Last Updated on April 30, 2020 by LawEuro
FIFTH SECTION
CASE OF YURIY KOVAL v. UKRAINE
(Application no. 35121/09)
JUDGMENT
STRASBOURG
23 January 2020
This judgment is final but it may be subject to editorial revision.
In the case of Yuriy Koval 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 December 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 35121/09) 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 Yuriy Mykhaylovych Koval (“the applicant”), on 15 June 2009.
2. The applicant was represented by Mr Y.V. Zinchenko, a lawyer practising in Mykolaiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.
3. The applicant alleged, in particular, that:
(i) he had been ill-treated by the police in the course of his arrest on 16 November 2007 and that there had been no effective investigation in that regard, in breach of Article 3 of the Convention;
(ii) the conditions of his detention and transportation on 23 and 24 December 2008, and (iii) the material conditions of his detention in the Mykolaiv SIZO had been contrary to Article 3 of the Convention;
(iv) the domestic courts which ordered his pre-trial detention and upheld that decision had lacked independence and impartiality, contrary to Article 5 §§ 3 and 4 of the Convention, on account of the fact that the application for the applicant’s pre-trial detention had been supported by the President of the Supreme Court, who had certain powers in respect of the judges who had made those pre-trial detention decisions;
(v) neither the applicant nor his lawyers had been informed of the pre‑trial detention hearings on 18 February, 21 April and 16 June 2009 and they had been prevented from attending them, and the defence had been unable to prepare and present counterarguments to those presented by the prosecutors, notably because the defence had not been given an opportunity to have knowledge of the prosecutors’ requests to extend the applicant’s detention, in breach of Article 5 § 4 of the Convention;
(vi) the criminal proceedings against the applicant had been excessively lengthy, and the undertaking imposed on the applicant not to abscond and not to leave his place of residence without the investigating authority’s permission had remained in place for an excessively long period of time.
4. On 30 May 2018the Government were given notice of the above complaints and the remainder of the application was declared inadmissiblepursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1954 and lives in Mykolaiv.
6. At the material time he held the post of President of the Mykolaiv Regional Commercial Court (“the Commercial Court”).
A. Beginning of the criminal investigation against the applicant, the events of 16 November 2007 and their immediate aftermath
7. On 8 November 2007 G., who was a party to a property dispute before the Commercial Court, complained to the General Prosecutor’s Office (hereafter “the GPO”) that the applicant had sought to extort a bribe from him.
8. On 13 November 2007 the applicant allegedly took a bribe from G.
9. G. informed the authorities that he was going to offer the applicant another bribe on 16 November 2007, and the investigators decided to catch the applicant in the act of taking it. The police handed G. a sum of money to be given to the applicant. The money was marked with a special colouring agent.
10. On 16 November 2007 the applicant met G. in a city park in Odessa. The police secretly observed the meeting. An officer was present making a video recording. The money was handed over at around 7 p.m.
11. When the police attempted to stop the applicant following the handover, the applicant started running away and ran into the nearby street, where he nearly collided with a car.
12. According to the results of the domestic investigation (see paragraph 68 below), on the handover of the money the police officers, some of them in uniform, appeared and asked the applicant, who was walking away from the place of his meeting with G., to stop, saying “Wait, police!” (зачекайте, поліція!). Hearing this, the applicant ran away through the park so that they lost sight of him and started pursuing him.
13. According to the applicant, he ran because he did not know the person who had followed him after the meeting with G. In a nearby street his path was blocked by a car (apparently without police markings), from which people in civilian clothing jumped out. They pushed the applicant to the ground, where, he claimed, he was “cruelly beaten” (жорстокопобито).
14. According to the results of the domestic investigation, the pursuing police officers found the applicant lying in the street near a Lada car. They observed two individuals they did not know getting into the car. When the officers approached, the applicant got up and the officers saw abrasions on his face and right hand which, they said, appeared to have been caused by a fall.
15. The applicant was searched and traces of the special colouring agent were found on his hands and clothes. The applicant was questioned. He stated that he had agreed to meet G. in the park at night but claimed that, when G. had attempted to put money in his pocket, he had seized G.’s hand and pushed the money away.
16. On 17 November 2007 the applicant was charged with bribery. Banknotes marked with the special colouring agent were found strewn around in the park. Searches were conducted in the applicant’s home and the homes of his relatives, and in his office.
17. On 19 November 2007 a certain Ga. complained to the prosecutors that the applicant had forced him to buy some computer equipment for the Commercial Court.
18. On 7 December 2007 a certain R. complained to the prosecutors that the applicant had extorted bribes from her in the course of 2007.
19. The prosecutors accordingly instituted criminal proceedings against the applicant for having taken bribes from R. and for abuse of power in relation to Ga. Those proceedings were merged with those previously instituted concerning the dealings between the applicant and G.
20. The applicant challenged, ultimately without success, the decisions instituting criminal proceedings against him before the domestic courts. The Government estimated that this resulted in a delay of twenty-five months in the proceedings (see paragraph 163 below).
B. The alleged obstruction by the applicant of the investigation concerning him
21. On 17 November 2007 the investigator dealing with the criminal case against the applicant ordered the seizure of certain case files from the Commercial Court. The applicant, who still held the post of president of that court, ordered his subordinates not to allow the investigator’s access to the case files in question. As a result, the files were not seized. The applicant maintained that he had obstructed the seizure because the case files in question had not been related to the criminal proceedings against him.
22. On 13 February 2008 the investigator instructed the applicant to resign from the post of court president, in view of the criminal proceedings pending against him. The applicant refused to resign, stating that only the President of Ukraine had the power to dismiss him.
