FIFTH SECTION
CASE OF US v. UKRAINE
(Application no. 41467/11)
JUDGMENT
This version was rectified on 29 January 2020
under Rule 81 of the Rules of Court.
STRASBOURG
9 January 2020
This judgment is final but it may be subject to editorial revision.
In the case of Us v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Yonko Grozev, President,
Gabriele Kucsko-Stadlmayer,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 3 December 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 41467/11) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Sergiy Ivanovych Us (“the applicant”), on 24 June 2011.
2. The applicant was represented by Ms S. Netidova, a lawyer practising in Yuzhnoukrainsk. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna, of the Ministry of Justice.
3. The applicant alleged under Article 5 § 1 of the Convention that his detention at the police station between 13 and 14 October 2010 had not been documented.
4. On 16 April 2018 the Government were given notice of the above complaint, and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1970 and lives in Voznesensk.
6. According to the applicant, on 13 October 2010 police officers came to his home requesting him to appear at the local police station at 3 p.m. on the same day. Having been escorted to the Voznesensk police station, the applicant was questioned about his relationship with T., whose dead body had been found.
7. According to the record of his questioning, the applicant was questioned as a witness between 4.25 p.m. and 7.10 p.m. on 13 October 2010. According to the applicant, the police officers handcuffed and ill-treated him in order to pressure him into confessing to the murder of T. Since then the applicant was in uninterrupted[1] detention until his formal arrest on 14 October 2010 (see paragraph 8 below).
8. On 14 October 2010, after the applicant had confessed to the murder of T., an investigator from the Voznesensk police station formally documented his arrest. According to the arrest record, the process of arresting the applicant took ten minutes – from 3.30 p.m. until 3.40 p.m. on 14 October 2010.
9. On 15 October 2010 the local court ordered the applicant’s detention on remand as from 14 October 2010, after he was charged with the murder of T. Subsequently, his detention was extended by the court a number of times.
10. On 22 October 2010 the applicant lodged with the Voznesensk Local Court a complaint regarding the alleged unlawfulness of his detention by the police on 13 October 2010.
11. On the same day the applicant lodged with the Voznesensk prosecutor’s office a complaint concerning his alleged ill-treatment by the police on 13 October 2010.
12. In the course of the examination of the applicant’s complaint about his allegedly unlawful detention, the Voznesensk Local Court noted that the applicant had been questioned as a witness at the police station on 13 October 2010 and that he had been arrested on the following day, after confessing to the murder of T. On 8 December 2010 the Voznesensk Local Court dismissed as unsubstantiated the applicant’s complaint about his allegedly unlawful detention. On 27 December 2010 the Mykolayiv Regional Court of Appeal, in a final judgment, upheld that decision.
13. In the course of the examination of the applicant’s ill-treatment complaint, an investigator from the Voznesensk prosecutor’s office interviewed the deputy head of the Voznesensk police station, who stated that in the course of the applicant’s questioning on 13 October 2010 the latter had confessed to the murder of T. The witness also stated that at about 11 p.m. on the same day the applicant had left the police station to go home. On the morning of the following day the applicant had returned to the police station and been formally arrested on suspicion of committing the above‑mentioned crime.
14. On 16 November 2011 the investigator from the Voznesensk prosecutor’s office declined to institute criminal proceedings on the basis of the applicant’s ill-treatment complaint on the grounds that there had been no constituent elements of an offence in the actions of the police officers concerned. The wording of that decision contained a reference to the circumstances of the applicant’s presence in the Voznesensk police station on 13 October 2010 and to the confession given by him (see paragraph 13 above).
15. On 6 June 2014 the Voznesensk Local Court acquitted the applicant of murder. That decision was upheld, following appeals by the prosecutor’s office and the victim’s brother, by the Mykolayiv Regional Court of Appeal and by the Higher Specialised Court for Civil and Criminal Matters on 20 May and 6 June 2015, respectively.
THE LAWALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
16. The applicant complained under Article 5 § 1 (c) of the Convention that his detention at the Voznesensk police station from about 3 p.m. on 13 October until 3.30 p.m. on 14 October 2010 had been unrecorded and therefore unlawful. The relevant provision reads as follows
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
...”Admissibility
17. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.Merits
18. The applicant submitted that he had been unlawfully detained at the police station between 13 and 14 October 2010. He added that no arrest record had been made during that time and that he had been deprived of any procedural guarantees as a suspect, including the right to defence.
19. The Government submitted that the applicant’s allegation of unrecorded detention had been examined by the domestic courts, which had found it to be unsubstantiated.
20. The Court reiterates that the unrecorded detention of an individual constitutes a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a most grave violation of that provision. The absence of a record of such matters as the date, time and location of detention, the name of the detainee in question, the reasons for his or her detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see, among many other references, Čamans and Timofejeva v. Latvia, no. 42906/12, § 129, 28 April 2016).
21. In the present case, the Court notes that, as appears from the testimony of the deputy head of the Voznesensk police station and the findings of the prosecutor’s office (see paragraphs 13 and 14 above), on the afternoon of 13 October 2010 the applicant was escorted to the police station, where he was questioned in connection with the murder of T. It is not disputed by the Government that in the course of his questioning the applicant confessed to the murder of T., and that from that moment on he was formally treated as a suspect. In this regard, it would be unrealistic to assume that during that period the applicant was free to leave the police station of his own free will, as suggested by the deputy head of the Voznesensk police station (see paragraph 13 above; see also Osypenko v. Ukraine, no. 4634/04, § 49, 9 November 2010).
22. The Court next notes that, as can be seen from the case-file material, on 13 October 2010 the police authorities made no record of the applicant’s arrest and only drafted the relevant arrest report at 3.40 p.m. on 14 October 2010 (see paragraph 8 above).
23. The Court furthermore notes that in the absence of appropriate custody records formalising the applicant’s status as a suspect, none of the procedural rights he could exercise at the relevant time had been explained to him. Given those circumstances the applicant could not make effective use of the variety of procedural safeguards enshrined in the Convention and the domestic legislation.
24. The Court has already found violations in cases where the formalisation of an applicant’s status as an arrested crime suspect was delayed without a reasonable explanation (see, for instance, Smolik v. Ukraine, no. 11778/05, §§ 46-48, 19 January 2012, and Grinenko v. Ukraine, no. 33627/06, §§ 77-78, 15 November 2012). It finds that the present case constitutes another regrettable example of that administrative practice.
25. The foregoing considerations are sufficient to enable the Court to conclude that the applicant’s initial detention was not lawful, within the meaning of Article 5 § 1 of the Convention. There has accordingly been a violation of that provision.APPLICATION OF ARTICLE 41 OF THE CONVENTION
26. 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.”
27. The applicant claimed 5,000 euros (EUR) in respect of non‑pecuniary damage. The Government contested that claim.
28. Making its assessment on an equitable basis, the Court awards the applicant the full amount sought in respect of non‑pecuniary damage, plus any tax that may be chargeable.
29. The applicant 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.
30. 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 complaint concerning the applicant’s unrecorded detention from 13 until 14 October 2010 admissible;Holds that there has been a violation of Article 5 § 1 of the Convention;Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 5,000 (five thousand 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.
Done in English, and notified in writing on 9 January 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško Yonko Grozev
Deputy RegistrarPresident
[1]. Rectified on 29 January 2020: the text was: ” Since then the applicant was in an interrupted detention until his formal arrest on 14 October 2010”.
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