FIFTH SECTION
CASE OF SERDYUKOV v. UKRAINE
(Application no. 11623/13)
JUDGMENT
STRASBOURG
20 September 2022
This judgment is final but it may be subject to editorial revision.
In the case of Serdyukov v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Ivana Jelić, President,
Ganna Yudkivska,
Arnfinn Bårdsen, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 11623/13) 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 Maksym Volodymyrovych Serdyukov (“the applicant”), on 7 February 2013;
the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Article 5 § 1 of the Convention and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 10 February 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the alleged unrecorded detention of the applicant and the alleged unlawfulness of his subsequent formal arrest and detention by the police, in breach of Article 5 § 1 of the Convention.
THE FACTS
2. The applicant was born in 1977 and lives in Kyiv. He was represented before the Court by Mr O. V. Lupeyko, a lawyer practising in Vyshgorod.
3. The Government were represented by their Agent, Mr I. Lishchyna.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. On 5 April 2012 an investigator of the Kyiv branch of the Security Service of Ukraine (“the SSU”) instituted criminal proceedings against the applicant and two other individuals on suspicion of smuggling a large amount of psychotropic substances (“aggravated smuggling”).
6. According to the applicant, at around 4 p.m. on 5 April 2012 he was arrested on a street in Kyiv by several SSU officers. Later the same day the applicant, while handcuffed, was taken by the officers to the school where he worked as a basic military training instructor. There the officers seized the applicant’s mobile phones and examined the school’s shooting range, which was the applicant’s workplace. According to the applicant, this was observed by the school’s other teachers and recorded on video by an SSU press officer.
7. According to the applicant, following the events at the school, on the same day he was taken to the Kyiv branch of the SSU, where he was questioned. According to him, at 10.53 p.m. that day he called his long-term companion from the office telephone of one of the SSU officers, and her mobile phone retained a record of the call. The applicant alleged that he had then spent the night of 5 to 6 April 2012 in detention at the SSU building and had remained handcuffed during that period.
8. On 6 April 2012 an SSU investigator drew up an arrest report in respect of the applicant. According to the report, the applicant had been arrested at 4 p.m. on 6 April 2012 at the building of the Kyiv branch of the SSU, on the grounds that he had committed an offence of aggravated smuggling immediately beforehand and had been identified by eyewitnesses as the person who had committed the offence. The applicant signed the arrest report.
9. On the same day a report was drawn up indicating that the investigator had carried out a personal search of the applicant from 4.20 p.m. to 4.50 p.m. that day and had seized a number of items, including five mobile phones. According to the applicant, these items had been seized from him the day before, on 5 April 2012.
10. On 9 April 2012, in response to a request from the investigating authority, the Solomyansky District Court in Kyiv (“the District Court”) ordered that the applicant be placed in pre-trial detention.
11. According to the applicant, on 10 and 16 April 2012 two national television channels broadcast the video of the events at the school of 5 April 2012, together with interviews with the SSU press officer in which the latter stated that the SSU had discovered evidence of a drug-smuggling operation at the school.
12. On 18 April 2012 the applicant submitted a complaint seeking to have his detention from 5 to 6 April 2012 and his subsequent detention and the arrest report of 6 April 2012 declared unlawful. He referred to several elements of evidence proving that he had in fact been detained on 5 April 2012. In particular, he stated that he had been observed on 5 April 2012 at the school by his fellow teachers and had been recorded on video by the SSU there, and that he had called his companion from an SSU office telephone on 5 April 2012.
13. On 24 April 2012 the District Court dismissed the applicant’s complaint, stating in general terms that his allegations concerning his arrest on 5 April 2012 were unsubstantiated.
14. On 26 April 2012 the Kyiv City Court of Appeal (“the Court of Appeal”) upheld the detention order of 9 April 2012.
15. On 29 May 2012 the Court of Appeal allowed an appeal by the applicant, quashed the ruling of 24 April 2012 and remitted the case to the District Court for a fresh examination. The Court of Appeal found that the District Court had failed to examine the applicant’s allegation that he had been arrested on 5 April 2012, instead limiting its analysis to the question of whether there had been sufficient reasons to place him in pre-trial detention.
16. On 27 July 2012 the District Court again dismissed the applicant’s complaint. By way of reasoning, the court held that the arrest report indicated 6 April 2012 as the date of the arrest and the applicant had signed it without raising any objections. The District Court also stated that it had not taken into account the video supposedly made by the SSU at the school, which according to the applicant confirmed that he had been arrested on 5 April 2012, on the ground that there was no such video in the case file and that the investigator G. had not responded to the court’s question as to whether a video recording had been made on the day in question.
17. On 14 August 2012 the Court of Appeal upheld the District Court’s ruling of 27 July 2012, finding that the District Court had examined the question with sufficient diligence and there were no grounds to set aside its ruling.
18. In the course of the domestic proceedings, in response to an enquiry by the applicant’s lawyer, the SSU confirmed that the applicant had been present on the premises of the SSU on 5 and 6 April 2012 and that the telephone number from which he had allegedly called his companion on 5 April 2012 had been registered to the SSU. The mobile phone service provider Kyivstar JSC provided a call detail record according to which on 5 April 2012 the applicant’s companion had received a call on her mobile phone from the telephone number registered to the SSU.
