I correctly predicted that there was a violation of human rights in KRAYNYAK v. UKRAINE.
Information
- Judgment date: 2023-02-16
- Communication date: 2018-01-05
- Application number(s): 68353/17
- Country: UKR
- Relevant ECHR article(s): 5, 5-1, 5-3, 5-4, 5-5
- Conclusion:
Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)
Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation) - Result: Violation SEE FINAL JUDGMENT
JURI Prediction
- Probability: 0.817929
- Prediction: Violation
Consistent
Legend
Communication text used for prediction
The applicant, Mr Sergiy Vasylyovych Kraynyak, is a Ukrainian national, who was born in 1994 and is detained in Kyiv.
He is represented before the Court by Mr O.V.
Zarutskyy, a lawyer practising in Kyiv.
A.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
On 31 August 2015 the Parliament of Ukraine was debating draft legislation providing for allocation of greater powers to the local authorities of certain districts of the Donetsk and Luhansk regions.
Legislation was introduced within the framework of implementation of the so-called Minsk Agreements and the Package of Measures for their Implementation which provide for ceasefire in those regions (see Khlebik v. Ukraine, no.
2945/16, § 12, 25 July 2017).
Draft legislation inspired considerable opposition.
A crowd of protesters gathered in front of the Parliament.
The applicant was among them.
The crowd behaved violently and attacked the National Guard troops who were guarding the Parliament.
A hand grenade was thrown from the crowd.
It exploded killing four servicemen and injuring more than a hundred people.
On the same day the applicant was arrested on suspicion of having participated in a mass disorder (riot) and having committed violent acts against law enforcement officers.
On 2 September 2015 the Kyiv Pechersky District Court (“the Pechersky Court”) ordered the applicant’s pre-trial detention until 29 October 2015.
The court found that there was reasonable suspicion against the applicant, supported by witness statements and results of visual identification by witnesses.
The court stated that, in ordering the applicant’s pre-trial detention, it took into account the gravity of the offence he was suspected of and the circumstances under which it had been committed.
It considered that there was a risk that the applicant would influence witnesses, would abscond and continue criminal activity and that a non-custodial preventive measure was insufficient to guard against those risks.
The court, given the extreme dangerousness of the violent acts the applicant was suspected of, decided not to set bail.
On 15 September 2015 the Kyiv City Court of Appeal upheld the detention order.
On 16 September 2015 the applicant was charged with participation in a terrorist act which resulted in a death, an offence carrying the maximum sentence of life imprisonment.
On 27 October 2015 the Pechersky Court extended the applicant’s detention.
It cited reasons similar to those in the original detention order, adding in particular that the acts, of which the applicant was suspected, had caused mass casualties.
This meant that there was strong public interest in ensuring an orderly investigation and that there was a risk that the applicant may flee, influence witnesses and other suspects, destroy evidence and otherwise interfere with the investigation.
Lastly, the court referred to Article 176 § 5 of the Code of Criminal Procedure, which provided that pre‐trial detention was the only possible preventive measure for individuals suspected of terrorism.
On 16 December 2015 and 15 February 2016 the court extended the applicant’s detention.
It relied on essentially the same grounds as those in the previous order.
In extending the applicant’s detention on 24 March 2016 the court stated that reasonable suspicion against the applicant was supported by the evidence, that the risks identified in the original detention order continued to exist and that, in particular in view of the gravity of potential punishment, there was a risk of flight which could not be avoided through a non-custodial preventive measure.
Moreover, the investigating authority needed more time to complete the investigation, in particular because more than seventy expert examinations had been commissioned and had not been completed yet, measures were being taken to identify the organisers and other active participants in the offences, intelligence was being gathered, and confrontations needed to be organised between the suspects and victims and other witnesses.
The court, given the extreme dangerousness of the violent acts the applicant was suspected of, decided not to set bail.
On 16 May 2016 and 30 August 2016 the court extended detention on the grounds similar to those stated in the previous order.
It also referred to Article 176 § 5 of the Code of Criminal Procedure.
On 10 August 2016 a bill of indictment was drawn up in respect of the applicant and his co-defendant, a certain Mr Gumenyuk.
According to the indictment, the applicant, acting in conspiracy with Mr Gumenyuk, had thrown a smoke grenade at the National Guardsmen, thus creating the cover for Mr Gumenyuk to throw the live grenade.
