European Court of Human Rights

 

 

 

FIFTH SECTION

CASE OF BEVZ AND OTHERS v. UKRAINE

(Applications nos. 17955/13 and 6 others)

 

 

 

 

 

 

JUDGMENT

 

 

 

 

 

 

 

STRASBOURG

25 June 2020

 

This judgment is final but it may be subject to editorial revision.

In the case of Bevz and others v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Gabriele Kucsko-Stadlmayer, President,
          Lado Chanturia,
          Anja Seibert-Fohr, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,

Having regard to:

the applications (nos. 17955/13, 68671/13, 24477/15, 43692/15, 35638/17, 84326/17 and 1838/18) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Ukrainian nationals, Mr Sergiy Vasylyovych Bevz (“the first applicant”), Mr Vasyl Fedorovych Kurasov (“the second applicant”), Mr Igor Mykhaylovych Stadnyk (“the third applicant”), Mr Yaroslav Mykolayovych Davydenko (“the fourth applicant”), Mr Dmytro Volodymyrovych Borodin (“the fifth applicant”), Mr Yuriy Vadymovych Zhalylo (“the sixth applicant”) and Mr Igor Anatoliyovych Kunyk (“the seventh applicant”), on the various dates indicated in the appended table;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Article 5 §§ 3 and 4 and Article 6 § 1 of the Convention, and to declare inadmissible the remainder of the applications;

the parties’ observations;

Having deliberated in private on 2 June 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

The case concerns the alleged lack of reasoning of the judicial decisions ordering the applicants’ arrest and continued detention, the allegedly unreasonable duration of their detention on remand, the alleged absence of a meaningful review of the lawfulness of their detention, and the allegedly unreasonable duration of the criminal proceedings against them, in breach of Article 5 §§ 3 and 4 and Article 6 § 1 of the Convention.

THE FACTS

1.  The applicants’ details are set out in the appended table.

2.  The Government were represented by their Agent, Mr I. Lishchyna, of the Ministry of Justice.

3.  The facts of the case, as submitted by the parties, may be summarised as follows.

4.  On various dates the applicants were arrested within the context of criminal investigations against them. Shortly afterwards, the courts ordered their detention on remand. The relevant judicial decisions stated, without providing specific details, that the applicants were accused of serious crimes and could otherwise escape and hinder the investigation or continue with their criminal activities.

5.  In addition to the reasons mentioned above, in application no. 43692/15 the domestic court noted, without providing specific details, that the applicant was a serving police officer and argued that he could use his office to interfere with any investigation. In this case the domestic court furthermore noted, again without providing specific details, that the applicant had a previous conviction for a similar crime.

6.  In the course of the proceedings the courts extended the applicants’ detention a number of times, referring to the reasons indicated in the initial decisions on the applicants’ detention. The courts furthermore noted that there were no reasons for the applicants to be released, since no new circumstances warranting release had been identified and the circumstances that had led to the decision to place the applicants in detention pending their trial persisted.

7.  On 10 January 2014 the trial court convicted the first applicant and sentenced him to six years’ imprisonment. In the course of the appeal proceedings, the first applicant was released after he had given personal undertaking not to abscond. On 13 January 2015 the sentence of 10 January 2014 was quashed on appeal and the criminal case against the first applicant was remitted for additional pre-trial investigation. According to the available documents, the pre-trial investigation is still being conducted.

8.  In the course of the proceedings, on 20 August 2013 the second applicant was released on bail. On 29 August 2013 he was rearrested again. On 11 November 2014 the second applicant was released after he had given personal undertaking not to abscond.

9.  In the course of the trial, on 21 December 2015, the third applicant was released on bail.

10.  In the course of the proceedings, on 16 December 2016, the fourth applicant was released on bail.

11.  In the course of the proceedings, on 17 June 2014 the trial court convicted the fifth applicant and sentenced him to ten years’ imprisonment. On 4 July 2016 that sentence was quashed after an appeal on points of law and the case was remitted for retrial. In the course of the retrial, on 9 June 2017 the applicant was placed under all-night house arrest.

