CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 20 septembre 2022

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UKRAINE (Application no. 21702/14)               JUDGMENT   STRASBOURG 20 September 2022       This judgment is final but it may be subject to editorial revision.   In the case of Kadushkevych v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Lado Chanturia, President,   Ganna Yudkivska,   Mattias Guyomar, judges, and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.   21702/14) 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   Volodymyr Yevgenovych Kadushkevych (“the applicant”), on 3   March 2014; the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Article 5 §§ 1 and 3 of the Convention; the parties’ observations; Having deliberated in private on 10 March 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the lawfulness of the applicant’s arrest and the justification of his further detention as well as the observance of the procedural guarantees during the court hearing on his detention, under Article   5 §§ 1 and 3 of the Convention. THE FACTS 2.     The applicant was born in 1967 and lives in Kyiv. The applicant was represented before the Court by Mr T.V. Seniv, a lawyer practising in Stryi. 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. Criminal proceedings relating to the applicant and his arrest 5.     On 1 December 2012 criminal proceedings for fraud and misappropriation, embezzlement and acquisition of property through abuse of office (case no. 091) were instituted against K. by a police investigator in Lviv. The applicant had the status of a witness in those proceedings. 6.     According to the police reports dated 10 and 14 August 2013 included in the case file, the applicant failed to appear for an interview with the investigator without giving a valid reason. In view of that, on 15   August and 18   September 2013 the Galytskyi District Court of Lviv (“the Galytskyi Court”) ordered that he be forcibly brought for interviewing. 7.     On 28 August 2013 criminal proceedings for fraud (case no. 679) were instituted by the police investigator in Lviv. 8 .     In the course of the proceedings in case no. 679, the investigator submitted a number of requests to the State authorities enquiring about the applicant’s background; one of the requests indicated the reason for the enquiries as “bringing a prosecution” ( привлечение к уголовной ответственности ). On 15, 17 and 18 September 2013 the investigator received responses from medical facilities and the police database unit informing him that the applicant had had no psychiatric or drug-related conditions and that there was no data concerning any previous criminal record in the police database. 9 .     On 18 September 2013 the investigator issued a resolution according to which the applicant, along with another person, both members of an investment company, had acquired money from P. through fraudulent activity. In this connection, the investigator decided to extract certain material from case no. 091 and join it to case no.   679. 10.     On 19 September 2013 the applicant was arrested. The parties did not provide a copy of the report of the applicant’s arrest. 11 .     At 5.05 p.m. on the same day the investigator notified the applicant of his status as a suspect in case no. 679 and at 5.20 p.m. he submitted a request to the Galytskyi Court for the applicant’s detention. The investigator noted in his request that the applicant’s arrest had been carried out in order to interview him in connection with case no. 091. 12 .     At 6.53 p.m. the Galytskyi Court commenced a hearing to examine the investigator’s request regarding the applicant’s detention. According to the record of the hearing, at 6.55 p.m. the judge announced a break to allow the applicant’s lawyer to familiarise himself with the case file. At 7.08   p.m. the hearing was resumed. 13.     That same evening the Galytskyi Court decided to place the applicant in custody. Without providing further details regarding its decision, the court noted that the applicant was suspected of a serious offence and that there were risks of his absconding, hindering the investigation and influencing the witnesses and a victim. 14 .     The court set bail at 344,100 Ukrainian hryvnias and imposed the following conditions on the applicant in the event that he paid it: (i)     to appear before the investigator, the prosecutor or the court at first request; (ii)     to not leave the locality of his residence without the permission of the investigator, the prosecutor or the court; (iii)     to inform the investigator, the prosecutor or the court about any change of place of residence or place of employment; (iv)     to hand in his travel passport and other documents which could enable him to leave the country. 15.     On 24 September 2013 the applicant appealed against the decision of the Galytskyi Court of 19 September 2013, arguing that there had been insufficient grounds to suspect his involvement in the offence, that the court had failed to provide sufficient justification for ordering his detention, that the possibility of applying an alternative preventive measure had not been examined, and that the amount of bail had been excessive. 16.     On 27 September 2013 the Lviv Regional Court of Appeal dismissed the applicant’s appeal and found that the Galytskyi Court had sufficiently substantiated its decision of 19 September 2013. Payment of bail 17.     On the morning of 21 September 2013 the bail fixed by the Galytskyi Court in its decision of 19 September 2013 was deposited into the relevant bank account. On 23 September 2013 the pre-trial detention facility in which the applicant was being detained enquired with the Lviv regional branch of the State Judicial Administration, which was responsible for managing bail payments, whether the bail had been paid. On the same day, upon receipt of confirmation that the bail money had entered the account, the pre-trial detention facility released the applicant. RELEVANT LEGAL FRAMEWORK 18 .     Article 202 § 4 of the Code of Criminal Procedure provides that a suspect must be released from detention after the bail fixed by the court has been deposited. Upon receipt and verification of a document confirming the bail payment, a competent official of the detention facility must promptly release the suspect from detention. The procedure for verifying the document confirming the bail payment should last no longer than one working day. THE LAW ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 19.     