FIFTH SECTION
CASE OF TALALIKHINA v. UKRAINE
(Application no. 13919/12)
JUDGMENT
STRASBOURG
22 October 2020
This judgment is final but it may be subject to editorial revision.
In the case of Talalikhina v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Gabriele Kucsko-Stadlmayer, President,
Latif Hüseynov,
Lado Chanturia, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having regard to:
the application (no. 13919/12) 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, Ms Olga Vasilyevna Talalikhina (“the applicant”), on 20 February 2012;
the decision of 2 May 2019 to give notice of the application to the Ukrainian Government (“the Government”);
the parties’ observations;
Having deliberated in private on 29 September 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
The case concerns the lawfulness and length of the applicant’s pre-trial detention, the length of the criminal proceedings against her and the lack of effective remedies in that regard.
THE FACTS
1. The applicant was born in 1954 and lives in Sevastopol. She was represented by Mr R. Martynovskiy, a lawyer practising in Kyiv.
2. The Government were represented by their Agent, Mr I. Lishchyna.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 5 September 2007 criminal proceedings were instituted against the applicant on charges of theft. On the same date she was questioned as a suspect. As a preventive measure, she signed an undertaking not to abscond. On 30 October 2007 the criminal case was referred to the court for trial.
5. On 13 April 2009 the applicant was involved in a drunken brawl with her cohabitant at home. During the brawl the applicant allegedly hit the man with a hammer. The man was taken to hospital where he died a few days after the incident.
6. On 17 April 2009 the applicant was arrested and questioned in relation to the incident with her cohabitant.
7. On 20 April 2009 the Leninskyy District Court of Sevastopol ordered her pre-trial detention.
8. On 15 June 2009 the Sevastopol City Prosecutor approved the bill of indictment charging the applicant with aggravated infliction of serious bodily harm resulting in death of the victim and referred the case to the District Court for further proceedings. The applicant remained in custody.
9. On 6 July 2009 the Nakhimovskiy District Court of Sevastopol (“the District Court”) committed the applicant for trial and ruled that the preventive measure in respect of her should remain in place.
10. On 5 August 2011 and 10 May 2012 the District Court dismissed, as unfounded, the applicant’s applications to be released pending trial, considering that there had been no grounds to change the preventive measure.
11. On 20 June 2012 the District Court decided to change the custodial preventive measure in respect of the applicant, accepting as guarantors her relatives. The applicant was released.
12. On 19 September 2012 the prosecutor dropped the charge of theft against the applicant for lack of constituent elements of the crime.
13. On 6 February 2013 the District Court convicted the applicant of the unintentional homicide of her cohabitant and sentenced her to two years’ imprisonment.
RELEVANT LEGAL FRAMEWORK
14. Article 156 of the 1960 Code of Criminal Procedure (in force at the relevant time) provided that detention during the pre-trial investigation should not exceed two months. A judge was, however, empowered to extend pre-trial detention following a request to that effect.
THE LAWPreliminary remarks
15. The Government submitted that they had been unable to provide any proper comments on the application because the domestic case file had been at the Nakhimovsky District Court of Sevastopol and, at the time they had been given notice of the application, Ukraine had not controlled Crimea and the city of Sevastopol.
16. The applicant submitted that she had provided all the necessary documents to the Court in support of her complaints. She insisted that the electronic copies of the relevant court decisions were also available to the Government in the Unified State Register of Judicial Decisions. She noted that the Government had full access to that official electronic database.
17. Having regard to the nature of the complaints, which are the subject of well-established case-law, and the applicant’s submissions, the Court considers it possible to proceed with the case file as it stands (see, to similar effect, Litvinyuk v. Ukraine [Committee], no. 55109/08, §§ 16 et seq., 1 March 2018).ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
18. The applicant complained under Article 5 § 1 of the Convention that (a) her pre-trial detention after the termination of the investigation in June 2009 had not been based on any court order until 6 July 2009; and (b) that the court decision of 6 July 2009 authorising her further pre-trial detention had been arbitrary.
