CASE OF KUROCHENKO AND ZOLOTUKHIN v. UKRAINE

FIFTH SECTION

CASE OF KUROCHENKO AND ZOLOTUKHIN v. UKRAINE

(Applications nos. 20936/16 and 53257/16)

JUDGMENT
 

STRASBOURG

11 February 2021

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

In the case of Kurochenko and Zolotukhin v. Ukraine,

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

Arnfinn Bårdsen, President,
Ganna Yudkivska,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the applications (nos. 20936/16 and 53257/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Mr Volodymyr Volodymyrovych Kurochenko and Mr Vladyslav Viktorovych Zolotukhin (“the applicants”), on 7 April 2016 and 9 August 2016 respectively;

the decision to give notice to the Ukrainian Government (“the Government”) of the first applicant’s complaints under Article 5 §§ 1 and 4, Article 6 § 1 and Article 13 of the Convention and Article 2 of Protocol No. 7, and to declare inadmissible the remainder of the first application and give notice to the Government of the second application;

the parties’ observations;

Having deliberated in private on 21 January 2021,

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

INTRODUCTION

1.  Criminal proceedings are pending against the applicants in respect of offences committed in the part of the Luhansk Region which the Ukrainian Government no longer control. They cannot be completed because the authorities are unable to access the case files concerning those proceedings. The applicants complained that the authorities were not taking sufficient measures to advance the examination of their cases under the circumstances or regulate their status in that connection in a clear manner. They invoked Article 6 § 1 and Article 13 of the Convention and Article 2 of Protocol No. 7 to the Convention. The first applicant also complained, under Article 5 §§ 1 and 4 of the Convention, that his detention in that situation had been unlawful, and that he had had no effective procedure for a review of its lawfulness. The second applicant also complained, under Article 2 of Protocol No. 4, that a restriction had been imposed on his freedom of movement in the context of the criminal proceedings in question.

THE FACTS

2.  The first applicant was born in 1982 and lives in Yuzhne in the Odessa Region. He was represented before the Court by Mr M. Tarakhkalo, Ms O. Protsenko, Ms O. Chilutyan, Ms A. Saliuk, Ms A. Martynovska and Mr O. Levytskyi, lawyers practising in Kyiv.

3.  The second applicant was born in 1972 and lives in Sofiyivska Borshchagivka in the Kyiv Region. He was also represented by Mr Tarakhkalo, Ms  Protsenko, Ms Chilutyan and Ms  Saliuk, as well as Ms V. Lebid, a lawyer practising in Kyiv.

4.  The Government were represented by their Agent, Mr I. Lishchyna.

5.  The facts of the case, as submitted by the parties, may be summarised as follows.Proceedings prior to events of 2014The first applicant’s case

6.  On 19 September 2010 the applicant was arrested on suspicion of having committed a murder in Perevalsk, in the Luhansk Region. On 22 September 2010 the Perevalsk Court remanded the applicant in custody as a preventive measure to ensure his proper conduct in the proceedings.

7.  On 27 September 2013 the Alchevsk Court sentenced the applicant to fourteen years and six months’ imprisonment for murder, theft and carjacking. He had been convicted of stabbing a taxi driver at night in the absence of eyewitnesses.

The court’s conclusions were based on a detailed analysis of numerous pieces of witness and forensic evidence, mobile phone data, a comparison between the applicant’s initial videotaped confessions and his subsequent denials, and other evidence. Based on the assessment of the various pieces of evidence, the court concluded that the applicant’s initial confession, made in the presence of a lawyer and recorded on videotape, was more credible and consistent with other evidence – including various forensic data on how the injuries had been inflicted – than his subsequent denials of guilt.

The court ordered that the term of imprisonment should be counted from the time of the applicant’s arrest, and that he should remain in custody pending the examination of the case on appeal.

8.  On 11 October 2013 the applicant appealed to the Luhansk Regional Court of Appeal (“the Court of Appeal”), which was located in Luhansk at that time. In that appeal, the applicant challenged in detail the trial court’s assessment of the evidence, arguing that the evidence showed his innocence.The second applicant’s case

9.  On 15 July 2013 the police instituted criminal proceedings against the second applicant in relation to an offence of unlawful coal mining in the Antratsyt District of the Luhansk Region. Pursuant to domestic law, information about those proceedings, including the applicant’s name and the charges against him, was entered into the electronic national Register of Pre-Trial Investigations (see paragraph 60 below for the rules of domestic law on what information the register must contain).

10.  On 16 July 2013 the investigating judge of the Luhansk Leninsky District Court set bail at the equivalent of 2,125 euros (EUR) in Ukrainian hryvnias (UAH) and imposed on the second applicant an obligation not to leave his registered place of residence (which was in Antratsyt at the time) without permission. The latter obligation was imposed for a period lasting until 16 October 2013.

11.  On 25 January 2014 the bill of indictment in respect of the second applicant was submitted to the Antratsyt Court.Loss of files in 2014, reassignment of jurisdiction and relocation of the courts

12.  As a result of events in spring and summer 2014 which are described in Khlebik v. Ukraine (no. 2945/16, §§ 9-12, 25 July 2017) and Tsezar and Others v. Ukraine (nos. 73590/14 and 6 others, §§ 6-12, 13 February 2018), the Government ceased to control the areas where the alleged offences had been committed and where the trial courts and the Court of Appeal were located.

