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FIFTH
SECTION
CASE OF KORNEYKOVA v. UKRAINE
(Application
no. 39884/05)
JUDGMENT
STRASBOURG
19 January
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Korneykova v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel
Jungwiert,
Boštjan M. Zupančič,
Mark
Villiger,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 13 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39884/05) 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, Ms Viktoriya Yuryevna
Korneykova (“the applicant”), on 18 October 2005.
- The
applicant was represented by Mr G. Tokarev, a lawyer practising in
Kharkiv. The Ukrainian Government (“the Government”) were
represented by their Agent, Mr Y. Zaytsev.
- The
applicant alleged that she had been unlawfully and arbitrarily
arrested and detained and that she had had no effective opportunity
to bring proceedings to challenge her detention or to obtain
compensation for the unlawful deprivation of liberty.
- On
2 December 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1990 and lives in Kharkiv.
- On
an unspecified date the Dzerzhinsky District Police of Kharkiv
instituted criminal proceedings against the applicant, who was
fourteen years old at the material time, on suspicion of theft of a
mobile telephone and acting as an accomplice in an unsuccessful
attempted robbery of earrings, a watch and a mobile telephone, in
company with two other minors, in January 2005. The robbery attempt
was interrupted when two witnesses to the incident intervened.
- On
29 March 2005 a bill of indictment was drafted and the investigator
ordered the district police to bring the applicant in for
questioning. In addition, the investigator imposed an undertaking not
to abscond on the applicant as a preventive measure.
- On
the same date the police reported that it was impossible to locate
the applicant and placed her on the “wanted list”.
- On
19 April 2005 the Dzerzhinsky District Police of Kharkiv arrested the
applicant at her mother’s home address and drew up an arrest
report, the relevant parts of which read as follows:
“Investigator ... L., on 19 April 2005 at 15:00 in
accordance with Article 115 of the Criminal Procedure Code of Ukraine
detained, on suspicion of the commission of a crime: Korneykova
Viktoriya Yuryevna ...
The crime which Korneykova V. Y. was detained on
suspicion of having committed falls under Article 15 paragraph 2
[and] Article 186 paragraph 2 of the Criminal Code of Ukraine.
Grounds and motives for detention: commission of a grave
offence; may abscond from investigation and court, obstruct
establishment of the facts of the case ...”
- On
21 April 2005 Mr Tokarev, the applicant’s lawyer, lodged a
complaint with the Dzerzhinsky District Court of Kharkiv (hereinafter
– “the District Court”) alleging, in particular,
that the applicant’s arrest and detention were in contravention
of Article 29 of the Constitution of Ukraine, which authorised
extra-judicial detention only where it was necessary to prevent or
stop a crime. He argued that, since the crimes imputed to the
applicant had taken place in January 2005, in accordance with Article
165-2 of the Code of Criminal Procedure of Ukraine (hereafter –
“the CCP”) the investigating authorities had been under
an obligation to seek a judicial order in order to arrest the
applicant. In addition, he noted that Article 434 of the CCP allowed
the detention of minors only in exceptional circumstances, which were
absent in the applicant’s case.
- On
the same day the investigating authorities requested the District
Court to authorise the applicant’s remand in custody. Having
held a hearing in the presence of the applicant and her advocate, the
court authorised the measure requested. In its reasoning the court
noted that the applicant had been charged with serious offences and
had absconded from the investigating authorities, and that this
justified her placement on the wanted list. Furthermore, her mother,
who had been deprived of her parental rights, was unlikely to be able
to ensure that the applicant would appear before the investigating
authorities, as she herself had a criminal record and suffered from
alcoholism. In addition, the court referred to a report from the
staff responsible for the applicant’s welfare at the boarding
school where she was officially residing, which stated that the
applicant had behavioural problems, including a proneness to run away
from the school. In the light of these findings the court concluded
that if not detained the applicant might commit another crime or
obstruct the investigation. The court’s decision bore no
reference to the applicant’s advocate’s complaint about
the unlawfulness of her arrest and detention between 19 and 21 April
2005.
- On
24 April 2005 Mr Tokarev appealed against the court decision of 21
April 2005. He alleged, in particular, that the District Court had
failed to analyse the applicant’s situation from the angle of
Article 434 of the Code of Criminal Procedure, which allowed for the
placement of a minor in detention pending trial only on condition
that there existed “exceptional circumstances”. He
submitted that in the circumstances of the present case the detention
was unwarranted. In particular, the crimes with which the applicant
had been charged were not exceptionally serious and the findings that
she might abscond, obstruct the investigation or commit another
offence were speculative. In particular, no evidence had been
presented that during the three months which had passed since the
applicant’s alleged offences she had attempted to commit
another crime or obstruct the investigation. Moreover, by April 2005
the evidence had been largely collected, which made it improbable
that the applicant would obstruct the investigation. As regards the
allegation that the applicant had already absconded, which justified
her placement on the wanted list, the authorities had presented no
evidence that the applicant had ever been subpoenaed to appear for
questioning either at her school or at her mother’s address.
