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

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UKRAINE (Application no. 28943/15)           JUDGMENT   STRASBOURG 22 April 2021       This judgment is final but it may be subject to editorial revision. In the case of Kovrizhnykh 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.   28943/15) 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   Vadim Sergeyevich Kovrizhnykh (“the applicant”), on 19   September 2015; the decision to give notice of the application to the Ukrainian Government (“the Government”); the parties’ observations; Having deliberated in private on 1 April 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applicant was convicted and sentenced to imprisonment in the judgment at first instance. Proceedings on appeal in his case were put on hold because the Ukrainian authorities no longer had access to the domestic case file. The applicant complained, under Articles 6 § 1 of the Convention, that the proceedings in his case were excessively lengthy and, under Article   5 §§ 1 and 3, that his detention was unlawful and excessively lengthy. THE FACTS 2.     The applicant was born in 1977 and lives in Mariupol. 3.     The Government were represented by their Agent, Mr   I. Lishchyna. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5 .     On 28 March 2005 the applicant was arrested on suspicion of murder and robbery. 6.     On 18 December 2006 the Donetsk Regional Court of Appeal (“the Court of Appeal”), sitting as a trial court, convicted the applicant and his co-defendant of murder and robbery committed in the context of a drunken quarrel at the victim’s house in Donetsk. 7.     On 2 August 2007 the Supreme Court quashed that decision and remitted the case to the Court of Appeal for retrial. 8.     On 12 November 2009 the Court of Appeal remitted the case to the prosecutor for further investigation. 9.     On 17 November 2011 the Court of Appeal acquitted the applicant and his co-defendant. 10.     On 29 March 2012 the High Specialised Court for Civil and Criminal Matters quashed the Court of Appeal’s decision and remitted the case for retrial. 11.     On 22 February 2013 the Donetsk Proletarsky District Court convicted the applicant and sentenced him to twelve years’ imprisonment. 12.     On 18 June 2013 the Court of Appeal upheld the trial court’s judgment, which became enforceable from that same day (see paragraph   20 below). The applicant was detained and started serving his sentence (see paragraph   15 below). 13 .     On 13 March 2014 the High Specialised Court quashed the Court of Appeal’s ruling, on the grounds that the Court of Appeal had failed to give any response to certain points raised in the defendants’ appeals, and instructed the Court of Appeal to re-examine the appeals and the evidence in the file. In remitting the case to the Court of Appeal for rehearing, the High Specialised Court ordered that the defendants should remain in detention. 14.     The Court of Appeal scheduled hearings in the case on 22   May, 19   June and 31 July 2014. However, owing to the events described in Khlebik v.   Ukraine (no.   2945/16, §§ 9-12, 25 July 2017) and Tsezar and   Others v. Ukraine (nos. 73590/14 and 6 others, §§ 6-14, 13 February 2018), the hearings did not take place, the case remained unexamined and the case file concerning the applicant’s case remained in the Court of Appeal’s building in Donetsk. 15 .     Following the decision of the Court of Appeal on 18 June 2013 to uphold his conviction, the applicant was transferred to a correctional colony in the territory which, despite the above-mentioned events, remained under the control of the Ukrainian authorities. 16.     On 2 September 2014 the President of the High Specialised Court temporarily reassigned jurisdiction of the Donetsk Regional Court of Appeal, which at the time had suspended operations, to the Zaporizhzhya Regional Court of Appeal. 17.     On 18 May 2015 the Proletarsky District prosecutor lodged an application under section 1(3) of Law no. 1632-VII (see paragraph   28 below) with the Zaporizhzhya Regional Court of Appeal, asking it to continue appeal proceedings in the applicant’s case based on the material available from the case file. The Zaporizhzhya Regional Court of Appeal dismissed that application, considering that the material available from the case file was insufficient for examining the case. 18 .     On 18 September 2015 the Artemivsk Court, which had jurisdiction over the detention facility where the applicant was being held at the time, examined the applicant’s habeas corpus application and ordered his release, finding that, because there was no court that could examine effectively the applicant’s appeal against his conviction within a reasonable time, his detention was illegal as contrary to the principle of the rule of law and the primacy of human rights enshrined in Articles 8, 9 and 12 of the Code of Criminal Procedure (see paragraph 21 to 23 above). The court also invoked Article 5 of the Convention. No appeal lay against this ruling and it became final. The applicant was immediately released. RELEVANT LEGAL FRAMEWORK AND PRACTICE 19 .     