12.  In the course of the trial, on 26 June 2017, the sixth applicant was placed under house arrest.

13.  According to the parties’ submissions, as of April 2019 the seventh applicant is still in pre-trial detention pending examination of his criminal case by the trial court.

THE LAW

I. JOINDER OF THE APPLICATIONS

14.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

15.  The applicants complained under Article 5 § 3 of the Convention that their detention on remand had been unjustified and unreasonable.

The relevant provision of 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 ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial...”

A.     Admissibility

16.  As regards the seventh applicant (application no. 1838/18), the Government submitted that during the time when the criminal proceedings against that applicant had been at the pre-trial stage - that is to say between 2 September 2014 and 27 February 2015 - the decisions of the local court ordering the applicant’s arrest and further detention on remand had been subject to appeal. The applicant had not appealed against the respective court decisions; therefore, he had failed to exhaust the domestic remedies available to him.

17.  The applicant submitted that he had changed his defence lawyer during the above-mentioned period of time and therefore had not been able to appeal against the relevant court decisions authorising his arrest and further pre-trial detention.

18.  The Court notes that the appeal procedure, to which the Government have referred, should in principle be regarded as an ordinary and accessible domestic remedy for the purposes of Article 35 § 1 of the Convention, allowing both an applicant and his defence lawyer to lodge an appeal against a court decision ordering his pre-trial detention. It does not find any special circumstances in the present case that would absolve the applicant from having recourse to that remedy.

19.  In the light of the above facts, the seventh applicant’s complaint under Article 5 § 3 of the Convention in so as far as it concerns the period between 2 September 2014 and 27 February 2015 must be rejected for non-exhaustion of domestic remedies, in accordance with Article 35 §§ 1 and 4 of the Convention.

20.  The Court furthermore notes that the remainder of application no. 1838/18 as well as all the other applications under examination 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.

B.     Merits

21.  The applicants submitted that their pre-trial detention had not been based on sufficient grounds and had been unreasonable.

22.  The Government contested the applicants’ arguments, stating that their detention had been justified and reasonable.

23.  The applicable general principles are set out in Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 84-91 and 102, 5 July 2016).

24.  Information about the period and length of the applicants’ detention is indicated in the appended table.

25.  The Court observes that the seriousness of the charges against the applicants and the risk of their absconding or interfering with the respective investigations were mentioned in the initial orders for their detention (see paragraph 4 above). Those reasons remained the main grounds for keeping the applicants in detention until their conviction or release. The Court furthermore notes that the decisions on the applicants’ detention were couched in general terms and contained repetitive phrases. They did not suggest that the courts had made an appropriate assessment of the facts relevant to the question of whether such a preventive measure was necessary in the circumstances at each respective stage of proceedings.

26.  Moreover, with the passage of time, the applicants’ continued detention required further justification; however, the courts did not provide any further reasoning. It appears that the domestic courts did not attempt to demonstrate the existence of specific facts proving the actual existence of the cited risks that, the courts argued, outweighed respect for individual liberty. In fact, the burden of proof was wrongly shifted onto the applicants (compare Khayredinov v. Ukraine, no. 38717/04, §§ 40 and 41, 14 October 2010, and Makarenko v. Ukraine, no. 622/11, § 91, 30 January 2018).

27.  The Court particularly notes that the domestic courts repeatedly justified the applicants’ further detention by citing an absence of reasons to release them (see paragraph 6 above), whereas Article 5 § 3 of the Convention implies the opposite approach and requires the national authorities to provide grounds for the person’s continuing detention (see Komarova v. Ukraine, no. 13371/06, § 79, 16 May 2013).

28.  The Court has often found a violation of Article 5 § 3 of the Convention in cases against Ukraine on the basis that even in respect of lengthy periods of detention the domestic courts had referred to the same set of grounds (if there were any) throughout the period of the respective applicant’s detention (see, for example, Kharchenko v. Ukraine, no. 40107/02, §§ 80-81 and 99, 10 February 2011, and Ignatov v. Ukraine, no. 40583/15, §§ 41-42, 15 December 2016).