Prior to the attack the defendants had known each other as activists of the Sokil youth organisation.
Since June 2014 Mr Gumenyuk served in a special volunteer police unit Sich which had participated in the anti-terrorist operation in the Donetsk and Luhansk regions (see Khlebik, cited above, §§ 9-11).
The applicant had also visited the theatre of operations there as a volunteer.
Based on this experience and contacts Mr Gumenyuk had enlisted the applicant’s help in the commission of the terrorist act near the Parliament.
In order to dissimulate their identity and plans Mr Gumenyuk and the applicant had arrived on the scene of the future attack separately and covered their faces.
Mr Gumenyuk had been intercepted in flight and resisted the police.
On 30 August 2016 the Kyiv Shevchenkivsky District Court (“the trial court”), in returning the indictment to the prosecutor for clarification, extended the applicant’s and his co-defendant’s detention.
It stated that, even though the defendants had strong social connections, families and addresses, it was likely that, given the severity of the punishment they were facing, they could abscond.
Moreover, the court considered reasonable the prosecutor’s argument that, in view of their military experience, the applicants had acquired particular skills making it possible that they would interfere with the investigation.
On 25 October 2016 the trial court held a preparatory hearing at which it examined the amended indictment and committed the applicant and his co‐defendant for jury trial.
At the same time it extended the applicant’s detention.
It held that, since neither the prosecutor nor the defence submitted any motions in this respect, the defendants’ detention had to be extended by virtue of Article 315 § 3 of the Code of Criminal Procedure.
It further stated that the applicants stood accused of a highly dangerous crime against public safety and therefore the protection of the society required that detention be extended.
On 13 December 2016 the trial court extended the applicant’s detention in terms similar to those used in the order of 30 August 2016.
On 19 January 2017 Judge B. was assigned to the case as the presiding judge.
On 25 January 2017 the applicant challenged Judge B.
He submitted that the special investigation commission established under the Restoration of Confidence in the Judiciary Act found that in December 2013 that judge had made politically motivated decisions against Euromaidan protesters (see Shmorgunov v. Ukraine, no.
15367/14, and 32 other applications, communicated on 6 October 2015).
The applicant argued that, since he was accused of a crime which was motivated by his political views, he had doubts about the judge’s impartiality.
On 26 January, 23 March, 24 April and 19 June 2017 presiding judge B. extended applicant’s detention in terms similar to those used in the order of 30 August 2016.
He also referred to Article 176 § 5 of the Code of Criminal Procedure.
On 2 August 2017 presiding judge B. examined the applicant’s challenge of 25 January 2017 and accepted it.
He noted that the special investigation commission had indeed recommended to the High Council of Justice that he be dismissed for breach of oath but that the High Council had not followed that recommendation.
While the facts cited by the applicant were not incontrovertible proof that he lacked impartiality, the judge nevertheless considered that they were such as to create an objective doubt as to his own impartiality in the eyes of the parties in this kind of proceedings.
On 15 August 2017 a new presiding judge extended the applicant’s detention.
The decision included extensive references to the Strasbourg Court’s case-law concerning the reasons which could justify deprivation of liberty.
The judge stated that the defendants presented the risk of flight and there were no sufficient factors which would deter them from fleeing.
The fact that the defendants had families and stable addresses did not present sufficient guarantees in this respect.
The gravity of the punishment they were facing was likely to outweigh in the defendants’ minds the hypothetical negative consequences of absconding.
There were also reasons to fear that the defendants may influence victims and other witnesses, especially given that the trial was in very early stages and those had not yet been examined.
The circumstances under which the crime had been committed suggested with high probability that the defendants might commit another offence.
At the time of lodging of the application the case was pending before the trial court and the applicant remained in detention.
B.
Relevant domestic materials 1.
Code of Criminal Procedure 2012 Article 176 of the Code, as amended by the Law of 7 October 2014 no.
1689-VII, reads: Article 176.
General provisions on preventive measures “1.
Preventive measures are: (1) a personal undertaking; (2) a personal warranty; (3) bail; (4) house arrest; and (5) pre-trial detention.
... 4.
... [D]uring the trial [preventive measures] shall be applied by the court at the request of the prosecutor.
5.