13.  The case files in the applicants’ criminal cases remained in that territory.

14.  At the time those events were unfolding the first applicant was detained in Starobilsk Prison, located in a part of the region that remains under the control of the Ukrainian Government. He remained in that prison until his release (see paragraph 33 below).

15.  In the course of those events or thereafter the second applicant moved to the Kyiv Region. He has the status of an internally displaced person.

16.  On 20 August 2014 the general assembly of judges of the Court of Appeal decided to suspend the work of the court, owing to the armed conflict in the region.

17.  In September 2014, pursuant to Law No. 1632-VII (see paragraph 63 below), the jurisdiction of the Alchevsk Court (the trial court in the first applicant’s case) was reassigned to the Lysychansk Court, and that of the Antratsyt Court (the trial court in the second applicant’s case) was reassigned to the Starobilsk Court.

18.  In February 2015 the Court of Appeal resumed its operations in Sieverodonetsk, in the part of the Luhansk Region which remains under the control of the Ukrainian Government. The regional prosecutor’s office was likewise relocated to Sieverodonetsk.Subsequent proceedingsThe first applicantCriminal proceedings against the applicant and proceedings concerning his detention

19.  On 11 March 2015 the registry of the Lysychansk Court (the court replacing the trial court, see paragraph 17 above) refused to register an application by the first applicant to change the preventive measure in respect of him to one which was non-custodial (see paragraphs 55 and 56 below for the relevant provisions of domestic law). The registry informed that applicant that, since it had no case file in his criminal case, it could not accept an application lodged in connection with it.

20.  In April 2015 the Luhansk Regional Court of Appeal informed the applicant that it was open to him to lodge a habeas corpus application under the 2012 Code of Criminal Procedure with the Starobilsk Court, the court with territorial jurisdiction over his place of detention (see paragraph 59 for the relevant provision of domestic law).

21.  On 7 April 2015 the applicant lodged such a habeas corpus application with the Starobilsk Court.

22.  On 4 November 2015 the Starobilsk Court informed the applicant that his habeas corpus application was pending and that, in order to examine it effectively, it had requested information from the State Judicial Administration (the body responsible for the organisation of the technical and administrative aspects of courts’ work), the Anti-Terrorism Centre of the Security Service of Ukraine (the body responsible for the coordination of Ukraine’s military action in the region at the time) and the Mission of the International Committee of the Red Cross (ICRC) concerning possible means of transferring the case from the territory not under the Government’s control. The applicant’s application would be examined once responses were received.

23.  On 23 December 2015 the Starobilsk Court, having examined the applicant’s habeas corpus application, refused to release him, finding that he was being detained lawfully on the basis of both his conviction and the preventive measure imposed by the Perevalsk Court on 22 September 2010, which was still in effect while his appeal was pending (see paragraphs 6 and 7 above). The Court of Appeal had competence to change the preventive measure imposed on the applicant.

24.  On 3 February 2016 the applicant lodged a new appeal against his conviction, arguing in general terms that there was no admissible evidence of his guilt. On 19 February 2016 the applicant asked for an extension of the time-limit to lodge that appeal. The Court of Appeal instructed the new trial court to send it the case file.

25.  On 22 March 2016 the Starobilsk Court rejected another habeas corpus application by the applicant, essentially for the same reasons as those given in its decision of 23 December 2015 (see paragraph 23 above) on his application for release.

26.  On 1 June 2016 the registry of the Lysychansk Court returned the applicant’s application to change the preventive measure in respect of him from detention to a non-custodial measure. The registry indicated that the Lysychansk Court was not competent to examine the matter, and that all questions should be addressed to the Court of Appeal.

27.  On 25 July 2016 the applicant lodged another habeas corpus application with the Starobilsk Court.

28.  On 8 or 10 August 2016, in preparation for the examination of the applicant’s habeas corpus application, the Starobilsk Court sent letters to the Lysychansk Court, the Court of Appeal, the regional prosecutor’s office and the Anti-Terrorism Centre, requesting information concerning any possible progress in the applicant’s case, the possible location of the case file and any efforts to ensure the transfer of the case file.

29.  On 15 August 2016 the Court of Appeal informed the Starobilsk Court that it had no file and that the applicant’s case had never been registered in its electronic case management system.

30.  On 22 August 2016 the Lysychansk Court sent the restored case file (see paragraph 34 below) to the Court of Appeal so that the applicant’s 2016 appeal could be examined.

31.  On 31 August 2016 the Court of Appeal refused to initiate appeal proceedings based on the restored file, considering the material available in the restored file insufficient.

32.  On 27 September 2016 the Starobilsk Court asked the Court of Appeal to inform it of any progress in the examination of the applicant’s appeals, indicating that the information was needed for the speedy examination of the applicant’s application for release in the habeas corpus procedure.

33.  On 12 October 2016 the Starobilsk Court held a habeas corpus hearing and, at the close of it, ordered the applicant’s release. The court noted that the applicant was being detained lawfully on the basis of both his conviction and the preventive measure, which was to be maintained pending an appeal. At the same time the court noted that the Court of Appeal was unable to examine the applicant’s appeal, owing to the material available being insufficient (see paragraph 31 above), and concluded that it was unclear when the proceedings against the applicant could continue.