The applicant complained that his arrest as a witness and subsequent detention as a suspect had been arbitrary and unjustified, and that he had not been released from detention promptly after the bail had been deposited. He also complained that he had not had sufficient time and facilities to study the case file during the court hearing concerning the lawfulness of his arrest. He relied on Article 5 § 1, Article 6 § 1 and Article 6 § 3 (b) of the Convention, but the Court considers that his complaints fall to be examined under 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 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.” 20.     The Government submitted that the documents in cases nos. 091 and 679 had been stolen from the premises of the Lviv regional prosecutor’s office during the mass protests in Ukraine in February 2014. They did, however, provide observations on the issues raised by the applicant and submitted documentary evidence relating to his release following the bail deposit. Admissibility As to the applicant’s detention after the bail deposit 21.     The Government submitted that the applicant had been released without undue delay after the bail had been deposited. 22.     The applicant disagreed, stating that because 21 and 22   September 2013 had been weekend days, he could not submit the document proving the deposit of bail on 21 September 2013 to the pre-trial detention facility. 23.     The Court observes that domestic law provides that a detainee must be released following the payment of bail after verification that it has been deposited into the relevant bank account. The law further provides that verification of the payment of bail should last no longer than one working day. Once the bail is deposited, the detainee must be released promptly (see paragraph   18 above). 24.     The Court notes that the bail was deposited with the bank on Saturday, 21   September 2013 – a non-working day in Ukraine. On Monday, 23   September 2013, the authorities verified that the bail had been deposited and released the applicant. 25.     The applicant, in turn, did not submit any evidence, either in his application form or in his further submissions in response to the Government’s observations, that he had tried to notify the pre-trial detention facility on 21 or 22 September 2013 about the bail deposit. 26.     On the basis of the material available, the Court considers that it has not been sufficiently established that the authorities were properly notified before 23 September 2013 that the bail had been deposited and that they were obliged to release the applicant earlier. 27.     In the light of the foregoing, there is nothing to suggest that the applicant’s detention between 21 and 23 September 2013 was unlawful or arbitrary. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article   35 §§   3   (a) and 4 of the Convention. As to sufficiency of time and facilities to study the case file during the court hearing of 19 September 2013 28.     The Government submitted that the applicant had had enough time and facilities to study the case file in order to prepare for the hearing in his case. Following a request by the applicant’s lawyer, the judge had announced a break in the hearing of 19 September 2013 to allow him to familiarise himself with the case file. After the hearing had been resumed, the applicant had not raised any further complaints in that regard. Nor had he raised this issue in his appeal against the court decision of 19 September 2013 ordering his detention. 29.     The applicant disagreed. 30.     The Court observes that, as is apparent from the record of the court hearing of 19 September 2013, the judge announced a break in the hearing to allow the applicant’s lawyer to familiarise himself with the case file (see paragraph   12 above) and that there were no additional requests to that effect or complaints that the time provided had been insufficient. In this connection, the Court does not discern any indication to support the applicant’s assertion that he was restricted from properly preparing for the hearing in his case. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article   35 §§ 3 (a) and 4 of the Convention. Otherwise as to admissibility 31.     The Court further notes that the remainder of the applicant’s complaints under Article 5 §§ 1 and 3 of the Convention – that his arrest on 19   September 2013 and the court’s order for his further pre-trial detention were arbitrary and unjustified – are neither manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. They must therefore be declared admissible. Merits Article 5 § 1 32.     The applicant submitted that his arrest on 19 September 2013 had been unlawful since it had been carried out on the basis of an unlawful court decision. When the court had decided that he should be forcibly brought for interviewing, it had relied on his having previously failed to appear for an interview, which had not been true. He further submitted that he had in fact been arrested for the purpose of prosecuting him in case no. 679. Lastly, he submitted that the court decision of 19 September 2013 ordering his detention had contained no reasoning. 33.     The Government disagreed. 34.     The Court notes that where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. Compliance with national law is not, however, sufficient: Article 5 § 1 of the Convention requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. One general principle established in the case-law is that detention will be “arbitrary” where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities or where the domestic authorities neglected to attempt to apply the relevant legislation correctly (see S., V. and A. v. Denmark [GC], nos. 35553/12 and 2   others, §§ 74 and 76, 22 October 2018, with further references). 35.     The Court observes that the principal issue in the present case, as presented in the application form and in other relevant documents, is the arbitrariness of the applicant’s arrest on 19 September 2013. 36.     