Preventive measures of a personal undertaking, a personal warranty, bail and house arrest may not be imposed on people who are suspected of or charged with the offences under Articles ... 258-5 ... of the Criminal Code of Ukraine.” Article 315.
Resolution of issues related to preparation for trial “... 3.
During the preparatory court hearing the court shall be entitled, at the request of participants in the trial, to impose, alter or revoke measures to ensure the conduct of the criminal proceedings, including any preventive measures imposed on the accused...
In the absence of such a request from the parties to the trial, the measures to ensure the conduct of the criminal proceedings that were selected at the pre-trial investigation stage shall be deemed to be extended.” 2.
Criminal Code 2001 Article 258 § 3 of the Code makes commission of a terrorist act which ended in a death punishable by imprisonment for a term of ten to fifteen years or by life imprisonment.
This main punishment can be combined with confiscation of assets.
3.
Restoration of Confidence in the Judiciary Act of 8 April 2014 The Act instituted a specific form of disciplinary proceedings against judges suspected of being involved in politically motivated persecution of participants in the protests in central Kyiv in November 2013-February 2014 known as the Euromaidan (see Shmorgunov communication, cited above).
It provided for the appointment of a special commission charged with the investigation of such allegations and authorised to make recommendations to the High Council of Justice or to the Qualification Commission of Judges concerning disciplinary measures against such judges.
4.
Circular letter of the High Civil and Criminal Court of 30 December 2016 In that circular letter to the courts of appeal, dedicated to the general measures to be taken in execution of this Court’s Chanyev v. Ukraine (no.
46193/13, 9 October 2014) judgment, the High Civil and Criminal Court stated, in particular, that in applying Article 315 § 3 of the Code of Criminal Procedure concerning extension of detention at preparatory hearings the court had to be conscious of the fact that the Strasbourg Court’s case-law condemned any “automatic” extension of detention.
Therefore, if there were no requests or applications concerning pre-trial detention the court had to raise this issue ex officio and solicit the parties’ opinion on the matter.
COMPLAINTS The applicant complains under Article 5 § 1 that the decision of 25 October 2016 to extend his detention was unlawful because the domestic court took it of its own motion without the prosecutor’s application.
The applicant complains under Article 5 § 3 of the Convention that Article 176 § 5 of the Code of Criminal Procedure bars the use of any preventive measures other than pre-trial detention in his case, thus instituting a system of mandatory detention, and that his detention has been unreasonably lengthy.
Referring to Articles 5 § 3 and 13 of the Convention the applicant complains that the judge whom he had challenged in January 2017 nevertheless had issued several detention orders in his respect from March to June 2017 and only then recognised that the applicant’s doubts about his impartiality were justified.
Finally, under Article 5 § 5 of the Convention the applicant complains that he has no effective and enforceable right to compensation for his detention in alleged contravention of the other provisions of Article 5.
Judgment
FIFTH SECTIONCASE OF KRAYNYAK v. UKRAINE
(Application no. 68353/17)
JUDGMENT
STRASBOURG
16 February 2023
This judgment is final but it may be subject to editorial revision. In the case of Kraynyak v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President, María Elósegui, Kateřina Šimáčková, judges,and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 68353/17) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 7 September 2017 by a Ukrainian national, Mr Sergiy Vasylyovych Kraynyak (“the applicant”), who was born in 1994, lives in Subich and was represented by Mr O. V. Zarutskyy, a lawyer practising in Kyiv;
the decision to give notice of the complaints under Article 5 §§ 1, 3, 4 and 5 of the Convention to the Ukrainian Government (“the Government”), represented by their then Agent, Mr I. Lishchyna, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 26 January 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case mainly concerns the applicant’s complaints under Article 5 § 3 of the Convention that his pre-trial detention was unreasonably lengthy, under Article 5 § 4 that the judge who extended his detention on 23 March, 24 April and 19 June 2017 was not impartial, and under Article 5 § 5 that he had no effective right to compensation for those alleged violations. 2. On 31 August 2015 the Parliament of Ukraine debated draft legislation providing for the allocation of greater powers to the local authorities of some areas of the Donetsk and Luhansk regions, as part of implementation of the so-called Minsk Agreements (see Khlebik v. Ukraine, no. 2945/16, § 12, 25 July 2017). A crowd of opponents to the legislation gathered in front of Parliament and attacked the National Guard troops guarding the building. A live hand grenade was thrown, killing four servicemen and injuring more than a hundred people. 3. On the same day the applicant was arrested on suspicion of involvement in the attack. He was initially charged with offences (notably injuring a law‐enforcement officer) not covered by the Bail Exclusion Clause. [1]
