I correctly predicted that there was a violation of human rights in JHANGIRYAN v. ARMENIA.

Judgment

FIFTH SECTION

CASE OF KATAN v. UKRAINE

(Application no. 19397/10)

JUDGMENT

STRASBOURG

10 October 2019

This judgment is final but it may be subject to editorial revision. In the case of Katan v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Síofra O’Leary, President,Ganna Yudkivska,Lado Chanturia, judges,and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 17 September 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 19397/10) 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 Ivanovna Katan (“the applicant”), on 16 March 2010. 2. The applicant was represented by Ms A. Kulchytska, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna. 3. On 12 June 2018 notice of the complaints concerning the lawfulness of the applicant’s detention ordered on 31 January and 5 February 2009, the overall length of her pre-trial detention, and the lack of effective judicial review of the lawfulness of her continued detention, as well as the complaint of a lack of access to a court, were given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1954 and lives in Kyiv. 5. On 28 January 2009 criminal proceedings were instituted against the applicant, then advisor to the mayor of Dnipropetrovsk, in connection with a number of incidents of fraud. She was suspected of forging documents to sell apartments that were in communal ownership. It was alleged that she had conspired with other individuals to transfer the ownership rights to the apartments to third parties for remuneration. 6. On the same date the applicant was arrested by the investigator as a suspect in the context of the above-mentioned criminal proceedings. 7. On 31 January 2009 the investigator requested the Babushkinskyy District Court of Dnipropetrovsk (“the District Court”) to order the applicant’s detention as a preventive measure on the grounds that she was suspected of a serious crime and might, as advisor to the mayor, hinder the investigation by putting pressure on witnesses or victims. He also submitted that not all of the applicant’s accomplices had yet been identified. The applicant in turn requested the court not to order her detention as she needed to undergo medical treatment. 8. On the same day the District Court refused the investigator’s request but extended the applicant’s police custody until 5 February 2009 pursuant to Article 165-2 of the Code of Criminal Procedure of Ukraine (“the CCP”) in order to obtain information on the need for her to undergo medical treatment. It also instructed the investigating authorities to provide more evidence of the applicant’s involvement in the crime. The decision was not amenable to appeal. 9. On 5 February 2009 the District Court allowed the investigator’s request and ordered the applicant’s detention as a preventive measure with effect from the same date. It noted that she was suspected of a serious crime and might, if released, hinder the investigation by influencing witnesses. No further details were provided in that regard. That decision was amenable to appeal within three days of service. 10. On 9 February 2009 the applicant appealed against the decision of 5 February 2009. The documents in the file indicate that the applicant’s appeal was received by the Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal”) on the same date. In her appeal, the applicant also requested an extension of the time-limit for lodging it as the last day of the three-day’ time limit set by the law in this respect had fallen on Sunday, 8 February 2009. According to the applicant, she has no knowledge as to whether her appeal was ever examined by that court. 11. On 25 March 2009, at the investigator’s request, the District Court extended the applicant’s detention until 28 May 2009 on the grounds that additional time was required to complete the investigation. The court further found that there were no grounds for changing the preventive measure as the applicant was accused of a serious crime and might, if released, abscond or in some other way impede the investigation and trial. The court noted that the applicant’s reference to her poor state of health could not serve as grounds for changing the preventive measure as her health conditions, according to the medical evidence in the case file, did not prevent her from participating in court hearings. The applicant did not appeal against that decision. 12. On 27 May 2009 the Court of Appeal extended the applicant’s detention until 9 June 2009 on the grounds that she had been examining the case file and, accordingly, more time was required to complete the investigation. That decision was not amenable to appeal. 13. On 25 June 2009, when committing the applicant for trial, the District Court found that there were no grounds for changing the previously chosen preventive measure and accordingly rejected a request by the applicant for release. 14. During the trial the applicant regularly asked to be released, merely relying on her poor state of health. In a number of requests she also argued that there were no grounds to believe that she would abscond or in any way impede the investigation and trial as she had no criminal record, had a permanent place of residence and had been given a positive character reference by others. 