Owing to this uncertainty, the applicant’s continuing detention would be contrary to Article 5 of the Convention and the constitutional provision guaranteeing the right to liberty (see paragraph 51 below), and he had to be released. This was because under the Code of Criminal Procedure, the aim of preventive measures such as detention on remand was to ensure the effectiveness of criminal proceedings, and therefore detention effectively in the absence of proceedings was in breach of the requirement of legality of detention (see paragraphs 54 and 57 below). The court relied on provisions of the Code of Criminal Procedure proclaiming the primacy of international treaties over the provisions of the Code, the binding nature of the Court’s case-law and the principle of legality (see paragraphs 53 and 54 below).Restoration proceedings

34.  On 18 March 2016 the Lysychansk Court allowed the applicant’s application and restored the case file in his criminal case. The restored file contained only copies of the Alchevsk Court’s judgment and the applicant’s appeal.

35.  On 21 July 2016 the Luhansk regional prosecutor’s office asked the Luhansk regional police to search for available material concerning the applicant’s case.

36.  On 4 August 2016, in response to the above request, the police informed the prosecutor’s office that it had identified the officer who had been in charge of the applicant’s case in 2011 and had preserved electronic copies of some documents from the file. The police forwarded the documents to the prosecutor’s office.

37.  On 17 August 2017 the regional prosecutor’s office lodged an application for the case file in the applicant’s case to be restored on the basis of documents provided by the police. In addition to the material already in the file (the trial court’s judgment and the appeal), the prosecutor’s office provided decisions concerning the institution, merging and separation of the criminal proceedings, an expert opinion on a video-recording, an expert report on a polygraph examination and a cover letter to the appeal.

38.  On 13 September 2017 the court held that the application for restoration did not comply with formal legal requirements, namely it had failed to identify why restoration was sought (see paragraph 60 below for the relevant domestic legislative provision), and the court invited the prosecutor’s office to rectify that within ten days.

39.  On 29 September 2017, noting that the application had not been rectified and the purpose of restoration had still not been identified, the court returned the application to the prosecutor’s office without examining it on the merits.The second applicant

40.  On 22 August 2015 the regional prosecutor’s office informed the second applicant that Antratsyt and Luhansk were no longer under the Government’s control. The regional prosecutor’s office had no files related to the applicant’s case and had no knowledge of where the case file was.

41.  The applicant obtained similar letters from the police and the regional Court of Appeal.

42.  The applicant filed an application with the Starobilk Court (the court which replaced the trial court, see paragraph 17 above), requesting that the court restore the case file and discontinue the proceedings. He provided the above-mentioned letters and an extract from the Register of Pre-Trial Investigations.

43.  On 15 January 2016 the Starobilsk Court rejected his application on the grounds that there were not enough documents to restore the file and there was no judgment in the case, and the Code of Criminal Procedure provided for the restoration procedure only in cases which had ended in a judgment (see the relevant provisions of domestic law in paragraph 60 below). The Starobilsk Court’s decision stated that an appeal could be lodged against it.

44.  On 4 February 2016 the Court of Appeal rejected an appeal by the applicant against the decision of 15 January 2016, considering that no appeal lay against the decision.

45.  The applicant appealed, arguing that his application was a sui generis application owing to the exceptional situation in the Luhansk Region and could not be examined strictly in accordance with the rules concerning restoration of a file. There was no clear procedure in domestic law for dealing with this type of situation, and this was in breach of his right to a fair trial within a reasonable time under Article 6 of the Convention.

46.  On 19 April 2016 the High Specialised Court for Civil and Criminal Matters rejected the appeal on the same grounds as those relied on by the Court of Appeal.

47.  On 23 October 2017 the applicant lodged an application seeking: a declaration that the case against him had been lost, the return of the bail money which had been paid, and an order for information about him to be removed from the Register of Pre-Trial Investigations and the Ministry of the Interior’s criminal records database.

48.  On 5 January 2018 the Starobilsk Court returned the application without examining it, considering that domestic law did not provide for such proceedings.

49.  On 22 May 2018 the Starobilsk Court ordered that the second applicant was no longer subject to bail, and it ordered that the bail money which had been paid should be returned to him.Criminal records

50.  According to the applicants’ most recent submissions (in February 2019), the criminal proceedings against them were still pending. The criminal records database maintained by the Ministry of the Interior lists the first and second applicants as being charged with murder and unlawful mining respectively. Extracts from the database contain a disclaimer to the effect that information in respect of records maintained by the Luhansk regional police was last updated on 4 September 2014.

RELEVANT LEGAL FRAMEWORK AND PRACTICEThe 1996 Constitution

51.  Article 29 of the Constitution guarantees to everyone the right to freedom and personal inviolability, and provides that no one can be arrested or detained other than pursuant to a reasoned court decision, and only on the grounds of and in accordance with a procedure established by law.Rules of criminal procedure

52.  On 19 November 2012 the new 2012 Code of Criminal Procedure entered into force, replacing the 1960 Code. However, the latter continued to apply under certain circumstances to proceedings started before the entry into force of the new Code.Principles of legality and rule of law in criminal procedure

53.  Article 9 of the 2012 Code guarantees the general principle of legality, meaning that all public authorities involved in criminal procedure must act in accordance with the law. Paragraph 4 of that Article provides that in the event of a conflict between a binding international treaty and a provision of the Code, a court must apply the treaty. Paragraph 5 provides that criminal procedure legislation is to be applied, taking into account the case-law of the European Court of Human Rights.