4. On 16 September 2015 the charges were changed to terrorism, an offence covered by the Clause. According to the charges, the applicant, twenty-six named individuals and a number of unidentified individuals had attacked law-enforcement officers with wooden and metal sticks. At the same time, G. (a co-defendant), acting with the applicant as part of a premeditated plan, had brought live hand grenades to the square in front of Parliament. The applicant’s role had been to cover up G.’s actions by lighting and holding a smoke grenade while G. threw a live grenade at the troops. 5. On 2 September 2015 a Kyiv Pecherskyi District Court ordered the applicant’s detention. It found that there was a reasonable suspicion against him. It took into account the gravity of the offence he was suspected of and the circumstances under which it had been committed. It considered that there was a risk that he might influence witnesses, abscond and continue criminal activity, and that a non-custodial preventive measure was insufficient to guard against those risks. The court, given the extreme dangerousness of the violent acts the applicant was suspected of, considered it inappropriate to grant bail. 6. On 10 August 2016 an extensive investigation (including more than seventy expert examinations) was completed and the case against the applicant and G. was eventually sent to the Kyiv Shevchenkivskyi District Court for a trial by jury. 7. The courts extended the applicant’s and G.’s detention approximately every two months. They stated that although the defendants had strong social connections, it was likely that, given the severity of the punishment they were facing, they could abscond. Moreover, the court noted that, in view of their military experience in the east of Ukraine, the defendants had acquired particular skills making it possible that they would interfere with the investigation, notably by influencing victims and other witnesses. The acts of which they were suspected had caused mass casualties, which meant that there was a strong public interest in ensuring an orderly investigation. The applicant’s right to liberty had to be balanced against other rights and interests of society and, therefore, his detention was justified. Also, a central element of the charges was that his actions had been motivated by opposition to the Minsk Agreements. That remained a controversial issue, which increased the likelihood that he might again engage in the type of conduct of which he was accused. Preventive measures other than detention would be insufficient to guard against those risks. 8. On 22 May 2020 the applicant was released and placed under twenty‐four-hour house arrest. That measure expired on 22 July 2020. 9. At the time of the parties’ most recent communication to the Court, 18 January 2022, the case was pending before the trial court. 10. On 25 January 2017 the applicant challenged the presiding judge in the case, Judge B. He submitted that, according to the special investigation commission established under the Restoration of Trust in the Judiciary Act, in December 2013 the judge had made politically motivated decisions against Euromaidan protesters (see Shmorgunov and Others v. Ukraine, nos. 15367/14 and 13 others, §§ 220-29, 21 January 2021). The applicant argued that, since he was accused of a crime which had been motivated by his political views, he had doubts about the judge’s impartiality. 11. On 23 March, 24 April and 19 June 2017 Judge B. extended the applicant’s detention. 12. On 23 March and 24 April 2017 the defendants’ lawyers objected that Judge B. could not examine the matter of pre-trial detention since the challenge against him had not yet been examined. 13. On 2 August 2017 Judge B. himself examined the applicant’s challenge and allowed it. He noted that the special investigation commission had indeed recommended to the High Council of Justice that he be dismissed for breach of oath, but that the Council had not followed that recommendation. While the facts cited by the applicant were not incontrovertible proof that he lacked impartiality, the judge nevertheless considered that they were such as to create an objective doubt as to his impartiality in the eyes of the parties in this kind of proceedings. In such circumstances, the need to guarantee the defendants’ rights under Article 6 of the Convention was a factor which counted in favour of allowing the challenge. THE COURT’S ASSESSMENT