She had been placed on the wanted list on the day the order to bring
her in for questioning had been issued. Eventually she had been
arrested at her mother’s address, which was her permanent
address and whose location was well known to the police. In the
meantime, the applicant’s health and well-being was likely to
be seriously endangered by detention in an ordinary pre-trial
detention facility, as she was suffering from tuberculosis and had a
history of in-patient treatment for psychiatric disturbances. Mr
Tokarev also noted that he had not been given a copy of the decision
of 21 April 2005 and requested that the applicant be invited to
participate in the appeal hearing in person.
- On
25 April 2005 the investigator in the applicant’s case informed
Mr Tokarev in a letter that he could access the decision of 21 April
2005 at the investigator’s office at ‘any convenient
time’.
- On
26 April 2005 Mr Tokarev amended his initial appeal against the
decision of 21 April 2005. In particular, he noted that his complaint
that the applicant’s arrest and detention between 19 and 21
April 2005 had been unlawful had not been considered. The applicant
submitted to the Court a copy of this amended appeal bearing Mr
Tokarev’s original signature. There is no receipt slip or any
other evidence that the document was ever submitted for judicial
consideration.
- On
27 April 2005 the Kharkiv Regional Court of Appeal (hereinafter –
“the Court of Appeal”) dismissed Mr Tokarev’s
appeal following a hearing at which the prosecutor and Mr Tokarev,
but not the applicant herself, were present. In its decision the
Court of Appeal referred to the same arguments as the first-instance
court and additionally mentioned that the applicant’s state of
health was irrelevant to the finding that she might abscond, obstruct
the investigation or commit another crime.
- In
the meantime, on 26 April 2005 the Dzerzhinsky District Police
suspended the criminal proceedings against the applicant on account
of her state of health, stating in its decision that all
investigative actions necessary at the material time had been
completed. Subsequently the investigation was resumed and suspended
on several occasions on account of the applicant’s state of
health.
- On
12 May 2005 Mr Tokarev inquired of the District Court in a letter as
to the state of consideration of his complaint about the unlawfulness
of the applicant’s arrest and detention between 19 and 21 April
2005 and allegedly received no answer.
- On
18 May 2005 the District Court decided, without a hearing but in
presence of the prosecutor, to commit the applicant for an in-patient
psychiatric assessment.
- On
30 May 2005 the Dzerzhinsky District Prosecutor allowed the
applicant’s premature release from detention under an
obligation not to abscond, referring to her tuberculosis, which
required in-patient treatment. On an unspecified date the applicant
was committed for in-patient psychiatric assessment.
- On
24 June 2005 the applicant was released from the psychiatric
institution following her psychiatric assessment, according to which
she was not suffering from any psychotic disorders.
II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIAL
A. Relevant domestic law
- The
text of the relevant provision of the Constitution of Ukraine of 1996
(Article 29) can be found in the judgment in the case of Svershov
v. Ukraine (no. 35231/02, § 39, 27 November 2008).
- The
text of the relevant provisions of Articles 148, 149 and 165-2 of the
Code of Criminal Procedure of Ukraine of 1960 (“the CCP”)
can be found in the judgment in the case of Osypenko v. Ukraine,
no. 4634/04, § 33, 9 November 2010).
- Other
relevant provisions of the CCP, as worded at the material time, read
as follows:
Article 106. Arrest of a suspect by the body of
inquiry
“The body of inquiry 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 clothing, or with him,
or in his home.
If there is other information giving ground to suspect a
person of a criminal offence, a body of inquiry 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 case of a suspect’s arrest, the body of
inquiry 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 explanations of the person detained and the
time when it was recorded that the suspect had been informed of his
right to have a meeting with defence counsel as from the moment 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 rights and
obligations shall immediately be handed to the detainee and sent to
the prosecutor. At the request of the prosecutor, the material which
served as a ground for the arrest shall be sent to him as well. ...
Within seventy-two hours of the arrest, the body of
inquiry shall:
(1) release the detainee if the suspicion
that he 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 or 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 the court. The judge shall consider the
complaint together with the request by the investigating body for
application of the preventive measure. If the complaint is received
after the preventive measure was applied, the judge shall examine it
within three days after receiving it. If the request has not been
received or if the complaint has been received after the term of
seventy-two hours of detention, the complaint shall be considered by
the judge within five days after 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 from 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 115. Arrest of a suspect by an investigator
“An investigator may arrest and question a person
suspected of having committed a crime according to procedure
envisaged by Articles 106, 106-1, and 107 of the Code.”
