alia , he had been unlawfully detained from 26 to 27 July 2011. 14 .     On 5 April 2013 the investigator of the Sumy Regional Prosecutor’s Office closed the investigation into the above-mentioned complaints owing to the absence of evidence of a crime. The decision referred to the material in the criminal case file, according to which the applicant had been brought to the Sumy Regional Office of the Security Service at around 6 p.m. on 26   July 2011, after the inspection of the crime scene had been completed at around 3 p.m. on the same day. The Security Service had completed the applicant’s questioning and other formalities at around 3 a.m. on 27   July 2011; the applicant had then been transferred to the prosecutor’s office, where he had formally been arrested at 3.20 p.m. on 27 July 2011. 15.     In the course of the exchange of the parties’ observations, the Government submitted a copy of the record of the applicant’s questioning as a witness from 9.25 p.m. to 10.10 p.m. on 26 July 2011. According to the record, the applicant testified that at around 11   a.m. on 26 July 2011 he had been stopped by officers of the Security Service in the vicinity of the village of Mala Rybytsya. 16 .     The Government also submitted a copy of the record of the questioning of witness Sh., dated 12 August 2011. Among other questions, the investigator had asked the witness about the events preceding the applicant’s arrest on the morning of 26 July 2011. The witness testified that he had been following the applicant’s car along with the two officers of the Security Service. THE LAW ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 17.     The applicant complained that his detention between 26 and 27   July 2011 had not been documented and that his pre-trial detention had not been justified by relevant and sufficient reasons. The applicant relied on Article 5 §§ 1 and 3 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; ... 3.     Everyone arrested or detained in accordance with the provisions of paragraph   1   (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial ...” Admissibility 18.     The Court notes that these complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article   35 of the Convention. They must therefore be declared admissible. Merits Article 5 § 1 of the Convention 19.     The applicant reiterated the submissions outlined in his application form, in particular arguing that his detention between 26 and 27 July 2011 had not been documented. 20.     The Government disagreed with the applicant and submitted that on 26 July 2011 he had been questioned as a witness in the context of the criminal case concerning the solicitation of a bribe by the police officers. The applicant had been arrested on 27 July 2011, as was evidenced by the relevant arrest record. The applicant’s complaints of undocumented detention had been the subject of an examination by the prosecution authorities, which had not found a breach of the applicant’s rights (see paragraph 14 above). 21.     The Court reiterates that the unrecorded detention of an individual constitutes a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a most grave violation of that provision. The absence of a record of such matters as the date, time and location of detention, the name of the detainee in question, the reasons for his or her detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see, among many other references, Čamans and Timofejeva v. Latvia , no. 42906/12, § 129, 28   April 2016). 22.     In the present case, the Court notes that, as appears from the testimony of the applicant and witness Sh., and the findings of the prosecution authorities (see paragraphs 14-16 above), on the afternoon of 26   July 2011 the applicant was stopped by Security Service officers in the vicinity of the village of Mala Rybytsya on suspicion of taking a bribe, and was subsequently escorted to the office of the Security Service and then to the prosecutor’s office, where he was questioned in connection with that offence. It would be unrealistic to assume that during all that time the applicant was not formally treated as a suspect, and was free to leave the offices of the Security Service and the prosecutor of his own free will. 23.     The Court furthermore notes that it appears from the judgment of the Sumskyi District Court of 6 September 2012 [1] , by which the applicant was convicted, that the authorities acknowledged the fact that the applicant had been in detention since 26 July 2011 (see paragraph 12 above). 24 .     Having regard to the above considerations, the Court finds that the applicant’s detention between 26 and 27 July 2011 was incompatible with the requirements of Article 5 § 1 of the Convention. There has therefore been a violation of that provision. Article 5 § 3 of the Convention 25.     The applicant submitted that his pre-trial detention had been unjustified. 26.     The Government contested that complaint. 27.     The applicable general principles are set out in Buzadji v.   the   Republic of Moldova ([GC], no. 23755/07, §§ 84-91 and 102, 5 July 2016). 28.     Turning to the circumstances of the present case, the Court observes that for the purposes of Article 5 § 3 of the Convention, the applicant was detained from 26 July 2011 until 6 September 2012. 29.     The Court further observes that the seriousness of the charges against the applicant and the risk of his absconding or interfering with the investigation were mentioned in the initial order for his detention (see paragraph 7 above). Those reasons remained the main grounds for the applicant’s detention until his conviction, with the exception of the decision of 19 December 2011, which contained no grounds whatsoever and which remained the only judicial order justifying the applicant’s detention pending trial (see paragraph 10 above). The Court notes that the decisions on the applicant’s detention were couched in general terms and contained repetitive phrases. They did not suggest that the court had made an appropriate assessment of facts relevant to the question of whether such a preventive measure was necessary in the circumstances at the respective stages of the proceedings. 30.     The Court has often found a violation of Article 5 § 3 of the Convention in cases against Ukraine on the basis that even in respect of lengthy periods of detention, the domestic courts had referred to the same set of grounds (if there were any) throughout the period of the applicant’s detention (see, for example, Kharchenko v. Ukraine, no.   40107/02, §§ 80-81 and 99, 10 February 2011, and Ignatov v. Ukraine , no. 40583/15, §§ 41-42, 15 December 2016). 31.     Having regard to the above, the Court considers that by failing to address specific facts or consider other measures as an alternative to pre ‑ trial detention, and by relying essentially and routinely on the seriousness of the charges, the domestic courts extended the applicant’s detention pending trial on grounds that cannot be regarded as “sufficient” and “relevant” to justify it. 32 .     There has accordingly been a violation of Article 5 § 3 of the Convention. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 33.     Lastly, the applicant complained under Article 5 § 4 of the Convention that his right to a review of the lawfulness of his detention had been breached. 34 .     Having regard to the facts of the case, the submissions of the parties, and its findings under Article 5 §§ 1 and 3 of the Convention (see paragraphs 24 and 32 above), the Court considers that it has examined the main legal questions raised in the present application, and that there is no need to give a separate ruling on the admissibility and merits of the complaint mentioned above (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no.   47848/08, § 156, ECHR 2014). APPLICATION OF ARTICLE   41 OF THE CONVENTION 35.     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.” 36.     The applicant claimed 15,000 euros (EUR) in respect of non ‑ pecuniary damage. The Government contested that claim. 37.     Making its assessment on an equitable basis, the Court awards the applicant EUR 3,900 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable. 38.     The applicant did not claim any sum in respect of costs and expenses. Therefore, the Court is not called upon to make an award under this head. 39.     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, Declares the complaints under Article 5 § 1 of the Convention regarding the applicant’s unrecorded detention between 26 and 27 July 2011, and under Article 5 § 3 of the Convention regarding the lack of justification of his pre-trial detention, admissible; Holds that there has been a violation of Article 5 § 1 of the Convention; Holds that there has been a violation of Article 5 § 3 of the Convention; Holds that it is not necessary to examine the admissibility and merits of the applicant’s complaint under Article 5 § 4 of the Convention regarding the courts’ alleged failure to carry out a proper examination of his applications for release; Holds (a)   that the respondent State is to pay the applicant, within three months, EUR 3,900 (three thousand nine hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non ‑ pecuniary damage; (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. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 22 April 2021, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Martina Keller   Arnfinn Bårdsen Deputy Registrar   President [1] Rectified on 18 May 2021: the text was “19 December 2011”.