CASE OF LABAZNIKOV v. UKRAINE

FIFTH SECTION

CASE OF LABAZNIKOV v. UKRAINE

(Application no. 7670/11)

JUDGMENT
 

STRASBOURG

25 March 2021

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

In the case of Labaznikov v. Ukraine,

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

Stéphanie Mourou-Vikström, President,
Ganna Yudkivska,
Lado Chanturia, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 7670/11) 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 Petro Petrovych Labaznikov (“the applicant”), on 25 January 2011;

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

the parties’ observations;

Having deliberated in private on 4 March 2021,

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

INTRODUCTION

1.  The present case concerns the alleged arbitrariness of the applicant’s pre-trial detention, the alleged absence of a meaningful review of the lawfulness of his detention, and the allegedly unreasonable duration of the criminal proceedings against him, in breach of Article 5 §§ 1 and 4 and Article 6 § 1 of the Convention.

THE FACTS

2.  The applicant was born in 1973 and lives in Cherkasy. The applicant, who had been granted legal aid, was represented by Mr M.O. Tarakhkalo, a lawyer practising in Kyiv.

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

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

5.  On 19 January 2004 a criminal investigation was instituted in respect of the applicant on suspicion of the ill-treatment of K. with a view to inducing her to collaborate with the police. The applicant was at the material time a police officer at the Sosnivskiy District Police Department of Cherkasy. On 28 January 2004 he was arrested in the context of the above-mentioned proceedings.

6.  In the course of the proceedings the applicant was convicted on the above-mentioned charges. Subsequently the case was reviewed a number of times by the appellate and cassation courts. As a result of those reviews, the case was remitted to the lower courts for reconsideration.

7.  In particular, on 16 December 2008 the Supreme Court of Ukraine quashed the decision of the lower courts sentencing the applicant to a term of imprisonment and remitted the case for a fresh trial. At the time of the Supreme Court’s decision, the applicant remained at liberty, having given an undertaking not to abscond.

8.  On 27 April 2010, in the course of the retrial, the prosecution lodged an application to remand the applicant in custody pending trial. The application did not mention any specific details substantiating the need to change the preventive measure imposed on the applicant.

9.  On the same date the Sosnivskiy District Court of Cherkasy allowed that application, the relevant part of the court’s order reading as follows:

“...The court considers that the [prosecution’s] application should be allowed, as the defendant has been accused of having committed grave offences entailing [potential] imprisonment for a term exceeding three years; special security measures have been applied to certain witnesses upon their requests in accordance with the law; the defendant has been accused of having inflicted bodily injuries with a view to intimidating the victim, which fact makes it possible that the applicant would repeat those actions; and in addition, being at liberty, the defendant may obstruct the establishment of the truth in the case and he may abscond and continue his criminal activity...”

10.  The District Court did not provide further details substantiating its decision and did not set a time-limit for the applicant’s detention. The court decision was not subject to appeal.

11.  In the course of the trial the applicant submitted a number of applications for release from detention, but to no avail.

12.  On 1 April 2011 the District Court convicted the applicant of abuse of office and sentenced him to seven years and six months’ imprisonment.

13.  On 2 August 2011 the Cherkasy Regional Court of Appeal upheld the factual findings of the District Court but reduced the applicant’s prison sentence to six years.

14.  On 12 June 2012 the Higher Specialised Civil and Criminal Court upheld the applicant’s conviction and sentence.

THE LAWALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

15.  The applicant complained under Article 5 § 2 of the Convention that the decision of the District Court of 27 April 2010 to remand him in custody and his subsequent detention until his conviction on 1 April 2011 were arbitrary and unreasonable. The Court considers that, given the substance of the above complaint, it should be examined 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;

...”Admissibility

16.  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.Merits

17.  The applicant maintained his complaint outlined in paragraph 15 above. He further submitted that the trial court had failed to give relevant and sufficient reasons for its decision to detain him and had failed to examine any alternative, less intrusive preventive measures.

18.  The Government submitted that the decision of the trial court to detain the applicant had been lawful, necessary and justified.

19.  The applicable case-law is summarised in, for example, Assanidze v. Georgia ([GC], no. 71503/01, § 171, ECHR 2004‑II); Winterwerp v. the Netherlands (24 October 1979, § 45, Series A no. 33); Nešťák v. Slovakia (no. 65559/01, § 74, 27 February 2007); and Khayredinov v. Ukraine (no. 38717/04, §§ 27-28, 14 October 2010).