Article 205. Committal of an accused for an
in-patient assessment
“If a forensic medical or psychiatric examination
necessitates long-term monitoring or assessment of the suspect, the
court, at the investigator’s request and with the prosecutor’s
authorisation, may order the suspect’s committal to the
relevant medical institution.
The matter shall be examined according to the procedure
established by paragraph five of Article 165-2; the ruling of a judge
may be appealed against within three days by the prosecutor, the
accused, or his defence counsel or statutory representative ...”
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 gravity of the crime
imputed to him, in the presence of grounds, and according to the
procedure established by Articles 106, 148, ... of this Code.”
- Relevant
provisions of the Act “on the procedure for the compensation of
damage caused to a citizen by the unlawful actions of bodies of
inquiry, the pre-trial investigative authorities, prosecutors and
courts” of 1 December 1994 (with amendments) can be found in
the judgment in the case of Dubovik v. Ukraine, nos. 33210/07
and 41866/08, § 34, 15 October 2009.
B. Relevant international material
1. The recommendation
of the Committee of Ministers to Member States of the Council of
Europe on social reactions to juvenile delinquency (no. R (87)20),
adopted on 17 September 1987 at the 410th meeting of the Ministers’
Deputies
- The
above document, in so far as relevant, reads as follows:
“... recommends the Governments of Member States
to review, if necessary, their legislation and practice with a view:
...
7. to exclude the remand in custody of
minors, apart from exceptional cases of very serious offences
committed by older minors; in these cases, restricting the length of
remand in custody and keeping minors apart from adults; arranging for
decisions of this type to be, in principle, ordered after
consultation with a welfare department on alternative proposals ...”
2. The recommendation of the Committee of Ministers to
Member States of the Council of Europe concerning new ways of dealing
with juvenile delinquency and the role of juvenile justice (Rec
(2003)20), adopted on 24 September 2003 at the 853rd
meeting of the Ministers’ Deputies
- The
above document, in so far as relevant, reads as follows:
“15. Where juveniles are detained in
police custody, account should be taken of their status as a minor,
their age and their vulnerability and level of maturity. They should
be promptly informed of their rights and safeguards in a manner that
ensures their full understanding. While being questioned by the
police they should, in principle, be accompanied by their
parent/legal guardian or other appropriate adult. They should also
have the right of access to a lawyer and a doctor. They should not be
detained in police custody for longer than forty-eight hours in total
and for younger offenders every effort should be made to reduce this
time further. The detention of juveniles in police custody should be
supervised by the competent authorities.
16. When, as a last resort, juvenile suspects
are remanded in custody, this should not be for longer than six
months before the commencement of the trial. This period can only be
extended where a judge not involved in the investigation of the case
is satisfied that any delays in proceedings are fully justified by
exceptional circumstances.
17. Where possible, alternatives to remand in
custody should be used for juvenile suspects, such as placements with
relatives, foster families or other forms of supported accommodation.
Custodial remand should never be used as a punishment or form of
intimidation or as a substitute for child protection or mental health
measures.”
3. The United Nations Convention on the Rights of the
Child of 20 November 1989
- Article
37 of the above document, in so far as relevant, reads as follows:
“States Parties shall ensure that ...
(b) No child shall be deprived of his or her
liberty unlawfully or arbitrarily. The arrest, detention or
imprisonment of a child shall be in conformity with the law and shall
be used only as a measure of last resort and for the shortest
appropriate period of time;
(c) Every child deprived of liberty shall be
treated with humanity and respect for the inherent dignity of the
human person, and in a manner which takes into account the needs of
persons of his or her age. In particular, every child deprived of
liberty shall be separated from adults unless it is considered in the
child’s best interest not to do so and shall have the right to
maintain contact with his or her family through correspondence and
visits, save in exceptional circumstances.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 (c) OF THE
CONVENTION ON ACCOUNT OF THE APPLICANT’S ARREST AND DETENTION
BETWEEN 19 AND 21 APRIL 2005
- The
applicant complained that her arrest and detention between 19 and
21 April 2005 had not been based on law and had been arbitrary. She
invoked Article 5 § 1 (c) 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;
...”
A. Admissibility
- The
Government did not comment on the admissibility of this complaint.
- The
Court notes that the 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
- The
applicant submitted that according to Article 29 of the Constitution
of Ukraine an individual can be arrested only on the basis of a
reasoned court order. The only exception to this rule is where there
is an urgent necessity to prevent or suppress an offence. As the
offences imputed to the applicant were committed in January 2005,
arresting her without a court order in April 2005 had not been in
compliance with Article 29 of the Constitution. This arrest had also
been arbitrary and unwarranted by the circumstances of the case.