14. The Government contested the applicant’s complaints set out in paragraph 1 above. 15. The Court notes that the complaints under Article 5 §§ 3 to 5 are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible. 16. The relevant period lasted four years and more than ten months (from 31 August 2015 to 22 July 2020 – see paragraphs 3 and 8 above and Korban v. Ukraine, no. 26744/16, § 139, 4 July 2019). Such a length of detention is already a matter of grave concern and requires the domestic authorities to put forward very weighty reasons to justify it (see, for example, Velečka and Others v. Lithuania, nos. 56998/16 and 3 others, § 98 and 99, 26 March 2019, with further references). 17. The relevant principles of the Court’s case-law are summarised in Grubnyk v. Ukraine (no. 58444/15, §§ 110-15, 17 September 2020). 18. In that judgment the Court held that, despite references to the Bail Exclusion Clause, the domestic courts had given relevant and sufficient reasons for Mr Grubnyk’s detention. The Court considers that similar considerations apply in the present case. 19. Indeed, when the applicant was initially placed in pre-trial detention, the Bail Exclusion Clause was inapplicable to him (see paragraphs 3 to 5 above). Nevertheless, the domestic court found, referring to the specific circumstances of the case, that the relevant risks justified detention (see paragraph 5 above). In a number of decisions extending detention the courts did invoke the Clause as an additional argument. [2] However, for the courts the invocation of that Clause was not sufficient to extend the applicant’s detention. On the contrary, the courts found that there were specific circumstances which justified it (see paragraph 7 above). 20. Accordingly, the Court considers that the domestic courts did not use “general and abstract” arguments for the applicant’s detention and that their reasons were relevant and sufficient. 21. It remains to be ascertained whether the authorities displayed “special diligence” in the conduct of the proceedings (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 87, 5 July 2016). 22. The Court recognises that the applicant’s case was complex, concerning an incident with more than a hundred victims. 23. At the same time, the applicant alleged that there had been considerable delays in his case after the pre-trial investigation had been completed on 10 August 2016 (see paragraph 6 above). The Government did not contest the applicant’s allegation that after that date the trial did not begin until at least 15 August 2017, that is, for more than a year. No good reason has been given for that delay. Afterwards, the applicant remained deprived of his liberty for almost three more years. 24. The authorities did not show that there existed exceptional circumstances justifying the applicant’s detention for such a substantial period, such as, for example, the need to collect evidence abroad or to request international legal assistance (see Lisovskij v. Lithuania, no. 36249/14, § 80, 2 May 2017, with further references). 25. The Court concludes, therefore, that the authorities failed to display special diligence in the period after completion of the pre-trial investigation. This consideration is sufficient for the Court to conclude that there has been a violation of Article 5 § 3 of the Convention. 26. The Court has held that the term “court” referred to in Article 5 § 4 must be construed as a body which enjoys the same qualities of independence and impartiality as are required of the “tribunal” mentioned in Article 6 (see Ali Osman Özmen v. Turkey, no. 42969/04, § 87, 5 July 2016). It must be assessed under the same criteria of impartiality (see D.N. v. Switzerland, no. 27154/95, §§ 42-46, 29 March 2001). 27. The requirement of impartiality under Article 6 also has a procedural dimension. Where the applicant raises doubts as to the courts’ impartiality which are not manifestly devoid of merit, the absence of a timely examination of such a challenge may raise an issue of objective impartiality (see Remli v. France, 23 April 1996, § 48, Reports of Judgments and Decisions 1996-II; Gazeta Ukraina-Tsentr v. Ukraine, no. 16695/04, §§ 34 and 35, 15 July 2010; and Cosmos Maritime Trading and Shipping Agency v. Ukraine, no. 53427/09, §§ 78-82, 27 June 2019). 28. In the present case Judge B. himself eventually allowed the applicant’s challenge, holding that the circumstances could create an appearance for the parties that he lacked impartiality. It follows that, while the judge’s subjective impartiality is not in doubt, the Court cannot hold that the applicant’s misgivings concerning that judge’s impartiality were devoid of any basis. 29. The Court considers that the applicant’s concerns should have been addressed before the judge decided to extend his detention on 23 March, 24 April and 19 June 2017. However, that was not done. 30. There has, accordingly, been a violation of Article 5 § 4 of the Convention. 31. Having examined all the material before it, the Court concludes that the applicant’s complaint discloses a violation of Articles 5 § 5 of the Convention in the light of the findings in Korban (cited above, §§ 201 and 202, with further references). 32. The applicant also complained that his detention from 25 October to 13 December 2016 had not been lawful for the purposes of Article 5 § 1 of the Convention. The Court has examined this part of the application and considers that it was lodged outside of the six-month time-limit and must therefore be rejected as inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION
33. The applicant claimed 20,000 euros (EUR) in respect of non‐pecuniary damage. He also claimed EUR 1,008 for the costs and expenses incurred before the Court, to be paid directly to his representative. 34. The Government contested those claims, considering them unfounded, unsubstantiated and exaggerated. 35. The Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant. 36. Having regard to the documents in its possession, the Court considers it reasonable to award the sum of EUR 8, plus any tax that may be chargeable to the applicant, for the proceedings before the Court, to be paid directly to the applicant’s representative, Mr Zarutskyy. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, EUR 8 (eight euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement and to be transferred directly into the account of the applicant’s representative, Mr Zarutskyy;
(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 16 February 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller Mārtiņš Mits Deputy Registrar President
[1] The Bail Exclusion Clause was a provision of the Code of Criminal Procedure that excluded the granting of bail and other non-custodial preventive measures to those accused of terrorism and certain national security offences (see Grubnyk v. Ukraine, no. 58444/15, §§ 40, 50, 53‐56, 116-30, 17 September 2020). It was declared unconstitutional on 25 June 2019. [2] In the detention orders of October and December 2015, February and July 2016 and January to June 2017 the courts, at the end of their reasoning, quoted the Bail Exclusion Clause verbatim, without providing any comments and typically introducing the quote by “also” (крім того). There was no reference to the Clause in other orders, for example those of August, October and December 2016, August 2017 and March 2018. FIFTH SECTION
CASE OF KRAYNYAK v. UKRAINE
(Application no. 68353/17)
JUDGMENT
STRASBOURG
16 February 2023
This judgment is final but it may be subject to editorial revision. In the case of Kraynyak v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President, María Elósegui, Kateřina Šimáčková, judges,and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 68353/17) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 7 September 2017 by a Ukrainian national, Mr Sergiy Vasylyovych Kraynyak (“the applicant”), who was born in 1994, lives in Subich and was represented by Mr O. V. Zarutskyy, a lawyer practising in Kyiv;
the decision to give notice of the complaints under Article 5 §§ 1, 3, 4 and 5 of the Convention to the Ukrainian Government (“the Government”), represented by their then Agent, Mr I. Lishchyna, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 26 January 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case mainly concerns the applicant’s complaints under Article 5 § 3 of the Convention that his pre-trial detention was unreasonably lengthy, under Article 5 § 4 that the judge who extended his detention on 23 March, 24 April and 19 June 2017 was not impartial, and under Article 5 § 5 that he had no effective right to compensation for those alleged violations. 2. On 31 August 2015 the Parliament of Ukraine debated draft legislation providing for the allocation of greater powers to the local authorities of some areas of the Donetsk and Luhansk regions, as part of implementation of the so-called Minsk Agreements (see Khlebik v. Ukraine, no. 2945/16, § 12, 25 July 2017). A crowd of opponents to the legislation gathered in front of Parliament and attacked the National Guard troops guarding the building. A live hand grenade was thrown, killing four servicemen and injuring more than a hundred people. 3. On the same day the applicant was arrested on suspicion of involvement in the attack. He was initially charged with offences (notably injuring a law‐enforcement officer) not covered by the Bail Exclusion Clause. [1]
4. On 16 September 2015 the charges were changed to terrorism, an offence covered by the Clause. According to the charges, the applicant, twenty-six named individuals and a number of unidentified individuals had attacked law-enforcement officers with wooden and metal sticks. At the same time, G. (a co-defendant), acting with the applicant as part of a premeditated plan, had brought live hand grenades to the square in front of Parliament. The applicant’s role had been to cover up G.’s actions by lighting and holding a smoke grenade while G. threw a live grenade at the troops. 5. On 2 September 2015 a Kyiv Pecherskyi District Court ordered the applicant’s detention. It found that there was a reasonable suspicion against him. It took into account the gravity of the offence he was suspected of and the circumstances under which it had been committed. It considered that there was a risk that he might influence witnesses, abscond and continue criminal activity, and that a non-custodial preventive measure was insufficient to guard against those risks. The court, given the extreme dangerousness of the violent acts the applicant was suspected of, considered it inappropriate to grant bail. 6. On 10 August 2016 an extensive investigation (including more than seventy expert examinations) was completed and the case against the applicant and G. was eventually sent to the Kyiv Shevchenkivskyi District Court for a trial by