I incorrectly predicted that there's no violation of human rights in BEREZA v. UKRAINE.

Judgment

FIFTH SECTION
CASE OF BEREZA v. UKRAINE
(Application no. 67800/12)

JUDGMENT
STRASBOURG
4 March 2021

This judgment is final, but it may be subject to editorial revision. In the case of Bereza v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Stéphanie Mourou-Vikström, President,Ganna Yudkivska,Lado Chanturia, judges,and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 67800/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Ukrainian national, Mr Anatoliy Valentynovych Bereza (“the applicant”), on 17 October 2012;
the decision to give notice to the Ukrainian Government (“the Government”) of the complaint under Article 5 § 1 (b) of the Convention and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 4 February 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the applicant’s allegations that he had been forcibly escorted to and held at a police station unlawfully and without relevant justification, in breach of Article 5 of the Convention. THE FACTS
2. The applicant was born in 1957 and lives in Zaporizhzhya. The applicant was represented by Mr D.V. Shtabovenko, a lawyer practising in Zaporizhzhya. 3. The Government were represented by their Agent, Mr I. Lishchyna, of the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. At the time of the events, the applicant was the Chairman of the Board of the Zaporizhzhya Abrasion Plant, an open joint-stock company (“the plant”). 6. On 30 December 2009 he lodged a complaint with the police on account of a theft at the plant. On the same day the police instituted criminal proceedings relating to the applicant’s complaint. 7. According to the applicant, the investigation in the criminal proceedings did not yield any results, despite his lodging numerous complaints with the law-enforcement bodies. 8. According to the Government, on 1 and 28 February 2011 the investigator sent summonses to the address of the plant, requiring the applicant to be interviewed as a witness, and on 1 March 2011 staff of the plant received a summons in the name of the applicant and other members of staff, which had been sent by the investigator in a letter dated 25 February 2011. 9. According to the applicant, he never received the summons of 1 February 2011 but on 1 March 2011 other staff of the plant did receive a summons sent by the investigator in a letter dated 25 February 2011, requiring the applicant and other named members of staff to attend an interview scheduled for 3 March 2011. However, the applicant could not attend the interview because he was on a business trip from 28 February to 19 March 2011. He asked a colleague to inform the investigator of the reasons for his non-attendance. 10. On 7 April 2011 the investigator decided that the applicant should be forcibly brought for questioning as a witness as he had repeatedly failed to attend interviews without giving any valid reasons. 11. On 8 April 2011 at 6 p.m., a special task force police unit came to the plant and forcibly escorted the applicant to the police station for interviewing. The interview lasted approximately two hours. According to the record of the interview, the applicant was asked general questions concerning the operations of the plant and the theft that had occurred in 2009. At 8.30 p.m. the interview ended and the applicant was allowed to leave. 12. On 22 December 2011 the Shevchenkivskyy District Court of Zaporizzhya dismissed a complaint by the applicant against the investigator’s decision of 7 April 2011. The court found, in particular, that the applicant had been properly summoned on at least 25 February 2011 but that he had failed to attend the interview without giving any valid reasons. That decision was upheld by the Zaporizhzhya Regional Court of Appeal and the Higher Specialised Court of Ukraine for Civil and Criminal Matters on 23 January and 14 August 2012 respectively. RELEVANT LEGAL FRAMEWORK
13. Article 70 of the 1961 Code of Criminal Procedure (as in force at the material time) provided that a person summoned as a witness had to appear at the indicated time and place and give a true testimony regarding the circumstances known to him or her. If the witness failed to appear without giving a valid reason, the body of inquiry, the investigator, the prosecutor or the court could require that the witness be forcibly brought for interviewing in accordance with Articles 135 and 136 of the Code. 14. Article 135 provided that the late receipt of the summons, ill health or any other circumstances preventing the person concerned from appearing before the investigator could serve as a valid reason for not attending an interview. 15. Article 136 provided that the forcible escorting of the person concerned could be carried out during daytime hours only. 16. Article 166 provided that the summons had to state the date, time and address of the interview and the consequences of the witness’s failure to appear. THE LAW
17. The applicant complained that his forcible escorting to the police station for an interview on 8 April 2011 had been unlawful and unjustified. He relied on Article 5 of the Convention, which 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:
...
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
...”