- The
Government disagreed. They submitted that the applicant’s
arrest and detention had been based on Article 115 of the CCP and had
been lawful. They also maintained that the applicant’s
complaint concerning the lawfulness of the arrest and detention had
been examined and dismissed by the District Court at the same time as
the investigative authorities’ application for her to be
remanded in custody, as evidenced by the fact that the applicant had
not raised this matter further in her appeal against the court’s
decision of 21 April 2005.
- The Court reiterates that where
deprivation of liberty is concerned it is particularly important that
the general principle of legal certainty be satisfied. It is
therefore essential that the conditions for deprivation of liberty
under domestic law be clearly defined and that the law itself be
foreseeable in its application, so that it meets the standard of
“lawfulness” set by the Convention, a standard which
requires that all law be sufficiently precise to allow the person –
if need be, with appropriate advice – to foresee, to a degree
that is reasonable in the circumstances, the consequences which a
given action may entail (see Baranowski
v. Poland, no. 28358/95, § 52,
ECHR 2000-III). The expression “lawful”
in Article 5 § 1 essentially refers back to national law
and lays down an obligation to conform to the substantive and
procedural rules thereof. The Court may review whether national law
has been observed for the purposes of this Convention provision;
however, it is in the first place for the national authorities,
notably the courts, to interpret and apply domestic law (see Oleksiy
Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, § 84, 24
June 2010). The Court further reiterates that
the “lawfulness” of detention under domestic law is the
primary, but not always the decisive element. The Court must, in
addition, be satisfied that the detention, during the period under
consideration, was compatible with the purpose of Article 5 §
1 of the Convention, which is to
prevent persons from being deprived of their liberty in an arbitrary
manner (see Yeloyev
v. Ukraine, no.
17283/02, §§ 41-42, 6 November
2008).
- The
Court considers that in the circumstances of the present case it is
not in a position to assess in abstracto
the applicant’s argument concerning unconstitutionality of her
arrest without a court warrant. It notes, on the other hand, that
according to the police report of 19 April 2005, the legal basis for
the applicant’s arrest was Article 115 of the CCP (see
paragraph 23 above). This provision does not enumerate the exhaustive
grounds for an arrest and refers, instead, to several other CCP
provisions, none of them having been cited by the police in the
applicant’s case. It is therefore unclear from the report,
which of the provisions of the domestic law served as the exact basis
for the applicant’s arrest. Furthermore, the report presented
the reasons for the applicant’s arrest in a formalistic and
standardised way, without explaining why it was necessary in the
particular circumstances. Insofar as the applicant raised a complaint
about arbitrariness of her arrest with the domestic judicial
authorities, it appears that no reasoned decision on the matter has
ever been produced. Absent clear indication of the legal grounds for
the applicant’s arrest and reasons making application of the
relevant legal provisions necessary, the Court considers that the
applicant’s arrest was not free from arbitrariness.
- There
has therefore been a violation of Article 5 § 1 (c) of the
Convention in this regard.
II. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 (C) AND
3 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S REMAND IN
CUSTODY ON 21 APRIL 2005
- The
applicant further complained that the court order of 21 April 2005 to
remand her in custody had been unfair and not based on sufficient
reasons. She referred to Article 5 § 1 (c), cited above, and
Article 5 § 3 of the Convention in this connection. Article 5 §
3 of the Convention reads as follows:
“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
- The
Government did not comment on the admissibility of this complaint.
- The
Court considers that Article 5 § 1 (c) of the Convention must be
read in conjunction with Article 5 § 3, which forms a whole with
it (see Ciulla v. Italy, 22 February 1989, § 38, Series A
no. 148, and Smirnova v. Russia, nos. 46133/99 and
48183/99, §§ 56 and 71, ECHR 2003 IX (extracts)), and
that the complaint at issue may be considered under both provisions
simultaneously.
- It
further observes that the complaint at issue is not manifestly
ill founded within the meaning of Article 35 § 3 (a) of the
Convention. It is also not inadmissible on any other grounds. This
complaint must therefore be declared admissible.
B. Merits
1. The submissions of the parties
- The
applicant submitted that according to Article 434 of the CCP, a minor
could be placed in custody only in ‘exceptional circumstances’.
The national law did not define the notion of ‘exceptional
circumstances’, thus applicable provisions were ambiguous.
Furthermore, at the time of her remand in custody, the applicant had
been only fourteen years old, which was the minimum age for criminal
liability. There were no ‘exceptional circumstances’ in
her case justifying the application of such a harsh measure as
detention. The courts had arbitrarily refused to consider the
applicant’s arguments under Article 434 of the CCP, as well as
a number of other arguments in favour of her release.
