- Judgment date: 2021-03-25
- Communication date: 2015-09-07
- Application number(s): 7670/11
- Country: UKR
- Relevant ECHR article(s): 5, 5-1-c, 5-4, 6, 6-1
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings
Article 6-1 - Reasonable time)
- Result: Violation SEE FINAL JUDGMENT
- Probability: 0.777109
- Prediction: Violation
Communication text used for prediction
The applicant, Mr Petro Petrovych Labaznikov, is a Ukrainian national, who was born in 1973 and lives in Cherkasy.
On 28 January 2004 the applicant, at the material time a police officer at the Sosnivskiy District Police Department of Cherkasy, was arrested on suspicion of having ill-treated K. with a view to induce her to collaborate with the police and report on the purported criminal activity of her partner.
In April 2004 the applicant and two other officers, B. and S., also implicated by K. in her ill-treatment, were committed to stand trial at the Sosnivskiy District Court of Cherkasy (“District Court”).
On 26 May 2005 the applicant and his co-defendants were found guilty of having abused their office and having caused K. bodily injuries.
They were further sentenced to terms of imprisonment and released from custody on probation.
On 19 October 2005 the Cherkasy Regional Court of Appeal (“Court of Appeal) quashed this judgment and remitted the case for re-trial.
On 23 June 2006 the District Court remanded the applicant and his co-defendants in custody.
On 29 June 2006 the District Court suspended the proceedings pending forensic expert assessment.
On 29 March 2007 the proceedings were resumed.
On 6 June 2007 the District Court found the applicant and his co-defendants guilty of office abuse and sentenced them to terms of imprisonment.
The applicant, unlike his co-defendants, appealed against this judgment.
On 9 November 2007 the Court of Appeal, having endorsed the District Court’s factual findings, reduced the applicant’s prison term and released him and his co-defendants from custody on probation.
On 16 December 2008 the Supreme Court quashed the above judgments upon appeals by the applicant and the prosecution and remitted the case for a fresh trial.
On 1 April 2009 the District Court opened the trial proceedings.
On 27 April 2010 the prosecution filed a request to remand the applicant (but not his co-defendants) in custody pending trial.
On the same date the District Court allowed this request, the relevant part of the court’s order reading as follows: “...The court considers that the [prosecution’s] request should be allowed, as the defendant has been accused of having committed grave offences entailing [a potential] imprisonment for a term exceeding three years; special security measures have been applied to certain witnesses upon their requests in accordance with the law; the defendant has been accused of having inflicted bodily injuries with a view to intimidating the victim, which fact makes it possible that the applicant would repeat these actions; in addition, being at liberty, the defendant may obstruct the establishment of the truth in the case as well as to abscond and continue his criminal activity...” The District Court also noted that the aforementioned decision was not subject to appeal.
On 28 April 2010 the applicant’s relatives acting as his lay defenders in the proceedings requested B., the prosecutor in charge of the case, to notify them why he had decided that the applicant might intimidate the witnesses if he remained at liberty.
On 5 May 2010 B. informed the applicant’s relatives that they must have misinterpreted his submissions.
While he had mentioned that security measures had been applied to certain witnesses, it had not been stated that these measures had been applied in view of the applicant having intimidated them.
On 11 May 2010 the Court of Appeal informed the applicant that a decision to remand him in custody could not be subject to appellate review.
On 18 May, 4 and 8 June 2010 the applicant and his lay defenders requested the District Court to release him from custody.
They noted that the relevant prosecutor’s request had been biased and unfounded.
In particular, there had been no instances of the applicant attempting to abscond, intimidate witnesses or obstruct the investigation in any other ways during the period when he had remained at liberty in the course of the proceedings.
The assumptions that he might do so in future had been devoid of any factual basis.
They also noted that the applicant had had no prior criminal record, had a home and a family in Cherkasy, including ailing parents in his charge and that his neighbours had given him positive character references.