18. 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. 19. The applicant submitted that there had been no reason for forcibly escorting him to the police station as he had never been in breach of his obligations of a witness. 20. The Government submitted that the investigator’s decision to have the applicant forcibly escorted to the police station had been lawful since the applicant had failed to attend the interview. They further contended that the applicant’s presence in the police station had been justified by the need to question him: the interview had lasted some two and a half hours, and the applicant had been allowed to leave as soon as it had ended. 21. The Court reiterates that Article 5 § 1 protects the physical liberty of the person (see Engel and Others v. the Netherlands, 8 June 1976, § 58, Series A no. 22; Guzzardi v. Italy, 6 November 1980, § 92, Series A no. 39; and Raimondo v. Italy, 22 February 1994, § 39, Series A no. 281‐A). In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5 of the Convention, the starting-point must be his concrete situation, and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the impugned measure. 22. Article 5 § 1 of the Convention requires that any deprivation of liberty be “lawful”, which includes the condition that it must be effected “in accordance with a procedure prescribed by law”. The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness (see Witold Litwa v. Poland, no. 26629/95, §§ 72-73, ECHR 2000‐III). 23. Detention is authorised under the second limb of sub-paragraph (b) of Article 5 § 1 to “secure the fulfilment” of an obligation prescribed by law. It concerns cases where the law permits the detention of a person in order to compel that person to fulfil a specific and concrete obligation incumbent on him or her, and which he or she has until then failed to satisfy (see Engel and Others, cited above § 69; Guzzardi, cited above § 101; A.D. v. Turkey, no. 29986/96, § 20, 22 December 2005; and Lolova-Karadzhova v. Bulgaria, no. 17835/07, § 29, 27 March 2012). 24. A balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question and the importance of the right to liberty. The nature of the obligation arising from the relevant legislation, including its underlying object and purpose, the person being detained and the particular circumstances leading to the detention, as well as its duration, are relevant factors in drawing such a balance (see Iliya Stefanov v. Bulgaria, no. 65755/01, § 72, 22 May 2008, and Soare and Others v. Romania, no. 24329/02, § 236, 22 February 2011). 25. Lastly, Article 5 § 1 may also apply to deprivations of liberty of a very short length (see Creangă v. Romania [GC], no. 29226/03, §§ 91-93, 23 February 2012). 26. It is undisputed between the parties that the escorting to, and presence of the applicant in, the police station on 8 April 2011 amounted to deprivation of liberty within the meaning of Article 5 of the Convention. The Court is of the same view, having regard to the investigator’s decision of 7 April 2011 to bring the applicant “forcibly” and the manner in which it was enforced. 27. The Court observes that the decision of the investigator was based on the provisions of the 1961 Code of Criminal Procedure (see paragraph 13 above). It therefore had a basis in the domestic law. 28. The Court must then examine whether, as has also been argued by the Government, the applicant’s detention was justified under the second limb of Article 5 § 1 (b) “in order to secure the fulfilment of [an] obligation prescribed by law”. As established in the Court’s case-law (see paragraph 23 above), for a detention to fall under that permissible ground for a deprivation of liberty, it is necessary, firstly, for the law to permit the detention of the person concerned in order to compel that person to fulfil a specific and concrete obligation incumbent on him, which he has until then failed to satisfy. 29. The Court has found previously that the statutory obligation to give evidence as a witness was sufficiently specific and concrete for the purposes of Article 5 § 1 (b) and could thus be enforced by detention in a police station (see, in particular, Iliya Stefanov, §§ 73-75, and Soare and Others, §§ 234‐39, both cited above). 30. Indeed, in the present case Article 70 of the 1961 Code of Criminal Procedure itself linked the lawfulness of the “escorting” to the person’s previous failure to comply with a summons (see paragraph 13 above). 31. According to the Government, the applicant did not attend two interviews in February and March 2011 without giving any valid reasons. It is true that the domestic courts found that the applicant had been properly informed of at least one of the interviews, namely the one scheduled for 3 March 2011, of which he was notified in the investigator’s letter of 25 February 2011 (see paragraph 12 above). However, as in Rozhko v. Russia (no. 2),the material available to the Court does not suggest that during the weeks that preceded his escorting, the authorities made any efforts to notify the applicant of any summons to appear before an investigator for interviewing or that the investigation had any pressing need to interview the applicant, having regard to the content of the interview carried out on 8 April 2011 (see Rozhkov v. Russia (no. 2), no. 38898/04, § 94, 31 January 2017). 32. Accordingly, the obligation to appear before the investigator was not sufficiently “concrete and specific” (ibid., § 95). 33. It follows that the applicant’s deprivation of liberty for two and a half hours on 8 April 2011 was not justified under the second limb of Article 5 § 1 (b). 34. Having regard to the foregoing, the Court concludes that there has been a violation of Article 5 § 1 of the Convention as regards the escorting of the applicant on 8 April 2011. 35. 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.”
36. The applicant claimed 5,000 euros (EUR) in respect of non‐pecuniary damage. 37. The Government contested the above-mentioned claim as unfounded. 38. Ruling on an equitable basis, the Court awards the applicant EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. 39. 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. 40. 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,
(a) that the respondent State is to pay the applicant, within three months, EUR 1,000 (one thousand euros), 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 4 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller Stéphanie Mourou-VikströmDeputy RegistrarPresident