- Firstly,
the judicial authorities had paid no attention to her arguments that
the crimes imputed to her (theft of a mobile telephone and attempted
robbery of earrings, a watch and a mobile telephone) were not
particularly serious or violent. Secondly, these crimes had been
committed three months before her arrest. There was no evidence that
she had engaged in any other criminal activities within this period;
thus the argument that if left at liberty she would re-offend, relied
upon by the District Court, was speculative. Thirdly, the argument
that the applicant might abscond was also speculative. There was no
evidence that she had ever made any attempt to interfere with the
investigation or evade questioning. The applicant had been living
with her mother at the time and the police were well aware of that
fact. They had never attempted to summon the applicant for
questioning in an official manner before placing her on the wanted
list. Fourthly, the courts had taken no account of the numerous
medical certificates concerning the applicant’s poor health, in
particular, that she suffered from tuberculosis and psychiatric
disturbances, which could be aggravated by detention in an adult
detention facility. She had run away from the school because she had
been feeling abandoned and ill-treated. The negative character
references provided to the court by those responsible for her care at
the school (whose role in the proceedings was supposed to be to
defend her interests) indicated that they were much more interested
in ridding themselves of a disturbed child than in creating the
conditions for her adequate supervision. Treating their references as
the cornerstone of the reasoning for detaining her was unfair and
arbitrary, particularly given that the investigation had been
suspended several days after her detention on account of her state of
health and that soon afterwards (on 30 May 2005) she had been
released on health grounds on an undertaking not to abscond.
- The
Government submitted that remanding the applicant in custody had been
justified on several grounds. Firstly, she had been charged with
having committed several crimes for which the punishment could entail
deprivation of liberty. Secondly, in view of her personality and
life-style there had been a serious risk that if she remained at
liberty she would commit further crimes and obstruct the
investigation. According to the references from the boarding school,
the applicant was prone to truancy, drinking alcohol and smoking and
had a negative influence on her schoolmates. Moreover, the applicant
had already been placed on the wanted list before her arrest, which
evidenced her proneness to abscond. These reasons, on the basis of
which the District Court had remanded her in pre-trial custody, were
relevant and sufficient for the ordering of the measure.
2. The Court’s assessment
- 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 (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 requires 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, § 86, 14 October
2010). The arguments for and against release, including the risk that
the accused would hinder the proper conduct of the proceedings, must
not be taken ‘in
abstracto’, but must be
supported by factual evidence (see Becciev v. Moldova, no.
9190/03, §§ 56 and 59, 4 October 2005).
- 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 (Selçuk v. Turkey, no. 21768/02,
§§ 35-36, 10 January 2006, and Nart v. Turkey, no.
20817/04, §§ 31 and 33, 6
May 2008).
- The
Court notes that the District Court’s decision of 21 April 2005
to remand the applicant in custody was taken at the close of a
hearing in which the applicant, although represented by a lawyer,
also participated in person. The District Court advanced detailed
reasons for ordering her detention. These reasons included an
assessment of the applicant’s personality, life style and
living conditions and, in particular, the risk that her supervisors
would not be able to prevent the applicant from truancy and failing
to appear before the investigative authorities.
- On
the other hand, the Court emphasizes that the applicant in the
present case was only fourteen years old. Her detention was an
exceptional measure within the meaning of Article 434 of the CCP,
according to which a minor may be remanded in custody only in
“exceptional circumstances”. Notwithstanding that the
applicant’s lawyer repeatedly referred to this provision in his
submissions, the judicial authorities did not elaborate as to why the
circumstances of the applicant’s case qualified as
“exceptional”. Moreover, they omitted any reference
whatsoever to Article 434 of the CCP in their reasoning, in which
circumstances the Court is not called upon to access the quality of
this provision in abstracto.
- Moreover,
in assessing the applicant’s personality the domestic courts
chose to rely primarily on her unfavourable character references from
her boarding school (see paragraph 11 above). While relying on the
inherent risk that she might abscond or engage in further criminal
activity given her life-style, they failed to give any weight to the
applicant’s advocate’s arguments that there had been no
complaints that the applicant had engaged in criminal activity
between January and April 2005; that the applicant’s placement
on the wanted list had been arbitrary, as she had a permanent home at
her mother’s address; that the investigation was nearing its
completion; that the collection of evidence was unlikely to be
obstructed; and that there had been no instances of the applicant
obstructing or evading the investigation in any way prior to her
arrest. Likewise, the judicial authorities did not elaborate on the
argument about the likelihood of damage to the applicant’s
health – she suffered from tuberculosis and psychiatric
disturbances – in the event of her detention in a standard
pre-trial detention facility for adults.
- In
the light of the foregoing, the Court considers that in the
circumstances of the present case the domestic authorities failed to
advance comprehensive reasoning for imposing on the fourteen-year-old
applicant a custodial 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 (c) in this
respect.
III. ALLEGED VIOLATION OF
ARTICLE 5 § 1 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S
PLACEMENT FOR IN-PATIENT PSYCHIATRIC ASSESSMENT
50. The applicant further complained
under Article 5 § 1 about her committal for psychiatric
assessment on 18 May 2005.
