CASE OF ROMANOV v. UKRAINE

FIFTH SECTION

CASE OF ROMANOV v. UKRAINE

(Application no. 76273/11)

JUDGMENT

This version was rectified on 22 June 2020 under Rule 81 of the Rules of Court

STRASBOURG

28 May 2020

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

In the case of Romanov v. Ukraine,

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

Gabriele Kucsko-Stadlmayer, President,
Mārtiņš Mits,
Anja Seibert-Fohr, judges,

and Victor Soloveytchik, Deputy Section Registrar,

Having regard to:

the application 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 Ivan Volodymyrovych Romanov (“the applicant”), on 8 December 2011;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaints concerning the unlawfulness and justification of the applicant’s arrest and pre-trial detention and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 28 April 2020,

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

INTRODUCTION

The case concerns various aspects of the applicant’s arrest and pre-trial detention.

THE FACTS

1.  The applicant was born in 1984. The applicant, who had been granted legal aid, was represented by Ms O.O. Richko, a lawyer practising in Kharkiv.

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

3.  On 8 November 2015 the applicant died. On 2 August 2018 his mother, Ms Svitlana Oleksiyivna Romanova (hereinafter “the applicant’s mother”), expressed the wish to pursue the proceedings before the Court.

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

5.  On 16 June 2011 criminal proceedings for grievous bodily harm were instituted against the applicant. On 25 June 2011 the investigators reclassified the charges against the applicant as attempted murder.

6.  On 21 July 2011 the applicant appeared before the investigator in connection with the criminal investigation into attempted murder and gave an undertaking not to abscond.

7.  On 25 July 2011 the investigator arrested the applicant and placed him in police custody on suspicion of attempted murder. The investigator drew up a report on his arrest, making a general reference to Article 106 § 2 and Article 115 of the 1960 Code of Criminal Procedure (“the CCP”).

8.  According to the official report, the applicant had been arrested on the following grounds:

“1.  [He] was caught at the scene of the crime immediately after an offence had been committed, and

2.  eyewitnesses, including the victim, directly identified [him] as the one who had committed the offence.”

It stated that his arrest was justified by the necessity of preventing him from evading justice or obstructing the establishment of the truth, and to ensure that any eventual court judgment could be executed.

9.  On 26 July 2011 a forensic psychiatric examination of the applicant was carried out. The experts provided the following conclusions:

“1.  Mr Romanov is currently showing signs of chronic mental illness in the form of paranoid schizophrenia. The present psychiatric condition of [Mr Romanov] is such that he is unaware of and cannot control his actions.

2.  At the time of the offence with which he has been charged, Mr Romanov was affected by the above-mentioned mental illness and could not have been aware of or controlled his actions.

3.  In view of his mental health Mr Romanov requires involuntary medical treatment by way of admission to a psychiatric hospital under close supervision.”

10.  On 28 July 2011 the Kyivskyy District Court of Kharkiv (“the District Court”) extended the applicant’s detention in police custody to ten days with a view to obtaining an assessment of his personality and the likelihood of his absconding the investigation. No further reasons were provided by the District Court.

11.  On 4 August 2011 the District Court ordered the applicant’s continued detention without specifying any time-limits. The District Court referred in its decision to the conclusions of the psychiatric examination of 26 July 2011 and stated that the applicant had been accused of a serious offence and might otherwise escape and hinder the investigation or continue with his criminal activity. No further reasons were provided by the District Court, which further ruled that the applicant was to be detained in the Kharkiv pre-trial detention centre (“the SIZO”). On 11 August 2011 that decision was upheld on appeal.

12.  On 12 September 2011 the investigator requested compulsory psychiatric treatment for the applicant. On 19 September 2011 the investigator’s request and the case file were transferred to the District Court.

13.  On 2 December 2011 the District Court committed the applicant to a special psychiatric facility for compulsory psychiatric treatment under close supervision. In substantiating its decision the District Court referred to the conclusions of the forensic psychiatric examination of 26 July 2011. The District Court also specified that the applicant was to be held in the SIZO pending his transfer to a special psychiatric facility.

14.  The applicant and his defence lawyer appealed against that decision on 9 and 8 December 2011 respectively.

15.  On 15 December 2011 the Court of Appeal dismissed their appeals without examining them, on the ground that the applicant and his defence lawyer had both missed the time-limit for lodging their appeals without having requested an extension.

16.  On 7 February 2012 the applicant was placed in the psychiatric hospital under close supervision pursuant to the District Court’s decision of 2 December 2011.

17.  On 23 November 2013 the applicant was discharged from the psychiatric hospital. He died on 8 November 2015.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

18.  The provisions of the CCP concerning the conditions of arrest of a suspect by the body of inquiry and further pre-trial detention can be found in Osypenko v. Ukraine (no. 4634/04, § 33, 9 November 2010).

THE LAWLOCUS STANDI OF THE APPLICANT’S mother

19.  The Court notes at the outset that the applicant died while the case was pending before it. The applicant’s mother informed the Court that she wished to pursue his application. In a number of cases relating to Article 5 of the Convention in which an applicant has died in the course of the proceedings, the Court has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings (see, for example, Dimitar Krastev v. Bulgaria, no. 26524/04, § 42, 12 February 2013, with further references). It sees no reason to reach a different conclusion in the present case and therefore accepts that the applicant’s mother can pursue the application initially brought by the applicant. For convenience, the Court will continue to refer to Mr Ivan Volodymyrovych Romanov as “the applicant” in the present judgment.ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

20.  The applicant complained that his arrest and further pre-trial detention had been unlawful and unjustified and that he had had no enforceable right to compensation for his allegedly arbitrary detention. He relied on Article 5 §§ 1, 3 and 5 of the Convention, the relevant parts of which read 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;

...

(e)  the lawful detention of ... persons of unsound mind ...

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial ...

5.  Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”Admissibility

21.  The Court notes that 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.MeritsArticle 5 § 1 of the Convention

(a)   The applicant’s arrest on 25 July 2011

22.  The applicant complained that his arrest on 25 July 2011 without a judicial warrant had been in breach of the domestic law and the Convention.

23.  The Government contended that the applicant’s arrest had been in compliance with both the domestic law and the Convention.

24.  The Court notes that the investigator justified the applicant’s arrest by making a general reference to Article 106 of the CCP and stating that the applicant might try to abscond from justice and obstruct the investigation (see paragraph 8 above). No further specific reasons for the applicant’s arrest on the basis of the above-mentioned provision of the CCP were indicated in the detention report.

25.  The Court also notes that, under Ukrainian legislation, deprivation of liberty without a reasoned court decision was possible only in a limited number of situations defined with sufficient precision (see Osypenko v. Ukraine, cited above, § 33). However, the Court observes that there was no explanation why the applicant’s case fell within the scope of those exceptional situations affording investigators the power of arrest without a court decision first being delivered (see, for example, Makarenko v. Ukraine, no. 622/11, §§ 73-74, 30 January 2018).

26.  It is also of relevance that, except of the general statements in the report on his arrest (see paragraph 8 above), the parties’ submissions do not contain any further indications of attempts by the applicant to abscond from justice, obstruct the investigation and influence witnesses in the proceedings, or of the possibility that the authorities were faced with an urgent situation such as catching the applicant in flagrante delicto. Overall, there is nothing to suggest that the general requirement that a preliminary arrest warrant be issued by a court could not or should not have been adhered to.

27.  The Court notes that it has examined similar situations in a number of cases against Ukraine in which it found that depriving applicants of their liberty without a judicial warrant had contravened the domestic legislation and had thus been incompatible with the requirements of Article 5 § 1 of the Convention (see, mutatis mutandis, Strogan v. Ukraine, no. 30198/11, § 88, 6 October 2016, with further references therein, and, as a most recent authority, Korniychuk v. Ukraine, no. 10042/11, §§ 48-52, 30 January 2018).

28.  The Court does not see any reason to depart from its earlier findings in the present case. There has accordingly been a violation of Article 5 § 1 of the Convention regarding the applicant’s arrest on 25 July 2011.

(b)   The applicant’s detention in police custody between 28 July and 4 August 2011

29.  The applicant submitted that the District Court’s decision of 28 July 2011 extending his detention in police custody had not been lawful or in compliance with Article 5 § 1.

30.  The Government contested that complaint.

31.  The Court notes that, once the applicant was brought before a court on 28 July 2011, he was not remanded in custody, but his detention was extended to ten days with reference to Article 165-2 [1] of the CCP, which provides that a court may extend a person’s detention for up to ten days (fifteen days at the request of the suspect or accused) in order to examine all the information necessary to take a balanced decision on the person’s detention. The Court has previously held that an extension of detention under Article 165 § 2 may be justified in certain circumstances where the court requires time to establish the person’s identity and to collect other information crucial for taking a decision on his or her pre-trial detention. At the same time, the Court has noted that the reasons not to release the person should be compelling (see Barilo v. Ukraine, no. 9607/06, § 93, 16 May 2013). In the present case, the reasons for extending the applicant’s detention were the need to obtain an assessment of his personality and of the likelihood of his absconding (see paragraph 10 above). The Court notes that the reasons given do not substantiate the existence of any risks or circumstances justifying the need to keep the applicant in detention. In fact, the District Court’s decision did not contain any assessment of his individual circumstances or the risks justifying his detention having regard to the specificity of his condition (see paragraph 9 above).

32.  The Court thus considers that the applicant was detained between 28 July and 4 August 2011 in breach of Article 5 § 1 of the Convention.

(c)   The applicant’s detention from 25 September to 2 December 2011

33.  The applicant submitted that his detention upon expiry of the statutory time-limit (two months from the time of his arrest on 25 July 2011) had been arbitrary as it had not been authorised by a court order.

34.  The Government submitted that there had been no violation of the applicant’s rights.

35.  The Court observes that the District Court’s decision of 4 August 2011 ordering the applicant’s pre-trial detention did not indicate a time-limit for such detention. Under the provisions of the CCP (as in force at the material time), the maximum term of a suspect’s initial pre-trial detention was two months from the moment of arrest – that is to say (in the applicant’s case) until 25 September 2011.

36.  The Court furthermore notes that on 19 September 2011 – that is, before the expiry of the statutory time-limit – the investigator’s request for the applicant’s compulsory psychiatric treatment and the case file were transferred to the District Court for consideration. However, no further decision on the applicant’s detention was taken by the District Court until 2 December 2011 (see paragraphs 12 and 13 above). Therefore, the applicant’s detention from 25 September to 2 December 2011 seemed to be lacking a lawful basis.

37.  It appears that the reason for the applicant’s being held in custody during the above-mentioned period of time was based on the fact that the investigator’s request for the applicant’s compulsory psychiatric treatment and the case file had been submitted to the District Court for consideration. In that connection, the Court notes that it has previously examined similar situations in other cases against Ukraine and found them to be incompatible with the principles of legal certainty and protection from arbitrariness under Article 5 § 1 of the Convention (see Kharchenko v. Ukraine, no. 40107/02, § 71, 10 February 2011).

38.  The Court does not see any reason to depart from its earlier findings in the present case. It thus considers that from 25 September to 2 December 2011 the applicant was detained in breach of Article 5 § 1 of the Convention.

(d)   The applicant’s detention from 2 December 2011 to 7 February 2012 pending his transfer to a special psychiatric facility

39.  The applicant stressed that his detention pending his transfer to a special psychiatric facility pursuant to the District Court’s decision of 2 December 2011 had not been justified.

40.  The Government contested and submitted that the period of the applicant’s detention had been justified and reasonable.

41.  The Court reiterates that Article 5 § 1 of the Convention contains an exhaustive list of permissible grounds for deprivation of liberty. However, the applicability of one ground does not necessarily preclude that of another; a detention may, depending on the circumstances, be justified under more than one sub-paragraph (see Eriksen v. Norway, 27 May 1997, § 76, Reports of Judgments and Decisions 1997‑III).

42.  The Court firstly observes that in the instant case the applicant’s deprivation of liberty, ordered by decision of 2 December 2011, falls within the scope of Article 5 § 1 (e) (see Aerts v. Belgium, 30 July 1998, § 45, Reports 1998‑V).

43.  It must further be established whether the continuation of the applicant’s detention in the SIZO from 2 December 2011 to 7 February 2012 was “in accordance with a procedure prescribed by law” and “lawful” within the meaning of Article 5 § 1. The Convention here refers essentially to national law and states the obligation to conform to the substantive and procedural rules thereof. The parties being in agreement that the applicant’s detention during the above-mentioned period of time was in conformity with the provisions of the procedural legislation, the Court sees no reason to hold otherwise.

44.  However, for the purposes of Article 5 of the Convention, the lawfulness under domestic law of the applicant’s detention is not in itself decisive. It must also be established that his detention during the relevant period was in conformity with the purpose of Article 5 § 1, which is to prevent persons from being deprived of their liberty in an arbitrary fashion (see Witold Litwa v. Poland, no. 26629/95, §§ 72‑73, ECHR 2000‑III).

45.  The Court notes that the length of detention pending transfer to a psychiatric hospital is not specified by any statutory or other provision. Nevertheless, it must determine whether the continuation of the applicant’s detention in the SIZO for more than two months following the relevant decision of the District Court (see paragraphs 13 and 16 above) can be regarded as lawful.

46.  It further notes that the Government did not provide any explanation regarding whether there had existed any special circumstances justifying the period of more than two months in the applicant’s transfer from the SIZO to the psychiatric hospital. Even though that delay may not at first glance seem particularly excessive, the Court is deprived of the possibility to assess its reasonableness (compare Brand v. the Netherlands, no. 49902/99, §§ 58-67, 11 May 2004, and Pankiewicz v. Poland, no. 34151/04, §§ 38-46, 12 February 2008).

47.  In the absence of any reasons on the part of the Government explaining the applicant’s continued detention in the SIZO pending his transfer to a special psychiatric facility, the Court considers that it was not justified and thus compatible with the requirements of Article 5 § 1 of the Convention. There has accordingly been a violation of the above provision as regards this aspect too.Article 5 § 3 of the Convention

48.  The applicant submitted that the decision of the District Court of 4 August 2011 (see paragraph 11 above) altering the preventive measure of his pre-trial detention had not contained any reasons.

49.  The Government submitted that there had been reasonable grounds to place the applicant in detention. They referred, in particular, to the conclusions of the psychiatric examination of 26 July 2011 (see paragraph 9 above), the seriousness of the offence allegedly committed by the applicant, and the risk of his absconding and hindering the investigation or continuing with his criminal activity.

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

51.  The Court observes that the reasons given by the District Court for the applicant’s pre-trial detention in its decision of 4 August 2011 were the seriousness of the offence he was accused of, and the possibility of his escaping and hindering the investigation. However, no further specific details were given. It furthermore observes that the District Court, when taking its decision, referred, without making any assessment, to the forensic psychiatric examination report of 26 July 2011 concluding that the applicant required involuntary medical treatment by way of admission to a psychiatric hospital with close supervision.

52.  In this connection, it remains unclear to the Court what investigative activities could have been carried out in relation to the applicant, who, because of his psychiatric condition at the material time, was unaware of and could not control his actions (see paragraph 9 above).

53.  In the light of the foregoing, the Court finds that the decision of the District Court of 4 August 2011 ordering the applicant’s pre-trial detention does not seem to have contained any assessment of the individual circumstances and of the risks justifying the alteration of the preventive measure imposed on him. The reasons given by the court may have been relevant, but they were not sufficient.

54.  There has accordingly been a violation of Article 5 § 3 of the Convention.Article 5 § 5 of the Convention

55.  The Court observes that the applicant’s complaint under Article 5 § 5 is similar to the complaints examined by the Court in a number of other cases against Ukraine (see, as the most recent example, Sinkova v. Ukraine, no. 39496/11, §§ 79-84, 27 February 2018). The Court concludes that the applicant did not have an enforceable right to compensation for his unjustified detention, as required by Article 5 § 5. There has therefore been a violation of that provision.APPLICATION OF ARTICLE 41 OF THE CONVENTION

56.  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.”

57.  The applicant’s mother claimed 20,000 euros (EUR) in respect of non-pecuniary damage. The Government argued that that claim was unsubstantiated.

58.  Making its assessment on an equitable basis, the Court awards the applicant’s mother EUR 9,800 in respect of non-pecuniary damage, plus any tax that may be chargeable.

59.  The applicant’s mother 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.

60.  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 that the applicant’s mother, Ms Svitlana Oleksiyivna Romanova, has standing to continue the present proceedings in the applicant’s stead;Declares the application admissible;Holds that there have been violations of Article 5 § 1 of the Convention regarding the applicant’s arrest on 25 July 2011, his detention in police custody from 28 July to 4 August 2011, his detention from 25 September to 2 December 2011 without being covered by a court order, and his detention from 2 December 2011 to 7 February 2012 pending his transfer to a special psychiatric facility;Holds that there has been a violation of Article 5 § 3 of the Convention regarding the lack of relevant and sufficient reasons for the applicant’s detention following the decision of the Kyivskyi District Court of Kharkiv of 4 August 2011;Holds that there has been a violation of Article 5 § 5 of the Convention concerning the absence of an enforceable right to compensation for the applicant’s unlawful and unjustified detention;Holds

(a)  that the respondent State is to pay the applicant’s mother, Ms Svitlana Oleksiyivna Romanova, within three months, EUR 9,800 (nine thousand eight 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;Dismisses the remainder of the claim for just satisfaction.

Done in English, and notified in writing on 28 May 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Victor SoloveytchikGabriele Kucsko-Stadlmayer
              Deputy RegistrarPresident

[1] .  Rectified on 22 June 2020: the text was Article 165 § 2

 

Full & Egal Universal Law Academy