54.  Article 12 of the 2012 Code provides that arrest and detention can only be based on the grounds set out in the Code, and can only be ordered in accordance with the procedures set out in the Code; it also provides that any person detained in excess of the time-limits set out in the Code must immediately be released.Preventive measures, including detention on remand

55.  The 1960 and 2012 Codes of Criminal Procedure provide for a range of “preventive measures” intended to ensure a defendant’s proper conduct in proceedings. Preventive measures include detention on remand, personal undertakings not to abscond and bail. The relevant provisions of the 1960 Code can be found in Molodorych v. Ukraine (no. 2161/02, §§ 56-58, 28 October 2010), and the relevant provisions of the 2012 Code appear in Korban v. Ukraine (no. 26744/16, § 96, 4 July 2019).

56.  A person detained on remand can be released if the preventive measure of detention on remand is replaced by a non-custodial measure, such as a personal undertaking or bail. Under the 1960 Code, an application to change or revoke the preventive measure was the only way in which release from detention on remand could be sought. In addition, the 2012 Code instituted the habeas corpus procedure (see paragraph 59 below).

57.  Article 131 of the 2012 Code provides that preventive measures such as detention on remand aim to ensure the effectiveness of criminal proceedings (“заходи забезпечення кримінального провадження застосовуються з метою досягнення дієвості цього провадження”).Post-conviction detention

58.  Both the 1960 and 2012 Codes require the convicting court to decide, in particular, on the preventive measure to be applied to a convicted person until the judgment becomes final. A person sentenced to imprisonment is considered to be serving his or her sentence from the date on which the judgment becomes final, namely the date on which it is upheld on appeal. However, if the convicted person is detained on remand, that period of detention counts towards his or her sentence (see Khlebik v. Ukraine, no. 2945/16, §§ 38 and 39, 25 July 2017).Habeas corpus procedure

59.  Article 206 of the 2012 Code provides for a habeas corpus procedure, whereby the court with territorial jurisdiction over a place where a person is detained must direct the detaining authority to bring to court any person in respect of whom the court has information indicating that he or she may have been detained without sufficient legal grounds. The judge has the power to release any such person, should he or she find that the legal grounds for detention are lacking, defective or insufficient.Restoration of files

60.  The relevant procedure is set out in Articles 524 to 531 of the 2012 Code of Criminal Procedure. In accordance with those provisions, any party to proceedings may apply to the court which delivered the relevant judgment in order to restore a lost case file. Article 527 of the Code requires persons applying for restoration: to explain why restoration is sought; to provide detailed information as to the specific material that was in the lost file, the names and addresses of parties to the proceedings, the possible location of the lost material and the circumstances in which it was lost; and to furnish the court with all available documentation.

Article 529 provides that the court, having received the application, must ask the prosecutor’s office for information and documentation which may help in restoring the case file. Under Article 530, the court can examine as witnesses officials and other persons who took part in procedural actions and, where necessary, judges who examined the case. On the basis of the information and documentation collected in this way, the court may deem the file to be restored in its entirety or in part, or, if it finds the available information insufficient, it may discontinue the proceedings and explain to the parties that they have a right to reapply for restoration if the necessary documentation becomes available (Article 531).Register of Pre-Trial Investigations

61.  At the material time the relevant rules concerning the Register of Pre-Trial Investigations were contained in the Regulations on Maintaining the Register, enacted by Order no. 69 of the General Prosecutor’s Office of 17 August 2012. The following information had to be included in the register:

(i)  the date and time of the crime report;

(ii)  the details of the victim or other person reporting the crime;

(iii)  a short summary of the crime report or other information on the basis of which the investigation was initiated;

(iv)  a criminal-law classification;

(v)  details on any transfer of the investigation between various authorities, any suspension [or] renewal of the investigation, [and any] splitting [or] merging of the proceedings;

(vi)  details of the official who entered the data into the register;

(vii)  information on any arrests, [or] the imposition, change [or] revocation of any preventive measures (detention on remand, bail, a personal undertaking, and so on);

(viii)  details of any formal notification of suspicion – the person notified, [and] the criminal classification of the suspicion;

(ix)  information on any suspects placed on the list of wanted persons;

(x)  the extension of the time-limits of [either] the investigation [or] detention on remand;

(xi)  information on any damage caused by the crime, any claims lodged in that regard, [or] the attachment of assets in connection with the proceedings;

(xii)  the discontinuation of proceedings.Law No. 1632-VII on the Administration of Justice and Criminal Proceedings in Connection with the Anti‑Terrorist Operation

62.  The Law was enacted on 12 August 2014 and came into force on 20 August 2014. At the relevant time the military action of the Ukrainian Government forces in the Donetsk and Luhansk Regions was designated as an anti-terrorist operation.

63.  At the relevant time section 1(1) of the Law authorised the President of the High Specialised Court for Civil and Criminal Matters to designate the courts with jurisdiction over сases which would normally have been examined by courts located in the area where the anti-terrorist operation was being conducted that were prevented from operating at that time.Other relevant material

64.  Other relevant Ukrainian and international material can be found in Khlebik v. Ukraine (no. 2945/16, §§ 35-55, 25 July 2017).