- The
Government submitted that the applicant had not exhausted domestic
remedies with respect to the above complaint, as she had never
appealed against the committal decision of 18 May 2005.
- The
applicant submitted that neither she nor her lawyer had been apprised
in a timely manner of the prosecution’s application to commit
her for the psychiatric assessment or of the date on which this
application was to be considered. The applicant’s lawyer,
having learned about the committal order at the end of May 2005 by
mere chance, did not attempt to challenge it, as his appeal would
have already been out of time in any event.
53. The Court reiterates that Article
35 of the Convention requires that complaints made before the Court
should have been made to the appropriate domestic body, at least in
substance, and be in compliance with the formal requirements and
time-limits laid down in domestic law and, further, that any
procedural methods that might prevent a breach of the Convention
should have been used (see Cardot v.
France, 19 March 1991, § 34,
Series A no. 200). It is incumbent on a Government claiming
non exhaustion to satisfy the Court that the remedy was an
effective one available both in theory and in practice at the
relevant time. Once this burden of proof has been satisfied, it falls
to the applicant to establish that the remedy advanced by the
Government has in fact been used or was for some reason inadequate
and ineffective in the particular circumstances of the case, or that
there existed special circumstances absolving him or her from the
requirement (see Vladimir Fedorov v.
Russia, no. 19223/04, § 39, 30
July 2009).
- The
Court notes that the applicant presented no evidence that it had not
been open to her to appeal against the committal decision once she
had learned of it (which should have been no later than the end of
May 2005, when it was presented for execution) and, if need be, to
request renewal of the applicable time-limits on the basis that she
had been apprised of this decision with a delay. The Court therefore
considers itself enjoined from examining at first instance a matter
which should normally be ventilated first through the domestic
judicial authorities. It therefore upholds the Government’s
objection.
- Accordingly,
this part of the application should be rejected for non exhaustion
in accordance with Article 35 §§ 1 and 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant further complained that the courts had failed to consider
her advocate’s complaint that her arrest and detention on 19
April 2005 had been unlawful; that she had not been summoned to the
hearing concerning her appeal against the decision of 21 April 2005;
and that her advocate had had restricted access to the case file in
preparing his appeal against that decision. The applicant referred to
Article 5 § 4 of the Convention in respect of the above
complaints, which reads 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
1. Alleged inability to bring proceedings to have the
lawfulness of the applicant’s arrest and detention between 19
and 21 April 2005 reviewed
- The
Government submitted that the applicant’s complaint concerning
the unlawfulness of her arrest and detention up to 21 April 2005
had been properly examined in accordance with Article 106 of the CCP
on 21 April 2005 within the framework of the remand proceedings. In
any case, it had been open to the applicant to raise the matter in
her appeal against the remand decision, which she had not done. As
the applicant’s complaint had been examined within the
framework of the remand proceedings and no appeal lay against the
District Court’s alleged omission in this regard, there were no
grounds for the latter to consider the same complaint in separate
proceedings at a later date, as requested by the applicant’s
lawyer.
- The
applicant submitted that her complaint concerning the unlawfulness of
her arrest and detention up to 21 April 2005 had never been examined,
either within the framework of the remand proceedings or separately,
notwithstanding that on 12 May 2005 her advocate had sent the
District Court an enquiry in this respect, which remained unanswered.
- The
Court observes that according to the case-file materials, on 21 April
2005, before the court hearing scheduled to examine the
investigation’s application to remand the applicant in custody,
the applicant, represented by Mr Tokarev, submitted to the District
Court a complaint concerning the unlawfulness of her arrest and
detention between 19 and 21 April 2005. It appears that, regard
being had to the provisions of Article 106 of the CCP (see
paragraph 23 above), this complaint should normally have been
examined at the hearing of 21 April 2005. However, it appears that no
court decision was produced expressly addressing the complaint at
issue.
- Based
on the available materials, the applicant had two possible avenues of
redress in this situation: (1) to complain about the District Court’s
failure to rule on her complaint in her appeal against the decision
of 21 April 2005 and (2) to demand separate examination of this
complaint.
- As
regards the first option, the applicant did not raise a relevant
complaint in her initial appeal lodged on 24 April 2005 and did not
provide any explanations why she could not have done so. In so far as
she appears to have brought the complaint up in her amended appeal of
26 April 2005, she provided no evidence that this version of her
appeal was submitted for consideration. As it has neither been shown
that the applicant duly availed herself of the opportunity to appeal,
nor argued that resorting to this possibility was prima facie
futile, the Court cannot conclude that the applicant in practice was
deprived of her right provided for in domestic law to bring the
appeal proceedings.