15. On 20 and 25 August, 4 September, 27 October and 29 December 2009, and on 19 January, 2 February, 27 April, 20 May and 19 October 2010 the District Court dismissed the applicant’s requests for release with the same reasoning. In particular, it found, without providing any details, that all the relevant circumstances, including the applicant’s health conditions, had been taken into account when her pre-trial detention as a preventive measure had been ordered. It went on to note that she had failed to provide any evidence which could serve as grounds for changing the preventive measure. 16. On 10 December 2010 the District Court convicted the applicant of fraud and forgery of documents and sentenced her to five and a half years’ imprisonment, with confiscation of property. On 15 June 2011 the Court of Appeal upheld her conviction. 17. On 11 August 2011 the applicant’s husband concluded an agreement authorising a lawyer, Sh., to provide legal assistance to her in proceedings before the higher court. On 12 September 2011 Sh., acting on the basis of that agreement, applied for leave to appeal in cassation on the applicant’s behalf. On 26 October 2011 the Higher Specialised Civil and Criminal Court (“the HSCCC”) refused to grant him leave to appeal in cassation on the grounds that there was no evidence that he had had authority to sign the leave for appeal form on the applicant’s behalf. 18. On unspecified date Sh. relodged the request for leave to appeal in cassation, providing arguments as regards his authority to act as the applicant’s representative. He also requested that the examination of the applicant’s appeal on points of law be carried out in the applicant’s presence. Both requests were allowed by the HSCCC, and on 2 February 2012, in the presence of the applicant and Sh., the appeal on points of law was rejected as unsubstantiated and the judgment of the Court of Appeal upheld in substance. II. RELEVANT DOMESTIC LAW
19. The provisions of the CCP, as worded at the material time, concerning the types of preventive measures and their application, the time‐limits for pre-trial detention, and the grounds for and procedure of detention, can be found in Molodorych v. Ukraine (no. 21618/02, §§ 56-58, 28 October 2010). THE LAW
I. SCOPE OF THE CASE
20. In her reply to the Government’s observations, the applicant complained under Article 5 § 1 of the Convention about the lawfulness of her arrest on 28 January 2009 and detention under the District Court’s decision of 25 March 2009. She further complained under Articles 3, 8 and 34 of the Convention that a number of other violations of her rights had occurred during her pre-trial detention. 21. The Court notes that these new, belated complaints do not constitute an elaboration of the applicant’s original complaint, on which the parties have commented. The Court considers, therefore, that it is not appropriate to take up these matters in the context of the present case (see, for example, Kapustyak v. Ukraine, no. 26230/11, § 52, 3 March 2016). II. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 and 3 OF THE CONVENTION
22. The applicant complained under Article 5 § 1 of the Convention that the court order of 31 January 2009 to remand her in police custody and the court’s decision of 5 February 2009 ordering her pre-trial detention had been unlawful and had not been based on sufficient reasons. Furthermore, she complained under Article 5 § 3 of the Convention about the overall length of her pre‐trial detention. The relevant parts of the provisions relied on read 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;
...
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article 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
23. The Government maintained that the applicant had failed to exhaust effective domestic remedies in respect of her complaint under Article 5 § 1 of the Convention about the lawfulness of her detention under the District Court’s decision of 5 February 2009. In particular, it had been open for her to challenge that decision before the Court of Appeal but she had failed to do so. 24. The applicant argued that she had in fact challenged the lawfulness of the decision of 5 February 2009 before the Court of Appeal but had never been informed of the outcome. She provided the Court with a copy of her appeal bearing a stamp of the Court of Appeal. The Government provided no comments whatsoever on this factual submission of the applicant. 25. The stamp on the applicant’s appeal against the decision of 5 February 2009 suggests that it was received by the Dnipropetrovsk Court of Appeal on 9 February 2009. However, there is no evidence in the case file, with the Government being silent on the matter, that any decision was taken by that court following the applicant’s appeal. In these circumstances, the Court therefore dismisses the Government’s objection as to the non-exhaustion of domestic remedies. 26. The Court further notes that the complaints under Article 5 §§ 1 and 3 of the Convention are not manifestly ill‐founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits
1. Lawfulness of the applicant’s detention under the court’s decisions of 31 January and 5 February 2009 (Article 5 § 1)
(a) The parties’ arguments
27. The applicant complained that the court decisions in question had been arbitrary and had lacked reasoning. The need for the prosecution to collect additional evidence on her involvement in the crime and to clarify any need to undergo medical treatment, invoked by the court in the decision of 31 December 2009, could not serve as grounds for deprivation of liberty under domestic law. The existence of the risks referred to in the court’s decision of 5 February 2009 had not been supported by any factual examples. In addition, on both occasions the court had failed to take into account the applicant’s state of health or information about her character, behaviour and honours. 28. The Government maintained that the impugned decisions had been lawful and based on relevant and sufficient reasons. The domestic court had not been guided by abstract assumptions, and had taken into account the available factual evidence and all relevant factors, including the risk of the applicant absconding from the investigation and trial or influencing witnesses and victims. (b) The Court’s assessment