Finally, they submitted that the applicant suffered from numerous health conditions, which had already resulted in him being sixteen kilograms underweight.
The applicant’s health problems could deteriorate in detention, as there was no proper medical monitoring and diet in place.
On 22 June 2010 the District Court rejected the applicant’s and his lay defenders’ requests to release him from custody, having noted that the reasons for remanding him in detention had been duly stated in the decision of 27 April 2010, that these reasons persisted and that there was no evidence that the applicant’s health condition was incompatible with detention.
On 5 August 2010 the prosecutor’s office notified the applicant’s relatives in a letter, in response to their enquiries, that the request to detain the applicant had been prompted, in particular, by his tactics of delaying the proceedings.
For instance, he took inordinately lengthy time to study the case-file materials.
On 18 August 2010 the applicant’s relatives again requested the court to release him from custody referring to absence of any evidence that he would abscond, obstruct the proceedings or engage in criminal activity upon his release.
They further mentioned that the applicant’s co-defendants, who had pleaded guilty and had not appealed against the previous judgment, remained at liberty, while the applicant’s detention was in fact a revenge for his active attempts to prove his innocence.
In addition, the applicant’s relatives listed a number of chronic gastroenterological and vascular conditions the applicant suffered from and alleged that he needed a special diet, periodic medical interventions and constant monitoring not available in the detention facility.
Finally, they submitted that the prosecution’s allegations that the applicant had been delaying the proceedings had been unfounded, as no hearings had ever been postponed or adjourned on account of his conduct.
On 22 October 2010 the applicant reiterated his earlier request for release, alleging, in particular, that he had continued to lose weight.
He submitted that at the moment, being 175 centimetres tall, his weight had dropped down to 57 kilograms.
On 28 October, 6 and 8 December 2010 the District Court held hearings, in the course of which the requests for the applicant’s release were not addressed.
On 10 December 2010 the applicant’s and his relatives’ requests for the applicant’s release were rejected by the District Court, which noted that the reasons for detaining him listed in the decision of 27 April 2010 persisted and there were no circumstances justifying the applicant’s release.
On several occasions after 27 April 2010 the applicant’s relatives requested the court to remand his co-defendants in custody to ensure equal treatment of all the defendants, these requests having been rejected as unfounded.
On 1 April 2011 the District Court, having referred to an ample array of evidence, including the confessional statements of the applicant’s co-defendants, statements by the victim, forensic and corporeal evidence and numerous witness testimonies, convicted the applicant and his co-defendants of office abuse and sentenced them to various punishments.
The applicant was sentenced to seven years’ six months’ prison term and deprived of his police rank as a captain.
In addition, all defendants were banned from occupying posts of authority in the law-enforcement bodies for a three-year term.
On 2 August 2011 the Court of Appeal upheld the factual findings of the District Court in the case, but reduced the applicant’s prison sentence to six years.
On 12 June 2012 the Higher Specialised Civil and Criminal Court upheld the applicant’s conviction and sentence.
COMPLAINTS The applicant complained that the decision of 27 April 2010 to remand him in custody was arbitrary and unreasonable and that he had been deprived of a meaningful possibility to bring proceedings whereby the lawfulness of this decision would be reviewed in a timely manner.
The applicant referred to Article 5 §§ 2 and 4 of the Convention in respect of the above complaints.
The applicant additionally complained under Article 6 § 1 of the Convention that the criminal proceedings against him were inordinately lengthy.