The 1960 Code of Criminal Procedure (“the 1960 Code”) was replaced by the 2012 Code of Criminal Procedure (“the 2012 Code”) with effect from 19 November 2012. However, as the criminal proceedings against the applicant had started before the entry into force of the 2012 Code, the 1960 Code continued to apply to the proceedings in his case in accordance with the Transitional Provisions of the 2012 Code. 1960 Code of Criminal Procedure 20 .     Under Articles 338 and 401 of the 1960 Code, a person sentenced to imprisonment was considered to be serving his or her sentence from the date on which the judgment became enforceable (that is, when it was upheld on appeal or when the time-limit for lodging an appeal expired). 2012 Code of Criminal Procedure 21 .     Article 8 of the 2012 Code proclaims the rule of law and the primacy of human rights as key principles of criminal procedure. Article   8 §   2 states that the principle of the rule of law must be implemented taking into account the case-law of the European Court of Human Rights. 22.     Article 9 guarantees the general principle of legality, meaning that all public authorities engaged in criminal procedure must act in accordance with the law. 23.     Article 12 provides that arrest and detention can only be based on the grounds, and ordered according to the procedures, set out in the Code. 2003 Civil Code 24 .     Article 1176 of the 2003 Civil Code imposes on the State an obligation to fully compensate an individual for the damage caused to him or her by an unlawful conviction, unlawful imposition of criminal liability, unlawful application of a preventive measure (including detention on remand) or arrest regardless of whether the officials or authorities involved are at fault (Article   1176 §   1). It specifies that that right to compensation “would arise in cases envisaged by law” (Article   1176 §   2). Law of 1994 on the procedure for compensation for damage caused by law-enforcement authorities and courts 25 .     Under section 1 of the Law of 1994 on the procedure for compensation for damage caused by law-enforcement authorities and courts (“the Compensation Act”), a person is entitled to compensation for damage caused, in particular, by an unlawful conviction, unlawful indictment, unlawful arrest or detention on remand. In the cases listed, damage is to be compensated for regardless of whether the officials from the law ‑ enforcement authorities or courts were at fault. The list of cases in section 2 in which the right to compensation arises includes a judicial decision acknowledging, in particular, that detention on remand was unlawful. Law no. 1632-VII of 12 August 2014 on administration of justice and criminal proceedings in connection with the anti-terrorist operation 26 .     Law no. 1632-VII of 12 August 2014 on administration of justice and criminal proceedings in connection with anti-terrorist operation (“Law no.   1632-VII”) came into force on 20 August 2014. At the relevant time the military actions of the Ukrainian government forces in the Donetsk and Luhansk regions were designated as an “anti-terrorist operation”. 27 .     At the relevant time section 1(1) of Law authorised the President of the High Specialised Court for Civil and Criminal Matters to designate the courts with jurisdiction over сases which would normally have been examined by courts located in the area where the anti-terrorist operation was being conducted, but which were prevented from operating. 28 .     Section 1(3) of Law no.   1632-VII provides that cases pending before courts that are prevented from operating are to be transferred to the courts which have been designated in accordance with section 1(1). If the case file cannot be transferred, proceedings are to be conducted on the basis of the material submitted by the parties, “provided that such material is sufficient for the court to decide on the matter”. THE LAW ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 29.     The applicant complained that his detention, following the decision of the High Specialised Court of 13   March 2014 (see paragraph 13 above), had been unlawful since there had been no judicial decision authorising his detention and that it had been excessively lengthy, in breach of Article   5 §§   1 and 3 of the Convention, which read in their relevant parts 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: (a)     the lawful detention of a person after conviction by a competent court; ... (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.” The parties’ submissions 30.     