29. The relevant general principles of the Court’s case-law are summarised in Merabishvili v. Georgia ([GC], no. 72508/13, §§ 181 to 186 and 222 to 225, 28 November 2017). (i) Detention under the court’s decision of 31 January 2009
30. The Court notes that, once the applicant was brought before a court on 31 January 2009 she was not remanded in custody, but her detention was extended until 5 February 2009 with reference to Article 165-2 of the CCP, which provides that a court may extend a person’s detention for up to ten days (fifteen days at the request of the suspect or accused) in order to examine all the information necessary to take a balanced decision on the person’s detention. The Court has previously held that an extension of detention under Article 165-2 may be justified in certain circumstances where the court requires time to establish the person’s identity and collect other information crucial for taking a decision on his or her pre-trial detention. At the same time, the Court has noted that the reasons not to release the person should be compelling (see Barilo v. Ukraine, no. 9607/06, § 93, 16 May 2013). In the present case, the reasons for extending the applicant’s detention were the need to verify whether her state of health warranted her medical treatment, as suggested by her, and to obtain more evidence on her involvement into the crime (see paragraph 8 above). The Court notes that the reasons given do not substantiate the existence of any risks or circumstances justifying the need to keep her in detention in the meantime. In fact, the court’s decision did not contain any assessment of the applicant’s individual circumstances or the risks justifying her detention. It does not appear from the documents submitted by the parties that there were any compelling reasons for the applicant’s continued detention (see and compare Barilo, cited above, §§ 91-98; Gal v. Ukraine, no. 6759/11, § 32, 16 April 2015; and Kushch v. Ukraine, no. 53865/11, §§ 113-15, 3 December 2015). 31. The Court thus considers that the applicant was detained in breach of Article 5 § 1 of the Convention between 31 January and 5 February 2009. (ii) Detention under the court’s decision of 5 February 2009
32. The applicant was detained under the above-mentioned decision until 25 March 2009, when her detention was further extended by the trial court. When ordering her detention on 5 February 2009, the District Court did not set any time-limit. Furthermore, it simply relied on the reasons for detention listed in the investigator’s submissions, without any examination of the plausibility of the grounds invoked by the latter in the applicant’s particular circumstances. There appears to be no indication in the case file before the Court that prior to the imposition of the detention measure the applicant had attempted to obstruct the investigation, interfere with witnesses or abscond during the investigation or that there had been other reasons justifying her pre-trial detention. 33. The Court has previously found a breach of Article 5 § 1 of the Convention in several cases against Ukraine owing to the combination of a lack of reasons for ordering pre-trial detention and a failure to limit its duration, even when the maximum possible duration of detention is known (see, for example, Gal, cited above, § 37, 16 April 2015, and Kleutin v. Ukraine, no. 5911/05, § 105, 23 June 2016). 34. Accordingly, there has been a violation of Article 5 § 1 of the Convention also in respect of the applicant’s detention under the decision of 5 February 2009. 2. Alleged violation of Article 5 § 3 of the Convention
35. The applicant contended that her pre-trial detention had been excessively long and unjustified. 36. The Government maintained that the length of the detention had been reasonable and justified by the gravity of the criminal offence in question and all the other relevant circumstances. 37. The Court notes that the applicant was detained within the meaning of Article 5 § 1 (c) of the Convention from 28 January 2009, when she was arrested as a suspect, to 10 December 2010 when she was convicted at first instance. Her pre-trial detention therefore lasted for one year, ten months and twelve days. 38. The Court does not consider this period short in absolute terms (compare Doronin v. Ukraine, no. 16505/02, § 61, 19 February 2009). 39. The Court has often found a violation of Article 5 § 3 of the Convention in cases against Ukraine where the domestic courts have referred to the same set of grounds, if there were any, throughout the whole period of the applicant’s detention (see Kharchenko v. Ukraine, no. 40107/02, §§ 80-81 and 99, 10 February 2011). 40. In the present case, too, the seriousness of the charges against the applicant and a risk that she could upset the course of the investigation by putting pressure on witnesses were mentioned in the initial court order for her detention. However, that reasoning did not evolve with the passage of time. The domestic authorities mainly limited themselves to simply stating that the previously chosen preventive measure was correct. It appears that the domestic courts did not attempt to demonstrate the existence of concrete facts proving that the declared risks outweighing the rule of respect for individual liberty existed. In fact, the burden of proof was wrongly shifted onto the applicant (compare Khayredinov v. Ukraine, no. 38717/04, §§ 40 and 41, 14 October 2010, and Makarenko v. Ukraine, no. 622/11, § 91, 30 January 2018). Twice the applicant’s detention was extended for the sole reason that additional time was required to complete the investigation (see paragraphs 11 and 12 above). In addition, there is no evidence that the courts at any time considered any other preventive measures as an alternative to detention. 41. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 5 § 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