THE LAWJOINDER OF THE APPLICATIONS

65.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT

66.  The first applicant complained that his detention following the events of 2014 – events that had resulted in his case file being lost – 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:

(a)  the lawful detention of a person after conviction by a competent court;

...”The parties’ submissions

67.  The Government submitted that the first applicant’s detention had been covered by Article 5 § 1 (a) and, as such, had been lawful, since the applicant had been sentenced to fourteen years’ imprisonment. The fact that, under domestic law, such detention was classified as detention on remand was irrelevant. Moreover, the applicant had benefitted from that classification under domestic law, since this had allowed him to be released after spending only a quarter of his sentence in custody.

68.  The first applicant, citing Creangă v. Romania ([GC], no. 29226/03, § 120, 23 February 2012), submitted that domestic law did not “define clearly the conditions for detention” and had left him in a state of uncertainty as to the duration of his detention pending the appellate proceedings. The applicant also referred to the domestic court’s decision to release him (see paragraph 33 above). He considered that it had implied that he had been detained without a sufficient legal basis.The Court’s assessment

69.  The Court sees no reason to reach a conclusion in the present case which is different from that reached in the case of Khlebik:

“87. The Court, like the parties, finds that the relevant period of the applicant’s detention falls within the ambit of Article 5 § 1 (a) (see Yaroshovets and Others v. Ukraine, nos. 74820/10, 71/11, 76/11, 83/11, and 332/11, §§ 134-35, 3 December 2015). As the applicant was detained following conviction by a competent court ... it is clear that his detention was lawful in terms of domestic law and that its length did not exceed his sentence (contrast ibid., § 150). There is no other indication that his detention was not in conformity with the purposes of the deprivation of liberty permitted by Article 5 § 1 (a) (see, mutatis mutandis, V. v. the United Kingdom [GC], no. 24888/94, § 104, ECHR 1999-IX).

88. Accordingly, and also in light of its findings under Article 6 of the Convention, the Court considers that the applicant has failed to make out an arguable case that his detention did not comply with Article 5 § 1 of the Convention.

89. The Court observes that different considerations could conceivably apply had the applicant been able to show that as a result of the delay on the part of the domestic courts in the examination of his appeal, he had spent or would assuredly spend more time in detention than he would under normal circumstances. That would have been the case, for instance, if his detention had exceeded the term of imprisonment to which he had been sentenced (compare Yaroshovets, cited above, §§ 149 and 150) or if the failure to examine his appeal had deprived him of access to early release on parole. However, no such considerations apply in this case.”

70.  In the present case, none of the scenarios identified in paragraph 89 of Court’s judgment in Khlebik existed. In fact, the first applicant spent substantially less time in detention than his sentence provided for. The fact that the domestic court was willing to release him before his sentence had been served cannot be held against the respondent State. This is because the decision was based on the applicant’s detention being classified as pre-trial detention under domestic law. However, as stated above, under the Convention, his detention fell within the ambit of Article 5 § 1 (a). The domestic classification was, under the circumstances, more favourable to the applicant and resulted in his release.

71.  It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT

72.  The first applicant complained that he had had no access to a procedure by which the lawfulness of his detention could be decided and his release could be ordered, contrary Article 5 § 4 of the Convention, 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.”The parties’ submissionsThe Government

73.  The Government, citing Stoichkov v. Bulgaria (no. 9808/02, § 64, 24 March 2005), submitted that Article 5 § 4 would, in principle, be redundant with respect to detention under Article 5 § 1 (a), since judicial control of deprivation of liberty was already incorporated into an original conviction and sentence. Article 5 § 4 was therefore inapplicable. However, in the event that the Court were to find it applicable, the applicant’s applications for release had been examined and initially dismissed as unfounded. His habeas corpus application had eventually been successful and he had been released.The first applicant

74.  The first applicant, citing Stollenwerk v. Germany (no. 8844/12, § 36, 7 September 2017), submitted that Article 5 § 4 of the Convention was applicable because domestic law classified his detention as detention on remand.

75.  The applicant’s right to take proceedings by which the lawfulness of his detention could be decided speedily had been violated by the Lysychansk Court (the court replacing the trial court) on several occasions. The Lysychansk Court had repeatedly refused to examine the question of his detention (see paragraph 19 above).

76.  The approach of the Starobilsk Court had also been inconsistent. On 23 December 2015 and 22 March 2016 that court had rejected his applications for release, but then on 12 October 2016 it had released him, even though there had been no changes in the law or the circumstances of the case.The Court’s assessment

77.  In the present case, Article 5 § 4 of the Convention is applicable because domestic law provides that a person is detained on remand until his or her conviction becomes final, including during appeal proceedings (see paragraph 58 above and Stollenwerk, cited above, § 36). However, the complaint is manifestly ill-founded for the following reasons.

78.  The Court reiterates that where a person is deprived of his liberty pursuant to a conviction by a competent court but the grounds justifying the person’s deprivation of liberty are susceptible to change with the passage of time, the possibility of recourse to a body satisfying the requirements of Article 5 § 4 of the Convention is required (see Kafkaris v. Cyprus (dec.), no. 9644/09, § 58, 21 June 2011).

