BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF OLEYNIKOVA v. UKRAINE
(Application
no. 11930/09)
JUDGMENT
STRASBOURG
20
December 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Oleynikova v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
committee composed of:
Mark Villiger, President,
Ganna
Yudkivska,
André Potocki, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 29 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11930/09) 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 Tamara Alekseyevna
Oleynikova (“the applicant”), on 17 February 2009.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Ms Valeria Lutkovska and Mr
Yuriy Zaytsev.
- On
10 February 2010 the President of the Fifth Section decided to give
notice of the application to the Government. In
accordance with Protocol No. 14, the application was allocated to a
Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1959 and lives in Simferopol.
- On
16 March 2005 the prosecutors started criminal investigations against
her on suspicion of fraud.
- On
5 October 2005 she was arrested and placed in a cell in the
Simferopol Kyivskyy District Police Station. According to the
applicant, the conditions of her detention were degrading. In
particular, she was not provided with medical aid, food, or a place
to sleep.
- The
applicant alleges that during her first questioning, on 6 October
2005, she was not assisted by a lawyer.
- On
7 October 2005 the Kyivskyy District Court of Simferopol ordered the
applicant’s release subject to an undertaking not to abscond.
- On
23 July 2007 the Tsentralnyy District Court of Simferopol (“the
Tsentralnyy Court”) convicted the applicant of several counts
of fraud and sentenced her to five years’ imprisonment with
confiscation of all her property. The court also ordered the
applicant’s placement in custody pending the entry into force
of its judgment.
- On
the same day the applicant was placed in the Simferopol Temporary
Investigative Isolation Unit no. 15 (“the SIZO”).
- The
applicant maintains that the findings of the first-instance court
concerning her responsibility for the crimes of which she had been
convicted on 23 July 2007 were subsequently relied upon by the same
court in a judgment of 30 November 2007 concerning a similar case
against another person. She provided no further details of the latter
case.
- On
20 December 2007 the Crimea Court of Appeal (“the Court of
Appeal”) quashed the judgment of 23 July 2007 and remitted
the case to the Tsentralnyy Court for fresh consideration. At the
same time, it ordered the applicant to remain detained, without
providing reasons or a time-limit for her continued detention.
- In
the course of the new consideration of the case by the Tsentralnyy
Court, the charges against the applicant were changed to one count of
fraud.
- On
6 February 2008 the court rejected the applicant’s request
for release stating in particular that there were no grounds for the
release, whereas a quashing of the judgment was not a reason for
changing a detention order as such.
- On
20 August 2008 the court changed the applicant’s preventive
measure in view of the new charges against her and her state of
health. It ordered the applicant’s release subject to an
undertaking not to abscond.
- In
a judgment of 27 August 2008 it convicted the applicant of fraud and
sentenced her to thirteen months’ imprisonment. The court
further held that the applicant was not required to serve her
sentence, as she had been detained for the same period of time in the
course of the proceedings. By the same judgment, the court ordered
the destruction of certain items in evidence, which, according to the
applicant, included some of her personal belongings seized in the
course of the investigations.
- The
applicant did not appeal against that judgment.
- She
unsuccessfully lodged a number of complaints with the prosecutors,
courts, and the Council of Judges, accusing the investigators and
judges of falsification of the case materials and of various
procedural violations. She also raised allegations that some of the
witnesses against her had made false statements, but to no avail.
II. RELEVANT DOMESTIC LAW
- The
law is summarised in the judgments in the cases of Nevmerzhitsky
v. Ukraine (no. 54825/00, §§ 53-54, ECHR 2005 II
(extracts) and Yeloyev v. Ukraine (no. 17283/02, § 35, 6
November 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained that her detention between 20 December 2007
and 20 August 2008 was contrary to the requirements of 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
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
Government contested the applicant’s complaint.
- The
Court observes that on 20 December 2007 the applicant’s
sentence was quashed, but she had remained in custody until released
on 20 August 2008. Thus her detention between those dates, while
her trail was pending, fell within the scope of Article 5 § 1
(c) of the Convention, yet a judicial decision that authorised the
continuous detention of the applicant contained no reasons or a
time-limit for such deprivation of liberty (see paragraph 12 above).
The first-instance court’s decision of 6 February 2008 did not
remedy the applicant’s situation (see paragraph 14 above).
- The
Court recalls that it has previously examined similar situations in
other cases against Ukraine and found them to be incompatible with
the requirements of lawfulness under Article 5 § 1 of the
Convention. In particular, there were instances of the failure of the
judicial authorities to give reasons for their decisions authorising
detention or to fix a time-limit for such detention (see, e.g.,
Yeloyev, cited above, §§ 52-55, and Doronin
v. Ukraine, no. 16505/02,
§ 59, 19 February 2009). Moreover, in the
judgment of Kharchenko v. Ukraine (no. 40107/02,
§§ 98 and 101, 10 February 2011), the Court held that
the situation where the court orders made during the trial
stage fix no time-limits for further detention, is
a recurrent problem of structural nature in
Ukraine. There are no arguments in this case capable of
persuading the Court to reach a different conclusion. It concludes
that the applicant’s detention from 20 December 2007 and
20 August 2008 was unlawful.
- There
has accordingly been a violation of Article 5 § 1 (c)
of the Convention in this respect.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Articles 3 and 5 § 1
of the Convention about the conditions and lawfulness of her
detention from 5 to 7 October 2005.
- The
applicant further relied on Article 6 §§ 1, 2 and
3 (c) and (d) of the Convention complaining, in particular, of the
length, unfairness and outcome of the criminal proceedings. She
argued that the courts had based their decisions on an incorrect
assessment of the facts and had applied the law incorrectly. She
alleged that the principle of presumption of innocence had not been
respected, given that having quashed the first instance judgment the
Court of Appeal had refused to release her from detention; that her
right of defence had been infringed; and that the courts had failed
to summon some of the witnesses against her.
- She
also complained of a violation of Article 6 § 2 of the
Convention, stating that the judicial authorities had considered her
guilty before the judgment of 23 July 2007 became final, as the
findings contained in that judgment had been relied upon in another
case.
- Invoking
Article 8 § 1 of the Convention, the applicant alleged that some
of her personal belongings had been destroyed pursuant to the
judgment of 27 August 2008.
- She
lastly complained under Article 13 of the Convention that the
authorities had failed to respond to her complaints against the
investigators and judges dealing with her criminal case and against
some of the witnesses.
- Having
carefully examined these submissions in the light of all the material
in its possession and in so far as the matters complained of are
within its competence, the Court finds that they do not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention.
- It
follows that these complaints must be declared manifestly ill-founded
pursuant to Article 35 §§ 3 (a) and 4 of the
Convention.
III. 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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award her any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 5 § 1 (c)
of the Convention concerning the applicant’s detention from
20 December 2007 to 20 August 2008 admissible and the
remainder of the application inadmissible;
2. Holds that there has been a violation of Article
5 § 1 (c) of the Convention in respect of the
applicant’s detention from 20 December 2007 to 20 August 2008.
Done in English, and notified in writing on 20 December 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger
Deputy Registrar President