19. The relevant part of Article 5 § 1 provides 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
20. The Government submitted that the applicant had not exhausted domestic remedies since it had been open to her to appeal against the initial detention order of 20 April 2009.
21. The applicant contended that her complaint under Article 5 § 1 of the Convention concerned other periods of detention which had not been covered by the court order of 20 April 2009.
22. The Court reiterates that the only remedies which an applicant is required to exhaust are those that relate to the breaches alleged and which are at the same time available and sufficient (see Aquilina v. Malta [GC], no. 25642/94, ECHR 1999-III). The Government have not shown that the remedy in question could have addressed the substance of the applicant’s complaint which concerned the other period of pre-trial detention. The objection is therefore dismissed.
23. 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
24. The applicant maintained her complaint.
25. The Government did not provide any comments on the merits.
26. The Court observes that after the expiry of the detention order of 20 April 2009, the validity of which could not exceed two months (see paragraph 14 above), the applicant’s further detention was based on the fact that a bill of indictment had been submitted to the District Court (see paragraph 8 above). The domestic courts did not return to the issue of the applicant’s detention until 6 July 2009, when the District Court prolonged the applicant’s detention without providing any justification (see paragraph 9 above). In that connection, the Court notes that it has previously examined similar 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, 73-75 and 98, 10 February 2011).
27. The Court does not see any reason in the present case to depart from its earlier findings. Accordingly, there has been a violation of Article 5 § 1 of the Convention.ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
28. The applicant complained that the overall length of her pre-trial detention had been excessive. She relied on Article 5 § 3 of the Convention, which provides as follows:
“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. Release may be conditioned by guarantees to appear for trial.”
29. The Court observes that the general principles regarding the right to a trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000-XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-X, with further references).
30. The Court notes that the applicant’s uninterrupted detention lasted for more than three years and two months (see paragraphs 6 and 11 above) and there is nothing in the file to justify such a prolonged period of detention. In Kharchenko (cited above, §§ 79‑81 and 99), the Court found a violation in respect of issues similar to those in the present case and pointed to the systemic problem of the excessive length of pre-trial detention in Ukraine. The Court does not see any reason in the present case to depart from its earlier findings.
31. This complaint is therefore admissible and discloses a breach of Article 5 § 3 of the Convention.ALLEGED VIOLATION OF ARTICLE 6 § 1 and Article 13 OF THE CONVENTION
32. The applicant complained under Article 6 § 1 of the Convention that the length of the criminal proceedings against her had been unreasonable. She complained under Article 13 of the Convention that she had not had effective remedies against the excessive delays in the domestic proceedings.
33. Article 6 § 1 and Article 13 read as follows:
Article 6 § 1
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
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.”
34. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case 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 Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
35. In the leading case of Merit v. Ukraine (no. 66561/01, §§ 72-76 and 78-79, 30 March 2004) the Court already found a violation in respect of issues similar to those in the present case.
36. The Court notes that in the instant case the length of the criminal proceedings exceeded five years (see paragraphs 4 and 13 above), at only one level of jurisdiction. The Court finds no justification for the excessive duration of the criminal proceedings against the applicant, who had to spend the majority of that period in detention. Having examined the available material, the Court concludes that the “reasonable time” requirement has not been met in the present case.
37. The Court further finds that the applicant did not have at her disposal an effective remedy in respect of her complaint about the excessive length of the domestic proceedings (see Merit, cited above, § 79).
38. The complaints are therefore admissible and disclose a breach of Article 6 § 1 and Article 13 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION
39. 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.”
40. The applicant claimed 6,500 euros (EUR) in respect of non-pecuniary damage.
41. The Government submitted that the claim was unfounded.
42. The Court awards the applicant EUR 2,400 euros in respect of non-pecuniary damage, plus any tax that may be chargeable.
43. 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 application admissible;Holds that there has been a violation of Article 5 § 1 of the Convention;Holds that there has been a violation of Article 5 § 3 of the Convention;Holds that there has been a violation of Article 6 § 1 and Article 13 of the Convention;Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(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 22 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Anne-Marie Dougin Gabriele Kucsko-Stadlmayer
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy