CASE OF TARAN v. UKRAINE

FIFTH SECTION

CASE OF TARAN v. UKRAINE

(Application no. 31898/06)

JUDGMENT

STRASBOURG

17 October 2013

FINAL

17/01/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Taran v. Ukraine,

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

Mark Villiger, President,

Angelika Nußberger,

Boštjan M. Zupančič,

Ann Power-Forde,

Ganna Yudkivska,

Helena Jäderblom,

Aleš Pejchal, judges,

and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 24 September 2013,

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

PROCEDURE

1. The case originated in an application (no. 31898/06) 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 Vasilyevich Taran (“the applicant”), on 27 July 2006.

2. The applicant was represented by Mr V. Suk, a lawyer practising in Sevastopol. The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy.

3. The applicant’s complaints concerned, in particular, the conditions of his detention and transportation between detention facilities (Article 3 of the Convention); the lawfulness of his pre-trial detention based on court decisions adopted between August and October 2005, and the lawfulness of his pre-trial detention after 29 November till 29 December 2005 (Article 5 § 1 of the Convention); the length of his pre-trial detention (Article 5 § 3 of the Convention); the lack of appropriate judicial review of his detention (Article 5 § 4 of the Convention); the absence of an enforceable right to compensation (Article 5 § 5 of the Convention); and the length of the criminal proceedings (Article 6 § 1 of the Convention).

4. On 15 May 2012 the application was declared partly inadmissible and the above complaints were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1980 and lives in Sevastopol.

A. Criminal proceedings against the applicant and related issues

6. On the evening of 29 June 2005 the applicant was arrested on suspicion of murder.

7. On 1 July 2005 the Nakhimivskyy District Court of Sevastopol (“the District Court”) ordered the applicant’s pre-trial detention for two months. The District Court noted that, if released, the applicant might abscond, impair the establishment of truth and obstruct the course of justice. It referred to the fact that the applicant had been charged with a serious crime and had no registered address in Sevastopol.

8. On 11 July 2005 the Sevastopol Court of Appeal (“the Court of Appeal”) dismissed an appeal lodged by the applicant’s lawyer and upheld the lower court’s decision noting that the applicant had been charged with a serious crime.

9. On 25 August 2005 the investigator in the case applied to the court seeking an extension of the applicant’s pre-trial detention to three months.

10. On 26 August 2005 the District Court extended the applicant’s pre-trial detention to three months noting that, if released, the applicant might abscond, impair the establishment of truth and obstruct the course of justice. It referred to the gravity of the charges levelled against the applicant and a considerable number of procedural measures that had to be taken in the case. The hearing was attended by the prosecutor and the applicant’s lawyer. The applicant himself was absent.

11. On 7 September 2005 the Court of Appeal dismissed an appeal lodged by the applicant’s lawyer and upheld the decision of 26 August 2005, finding that the District Court had properly extended the applicant’s pre-trial detention. It dismissed the applicant’s contention that the investigator’s request for an extension of the preventive measure had been submitted outside the statutory time-limit as that issue did not affect the lawfulness of the impugned decision. The applicant’s allegation that he had to be released for health reasons had not been supported by evidence. The hearing was attended by the prosecutor and the applicant’s lawyer. The applicant himself was absent.

12. On 27 September 2005 the investigator applied to the District Court seeking an extension of the applicant’s pre-trial detention to four months.

13. On 29 September 2005 the District Court extended the applicant’s pre-trial detention to four months, noting that, if he were freed, the applicant might abscond and impair the establishment of truth and obstruct the course of justice. The court again referred to the gravity of the charges levelled against the applicant and the considerable number of procedural measures that had to be taken in the case. The hearing was attended by the prosecutor; the applicant and his lawyer were absent.

14. On 13 October 2005 the Court of Appeal dismissed an appeal lodged by the applicant’s lawyer and upheld the District Court’s decision of 29 September 2005. The Court of Appeal noted, in particular, that a considerable number of procedural measures had still to be taken in the case; the applicant was charged with a serious crime and, if released, might abscond, obstruct the investigation and continue his criminal activities. As to the applicant’s absence from the hearing before the District Court, the Court of Appeal considered that the applicant’s appearance had not been obligatory. The hearing before the Court of Appeal was held in the presence of the prosecutor and the applicant’s lawyer. The applicant was absent.

15. On 26 October 2005 the investigator applied to the Court of Appeal seeking an extension of the applicant’s pre-trial detention to five months.

16. On 28 October 2005 the Court of Appeal extended the applicant’s pre-trial detention to five months, namely to 29 November 2005. Its decision was based on the gravity of the charges and the necessity to finalise the investigation and familiarise the defence with the case file. The hearing was attended by the prosecutor and the applicant’s lawyer. The applicant was absent. The decision was not subject to appeal.

17. On 29 November 2005 the criminal case file was remitted to the District Court for the applicant to be tried.

18. In December 2005 the applicant lodged a complaint under the Code of Administrative Justice alleging that the prosecutor had failed to release him from custody after 29 November 2005. The applicant contended that his detention after 29 November 2005 had not been based on any court decision and was therefore unlawful.

19. On 23 December 2005 the Leninskiy District Court of Sevastopol considered the applicant’s complaint under the Code of Administrative Justice in the absence of the parties. It found that on 29 November 2005 the case had been remitted to the District Court and that the prosecutor had not been empowered to decide on the applicant’s release. The applicant appealed against that judgment.

20. On 29 December 2005 the District Court, conducting a preliminary hearing in the applicant’s criminal case, decided to order an additional investigation. It further ordered that the preventive measure in respect of the applicant be left unchanged.

21. Following the completion of the additional investigation, on 28 February 2006 the case was again remitted to the District Court for the applicant to be tried.

22. On 30 March 2006 the Court of Appeal dismissed the appeal lodged by the applicant against the judgment of 23 December 2005 in the administrative case, finding that the judgment was lawful and substantiated. The hearing was held in the presence of the applicant’s lawyer. The applicant appealed against that decision on points of law.

23. On 31 March 2006 the applicant was committed for trial before the District Court. The court held that the preventive measure in respect of the applicant should remain the same as there had been no grounds for changing it.

24. On 17 and 18 October 2006 the applicant and his defence counsel requested the District Court that the applicant be released from custody, claiming that his detention had not been based on a reasoned court decision and there were no grounds for believing that he would flee from justice or obstruct the criminal proceedings.

25. On 18 October 2006 the District Court dismissed the requests as unfounded, noting that the case concerned a serious crime and the applicant, if released, might abscond and obstruct the establishment of truth.

26. On 1 March and 16 April 2007 and 1 August 2008 the District Court considered similar release requests lodged by the applicant and his defence counsel during the hearings. The court rejected the requests, noting that the preventive measure had been applied lawfully and there were no grounds for changing it.

27. On 16 May 2007 the Higher Administrative Court, sitting in private, upheld the decisions of 23 December 2005 and 30 March 2006 in the administrative case and dismissed the applicant’s appeal on points of law as unfounded.

28. On 19 November 2010 the District Court found the applicant guilty of murder and sentenced him to seven years’ imprisonment. The applicant appealed and made another request for release from custody.

29. On 12 April 2011 the Court of Appeal quashed that judgment and ordered an additional investigation. It also allowed the applicant’s release, noting that after 29 November 2005 he had been detained without a court order; the subsequent extension of his detention had not been properly reasoned and no time-limit had been specified by the court. In granting the applicant’s request the Court of Appeal also had regard to the overall length of the applicant’s detention. It released the applicant subject to a written obligation not to abscond.

30. Following the additional investigation, on 18 July 2011 the applicant was committed to trial before the District Court. As of 4 December 2012 the proceedings were pending before the court.

B. The applicant’s civil claim for damages

31. On 18 July 2011 the applicant lodged a civil claim with the Leninskyy District Court of Sevastopol seeking compensation for pecuniary and non-pecuniary damage sustained as a result of unlawful deprivation of liberty. The applicant contended, among other things, that his claim was supported by the findings of the Court of Appeal in its decision of 12 April 2011.

32. On 5 July 2012 the Leninskyy District Court of Sevastopol found that the applicant’s claim had been groundless. Moreover, contrary to the requirements of the Compensation Act, the applicant failed to substantiate any damage he had allegedly sustained. The applicant appealed.

33. On 8 November 2012 the Court of Appeal quashed the decision of 5 July 2012 noting that, instead of the Compensation Act, the first-instance court should have applied the Convention. The Court of Appeal further found that the applicant’s arrest and detention had been lawful and justified by the circumstances of the criminal case. Besides, according to section 2 of the Compensation Act, the fact of unlawful detention on remand could not be confirmed by a decision on the remittal of the case for additional investigation. Accordingly, given that the deprivation of liberty was lawful and substantiated, the applicant had no right to compensation for damage and the claim had to be rejected.

34. The applicant appealed on points of law, but on 4 February 2013, his appeal was dismissed as unfounded.

C. Conditions of detention and transportation

35. Following the court decision of 1 July 2005 the applicant was placed in the Simferopol Pre-Trial Detention Centre (“the Simferopol SIZO”). In order to participate in the investigative measures and court hearings, he was escorted to the Sevastopol Temporary Detention Centre (“the Sevastopol ITT”) for several days at a time. According to the official reply from the Prison Department of the Autonomous Republic of Crimea, between 2005 and 2009 the applicant was escorted to the Sevastopol ITT on twenty-seven occasions. According to the applicant, during the whole period of his pre-trial detention he was transported to the Sevastopol ITT on forty-five occasions.

36. According to the applicant, his trip to Sevastopol took about twelve hours and the trip back to Simferopol took from twenty to twenty-four hours. Although the transportation itself took about two hours, for the rest of the time he had to remain in a special metal cage inside the vehicle measuring 0.5 sq. m. During the trip the applicant was not given food or water and he could not sleep. The cages were dirty, cold in winter and hot in summer, and not properly ventilated.

37. In the Sevastopol ITT, the applicant was allegedly held in overcrowded cells: during the first years of his detention he was held in cells containing six bunks, while the overall number of detainees ranged from twenty-five to thirty. In the last two years of his detention the number of detainees decreased to fifteen per cell, which still contained only six bunks.

38. On 18 November 2005 the applicant applied to the Ukrainian Parliamentary Commissioner for Human Rights complaining about the conditions of detention and transportation.

II. RELEVANT DOMESTIC LAW

39. The relevant provisions of the Constitution and the Code of Criminal Procedure, which was applicable at the relevant time, can be found in the judgment in the case of Molodorych v. Ukraine (no. 2161/02, §§ 57-59, 28 October 2010).

40. Under Article 162 of the Code of Administrative Justice (2005), the administrative court, should it find an administrative claim substantiated, may, inter alia, declare the impugned action, omission or decision unlawful, invalidate the decision in question and/or oblige the defendant to undertake, or abstain from taking, certain actions. The administrative court may also take other decisions guaranteeing the protection of human and citizens’ rights, and the rights and interests of other subjects of public law relationships, from violations committed by public authorities.

41. Article 1176 of the Civil Code (2003) deals with the compensation for damage sustained as a result of unlawful decisions, actions or inactivity by the body of inquiry, pre-trial investigation authorities, prosecutor’s offices and courts. It provides, inter alia, that the procedure for compensation of damage inflicted by such bodies “shall be established by the law”.

42. The relevant provisions of the Compensation Act (the law “on the procedure for compensation for damage caused to citizens by the unlawful acts of bodies of inquiry, pre-trial investigation authorities, prosecutor’s offices and courts”) of 1 December 1994 read as follows:

Section 1

“Under the provisions of this Act a citizen is entitled to compensation for damage caused by:

1) unlawful conviction, bringing of charges, arrest, placing and holding in custody, searches, seizures, attachment of property, removal from job, and other procedural actions restricting the citizen’s rights; ...”

Section 2

“The right to compensation for damage in the amount and in accordance with the procedure established by this Act shall arise in the event of:

1) acquittal by a court;

2) the termination of a criminal case for the reason that no crime has been committed, for the absence of corpus delicti, or for lack of evidence of the accused’s participation in the commission of the crime;

3) refusal to initiate criminal proceedings or terminate criminal proceedings on the grounds stipulated in sub-paragraph 2 of paragraph 1 of this section;

4) termination of proceedings for an administrative offence.

...”

43. According to the amendments to the Compensation Act of 1 December 2005, section 2, providing the list of situations in which the right to compensation arose, was supplemented with the following paragraph:

“(1-1) where ... unlawfulness of remand and holding in custody ... has been established by a conviction or other judgment of a court (except for rulings on the remittal of cases for additional investigation)”.

III. RELEVANT INTERNATIONAL AND DOMESTIC MATERIALS

44. The relevant international and domestic materials concerning conditions of detention and transportation can be found in the judgments of Yakovenko v. Ukraine (no. 15825/06, §§ 56-61, 25 October 2007), and Koktysh v. Ukraine (no. 43707/07, §§ 39-42, 10 December 2009).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

45. The applicant complained that the conditions of his detention in the Sevastopol ITT and the conditions of his transportation between the Simferopol SIZO and the Sevastopol ITT had been contrary to Article 3 of the Convention.

46. Article 3 of the Convention provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

1. The parties’ submissions

47. The Government submitted that the applicant had failed to exhaust domestic remedies in respect of this part of application. In particular, he should have applied to the administrative courts or raised these issues before the prosecutor. As an example of the practical effectiveness of the judicial remedy, the Government referred to the domestic court’s decision of 4 February 2009 in which the claimants were awarded compensation in allegedly similar circumstances. They did not provide a copy of that decision.

48. The Government further maintained that the complaints were not properly developed and substantiated by the applicant and had to be rejected as manifestly ill-founded. They submitted that the documentation concerning the applicant’s detention in the Sevastopol ITT and his transportation between the Sevastopol ITT and the Simferopol SIZO had been destroyed, since the time-limit for keeping it had expired. They provided a general description of the Sevastopol ITT and stated that its detainees were held in adequate conditions. The Government also provided a general description of the vehicles and train carriages used to transport detainees, and contended that the transportation of the applicant had not disclosed any issue under the Convention.

49. The applicant, relying on the Court’s case-law, alleged that the remedies referred to by the Government were ineffective. He insisted that his complaints under Article 3 of the Convention were well-founded and could not be rejected as inadmissible.

2. The Court’s assessment

50. The Court observes that it has rejected non-exhaustion arguments similar to those raised by the Government in the present case (see, for example, Melnik v. Ukraine, no. 72286/01, §§ 69-71, 28 March 2006; Yakovenko, cited above, §§ 75-76; Koktysh, cited above, § 86; Logvinenko v. Ukraine, no. 13448/07, § 57, 14 October 2010; Iglin v. Ukraine, no. 39908/05, § 43, 12 January 2012; and Belyaev and Digtyar v. Ukraine, nos. 16984/04 and 9947/05, §§ 30 and 31, 16 February 2012). As to the Government’s additional contention that the domestic court’s decision of 4 February 2009 proved the efficiency of the judicial remedy, the Court notes that a copy of that decision was not provided. Moreover, it appears that the Government refer to a decision which was examined by the Court in the same context and found to be of no relevance for the issue of exhaustion of domestic remedies (see Petukhov v. Ukraine, no. 43374/02, § 74-78, 21 October 2010, and Ustyantsev v. Ukraine, no. 3299/05, §§ 56-58, 12 January 2012). In summary, there are no grounds for assuming that in the present case the use of the remedies mentioned by the Government could effectively have addressed the applicant’s issues. The Court therefore sees no reason to depart from its previous approach and dismisses the Government’s objection.

51. The Court further considers that this part of application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

52. The applicant contended that the conditions of his detention and transportation were inappropriate and contrary to Article 3 of the Convention.

53. The Government did not comment on the merits of these complaints considering them inadmissible.

2. The Court’s assessment

54. The Court notes that the applicant’s complaints concerning the conditions of detention and transportation are detailed and consistent. These complaints, including the specific allegations of degrading manner of the applicant’s transportation in a metal cage, raise serious concerns. The Court considers that the applicant’s submissions, which have not been refuted by the Government, are sufficiently supported by the international and domestic reports examined by the Court in the cases of Yakovenko and Koktysh (cited above) and by the Court’s findings in those cases concerning the conditions of detention in the Sevastopol ITT and the manner of transportation between the Sevastopol ITT and the Simferopol SIZO. At the same time, there is no material leading the Court to conclude that in the present case the applicant’s conditions of detention and transportation were compatible with the requirements of Article 3 of the Convention.

55. There has therefore been a violation of that Convention provision.

II. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION

56. The applicant complained under Article 5 §§ 1 and 3 of the Convention that his detention after 29 November 2005 till 29 December 2005 had not been lawful as it had not been based on a court decision. He also complained that between August and October 2005 his pre-trial detention had not been lawfully extended by the courts. The applicant further alleged that the other court decisions taken in respect of the preventive measure had been unreasoned and the overall length of his detention had been excessive.

57. The relevant provisions of Article 5 read as follows:

Article 5

“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;

...

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. Release may be conditioned by guarantees to appear for trial.”

A. Admissibility

1. The parties’ submissions

58. The Government submitted that the applicant had not complied with the rule of exhaustion of domestic remedies. They noted that the Court of Appeal, in its decision of 12 April 2011, had acknowledged in substance that the applicant’s rights had been violated under Article 5 §§ 1 and 3 of the Convention. Relying on Article 1176 of the Civil Code and the Compensation Act, the Government maintained that after the Court of Appeal’s decision it had been open for the applicant to seek damages, but he had failed to exhaust that remedy.

59. The Government further argued that the applicant’s complaint concerning the unlawful prolongation of his pre-trial detention between August and October 2005 fell outside the six-month period, which had started to run from the date when the applicant had become aware of the relevant decisions of the Court of Appeal.

60. The applicant disagreed with the Government’s objections.

2. The Court’s assessment

61. As regards the Government’s contention that the applicant failed to exhaust domestic remedies as he did not lodge a civil claim, the Court notes that in fact the applicant lodged a claim for damages which was considered and rejected by the domestic courts (see paragraphs 31 - 34 above). Accordingly, the Government’s objection should be dismissed.

62. As to the alleged non-compliance with the six-month rule, the Court observes that the applicant’s uninterrupted detention during the specific period to which he referred, as well as during the subsequent periods until his conviction on 19 November 2010, was of the same legal nature and constituted, for the purposes of the Convention, a continuing situation. As the application was introduced on 27 June 2006, the complaint cannot be dismissed as lodged out of time (see Nikolay Kucherenko v. Ukraine, no. 16447/04, § 29, 19 February 2009 and Gavazhuk v. Ukraine, no. 17650/02, §§ 54-55, 18 February 2010). The Court therefore dismisses the Government’s objection in this respect.

63. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

64. The applicant insisted that his rights under Article 5 had been infringed.

65. The Government contended that the applicant’s complaints did not give rise to a violation of Article 5 of the Convention. In particular, the decisions between August and October 2005 constituted appropriate legal basis for the applicant’s pre-trial detention at the relevant time.

2. The Court’s assessments

66. The Court considers that the applicant’s submissions concern the following issues, which have to be examined in turn:

(a) whether the applicant’s detention after 29 November 2005 till 29 December 2005 was compatible with the requirements of lawfulness under Article 5 § 1 (c) of the Convention; and

(b) whether the court decisions in respect of the preventive measure were compatible with the requirements of Article 5 §§ 1 and 3 of the Convention.

(a) Whether the applicant’s detention after 29 November 2005 till 29 December 2005 was compatible with Article 5 § 1 (c) of the Convention

67. The Court notes that during the period under examination the applicant was held in detention on account of an indictment having been submitted to the court, even though there was no court decision validating his detention. The Court has already found that such practice is not compatible with Article 5 § 1 (c) of the Convention (see, for example, Nikolay Kucherenko, cited above, §§ 35-38, Kharchenko v. Ukraine, no. 40107/02, §§ 71 and 98, 10 February 2011 and Tsygoniy v. Ukraine, no. 19213/04, § 60, 24 November 2011). The Court sees no reason to depart from its previous findings in the present case and holds that there has been a violation of Article 5 § 1 (c) of the Convention.

(b) Whether the court decisions in respect of the preventive measure were compatible with Article 5 §§ 1 and 3 of the Convention

68. Article 5 § 1 of the Convention requires that for deprivation of liberty to be considered free from arbitrariness, it does not suffice that this measure is executed in conformity with national law; it must also be necessary in the circumstances (see Nešťák v. Slovakia, no. 65559/01, § 74, 27 February 2007). For the Court, detention pursuant to Article 5 § 1 (c) must embody a proportionality requirement, which implies a reasoned decision balancing relevant arguments for and against release (see Ladent v. Poland, no. 11036/03, § 55, ECHR 2008-... (extracts), and Khayredinov v. Ukraine, no. 38717/04, § 86, 14 October 2010).

69. The Court has also held that Article 5 § 3 of the Convention requires that justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities. The arguments for and against release, including the risk that the accused might hinder the proper conduct of the proceedings, must not be taken in abstracto, but must be supported by factual evidence. The danger of an accused’s absconding cannot be gauged solely on the basis of the severity of the sentence risked. It must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify detention pending trial (see Becciev v. Moldova, no. 9190/03, §§ 56 and 59, 4 October 2005, with further references).

70. Having regard to the close affinity between the relevant principles developed under Article 5 §§ 1 (c) and 3 of the Convention, the Court shall consider the present complaint under both provisions simultaneously (for a similar approach see Korneykova v. Ukraine, no. 39884/05, § 38, 19 January 2012, and Sizarev v. Ukraine, no. 17116/04, §§161-164, 17 January 2013).

71. The Court notes that the applicant’s pre-trial detention lasted for more than five years and nine months. The decisions on the applicant’s detention, some of which were adopted by the courts without hearing the applicant in person, were couched in general terms. They do not suggest that the courts made an appropriate assessment of the facts relevant to the question whether such a preventive measure was necessary in the circumstances. Moreover, with the passage of time the applicant’s continued detention required more justification, but the courts did not provide any further reasoning in that respect.

72. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 5 §§ 1 (c) and 3 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

73. The applicant complained that he had been denied the right to have the lawfulness of his detention after 29 November 2005 reviewed by a court. He alleged that the administrative proceedings in which he raised that issue had been incompatible with the requirements of Article 5 § 4, Article 6 § 1 and Article 13 of the Convention.

74. The Court considers that the crux of the applicant’s complaint concerns the question whether the applicant was provided with an effective procedure by which he could challenge his ongoing detention at the relevant time. The Court will therefore examine the matter solely under Article 5 § 4 of the Convention, which provides 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.”

A. Admissibility

1. The parties’ submissions

75. The Government submitted that in so much as the complaint related to the administrative proceedings, Article 5 § 4 of the Convention was not applicable. They maintained that the administrative courts had no jurisdiction over issues of detention in the course of criminal proceedings and, in any event, they had no powers to order the applicant’s release.

76. The applicant maintained that his complaint was admissible.

2 The Court’s assessment

77. The Government’s objection suggests that the administrative proceedings, instituted by the applicant, were not appropriate for the review of the lawfulness of his detention as required by Article 5 § 4 of the Convention. However, this Government’s argument does not preclude the Court from considering the merits of the applicant’s complaint in the context of a wider problem, namely whether the applicant had any effective procedure for the purpose of Article 5 § 4. The Court therefore dismisses the Government’s objection.

78. The Court further notes that the complaint is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

79. The Government submitted that the applicant had been provided with an effective procedure by which he could have challenged his detention at the relevant time. In particular, in accordance with the Code of Criminal Procedure, the applicant had been entitled to submit various requests to the body dealing with his criminal case, including requests to change or lift the preventive measure.

80. The applicant disagreed.

81. The Court reiterates that it has already found that Ukrainian law, as it stood at the relevant time, did not provide a procedure for reviewing the lawfulness of continued detention after the completion of pre-trial investigations that satisfied the requirements of Article 5 § 4 of the Convention (see Molodorych, cited above, § 108; Pleshkov v. Ukraine, no. 37789/05, § 42, 10 February 2011; Kharchenko v. Ukraine, no. 40107/02, § 100, 10 February 2011; and Tsygoniy, cited above, § 78). The applicant’s unsuccessful attempt to have the issue reviewed by the administrative courts and the Government’s contention that those proceedings could not effectively deal with the issue at stake can only support that general finding.