42. The applicant complained under Article 6 § 1 of the Convention that her right of access to a court had been breached on account of the fact that on 26 October 2011 the HSCCC had refused her lawyer’s request for leave to appeal in cassation. The relevant part of Article 6 § 1 of the Convention reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
43. The Government argued that the applicant could not be said to be a victim of the alleged violation as the appeal on points of law lodged by her lawyer had eventually been accepted for consideration and examined by the HSCCC in 2012. 44. The case file suggests, and it has been confirmed by the applicant, that the request for leave to appeal in cassation lodged through her lawyer was eventually allowed by the HSCCC. Her appeal on points of law was examined in both her and her lawyer’s presence on 2 February 2012 (see paragraph 18 above). 45. In these circumstances, the Court agrees with the Government that the applicant may not claim to be a victim, within the meaning of Article 34 of the Convention, of a breach of the right of access to a court. 46. It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 of the Convention. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
47. The applicant also complained under Article 5 § 4 of the Convention that she had not been afforded an effective judicial review of the lawfulness of her continued detention as, when dismissing her requests for release, the domestic courts had failed to provide relevant and sufficient reasons and give answers to all her arguments. 48. Having regard to the facts of the case, the submissions of the parties, and its findings under Articles 5 §§ 1 and 3 of the Convention (see paragraphs 31, 34 and 41 above), the Court considers that it has examined the main legal questions raised in the present application, and that there is no need to give a separate ruling on the admissibility and merits of the complaint mentioned in the preceding paragraph (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014). V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
49. 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
50. Referring to the deterioration of her health in pre-trial detention and to an approximate estimate of the costs of her medical treatment, the applicant claimed 50,000 euros (EUR) in respect of pecuniary damage. 51. She also claimed EUR 50,000 in respect of non‐pecuniary damage for her unlawful and lengthy detention. 52. The Government contested the above claims as exorbitant and unsubstantiated. 53. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. 54. 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 her EUR 5,850 in respect of non-pecuniary damage. B. Costs and expenses
55. The applicant claimed EUR 3,000 for her legal representation in the proceedings before the Court. To substantiate that claim she submitted a legal assistance contract signed by her and Nazar Kulchytskyy and Partners Law Firm on 10 September 2018, and a report by Ms Kulchytska on the work carried out. Under the contract, the applicant undertook to pay the law firm, by 31 December 2018, the equivalent of 3,000 United States dollars (USD) for her representation before the Court and the drafting of a reply to the Government’s observations and a just satisfaction claim, as well as for legal assistance in the course of the execution of the Court’s judgment in her case. The report by Ms Kulchytska provided that the first three tasks listed above had been completed. 56. The Government considered the amount claimed excessive. They noted in particular that the applicant had been obliged under the contract to pay the equivalent of USD 3,000, but had claimed before the Court the same amount in euros. 57. 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-mentioned criteria, the Court considers it reasonable to grant the applicant’s claim in part and to award her EUR 900 under this head, plus any tax that may be chargeable to her on that amount. C. Default interest
58. 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 complaints under Article 5 §§ 1 and 3 of the Convention admissible and the complaint under Article 6 § 1 of the Convention inadmissible;

2. Holds that there has been a violation of Article 5 § 1 of the Convention;

3. Holds that there has been a violation of Article 5 § 3 of the Convention;

4. Holds that there is no need to examine the admissibility and merits of the complaint under Article 5 § 4 of the Convention;

5. Holds
(a) that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 5,850 (five thousand eight hundred and fifty 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;

6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 October 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan Blaško Síofra O’LearyDeputy RegistrarPresident