FIFTH SECTION
CASE OF AKYMENKO v. UKRAINE
(Application no. 32567/11)
JUDGMENT
STRASBOURG
4 July 2019
This judgment is final but it may be subject to editorial revision.
In the case of Akymenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Yonko Grozev, President,
Gabriele Kucsko-Stadlmayer,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 11 June 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 32567/11) 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 Roman Volodymyrovych Akymenko (“the applicant”), on 18 May 2011.
2. The applicant was represented by Mr P.M. Sobyna, a lawyer practising in Okhtyrka. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.
3. On 3 December 2015 notice of the applicant’s complaint concerning the lawfulness of his detention from 25 April to 25 July 2011 was given to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1977 and lives in Okhtyrka.
5. On 26 July 2010 the applicant was arrested on suspicion of tax evasion. His pre-trial detention was extended several times. In particular, on 18 February 2011 the Sumy Regional Court of Appeal extended it to nine months (until 25 April 2011).
6. On 22 April 2011 a judge of the Sumy Regional Court of Appeal ordered another such extension, this time to twelve months (that is to say until 25 July 2011). That ruling was not subject to appeal.
II. RELEVANT DOMESTIC LAW
7. Article 156 of the Code of Criminal Procedure 1960, as worded at the material time (it was repealed on 20 November 2012 with the entry into force of a new Code) limited initial pre-trial detention terms to two months, but provided for the possibility of an extension of a pre-trial detention term: (1) a total term of up to four months – by a judge of the court that originally remanded the person in question in custody as a preventive measure; (2) a total term of up to nine months – by a judge of an appellate court; and (3) a total term of up to eighteen months – by a judge of the Higher Specialised Court for Civil and Criminal Matters.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
8. The applicant complained that his detention from 25 April until 25 July 2011 had been unlawful under Article 5 § 1 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
9. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
10. The applicant submitted that his detention from 25 April until 25 July 2011 had been unlawful, in particular because it had been ordered by an appellate court, which had not been authorised to take such a decision under the relevant domestic legislation.
11. The Government contested that argument. In their view, the extension of the applicant’s detention to a total length of up to twelve months by the judge of the appellate court had not contravened the domestic-law provisions. Extending the detention to a total of eighteen months would have had to have been authorised by a judge of the Higher Specialised Court for Civil and Criminal Matters.
12. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and enshrine the obligation to conform to the substantive and procedural rules thereof. Although it is in the first place for the national authorities (notably the courts) to interpret and apply domestic law, under Article 5 § 1 a failure to comply with domestic law entails a breach of the Convention, and the Court can and should review whether such law has been complied with (see, among many other references, Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004‑II). For an assessment of compliance with Article 5 § 1 of the Convention a basic distinction has to be made between ex facie invalid detention orders – for example, an order given by a court in excess of jurisdiction, or where the interested party did not have proper notice of the hearing – and detention orders which are prima facie valid and effective unless and until they have been overturned by a higher court. A detention order must be considered as ex facie invalid if the flaw in the order amounted to a “gross and obvious irregularity” in the exceptional sense indicated by the Court’s case-law (see Mooren v. Germany [GC], no. 11364/03, § 75, 9 July 2009, with further references).
13. Turning to the circumstances of the present case, the Court cannot accept the Government’s argument (see paragraph 11 above). It furthermore observes that the relevant procedural legislation (see paragraph 7 above) clearly empowered a judge of an appellate court to extend a suspect’s pre‑trial detention for a total detention term of up to nine months. It did not allow a judge of that court to order any further detention going beyond this term, delegating that power to the judge of the Higher Specialised Court for Civil and Criminal Matters.
14. It follows that the applicant’s detention between 25 April and 25 July 2011 was not “in accordance with a procedure prescribed by law”. Given the importance of the right to liberty and security, as enshrined in Article 5 § 1 of the Convention, the Court considers that the flaw at issue amounted to a “gross and obvious irregularity”. There has accordingly been a violation of that provision.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
15. 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.”
16. The applicant claimed 13,000 euros (EUR) in respect of non‑pecuniary damage. The Government considered that claim to be unsubstantiated and excessive.
17. Making its assessment on an equitable basis, the Court awards the applicant EUR 4,500 in respect of non-pecuniary damage.
18. The applicant did not request any sum in respect of costs and expenses. Therefore, the Court is not called upon to make an award under this head.
19. 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. Declares the application admissible;
2. Holds that there has been a violation of Article 5 § 1 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 4,500 (four thousand five hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non‑pecuniary damage;
(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;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 4 July 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško Yonko Grozev
Deputy RegistrarPresident
Full & Egal Universal Law Academy