79.  As regards the applicant’s complaint that the court replacing the trial court refused to examine his application to change the preventive measure from detention to a non-custodial measure, the Court observes that it was the habeas corpus procedure rather the procedure to change the preventive measure that was the appropriate avenue for the examination of his applications for release. The Court of Appeal advised him of that fact and the applicant lodged such an application as early as April 2015 (see paragraph 20 above), and indeed it was through that procedure that he eventually obtained his release.

80.  The applicant did not complain that that procedure had not functioned “speedily”; instead, his complaint was that the procedure had resulted in different outcomes – in the period between 23 December 2015 and 22 March 2016 his applications for release had been rejected, and on 12 October 2016 the application had been granted and he had been released (see paragraphs 23, 25 and 33 above).

81.  That difference in outcome, however, appears to have been closely related to the very reasons for the applicant’s release, namely the lack of progress in the criminal proceedings against him (see paragraph 33 above). In order to come to such a conclusion, the domestic court had to observe the evolution of the situation. It was only after a certain period of time that the domestic court could conclude with any degree of certainty that there was no prospect of progress in the proceedings against the applicant. Therefore, the evolution of its position on this point, of which the applicant complained, does not indicate that the guarantees of Article 5 § 4 were breached.

82.  It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

83.  The applicants complained of the prolonged failure to examine their cases and the uncertainty concerning the progress in the cases and their status in that connection. They invoked Article 6 § 1 of the Convention, which reads:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”Admissibility

84.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.MeritsThe parties’ submissions

(a)   The applicants

(i)      The proposed test

85.  The applicants submitted that their cases had to be distinguished from Khlebik v. Ukraine (no. 2945/16, 25 July 2017), since in their cases the authorities had not done everything in their power to address their situation. According to the applicants, the relevant question to be addressed in cases of this type should be not only whether the authorities had done everything possible to recover an applicant’s case file, but also whether they had made necessary efforts to mitigate the negative consequences for the applicant resulting from the loss of access to the file.

(ii)    International cooperation

86.  Citing Ilaşcu and Others v. Moldova and Russia ([GC], ECHR 2004‑VII) in particular, the applicants submitted that the authorities of the respondent State, contrary to their obligations, had failed to use the mechanisms of international cooperation available to them in order to recover the applicants’ case files or material from those files. In particular, the Ukrainian authorities:

(i)  could have requested mutual legal assistance from the Russian authorities (notably evidence concerning the case) under the 1993 Commonwealth of Independent States Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (the Minsk Convention);

(ii)  could have cooperated directly with de facto authorities in the areas not under the Government’s control (the applicants cited, for example, Foka v. Turkey, no. 28940/95, 24 June 2008, and other judgments of the Court concerning Northern Cyprus);

(iii)  could have raised the matter through diplomatic channels and forums such as the Parliamentary Assembly of the Council of Europe, the Organization for Security and Co-operation in Europe, the United Nations and the channels of communication created within the framework of the Tripartite Contact Group composed of representatives of Ukraine, Russia and the Organization for Security and Co-operation in Europe under the Minsk Agreements of September 2014 and February 2015 (see Khlebik, cited above, § 12).

(iii)   Legislative work, statistics, case-law of the Supreme Court and other arguments

87.  The applicants also complained that no adequate legislative proposal had been put forward to regulate the situation of defendants in predicaments like theirs, that the Supreme Court had not issued the lower courts with clear guidance on how to deal with such situations, and that the authorities did not keep adequate statistics on the number of individuals affected by the same problem.

88.  The applicants’ representatives also pointed out the difficulties they had faced in obtaining the reopening of the relevant domestic proceedings following the Court’s judgment in Zakshevskiy v. Ukraine (no. 7193/04, 17 March 2016). They submitted that their representation of Mr Zakshevskiy in that matter had been rendered difficult by the fact that the domestic case file, like the files in the applicants’ cases, had been rendered inaccessible to the domestic authorities following the events of 2014.

(iv)  The first applicant’s case

89.  The first applicant submitted that although in Khlebik (cited above, § 75) the Court had “found no reason to doubt the domestic court’s conclusion, reached in the case-file restoration proceedings, that no relevant material concerning the case was available to them”, in his case, the authorities’ initial finding that it was not possible to restore the file since no material was available had been proven wrong. When the authorities had really started looking for the material in 2016, they had found some, albeit a limited amount (see paragraph 36 above).

90.  Although the case file had been partially restored on 18 March 2016, the Court of Appeal had not examined the case until 31 August 2016 (see paragraphs 31 and 34 above). There was no explanation for that delay.

91.  Because of the lack of diligence on the part of the prosecutor’s office, the elements of the case file discovered in August 2016 (see paragraph 36 above) had still not been restored by February 2019, when the applicant had submitted his observations in reply to those of the Government. This was because the prosecutor’s office had delayed in lodging the application for restoration for more than a year, and had then failed to rectify the defects in the application which had been identified by the domestic court (see paragraphs 37 and 39 above).

92.  The applicant had been in a state of uncertainty as regards the case against him, because the respondent State had not regulated the question of how the authorities had to act if restoration of a case file was impossible. It had been unclear what procedural status the defendants in such cases should have. The law had not provided an answer to the question of whether a court had authority to discontinue the proceedings in such cases, and what the implications of such actions were for third parties.

93.  It had been up to the prosecution to prove the applicant’s guilt, at the appeal hearings as much as at the trial. The absence of the relevant file had meant that the prosecution simply could not prove its case against him, and his appeal should have been allowed by default.

94.  In any event, the State had had an obligation to at least regulate the applicant’s legal status clearly. It had had the power to discontinue the proceedings, conduct a new investigation, enforce the sentence without appeal proceedings, reconsider the case on the basis of the elements which had still been available or implement other measures to resolve his case. In the absence of such a final resolution, the applicant’s right to a fair hearing within a reasonable time had been violated.

(v)    The second applicant’s case

95.  The second applicant stressed that the procedure to restore the file in his case had been unavailable to him, since under domestic law, that procedure was only applicable in cases where there had been a judgment, and there had been no judgment in his case (see paragraph 60 above). Had the law allowed for restoration, there would have been a real possibility of the file being restored.

96.  The names of the applicant’s alleged accomplices had been in the bill of indictment, and it would have been possible to question them to see if they had copies of documents from the file. Both the expert institution that had conducted the analysis of the coal allegedly mined by the applicant and the mining company on whose territory the applicant had allegedly conducted his alleged illegal mining business had their registered offices in Government-controlled territory. It would therefore have been possible to involve them in additional investigative actions to try to restore the file.

97.  The domestic law had only allowed prosecutors to drop charges in the course of hearings before the trial court, therefore charges could not be dropped otherwise. However, no hearing could be held in the absence of a case file, and a prosecutor could not drop charges even where a prosecution had no prospect of success.

98.  It was not clear why the applicant should have continued to have the status of an accused person with a criminal record, given that the criminal proceedings against him had been “dead”. There had been no procedure in domestic law to discontinue such proceedings.

(b)   The Government

99.  The Government submitted that the delay in examining the applicant’s case had been solely due to the complicated situation in the region.

100.  The State Judicial Administration, the Anti-Terrorism Centre, the police, the prosecutor’s office and the courts had all confirmed that it was not possible to obtain the case file. The authorities had also appealed to the International Committee of the Red Cross for help in recovering the first applicant’s file.

101.  Referring to Khlebik (cited above), the Government submitted that, as in that case, there were objective reasons behind the length of the proceedings. The domestic legislative and executive authorities were implementing all possible measures in respect of the current situation to ensure the rights of citizens who found themselves in situations such as those of the applicants.The Court’s assessment

(a)   The Court’s approach

102.  In Khlebik (cited above, § 71, with further references), the Court considered that the relevant question to be answered in cases of this type was whether the respondent State had taken all the measures available to it to organise its judicial system in a way that would render the rights guaranteed by Article 6 effective in practice in the applicant’s situation, in the light of the long‑established principle that the Convention is intended to guarantee rights that are practical and effective, and not theoretical and illusory; the context in which a case has arisen should also be taken into account.

103.  In assessing the respondent State’s compliance with that obligation, a relevant consideration is whether the authorities have taken reasonable measures available to them to mitigate, to the extent possible, the negative consequences for the applicant resulting from the lack of access to the case file (see Khlebik, cited above, § 78, where, in assessing compliance with Article 6 of the Convention, the Court found it relevant that the domestic authorities had released the applicant from detention).

104.  The applicants urged the Court to distinguish their cases from Khlebik in relation to several aspects, but the Court does not find their arguments in that regard convincing.

105.  As regards the applicants’ arguments concerning the lack of relevant statistics and the Supreme Court’s guidance, and other similar arguments (see paragraphs 86 and 88 above), the applicants have not demonstrated any connection between those alleged failings and their specific cases and circumstances. As to their argument that the respondent State was required to trigger certain mechanisms of international cooperation to attempt to recover the case-file material (see paragraph 86 above), it appears that they never raised this before the domestic authorities.

106.  In any event, the Court does not consider it necessary to address those arguments in detail, in view of its conclusions below concerning the file restoration proceedings.

107.  In Khlebik (cited above, §§ 75 and 79), the Court stressed the key importance of the case-file restoration procedure in cases of this type. However, both applicants’ cases raise an issue in that regard.

(b)   The first applicant’s case

108.  The domestic authorities discovered some material from the case file on 4 August 2016 (see paragraph 36 above), but the prosecutor’s office did not lodge an application to restore the file until 17 August 2017, more than a year later. Even then, the prosecutor’s office lodged an application which did not comply with the requirements of domestic law, and despite the fact that that formal defect was pointed out by the domestic court on 13 September 2017, the prosecutor’s office never attempted to rectify it (see paragraphs 37 and 39 above).

109.  The Court is aware of the fact that the range of material available to the domestic authorities was rather limited (see paragraphs 37 above) and that it may be open to doubt as to whether that material would have been sufficient for the domestic appellate court to effectively examine the applicant’s appeal, focused as it was on a very detailed assessment of the wide range of evidence in the case (see paragraph 8 above).

110.  However, it is not for the Court to speculate on the conclusion which the domestic courts might have reached in the relevant restoration proceedings. It is sufficient for it to observe that, because of a lack of diligence on the part of the prosecution authorities, the domestic courts were prevented from examining the question of whether the material was sufficient.

