FIFTH SECTION
DECISION
Applications nos. 31717/15 and 31724/15
Mykola Mykolayovych NADTOCHIY against Ukraine
and Volodymyr Valeriyovych POLOVYAN against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 14 December 2023 as a Committee composed of:
Carlo Ranzoni, President,
Mattias Guyomar,
Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Mr Mykola Mykolayovych Nadtochiy and Mr Volodymyr Valeriyovych Polovyan (“the applicants”), on 20 June 2015;
the decision to give notice of the applications to the Ukrainian Government (“the Government”), represented by their Agent, most recently Ms O. Davydchuk, of the Ministry of Justice;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the applicants’ complaints, under Article 5 § 4 of the Convention, of a breach of procedural guarantees during proceedings concerning the extension of their pre-trial detention.
2. The applicants are two co-accused in criminal proceedings concerning a violent robbery committed in a group. They have been detained for an unspecified period of time.
3. On 24 March 2015 the indictment against the applicants was submitted to the Svitlovodskyi Local Court of the Kirovograd Region (“the trial court”), which scheduled a hearing for 1 April 2015. The trial court ruled that, owing to technical reasons, the applicants were to participate in the hearing by video link.
4. The Government submitted a copy of written statements made by the applicants on 30 March 2015, according to which they had refused to participate in the hearing of 1 April 2015. No reasons for that refusal were provided.
5. On 1 April 2015, at the beginning of the hearing in the trial court, the presiding judge announced that the applicants’ defence lawyers had failed to appear, without providing an explanation for their absence. The presiding judge further announced that the facility where the applicants were being detained had informed the court that they had refused to participate in the hearing via video link. The prosecutor, who was present in court, submitted that the examination of the indictment without the applicants and their lawyers being present was not possible, but requested that the trial court examine the question of an extension to the applicants’ detention as it was due to expire the following day, on 2 April 2015.
6. The trial court decided to adjourn the examination of the indictment against the applicants and ruled on the question of the extension of their detention. It ordered the extension of the applicants’ detention until 30 May 2015, stating that the reasons given previously still remained valid. The trial court’s decision was not subject to appeal, but during the proceedings, the trial court explained that it was open to the applicants to request a review of the need for their detention. The applicants have not informed the Court whether they have sought a review of their detention.
THE COURT’S ASSESSMENT
7. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
8. The Government submitted that the domestic courts had provided the applicants with the guarantees under Article 5 § 4. The applicants had been given the opportunity to participate in the court hearing, but they had refused, without providing an explanation. The Government further argued that the applicants’ lawyers had failed to appear before the trial court on 1 April 2015 without any explanation, and that the trial court had decided to hold a hearing without the lawyers being present, in view of the necessity of a hearing to consider the issue of the applicants’ detention.
9. The applicants argued that they had been deprived of the opportunity to defend themselves in person or through legal assistance at the hearing of 1 April 2015. They did not make specific arguments in response to the Government’s observations.
10. The relevant principles under Article 5 § 4 of the Convention concerning the procedural guarantees in detention proceedings can be found in Lebedev v. Russia (no. 4493/04, §§ 76-78 and 84, 25 October 2007).
11. It is not disputed that the applicants’ complaints fall to be examined under Article 5 § 4 of the Convention. The essence of their complaints is that there was a breach of the principle of equality of arms following the examination by the trial court of the question of the extension of their detention in their absence and that of their lawyers, and in the presence of the prosecutor.
12. The Court notes, firstly, that the available material does not indicate that the applicants’ lawyers were absent from the hearing of 1 April 2015 for valid reasons. Moreover, there is nothing to suggest that the proceedings in question required legal representation of the applicants on account of their inability to defend themselves properly. In addition, holding the hearing may have been justified by the interests of justice, namely the need to examine the issue of the applicants’ continued detention, which was due to expire the next day.
13. Unlike in Idalov v. Russia ([GC], no. 5826/03, § 159, 22 May 2012), where the applicant was denied the opportunity to participate in the appeal proceedings concerning the extension of his detention despite his numerous requests to that effect, in the present case the applicants themselves refused to participate in the hearing of 1 April 2015. They did not explain the reasons for their refusal either before the trial court or before the Court. Likewise, they did not argue that their personal participation was required for the effective review of the lawfulness of their continued detention. Without speculating about the reasons for their refusal, it cannot be said that the domestic court deprived the applicants of the right to participate in the hearing in person. In addition, the applicants failed to present documentary evidence showing that the content of the prosecutor’s request for the extension of their detention was so specific as to make their presence at the hearing necessary.
14. In conclusion, the Court finds that the applicants’ complaints under Article 5 § 4 of the Convention are manifestly ill-founded and therefore inadmissible, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
15. It follows that the applications must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 18 January 2024.
Martina Keller Carlo Ranzoni
Deputy Registrar President