82. The Court therefore holds that there has been a violation of Article 5 § 4 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION

83. The applicant complained that he had been unable to claim compensation in respect of his unlawful pre-trial detention. He relied on Article 5 § 5 of the Convention, which reads as follows:

“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.”

A. Admissibility

84. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

85. The Government submitted that there had been no violation of Article 5 § 5 of the Convention. They maintained that the applicant could claim damages under Article 1176 of the Civil Code and the Compensation Act, relying on the Court of Appeal’s decision of 12 April 2011 in which a violation of the applicant’s rights under Article 5 §§ 1 and 3 of the Convention had been recognised in substance.

86. The applicant disagreed and insisted that the compensatory remedy had not been available to him.

87. The Court reiterates that Article 5 § 5 is complied with where it is possible to apply for compensation in respect of deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4. The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court (see, for example, Włoch v. Poland (no. 2), no. 33475/08, § 25, 10 May 2011).

88. With respect to the Government’s submission that the applicant could claim damages under Article 1176 of the Civil Code and the Compensation Act, the Court notes that the domestic courts, dealing with the applicant’s claim for damages, did not in fact consider that the Court of Appeal’s decision of 12 April 2011 generated a right to compensation in that regard. Moreover, they expressly stated that the applicant had no such a right after finding that the depravation of liberty had been lawful and substantiated.

89. The Court further notes that the Government have not shown that the applicant’s right to compensation under Article 5 § 5 of the Convention was ensured in the domestic legal system should the Strasbourg Court find a violation of any preceding paragraphs of that Article (see Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, §§ 229-234, 21 April 2011 and Klishyn v. Ukraine, no. 30671/04, § 98, 23 February 2012).

90. There has therefore been a violation of Article 5 § 5 of the Convention.

V. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

91. The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against him had been excessively lengthy.

92. The relevant part of Article 6 § 1 of the Convention 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 ...”

A. Admissibility

93. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

94. The applicant maintained that the proceedings had been unreasonably lengthy. The Government contested that argument, stating that the case was complex and that there had been no major delays attributable to the State.

95. 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, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

96. Turning to the present case, the Court notes that on 29 June 2005 the applicant was arrested on suspicion of murder. As of 4 December 2012 – that is, more than seven years and five months later – the proceedings were pending before the first-instance court.

97. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it that such lengthy criminal proceedings were justified in the circumstances of the case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

98. There has therefore been a violation of Article 6 § 1 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

99. 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.”

A. Damage

100. The applicant claimed 19,600.80 euros (EUR) in respect of pecuniary damage and EUR 130,000 in respect of non-pecuniary damage.

101. The Government submitted that the claim for pecuniary damage was not supported by any evidence and the claim for non-pecuniary damage was excessive and unfounded.

102. The Court notes that the applicant failed to substantiate the pecuniary damage alleged. It therefore makes no award in this connection. As to the claim for non-pecuniary damage, the Court considers that the applicant must have suffered distress and anxiety on account of the violations found. Ruling on an equitable basis, as required by Article 41 of the Convention, it awards the applicant EUR 14,000 in respect of non-pecuniary damage.

B. Costs and expenses

103. The applicant also claimed EUR 5,979.8 for the costs and expenses incurred before the domestic authorities and the Court.

104. The Government considered that the claim was not supported by sufficient evidence and was, in any event, excessive.

105. 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. 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 900, covering costs under all heads.

C. Default interest

106. 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

1. Declares the remainder of the application admissible;

2. Holds that there has been a violation of Article 3 of the Convention;

3. Holds that there has been a violation of Article 5 § 1 (c) of the Convention as regards the period of the applicant’s detention after 29 November 2005 till 29 December 2005;

4. Holds that there has been a violation of Article 5 §§ 1 (c) and 3 of the Convention;

5. Holds that there has been a violation of Article 5 § 4 of the Convention;

6. Holds that there has been a violation of Article 5 § 5 of the Convention;

7. Holds that there has been a violation of Article 6 § 1 of the Convention;

8. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 14,000 (fourteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 900 (nine hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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;

9. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 17 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekMark Villiger
RegistrarPresident

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