RELEVANT LEGAL FRAMEWORK
19. The relevant provisions of the Constitution of Ukraine and the Code of Criminal Procedure governing the procedure in relation to a suspect’s arrest can be found in Belousov v. Ukraine (no. 4494/07, §§ 41-42, 7 November 2013).
THE LAW
ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION20. The applicant complained that his detention between 5 and 6 April 2012 had not been recorded, that the report of his arrest had not been drawn up in compliance with the domestic law, and that his further detention prior to its authorisation by the court had been unlawful. The applicant relied on 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;
...”
Admissibility21. The Court notes that these complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.
MeritsAs to the applicant’s unrecorded detention from 5 to 6 April 201222. The applicant reiterated his complaints, outlined in the application form, that his arrest had not been recorded and that his further detention had been unlawful.
23. The Government disagreed with the applicant and submitted that his complaints of unrecorded detention had been subject to a thorough examination by the domestic courts, which had not found a breach of the applicant’s rights (see paragraphs 16 and 17 above).
24. In the present case, the Court notes that the applicant provided a detailed account of the events of 5-6 April 2012 both before the domestic courts and before this Court. In particular, he stated that after being arrested on the street on 5 April 2012, he had been taken to the SSU building, where he had spent one night. Another argument raised by the applicant was that he had called his companion while being held at the SSU building.
25. It does not appear from the available material that the domestic courts addressed the arguments that were supported by documentary evidence, namely the information from the SSU and the mobile phone service provider regarding the applicant’s presence on the premises of the SSU on 5 and 6 April 2012 and the telephone call to his companion which was made on 5 April 2012 from a telephone registered to the SSU (see paragraph 18 above). The Government, in their turn, did not provide any explanation for the applicant’s presence at the SSU on 5 April 2012 as asserted by him. Neither the proceedings before the domestic courts nor the material available before the Court suggest that the applicant was involved in any investigation except the investigation into aggravated smuggling instituted against him on the same day.
26. In the absence of any argument to the contrary, the Court cannot but conclude that the applicant’s presence at the SSU building on 5 April 2012 was linked to the criminal proceedings relating to the offence of aggravated smuggling. Having regard to the nature of the suspicion advanced against the applicant, it would be unrealistic to assume that he was free to leave the SSU building of his own free will. The Court therefore finds it established that the applicant was deprived of his liberty on 5 April 2012, as he asserted.
27. Having regard to the above considerations, the Court finds that the applicant’s detention between 5 and 6 April 2012 was incompatible with the requirements of Article 5 § 1 of the Convention.
As to the applicant’s detention from 5 to 9 April 201228. As appears from the parties’ submissions, the disputed arrest report indicated that the applicant had been arrested at 4 p.m. on 6 April 2012 in the SSU building. It did not take any account of the fact that the applicant had already been in custody for about twenty-four hours before the report was drafted. Above all, this fact affected the calculation of the seventy-two-hour statutory period beyond which the SSU was required to release the applicant unless a relevant court order for his further detention had been obtained (see the relevant domestic law indicated in paragraph 19 above). As mentioned above, the court order was obtained only on 9 April 2012, that is, after the expiry of the statutory maximum period of detention. The applicant’s custody at the SSU during the period under examination was therefore not lawful (see Belousov, cited above, § 87, 7 November 2013).
29. There has accordingly been a violation of Article 5 § 1 of the Convention.
30. Having regard to its findings above, the Court finds that there is no need to examine separately the applicant’s complaint regarding the issue whether the report of his arrest had been drawn up in compliance with the domestic law.
APPLICATION OF ARTICLE 41 OF THE CONVENTION31. 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.”
32. The applicant claimed 82,310 Ukrainian hryvnias as compensation for loss of income and 500,000 euros (EUR) in respect of non-pecuniary damage.
33. The Government considered those claims to be unsubstantiated and excessive.
34. As regards the claim for pecuniary damage, the Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, making its assessment on an equitable basis, it awards the applicant EUR 3,900 in respect of non‑pecuniary damage, plus any tax that may be chargeable.
35. The applicant also asked the Court to determine on an equitable basis the amount of costs and expenses to be paid to his lawyer in respect of the proceedings before it.
36. 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, the applicant failed to demonstrate that he had indeed incurred any expenses in the proceedings relating to his case. The Court therefore makes no award under this head.
37. 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 regarding the applicant’s unrecorded detention between 5 and 6 April 2012 and the unlawfulness of his detention from 5 to 9 April 2012 admissible;Holds that there has been a violation of Article 5 § 1 of the Convention;Holds that there is no need to examine the complaint under Article 5 § 1 of the Convention regarding the issue whether the report of the applicant’s arrest had been drawn up in compliance with the domestic law;Holds(a) that the respondent State is to pay the applicant, within three months, EUR 3,900 (three thousand nine 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 applicant’s claim for just satisfaction.Done in English, and notified in writing on 20 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Ivana Jelić
Deputy Registrar President