- As regards the possibility to demand a separate
examination of the present complaint, the Court notes that on 12 May
2005 the applicant’s advocate sent a letter to the District
Court concerning this matter. It further observes that it is usually
incumbent on the interested party to display special diligence in the
defence of his interests (see, among other authorities, mutatis
mutandis, Gurzhyy v. Ukraine (dec.),
no. 326/03, 1 April 2008). The Court considers that, even assuming
that by an omission on the part of the court’s personnel the
above letter was misplaced or otherwise neglected, in the absence of
any further action from the applicant insisting that the question be
followed up, this fact alone would be insufficient to consider that
this avenue of bringing proceedings to decide on the lawfulness of
the applicant’s arrest and detention up to 21 April 2005 was
unavailable to her.
- In
the light of the aforesaid, the Court considers that the applicant’s
complaint about having been unable to bring proceedings to decide on
the lawfulness of her arrest and detention up until 21 April 2005 is
manifestly ill-founded and should be rejected in accordance with
Article 35 § 3 (a) and 4 of the Convention.
2. Unfairness of the appeal proceedings
- The
Government did not submit any comments concerning the admissibility
of the applicant’s complaint concerning the unfairness of the
appeal proceedings against the decision of 21 April 2005.
- 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
- The
applicant submitted that it had been very important for her to
participate in person in the hearing of 27 April 2005 concerning the
examination of her appeal against the District Court’s decision
to remand her in custody, as the decision at issue had been largely
based on an assessment of her character and personality. She further
submitted that her lawyer had been unable to prepare to duly defend
her interests in the appeal proceedings, as he had been denied a copy
of the District Court’s decision and not provided with an
adequate opportunity to study the case file.
- The
Government contested the applicant’s submissions. They
considered that the applicant’s personal presence at the appeal
hearing had not been necessary. In particular, the appeal court was
to assess objective facts, which could be done based on the case-file
materials, if need be with the applicant’s advocate’s
advice. The applicant’s oral submissions in this situation were
unlikely to make a tangible contribution, in particular, as she was a
minor having a low level of education and suffering from psychiatric
disturbances. They further considered that the applicant’s
complaint that her lawyer had not had the opportunity to study the
case file was without merit, since he could have had unrestricted
access to the case file at the investigator’s office, and he
had been duly informed of this (see paragraph 13 above).
- The
Court reiterates that by virtue of Article 5 § 4 an arrested or
detained person is entitled to bring proceedings for the review by a
court of the procedural and substantive conditions which are
essential for “lawfulness”, in the sense of Article 5 §
1, of his or her deprivation of liberty (see Brogan and Others v.
the United Kingdom, 29 November 1988, § 65, Series A no.
154-B). Although it is not always necessary that the procedure under
Article 5 § 4 be attended by the same guarantees as those
required under Article 6 § 1 of the Convention for criminal or
civil litigation, it must have a judicial character and provide
guarantees appropriate to the kind of deprivation of liberty in
question (see Reinprecht v. Austria, no. 67175/01, § 31,
ECHR 2005-...., with further references). The proceedings must be
adversarial and must always ensure equality of arms between the
parties. Equality of arms is not ensured if counsel is denied access
to those documents in the investigation file which are essential in
order effectively to challenge the lawfulness, in the sense of the
Convention, of his client’s detention (Kehayov v. Bulgaria,
no. 41035/98, § 84, 18 January 2005).
- Furthermore,
the detainee should, as a general rule, have a right to participate
in a hearing at which his detention is discussed (see Lebedev
v. Russia, no. 4493/04, § 113, 25 October 2007). This
is particularly so where there is a need to advance new arguments for
release or where the arguments are closely connected to the
applicant’s character and personal situation (see, for example,
Mamedova v. Russia, no. 7064/05, §§ 91-92, 1 June
2006; Farhad Aliyev v. Azerbaijan, no. 37138/06, § 207,
9 November 2010; and Michalko v. Slovakia, no. 35377/05,
§§ 159-161, 21 December 2010).
- Turning
to the facts of the present case, the Court notes that in so far as
the applicant complained about hindrances experienced by her lawyer
in accessing the case file, it appears that the lawyer was given an
opportunity to study the case file at the office of the investigator.
It is not clear from the case file what difficulties were experienced
by him (see by contrast Kehayov, cited above, § 85). The
Court, however, does not need to examine this aspect of the complaint
in detail, as it finds that the fact that the applicant was absent
from the appeal hearing is sufficient to establish that the
guarantees of Article 5 § 4 of the Convention were breached in
the present case.
- The
Court notes in this regard that the appeal hearing of 27 April 2005
was attended by a prosecutor and counsel for the applicant but not
the applicant herself, despite her advocate’s request to that
effect.