111.  These considerations are sufficient for the Court to conclude that the authorities failed to take all steps available to them to advance the examination of the first applicant’s case, under the circumstances. In view of this conclusion, there is no need for a detailed examination of the applicant’s other arguments.

112.  There has accordingly been a violation of Article 6 § 1 of the Convention in respect of the first applicant.

(c)   The second applicant’s case

113.  The situation of the second applicant is unlike the situation of the applicant in Khlebik (cited above, § 25), as the domestic law does not provide for any procedure to seek the restoration of a case file in situations where no judgment has been delivered, as in the second applicant’s case (see paragraph 60 above).

114.  For this reason, the domestic courts never examined the substance of the applicant’s case and explored whether it would be possible to restore the file, even from the sources identified by the applicant before this Court (see paragraph 96 above). The Court also finds convincing the applicant’s argument that this prevented any possibility of the charges against him being dropped and the proceedings being discontinued (see paragraph 97 above).

115.  This, in turn, prevented the authorities from examining whether maintaining the pending criminal proceedings against the applicant, in the absence of any prospect of progress in those proceedings, continued to be in the public interest, and whether any such interest outweighed the prejudice which the pending proceedings caused him to suffer.

116.  The Court is mindful of the fact that ensuring respect for the applicant’s Convention rights required legislative or other equivalent changes in the domestic legal framework. However, the Court considers that the domestic authorities were required to conduct such an examination, given that the second applicant, unlike the first applicant and the applicant in Khlebik, had not been convicted by courts at any level and stood accused of a relatively less serious offence which did not appear to have direct implications for the rights of any third parties under Articles 2 and 3 of the Convention.

117.  There has accordingly been a violation of Article 6 § 1 of the Convention in respect of the second applicant.ALLEGED VIOLATIONS OF ARTICLE 13 OF THE CONVENTION AND ARTICLE 2 of ProTOCOL NO. 7 IN RESPECT OF THE FIRST APPLICANT

118.  The first applicant complained of the prolonged failure to examine his case on appeal, the uncertainty concerning the progress in his case and his status, and the lack of domestic remedies in that regard. He invoked Article 13 of the Convention and Article 2 of Protocol No. 7, which read:

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 2 of Protocol No. 7

“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.”

119.  The Court notes that this part of the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

120.  In view of the conclusion it has reached in respect of the first applicant’s complaint under Article 6 § 1 of the Convention, the Court considers that there is no need to examine separately his complaints under Article 13 of the Convention or Article 2 of Protocol No. 7 (see, for example, Kristiansen and Tyvik As v. Norway, no. 25498/08, § 40, 2 May 2013, and Khlebik, cited above, § 83).ALLEGED VIOLATION OF ARTICLE 2 of PROTOCOL No. 4 IN RESPECT OF THE SECOND APPLICANT

121.  The second applicant complained of the lengthy restriction on his freedom of movement. He relied on Article 2 of Protocol No. 4, which, in so far as relevant, reads as follows:

“1.  Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2.  Everyone shall be free to leave any country, including his own.

3.  No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

4.  The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”

122.  The Government contested that argument.

123.  Any restrictions on the applicant’s freedom of movement were discontinued on 16 October 2013 (see paragraph 10 above). Assuming that he had no domestic remedy to exhaust, he had to complain to the Court within six months of that date. However, his application was only lodged on 9 August 2016. This complaint is accordingly out of time, and should therefore be rejected as inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.         APPLICATION OF ARTICLE 41 OF THE CONVENTION

124.  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.”Damage

125.  In respect of non-pecuniary damage, the first applicant claimed 25,000 euros (EUR) and the second applicant claimed EUR 10,000.

126.  The Government contested those claims, considering them unjustified and excessive. They also submitted that there was no causal link between the alleged violations and the amount of damages claimed.

127.  The Court awards the first applicant EUR 3,000 and the second applicant EUR 2,400 in respect of non-pecuniary damage, plus any tax that may be chargeable.Costs and expenses

128.  The first applicant also claimed EUR 5,250 for the costs and expenses incurred before the Court and the second applicant claimed EUR 3,000 in this regard; they asked for those amounts to be paid directly to Mr Tarakhkalo.

129.  The Government considered the claims unfounded and excessive.

130.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,500 to the first applicant and the sum of EUR 1,500 to the second applicant for the proceedings before the Court, plus any tax that may be chargeable to them, to be paid directly into the bank account of their representative, Mr M. Tarakhkalo.Default interest

131.  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,Decides to join the applications;Declares the complaints under Article 6 § 1 and Article 13 of the Convention and Article 2 of Protocol No. 7 admissible, and the remainder of the application inadmissible;Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the first applicant;Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the second applicant;Holds that there is no need to examine the first applicant’s complaints under Article 13 and Article 2 of Protocol No. 7 of the Convention;Holds

(a)  that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 3,000 (three thousand euros) to the first applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 2,400 (two thousand four hundred euros) to the second applicant, plus any tax that may be chargeable, in respect of non‑pecuniary damage;

(iii)  EUR 4,500 (four thousand five hundred euros) to the first applicant and EUR 1,500 (one thousand five hundred euros) to the second applicant, plus any tax that may be chargeable to them, in respect of costs and expenses, to be paid directly into the bank account of the applicants’ representative, Mr M. Tarakhkalo;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 11 February 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina KellerArnfinn Bårdsen
Deputy RegistrarPresident

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