The Government submitted that the relevant period of detention had been covered by Article 5 § 1 (a) of the Convention. Moreover, on 18   September 2015 (see paragraph 18 above) the domestic court had acknowledged that his detention had been unlawful. Accordingly, it had been open to the applicant to bring a claim for damages under the Civil Code and the Compensation Act (see paragraphs 24 and 25 above). By failing to do so, the applicant had not made use of an effective domestic remedy. 31.     The applicant submitted that he had not been required to use the remedy suggested by the Government. The Court’s assessment Article 5 § 1 of the Convention 32.     The Court notes that it has held that a claim for damages under the Compensation Act was, from 1 January 2006, an effective domestic remedy for applicants’ grievances under Article 5 § 1 of the Convention in situations where a domestic judicial decision had found their arrest or detention to be unlawful (see Orlovskiy v. Ukraine , no. 12222/09, §§   55-61, 2   April 2015, and Tikhonov v. Ukraine , no. 17969/09, § 39, 10   December 2015). 33.     In the present case the deprivation of liberty complained of was also found to be unlawful by the domestic court (see paragraph 18 above). Accordingly, the applicant was expected to make use of the remedy under the Compensation Act. As there are no specific circumstances exempting the applicant from this requirement, the Court upholds the Government’s objection and dismisses the complaint for non-exhaustion of domestic remedies, in accordance with Article 35 §§ 1 and 4 of the Convention. Article 5 § 3 of the Convention 34.     The applicant’s detention following the judgment of the trial court that convicted him falls within the exception set out in sub-paragraph (a) of Article   5 § 1 of the Convention (see Yaroshovets and Others v.   Ukraine , nos.   74820/10 and 4 others, §§ 134 and 135, 3 December 2015), to which Article 5 § 3 does not apply (see, for example, Borisenko v.   Ukraine , no.   25725/02, § 44, 12 January 2012, and Pancers   v.   Latvia (dec.), no.   6670/06, § 28, 30 June 2015). 35.     Accordingly, this complaint must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article   35 §§ 3 (a) and 4. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 36.     The applicant complained that the length of the criminal proceedings in his case had been incompatible with the “reasonable time” requirement of Article 6 § 1, which reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 37.     The Government contested that argument and stated that the domestic case file was inaccessible and kept in Donetsk as a result of the events described in Khlebik v. Ukraine (no.   2945/16, §§ 9-12, 25 July 2017) and Tsezar and Others v. Ukraine (nos. 73590/14 and 6 others, §§   6-14, 13   February 2018). Admissibility 38.     The Court considers that this part of the 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. Merits 39.     The relevant principles of the Court’s case-law were set out in Pélissier and Sassi v. France ([GC], no. 25444/94, §   67, ECHR   1999 ‑ II). 40.     The proceedings lasted for more than eight years and eleven months at three levels of jurisdiction and were still not completed prior to 13   March 2014 (see paragraphs 5 and 13 above). 41.     The Government have not submitted any arguments that would persuade the Court to reach a conclusion different from the one it has already reached in respect of similar issues in Merit   v.   Ukraine (no.   66561/01, 30 March 2004). Having regard to its case-law on the subject, the Court considers that, in the relevant period, the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 42.     There has therefore been a violation of Article 6   §   1 of the Convention in respect of the length of proceedings. 43.     In view of this conclusion, the Court does not consider it necessary to examine if after 13 March 2014 the authorities undertook all reasonable efforts to restore the case file. APPLICATION OF ARTICLE   41 OF THE CONVENTION 44.     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.” 45.     The applicant asked the Court to make an award in respect of non ‑ pecuniary damage, leaving determination of its amount to the Court. 46.     The Government contested that claim, considering it unclear and unjustified. 47.     The Court awards the applicant 2,100 euros in respect of non-pecuniary damage. 48.     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 complaint under Article   6   § 1 of the Convention in respect of the length of proceedings admissible and the remainder of the application inadmissible; Holds that this application discloses a breach of Article   6 § 1 of the Convention concerning the excessive length of criminal proceedings; Holds (a)   that the respondent State is to pay the applicant, within three months, EUR 2,100 (two thousand one hundred 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; 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