CASE OF LABAZNIKOV v. UKRAINE
(Application no. 7670/11)
25 March 2021
This judgment is final but it may be subject to editorial revision. In the case of Labaznikov 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. 7670/11) 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 Petro Petrovych Labaznikov (“the applicant”), on 25 January 2011;
the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Article 5 §§ 1 and 4 and Article 6 § 1 of the Convention and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 4 March 2021,
Delivers the following judgment, which was adopted on that date:
1. The present case concerns the alleged arbitrariness of the applicant’s pre-trial detention, the alleged absence of a meaningful review of the lawfulness of his detention, and the allegedly unreasonable duration of the criminal proceedings against him, in breach of Article 5 §§ 1 and 4 and Article 6 § 1 of the Convention. THE FACTS
2. The applicant was born in 1973 and lives in Cherkasy. The applicant, who had been granted legal aid, was represented by Mr M.O. Tarakhkalo, a lawyer practising in Kyiv. 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. On 19 January 2004 a criminal investigation was instituted in respect of the applicant on suspicion of the ill-treatment of K. with a view to inducing her to collaborate with the police. The applicant was at the material time a police officer at the Sosnivskiy District Police Department of Cherkasy. On 28 January 2004 he was arrested in the context of the above-mentioned proceedings. 6. In the course of the proceedings the applicant was convicted on the above-mentioned charges. Subsequently the case was reviewed a number of times by the appellate and cassation courts. As a result of those reviews, the case was remitted to the lower courts for reconsideration. 7. In particular, on 16 December 2008 the Supreme Court of Ukraine quashed the decision of the lower courts sentencing the applicant to a term of imprisonment and remitted the case for a fresh trial. At the time of the Supreme Court’s decision, the applicant remained at liberty, having given an undertaking not to abscond. 8. On 27 April 2010, in the course of the retrial, the prosecution lodged an application to remand the applicant in custody pending trial. The application did not mention any specific details substantiating the need to change the preventive measure imposed on the applicant. 9. On the same date the Sosnivskiy District Court of Cherkasy allowed that application, the relevant part of the court’s order reading as follows:
“...The court considers that the [prosecution’s] application should be allowed, as the defendant has been accused of having committed grave offences entailing [potential] imprisonment for a term exceeding three years; special security measures have been applied to certain witnesses upon their requests in accordance with the law; the defendant has been accused of having inflicted bodily injuries with a view to intimidating the victim, which fact makes it possible that the applicant would repeat those actions; and in addition, being at liberty, the defendant may obstruct the establishment of the truth in the case and he may abscond and continue his criminal activity...”
10. The District Court did not provide further details substantiating its decision and did not set a time-limit for the applicant’s detention. The court decision was not subject to appeal. 11. In the course of the trial the applicant submitted a number of applications for release from detention, but to no avail. 12. On 1 April 2011 the District Court convicted the applicant of abuse of office and sentenced him to seven years and six months’ imprisonment. 13. On 2 August 2011 the Cherkasy Regional Court of Appeal upheld the factual findings of the District Court but reduced the applicant’s prison sentence to six years. 14. On 12 June 2012 the Higher Specialised Civil and Criminal Court upheld the applicant’s conviction and sentence. THE LAW
15. The applicant complained under Article 5 § 2 of the Convention that the decision of the District Court of 27 April 2010 to remand him in custody and his subsequent detention until his conviction on 1 April 2011 were arbitrary and unreasonable. The Court considers that, given the substance of the above complaint, it should be examined under Article 5 § 1 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:
(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;
16. 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. 17. The applicant maintained his complaint outlined in paragraph 15 above. He further submitted that the trial court had failed to give relevant and sufficient reasons for its decision to detain him and had failed to examine any alternative, less intrusive preventive measures. 18. The Government submitted that the decision of the trial court to detain the applicant had been lawful, necessary and justified. 19. The applicable case-law is summarised in, for example, Assanidze v. Georgia ([GC], no. 71503/01, § 171, ECHR 2004‐II); Winterwerp v. the Netherlands (24 October 1979, § 45, Series A no. 33); Nešťák v. Slovakia (no. 65559/01, § 74, 27 February 2007); and Khayredinov v. Ukraine (no. 38717/04, §§ 27-28, 14 October 2010). 20. In the present case, the District Court decided on 27 April 2010 to change the preventive measure imposed on the applicant from an undertaking not to abscond to remand in custody, in view of the seriousness and the nature of the criminal offences at issue. Neither the Government’s observations nor the available material suggest that the District Court had made an appropriate assessment of the facts relevant to the question of whether such a preventive measure was necessary in the circumstances. Neither did the District Court state which risks justified the applicant’s detention on remand, for example, the risk of his absconding, influencing witnesses or hindering the investigation. Furthermore, it does not appear that the District Court made an appropriate assessment of the facts relevant to the question of whether such a preventive measure was necessary in the circumstances. 21. In addition the Court notes that the District Court’s decision of 27 April 2010, which set no time-limit for the applicant’s detention, remained the sole ground for the detention until his conviction on 1 April 2011. This fact alone raises serious issue regarding the arbitrariness of the applicant’s detention during the period of time under consideration (see Kharchenko v. Ukraine, no. 40107/02, §§ 73-76, 10 February 2011). 22. In the light of the foregoing, the Court considers that the District Court’s decision of 27 April 2010 did not afford the applicant the adequate protection from arbitrariness which is an essential element of the lawfulness of detention within the meaning of Article 5 § 1 of the Convention. Therefore the applicant’s detention from 27 April 2010 to 1 April 2011 was in breach of that provision. 23. The applicant complained that the length of the criminal proceedings against him had been incompatible with the “reasonable time” requirement provided in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
24. 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. 25. The Government submitted that the case against the applicant had been complex. They further stated that the court hearings had been scheduled at reasonable intervals and that the delays in the proceedings, if there had been any, could not be attributed to the State. The applicant disagreed. 26. In the present case, the proceedings started on 19 January 2004, when a criminal investigation for abuse of office was instituted in respect of the applicant (see paragraph 5 above), and ended on 12 June 2012 (see paragraph 14 above). They thus lasted eight years and four months at three levels of jurisdiction. 27. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case in question and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‐II, and Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‐VII). 28. In the leading case of Merit v. Ukraine (no. 66561/01, 30 March 2004) the Court found a violation in respect of issues similar to those in the present case. 29. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings against the applicants was excessive and failed to meet the “reasonable time” requirement. 30. There has accordingly been a violation of Article 6 § 1 of the Convention. 31. Lastly, the applicant complained under Article 5 § 4 of the Convention that his right to a review of the lawfulness of his detention had been breached. 32. Having regard to the facts of the case, the submissions of the parties, and its findings under Article 5 § 1 and Article 6 § 1 of the Convention (see paragraphs 22 and 30 above), the Court considers that it has examined the main legal questions raised in the present applications, and that there is no need to give a separate ruling on the admissibility and merits of the other complaints mentioned above (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014). 33. 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.”
34. The applicant claimed 80,000 euros (EUR) in respect of non‐pecuniary damage. The Government argued that that claim was unsubstantiated. 35. Making its assessment on an equitable basis, the Court awards the applicant EUR 2,300 in respect of non-pecuniary damage, plus any tax that may be chargeable. 36. The applicant also claimed EUR 2,553.60 for the costs and expenses incurred before the Court, and 3,664.80 Ukrainian hryvnias (approximately EUR 350) for postal and other expenses allegedly incurred while in pre-trial detention. The Government contested those claims as unsubstantiated and unsupported by relevant documentary evidence. 37. 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. 38. Regard being had to the documents in its possession, the low level of complexity of the case, the legal aid in the amount of EUR 850 awarded to the applicant, and the fact that his representative intervened in the proceedings at the communication stage only, the Court makes no additional award for costs and expenses. 39. As regards the claim for postal and other expenses, the Court finds that the applicant failed to substantiate that the above expenses had indeed been borne by him and had related to the proceedings in his case. It therefore rejects that claim. 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 2,300 (two thousand three hundred 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 25 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller Stéphanie Mourou-VikströmDeputy RegistrarPresident