The Court notes that the parties did not submit a copy of the report on the applicant’s arrest on 19 September 2013. However it is apparent from the investigator’s request to detain him (see paragraph 11 above) that he was arrested to be interviewed in case no.   091. It follows that his deprivation of liberty could potentially fall under sub-paragraph (b) of Article 5 § 1 of the Convention. 37.     The Court notes in this connection that there is no indication, either in the parties’ submissions or in the documents available, that the applicant was questioned as a witness in case no. 091 after his arrest. It also takes note of the events that preceded his arrest, specifically the sending of requests by the investigator to enquire about his background for the reason of “bringing a prosecution” (see paragraph 8 above) and the investigator’s decision of 18   September 2013 to extract certain material from case no. 091 and join it to case no.   679 (see paragraph 9 above). The Court considers that the language used by the investigator in his requests and in his decision does not leave any doubt that before his arrest on 19 September 2013 the authorities considered the applicant a suspect. In addition, the Court notes that the Government provided no explanation as to why the police did not follow the standard procedure for arresting a suspect. 38.     In the light of the foregoing and in the absence of any evidence to the contrary, the Court finds that the applicant’s arrest on 19   September 2013, having been formally carried out in order to interview him in connection with case no.   091, in fact had a different purpose, namely to prosecute him in case no.   679. 39.     The Court therefore concludes that the applicant’s arrest on 19   September 2013 was arbitrary and in breach of domestic law. It follows that there has been a violation of Article 5 § 1 of the Convention in this connection. 40.     In the light of its findings above, the Court does not consider it necessary to examine the lawfulness of the decision of the Galytskyi Court of 18   September 2013 authorising the applicant’s arrest for questioning as a witness. Article 5 § 3 41.     The applicable general principles of the Court’s case-law concerning the justification for and reasonableness of a person’s detention were recently summarised in Grubnyk v. Ukraine (no. 58444/15, §§ 110-15, 17   September 2020). 42.     Although the present complaint concerns the justification of a single court decision ordering the applicant’s detention which lasted five days, the Court reiterates that the justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Buzadji v.   the Republic of Moldova [GC], no. 23755/07, § 87, 5 July 2016). 43.     The Court notes that the domestic court’s decision made reference to the reasons for detaining the applicant, namely that he was suspected of a serious offence and there were risks of his absconding, hindering the investigation and influencing witnesses and a victim. That decision does not contain an indication that the court made any analysis of the existence of those risks. Moreover, when fixing the various bail conditions (see paragraph   14 above), the domestic court did not mention anything that might prevent the applicant from hindering the investigation or influencing witnesses and the victim. Lastly, when referring to the gravity of the charges against the applicant (fraud), the domestic court did not explain why that element should have weighed in favour of his detention. 44.     In view of the foregoing, the Court concludes that, by using a standard formula merely listing the grounds for detention without addressing the specific facts of the applicant’s case, the domestic court failed to give “relevant” and “sufficient” reasons to justify its decision to detain him. 45.     It follows that there has been a violation of Article 5 § 3 of the Convention. APPLICATION OF ARTICLE   41 OF THE CONVENTION 46.     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.” 47.     The applicant claimed 7,500 euros (EUR) in respect of non-pecuniary damage. The Government considered that claim unsubstantiated and excessive. 48.     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. 49.     The applicant also claimed EUR 500 for the costs and expenses incurred before the Court. 50.     The Government submitted that the applicant had not paid for legal services and therefore had not borne any expenses. 51.     According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. 52.     The Court notes that the applicant’s claim was supported by a legal services agreement between him and the law firm Prokopyshyn and Partners dated 3   February 2014 and a certificate of services rendered dated 25   March 2018. Although the applicant has not yet paid the legal fees, he has a contractual obligation to pay them. As can be seen from the material in the case file, Mr Seniv, the lawyer named in the agreement, represented the applicant throughout the proceedings before the Court and therefore the fees should be paid. Accordingly, they appear to have been “actually incurred” (see Belousov v. Ukraine , no.   4494/07, § 115, 7 November 2013). 53.     In the light of the foregoing, as well as having regard to the circumstances of the case, the Court finds the applicant’s claim reasonable and awards him the full amount requested for costs and expenses. 54.     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 and 3 of the Convention concerning the arbitrariness of the applicant’s arrest on 19   September 2013 and the lack of justification of his detention admissible and the remainder of the application inadmissible; 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 there is no need to examine the complaint under Article   5 §   1 of the Convention regarding the lawfulness of the decision of the Galytskyi District Court of Lviv of 18 September 2013 authorising the applicant’s arrest for questioning as a witness; 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 3,900 (three thousand nine hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)   EUR 500 (five 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; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 20 September 2022, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.     Martina Keller   Lado Chanturia   Deputy Registrar   President