29.  Having regard to the above, the Court considers that by failing to address specific facts or consider other measures as an alternative to pre‑trial detention and by relying essentially and routinely on the seriousness of the charges, the authorities extended the applicants’ detention pending trial on grounds that cannot be regarded as “sufficient” and “relevant” to justify its duration.

30.  There have accordingly been violations of Article 5 § 3 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

31.  The applicants complained that the length of the criminal proceedings against them had been incompatible with the “reasonable time” requirement provided in Article 6 § 1 of the Convention, 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 ...”

A.     Admissibility

32.  The Court notes that these complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.

B.     Merits

33.  The Government submitted that the cases against the applicants had been complex. They furthermore stated that the court hearings had been scheduled with reasonable intervals and that delays in the proceedings, if any, could not be attributed to the State. The applicants disagreed.

34.  Information about the length of the criminal proceedings against the applicants is contained in the appended table.

35.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case in question and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II, and Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII).

36.  In the leading case of Merit v. Ukraine (no. 66561/01, 30 March 2004) the Court found a violation in respect of issues similar to those in the present case.

37.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings against the applicants was excessive and failed to meet the “reasonable time” requirement.

38.  There have accordingly been violations of Article 6 § 1 of the Convention.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

39.  The first, second and fifth applicants also complained under Article 5 § 4 of the Convention that their right to a review of the lawfulness of their detention had been breached.

40.  Having regard to the facts of the case, the submissions of the parties, and its findings under Article 5 § 3 and Article 6 § 1 of the Convention (see paragraphs 30 and 38 above), the Court considers that it has examined the main legal questions raised in the present applications, and that there is no need to give a separate ruling on the admissibility and merits of the other complaints mentioned above (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

41.  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

42.  The fifth applicant did not submit a claim for just satisfaction. The first applicant claimed 21,287.63 euros (EUR) in respect of pecuniary damage for the alleged loss of income. The remaining applicants did not claim pecuniary damage.

43.  The applicants, with exception of the fifth applicant, also claimed the amounts indicated in the appended table in respect of non-pecuniary damage.

44.  The Government considered those claims unsubstantiated and excessive.

45.  As regards the claim in respect of just satisfaction for pecuniary damage submitted by the first applicant, the Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, making its assessment on an equitable basis, it awards the applicants who have submitted claims the amounts indicated in the appended table, in respect of non‑pecuniary damage, plus any tax that may be chargeable.

B.     Costs and expenses

46.  The fourth, sixth and seventh applicants claimed EUR 11,250, EUR 20,000 and EUR 2,000, respectively, for the costs and expenses incurred before the Court. The fourth applicant furthermore claimed UAH 449.80 hryvnias (UAH - EUR 15) for the postal expenses. The remaining applicants did not claim costs and expenses.

47.  The Government contested those claims.

48.  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 have been actually and necessarily incurred and are reasonable as to quantum.

49.  Regard being had to the documents in its possession and the case’s low level of complexity, the Court awards the fourth and sixth applicants EUR 1,000 each in respect of costs and expenses.

50.  As regards the seventh applicant’s claims, the Court notes that they are not supported by any evidence and therefore rejects them.

C.     Default interest

51.  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,

1.      Decides to join the applications;

2.      Declares admissible the applicants’ complaints under Article 5 § 3 of the Convention concerning the lack of justification of their detention on remand during the periods of time indicated in the appended table and the complaints under Article 6 § 1 of the Convention concerning the unreasonable length of the proceedings against them, and the remainder of application no. 1838/18 inadmissible;

3.      Holds that there have been violations of Article 5 § 3 of the Convention in respect of all the applicants;

4.      Holds that there have been violations of Article 6 § 1 of the Convention in respect of all the applicants;

5.      Holds that it is not necessary to examine the admissibility and merits of the first, second and fifth applicants’ complaints under Article 5 § 4 of the Convention regarding the courts’ failure to carry out a proper examination of their applications for release;