20.  In the present case, the District Court decided on 27 April 2010 to change the preventive measure imposed on the applicant from an undertaking not to abscond to remand in custody, in view of the seriousness and the nature of the criminal offences at issue. Neither the Government’s observations nor the available material suggest that the District Court had made an appropriate assessment of the facts relevant to the question of whether such a preventive measure was necessary in the circumstances. Neither did the District Court state which risks justified the applicant’s detention on remand, for example, the risk of his absconding, influencing witnesses or hindering the investigation. Furthermore, it does not appear that the District Court made an appropriate assessment of the facts relevant to the question of whether such a preventive measure was necessary in the circumstances.

21.  In addition the Court notes that the District Court’s decision of 27 April 2010, which set no time-limit for the applicant’s detention, remained the sole ground for the detention until his conviction on 1 April 2011. This fact alone raises serious issue regarding the arbitrariness of the applicant’s detention during the period of time under consideration (see Kharchenko v. Ukraine, no. 40107/02, §§ 73-76, 10 February 2011).

22.  In the light of the foregoing, the Court considers that the District Court’s decision of 27 April 2010 did not afford the applicant the adequate protection from arbitrariness which is an essential element of the lawfulness of detention within the meaning of Article 5 § 1 of the Convention. Therefore the applicant’s detention from 27 April 2010 to 1 April 2011 was in breach of that provision.ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

23.  The applicant complained that the length of the criminal proceedings against him 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 ...”Admissibility

24.  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.Merits

25.  The Government submitted that the case against the applicant had been complex. They further stated that the court hearings had been scheduled at reasonable intervals and that the delays in the proceedings, if there had been any, could not be attributed to the State. The applicant disagreed.

26.  In the present case, the proceedings started on 19 January 2004, when a criminal investigation for abuse of office was instituted in respect of the applicant (see paragraph 5 above), and ended on 12 June 2012 (see paragraph 14 above). They thus lasted eight years and four months at three levels of jurisdiction.

27.  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).

28.  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.

29.  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 applicant was excessive and failed to meet the “reasonable time” requirement.

30.  There has accordingly been a violation of Article 6 § 1 of the Convention.OTHER ALLEGED VIOLATIONS OF THE CONVENTION

31.  Lastly, the applicant complained under Article 5 § 4 of the Convention that his right to a review of the lawfulness of his detention had been breached.

32.  Having regard to the facts of the case, the submissions of the parties, and its findings under Article 5 § 1 and Article 6 § 1 of the Convention (see paragraphs 22 and 30 above), the Court considers that it has examined the main legal questions raised in the present application, 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).APPLICATION OF ARTICLE 41 OF THE CONVENTION

33.  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.”

34.  The applicant claimed 80,000 euros (EUR) in respect of non‑pecuniary damage. The Government argued that that claim was unsubstantiated.

35.  Making its assessment on an equitable basis, the Court awards the applicant EUR 2,300 in respect of non-pecuniary damage, plus any tax that may be chargeable.

36.  The applicant also claimed EUR 2,553.60 for the costs and expenses incurred before the Court, and 3,664.80 Ukrainian hryvnias (approximately EUR 350) for postal and other expenses allegedly incurred while in pre-trial detention. The Government contested those claims as unsubstantiated and unsupported by relevant documentary evidence.

37.  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.

38.  Regard being had to the documents in its possession, the low level of complexity of the case, the legal aid in the amount of EUR 850 awarded to the applicant, and the fact that his representative intervened in the proceedings at the communication stage only, the Court makes no additional award for costs and expenses.

39.  As regards the claim for postal and other expenses, the Court finds that the applicant failed to substantiate that the above expenses had indeed been borne by him and had related to the proceedings in his case. It therefore rejects that claim.

40.  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,Declares the complaints under Article 5 § 1 of the Convention concerning the arbitrariness of the applicant’s detention from 27 April 2010 to 1 April 2011 and under Article 6 § 1 of the Convention concerning the unreasonable length of the criminal proceedings against him admissible;Holds that there has been a violation of Article 5 § 1 of the Convention;Holds that there has been a violation of Article 6 § 1 of the Convention;Holds that it is not necessary to examine the admissibility and merits of the applicant’s complaints under Article 5 § 4 of the Convention regarding the domestic courts’ failure to carry out a proper examination of his applications for release;Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 2,300 (two thousand three hundred euros), 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;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 25 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller Stéphanie Mourou-Vikström
Deputy RegistrarPresident

Full & Egal Universal Law Academy