- It
appears that both the first-instance and the appeal courts largely
founded their reasoning on an assessment of the applicant’s
“character”. The Court of Appeal did so on the basis of
written documents, without questioning the applicant in person and
affording her an opportunity to describe her personal situation. In
addition, the Court notes that it was the appeal court that first
examined the facts arguing for her release as presented by her
advocate in the written pleadings. Given the importance of the first
appeal hearing and the appeal court’s reliance on the
applicant’s character, the Court finds that the failure of the
judicial authorities to secure the applicant’s presence at the
hearing of 27 April 2005 without any plausible explanation prejudiced
her ability to take proceedings by which the lawfulness of her
detention could be examined.
- There
has therefore been a breach of Article 5 § 4 of the Convention
in this respect.
V. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE
CONVENTION
- Finally,
the applicant complained that domestic law did not entitle her to
obtain compensation for her detention in breach of Article 5, as
required by Article 5 § 5 of the Convention, which reads as
follows:
“...
5. Everyone who has been the victim of arrest
or detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
A. Admissibility
- The
Government did not submit any comments concerning the admissibility
of this complaint.
- 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
- The
applicant maintained that although the Act “On the procedure
for the compensation of damage caused to a citizen by the unlawful
actions of bodies of inquiry, pre-trial investigative authorities,
prosecutors and courts” (the “Compensation Act”) of
1 December 1994, with amendments, and Article 1166 of the Civil Code
of Ukraine provided a theoretical possibility of claiming
compensation for unlawful arrest or detention, the outcome of such a
claim would have been conditional on a finding by the domestic courts
that the arrest or detention was in breach of domestic law. Since the
courts did not establish any unlawfulness in the applicant’s
arrest and detention, any claim of this type would have been futile.
- The
Government disagreed. They noted that domestic law contained several
provisions which the applicant could have relied upon in lodging a
claim for compensation. These included the Compensation Act mentioned
by the applicant, as well as Articles 1166 and 1167 of the Civil Code
of Ukraine, more generally entitling individuals to claim
compensation for unlawful actions by the authorities. They agreed
that the applicant could have claimed compensation under the
provisions at issue should the domestic courts have established that
she had been unlawfully arrested or detained. They also noted that
the State Budget for 2006 had a line item of 15,000,000 Ukrainian
hryvnias for this purpose.
- The Court notes that in so far as it has found that
there have been violations of Article 5 §§ 1, 3 and 4 of
the Convention in the applicant’s case, Article 5 § 5 of
the Convention is also applicable (see Steel and Others v. the
United Kingdom, 23 September 1998, § 81, Reports of
Judgments and Decisions 1998-VII). It further reiterates that
Article 5 § 5 of the Convention is complied with where it is
possible to apply for compensation in respect of a deprivation of
liberty effected in conditions contrary to one of the preceding
paragraphs of Article 5 of the Convention, as established either by a
domestic authority or by the Court (see Dubovik v. Ukraine,
nos. 33210/07 and 41866/08, § 71, 15 October 2009).
- In the applicant’s case, it appears that the
domestic courts did not consider that the applicant was deprived of
liberty unlawfully. It follows that the aforementioned legal
provisions did not provide the applicant with an enforceable right to
claim compensation. It likewise does not appear that such a right was
or is secured under any other provision of the Ukrainian legislation,
given the absence of any legally envisaged procedure for bringing
proceedings to seek compensation for the deprivation of liberty found
to be in breach of Article 5 §§ 1, 3 or 4 of the Convention
by the Strasbourg Court.
- The
Court therefore concludes that the first applicant did not have an
enforceable right to compensation for her unlawful detention, as
required by Article 5 § 5 of the Convention.
- The Court thus concludes that there has been a
violation of Article 5 § 5 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicant claimed 6,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government submitted that this claim was unsubstantiated.
- The
Court considers that the applicant must have suffered anguish and
distress on account of the facts giving rise to the finding of
violations in the present case which cannot be made good by the mere
finding of violations. Ruling on an equitable basis, the Court awards
the applicant the amount claimed in full.
B. Costs and expenses
- The
applicant submitted no claim under this head. The Court therefore
makes no award.
C. Default interest
- The
Court considers it appropriate that the default interest 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 concerning unlawfulness
and arbitrariness in respect of the applicant’s arrest and
detention between 19 April and 30 May 2005, concerning the
inability to take proceedings by which the lawfulness of her
detention between 21 April and 30 May 2005 could be decided speedily
and to claim compensation for the breach of her right to liberty
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
5 § 1 (c) of the Convention on account of the applicant’s
arrest and detention between 19 and 21 April 2005;
- Holds that there have been violations of Article
5 §§ 1 (c) and 3 of the Convention on account of the
applicant’s detention between 21 April and 30 May 2005;
- Holds that there has been a violation of Article
5 § 4 of the Convention on account of the applicant’s
absence from the hearing concerning her appeal against the decision
to remand her in custody;
- Holds that there has been a violation of Article
5 § 5 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 6,000 (six thousand
euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the national currency of
Ukraine at the rate applicable on 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.
Done in English, and notified in writing on 19 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