6.      Holds

(a)   that the respondent State is to pay, 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)         the amounts indicated in the appended table in respect of each of the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)       EUR 1,000 (one thousand euros) to the fourth and sixth applicants each, plus any tax that may be chargeable, 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;

7.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 25 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Anne-Marie Dougin                                     Gabriele Kucsko-Stadlmayer
Acting Deputy Registrar                                                  President

List of cases:

No.	Application no. Case name Lodged on	Applicant Date of Birth Place of Residence Nationality Represented by	Nature of charges against the applicant	Name of court ordering the applicant’s arrest, date	Period of detention under consideration Article 5 § 3, length	Period of proceeding under consideration Article 6 § 1, total length, levels of jurisdiction	Amount of non-pecuniary damage claimed	Amount of non-pecuniary damage awarded
1	17955/13   Bevz v. Ukraine   01/03/2013	Sergiy Vasylyovych BEVZ 1983 Kyiv Ukrainian Represented by Dmytro Sergiyovych LOSHAKOV	Terrorist activity	Solomyanskyi District Court of Kyiv, 26 August 2011	25/08/2011-10/01/2014   2 year and 4 months	25/08/2011-pending   8 years and 9 months   Two instances	EUR 93,300	EUR 1,900
2	68671/13   Kurasov v. Ukraine   23/10/2013	Vasyl Fedorovych KURASOV 1975 Kyiv Ukrainian Represented by Artem Viktorovych FEDOSIN	Extortion	Golosiyivskyi District Court of Kyiv, 18 May 2013	17/05/2013-20/08/2013 29/08/2013-11/11/2014   1 year and 5 months	17/05/2013-pending   7 years   Two instances	EUR 30,000	EUR 1,200
3	24477/15   Stadnyk v. Ukraine   30/04/2015	Igor Mykhaylovych STADNYK 1984 Lviv Ukrainian Represented by Ruslana Ivanivna YUKHYMENKO	Extortion	Galytskyi District Court of Lviv, 27 December 2013	27/12/2013-21/12/2015   2 years	27/12/2013-22/03/2016   2 years and 3 months   One instance	EUR 25,000	EUR 1,600
4	43692/15   Davydenko v. Ukraine   19/08/2015	Yaroslav Mykolayovych DAVYDENKO 1987 Kropyvnytskyy Ukrainian Represented by Oleksandr Mykolayovych KUSHNIROV	Drug related crime	Leninskyi District Court of Kirovograd, 17 September 2014	15/09/2014-16/12/2016   2 years and 3 months	15/09/2014-pending   5 years 8 months   One instance	EUR 25,000	EUR 1,800
5	35638/17 Borodin v. Ukraine   24/11/2017	Dmytro Volodymyrovych BORODIN 1971 Uzhgorod Ukrainian Represented by Mykhaylo Ivanovych SUBOTA	Sex crime	Uzhgorod Local Court of Zakarpattya Region, 13/06/2012	10/08/2012-17/06/2014 04/07/2016-09/06/2017   2 years and 9 months	10/08/2012-pending   7 years 9 months   Three instances	No claims raised	0
6	84326/17   Zhalylo v. Ukraine   12/12/2017	Yuriy Vadymovych ZHALYLO 1983 Poltava Ukrainian Represented by Roman Oleksandrovych KABALSKYY	Drug related crime	Oktyabrskyi District Court of Poltava, 13 February 2013	11/02/2013-26/06/2017   4 years and 4 months	11/02/2013-pending   8 years 3 months   One instance	EUR 120,000	EUR 3,400
7	1838/18 Kunyk v. Ukraine   21/12/2017	Igor Anatoliyovych KUNYK 1971 Khrystynivka Ukrainian Represented by Andriy Anatoliyovych KRISTENKO	Murder	Oktyabrskyi District Court of Poltava, 2 September 2014	27/02/2015- pending   5 years	02/09/2014-pending   5 years 8 months   One instance	EUR 5,000	EUR 5,000