jury. 7. The courts extended the applicant’s and G.’s detention approximately every two months. They stated that although the defendants had strong social connections, it was likely that, given the severity of the punishment they were facing, they could abscond. Moreover, the court noted that, in view of their military experience in the east of Ukraine, the defendants had acquired particular skills making it possible that they would interfere with the investigation, notably by influencing victims and other witnesses. The acts of which they were suspected had caused mass casualties, which meant that there was a strong public interest in ensuring an orderly investigation. The applicant’s right to liberty had to be balanced against other rights and interests of society and, therefore, his detention was justified. Also, a central element of the charges was that his actions had been motivated by opposition to the Minsk Agreements. That remained a controversial issue, which increased the likelihood that he might again engage in the type of conduct of which he was accused. Preventive measures other than detention would be insufficient to guard against those risks. 8. On 22 May 2020 the applicant was released and placed under twenty‐four-hour house arrest. That measure expired on 22 July 2020. 9. At the time of the parties’ most recent communication to the Court, 18 January 2022, the case was pending before the trial court. 10. On 25 January 2017 the applicant challenged the presiding judge in the case, Judge B. He submitted that, according to the special investigation commission established under the Restoration of Trust in the Judiciary Act, in December 2013 the judge had made politically motivated decisions against Euromaidan protesters (see Shmorgunov and Others v. Ukraine, nos. 15367/14 and 13 others, §§ 220-29, 21 January 2021). The applicant argued that, since he was accused of a crime which had been motivated by his political views, he had doubts about the judge’s impartiality. 11. On 23 March, 24 April and 19 June 2017 Judge B. extended the applicant’s detention. 12. On 23 March and 24 April 2017 the defendants’ lawyers objected that Judge B. could not examine the matter of pre-trial detention since the challenge against him had not yet been examined. 13. On 2 August 2017 Judge B. himself examined the applicant’s challenge and allowed it. He noted that the special investigation commission had indeed recommended to the High Council of Justice that he be dismissed for breach of oath, but that the Council had not followed that recommendation. While the facts cited by the applicant were not incontrovertible proof that he lacked impartiality, the judge nevertheless considered that they were such as to create an objective doubt as to his impartiality in the eyes of the parties in this kind of proceedings. In such circumstances, the need to guarantee the defendants’ rights under Article 6 of the Convention was a factor which counted in favour of allowing the challenge. THE COURT’S ASSESSMENT
14. The Government contested the applicant’s complaints set out in paragraph 1 above. 15. The Court notes that the complaints under Article 5 §§ 3 to 5 are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible. 16. The relevant period lasted four years and more than ten months (from 31 August 2015 to 22 July 2020 – see paragraphs 3 and 8 above and Korban v. Ukraine, no. 26744/16, § 139, 4 July 2019). Such a length of detention is already a matter of grave concern and requires the domestic authorities to put forward very weighty reasons to justify it (see, for example, Velečka and Others v. Lithuania, nos. 56998/16 and 3 others, § 98 and 99, 26 March 2019, with further references). 17. The relevant principles of the Court’s case-law are summarised in Grubnyk v. Ukraine (no. 58444/15, §§ 110-15, 17 September 2020). 18. In that judgment the Court held that, despite references to the Bail Exclusion Clause, the domestic courts had given relevant and sufficient reasons for Mr Grubnyk’s detention. The Court considers that similar considerations apply in the present case. 19. Indeed, when the applicant was initially placed in pre-trial detention, the Bail Exclusion Clause was inapplicable to him (see paragraphs 3 to 5 above). Nevertheless, the domestic court found, referring to the specific circumstances of the case, that the relevant risks justified detention (see paragraph 5 above). In a number of decisions extending detention the courts did invoke the Clause as an additional argument. [2] However, for the courts the invocation of that Clause was not sufficient to extend the applicant’s detention. On the contrary, the courts found that there were specific circumstances which justified it (see paragraph 7 above). 20. Accordingly, the Court considers that the domestic courts did not use “general and abstract” arguments for the applicant’s detention and that their reasons were relevant and sufficient. 21. It remains to be ascertained whether the authorities displayed “special diligence” in the conduct of the proceedings (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 87, 5 July 2016). 22. The Court recognises that the applicant’s case was complex, concerning an incident with more than a hundred victims. 23. At the same time, the applicant alleged that there had been considerable delays in his case after the pre-trial investigation had been completed on 10 August 2016 (see paragraph 6 above). The Government did not contest the applicant’s allegation that after that date the trial did not begin until at least 15 August 2017, that is, for more than a year. No good reason has been given for that delay. Afterwards, the applicant remained deprived of his liberty for almost three more years. 24. The authorities did not show that there existed exceptional circumstances justifying the applicant’s detention for such a substantial period, such as, for example, the need to collect evidence abroad or to request international legal assistance (see Lisovskij v. Lithuania, no. 36249/14, § 80, 2 May 2017, with further references). 25. The Court concludes, therefore, that the authorities failed to display special diligence in the period after completion of the pre-trial investigation. This consideration is sufficient for the Court to conclude that there has been a violation of Article 5 § 3 of the Convention. 26. The Court has held that the term “court” referred to in Article 5 § 4 must be construed as a body which enjoys the same qualities of independence and impartiality as are required of the “tribunal” mentioned in Article 6 (see Ali Osman Özmen v. Turkey, no. 42969/04, § 87, 5 July 2016). It must be assessed under the same criteria of impartiality (see D.N. v. Switzerland, no. 27154/95, §§ 42-46, 29 March 2001). 27. The requirement of impartiality under Article 6 also has a procedural dimension. Where the applicant raises doubts as to the courts’ impartiality which are not manifestly devoid of merit, the absence of a timely examination of such a challenge may raise an issue of objective impartiality (see Remli v. France, 23 April 1996, § 48, Reports of Judgments and Decisions 1996-II; Gazeta Ukraina-Tsentr v. Ukraine, no. 16695/04, §§ 34 and 35, 15 July 2010; and Cosmos Maritime Trading and Shipping Agency v. Ukraine, no. 53427/09, §§ 78-82, 27 June 2019). 28. In the present case Judge B. himself eventually allowed the applicant’s challenge, holding that the circumstances could create an appearance for the parties that he lacked impartiality. It follows that, while the judge’s subjective impartiality is not in doubt, the Court cannot hold that the applicant’s misgivings concerning that judge’s impartiality were devoid of any basis. 29. The Court considers that the applicant’s concerns should have been addressed before the judge decided to extend his detention on 23 March, 24 April and 19 June 2017. However, that was not done. 30. There has, accordingly, been a violation of Article 5 § 4 of the Convention. 31. Having examined all the material before it, the Court concludes that the applicant’s complaint discloses a violation of Articles 5 § 5 of the Convention in the light of the findings in Korban (cited above, §§ 201 and 202, with further references). 32. The applicant also complained that his detention from 25 October to 13 December 2016 had not been lawful for the purposes of Article 5 § 1 of the Convention. The Court has examined this part of the application and considers that it was lodged outside of the six-month time-limit and must therefore be rejected as inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION
33. The applicant claimed 20,000 euros (EUR) in respect of non‐pecuniary damage. He also claimed EUR 1,008 for the costs and expenses incurred before the Court, to be paid directly to his representative. 34. The Government contested those claims, considering them unfounded, unsubstantiated and exaggerated. 35. The Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant. 36. Having regard to the documents in its possession, the Court considers it reasonable to award the sum of EUR 8, plus any tax that may be chargeable to the applicant, for the proceedings before the Court, to be paid directly to the applicant’s representative, Mr Zarutskyy. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, EUR 8 (eight euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement and to be transferred directly into the account of the applicant’s representative, Mr Zarutskyy;
(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 16 February 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller Mārtiņš Mits Deputy Registrar President
[1] The Bail Exclusion Clause was a provision of the Code of Criminal Procedure that excluded the granting of bail and other non-custodial preventive measures to those accused of terrorism and certain national security offences (see Grubnyk v. Ukraine, no. 58444/15, §§ 40, 50, 53‐56, 116-30, 17 September 2020). It was declared unconstitutional on 25 June 2019. [2] In the detention orders of October and December 2015, February and July 2016 and January to June 2017 the courts, at the end of their reasoning, quoted the Bail Exclusion Clause verbatim, without providing any comments and typically introducing the quote by “also” (крім того). There was no reference to the Clause in other orders, for example those of August, October and December 2016, August 2017 and March 2018.