23. On 25 March 2008 the applicant again ordered the Commercial Court staff not to allow the seizure of the case files ordered by the investigator.
24. On 3 March and 15 May 2008 the Kyiv Pechersky District Court (“the Pechersky Court”) and the Mykolaiv Tsentralny District Court, respectively, following requests from investigator, ordered the State Control and Audit Agency to check the financial activities of the Commercial Court and to draw up an inventory of the court’s property. On 14 March and 22 May 2008 the Agency was unable to carry out an inventory because the applicant refused to comply with the Agency’s instructions.
25. On 25 June 2008 the GPO instituted criminal proceedings against the applicant for obstructing the execution of the court orders of 3 March and 15 May 2008.
26. On 3 July 2008 the investigator issued a fresh decision suspending the applicant from the post of court president. However, the applicant refused to resign and continued working.
27. On an unspecified date the investigator dealing with the criminal case concerning non-compliance with the court orders summoned the applicant. On 4 July 2008 the applicant sent him a written refusal to appear, stating that the investigator was biased.
C. The applicant’s arrest and transportation from Kyiv to Mykolaiv
28. On 8 December 2008 the prosecutors, relying on the Rules of Procedure of the Verkhovna Rada (Parliament), requested the President of the Supreme Court to support their application for the applicant’s arrest.
29. On 12 December 2008 the President of the Supreme Court forwarded the application for the applicant’s arrest to Parliament, stating that he supported (“підтримав”) it.
30. On 18 December 2008 Parliament gave its consent for the applicant’s arrest.
31. On 23 December 2008 the Pechersky Court, in the presence of the applicant and his lawyer, ordered the applicant’s arrest and pre-trial detention at the Mykolaiv pre-trial detention centre (hereafter “the Mykolaiv SIZO”). The court noted, in particular, that the applicant had not appeared before the investigator when summoned and had obstructed the investigation.
32. According to the applicant, from 10 a.m. on 23 December 2008 until the end of the day he was detained in handcuffs in the office of the GPO investigator in charge of his case.
33. At midnight a police detail of five officers arrived from Mykolaiv to Kyiv in a Gazel, a minibus commonly used in Ukraine for commercial passenger transportation, including on intercity lines. The applicant was handed over to them and the trip to Mykolaiv lasted from about midnight until about 9 a.m. That night, the temperature outside was below freezing and the heating inside the minibus was not fully adequate. Therefore, one of the guards gave the applicant his overcoat. The applicant was cuffed by one wrist to a vertical pole located next to his seat.
34. At least one of the guards was armed with a pistol. According to the applicant, the officer in question was a certain K. who had participated in the applicant’s arrest on 16 November 2007 and who had been among the persons against whom the applicant sought the institution of criminal proceedings in that connection (see paragraph 65 below). In the applicant’s submission, the fact that this same armed officer was part of the escort had humiliated the applicant and caused him to fear for his life.
35. The police officers’ accounts and the various versions of the applicant’s account diverge as to how often the handcuffs were removed and the applicant was fed in the course of the journey.
36. In the application form the applicant alleged that he had been transported for twelve [sic] hours, handcuffed, and wearing only a suit in the unheated van. Throughout that period he had been “deprived of the opportunity to eat, sleep or wash” (я був позбавлений можливості приймати їжу, спати, помитися). The handcuffs had been taken off only once, for a few minutes.
37. In his observations in reply to those of the Government the applicant stated that the journey had lasted for nine and a half hours and that from 10.30 a.m. on 23 December until 10.30 a.m. on 24 December 2008 he had been “deprived of food” (позбавлений їжі).
38. In the course of the domestic investigation (see paragraphs 39 and 83 below) the applicant stated that, during the journey, one of the guards had given him his overcoat to wear. There had been only one stop, during which his handcuffs had been removed, he had been allowed to use the toilet and he had been given one pie (пиріжок) to eat.
39. According to the statements made by police officers in the course of the domestic investigation (see paragraph 83 below), stops were made every two hours. On these occasions the applicant had been given an opportunity to use the toilet and been provided with food, and his handcuffs had been removed for five to ten minutes.
40. On arrival in Mykolaiv, the applicant was initially placed in a police detention facility (ізолятор тимчасового тримання, “ITT”), where he was held in a cell with a former military serviceman.
41. The applicant complained to the prosecutors about the conditions in which he had been transported from Kyiv to Mykolaiv and about his placement in the police detention facility with an ordinary inmate (by law, he, as a judge, had to be held separately from the ordinary prison population). The details of those proceedings are set out in paragraphs 78 to 88 below.
D. Conditions of the applicant’s detention in the Mykolaiv SIZO
42. From early January until 17 December 2009 the applicant was detained in the Mykolaiv SIZO.
43. The applicant described the conditions of his detention there in the following terms. The cell where he was initially held and which the applicant occupied alone measured five square metres. Due to insufficient heating, the cell walls and the bedding were damp in winter. Lacking sufficient ventilation, the cell was stuffy in the summer. Food and personal hygiene products had to be provided by the relatives because the detention centre did not provide adequate food (в СІЗО не забезпечують належним харчуванням) or personal hygiene products.
44. On an unspecified date the applicant was transferred to a cell measuring eight square metres, which he shared with another detainee.
45. The Government submitted that the applicant had been detained in cells nos. 404, 405 and 406, and that the conditions in the prison block where the applicant had been held had been adequate (підтримуються належні побутові умови). More detailed information could not be provided because the prescribed five-year storage period for files had expired and they had been destroyed on 25 May 2016, before notice of the application had been given to the Government.
E. Proceedings for review of the applicant’s detention
46. On 18 July 2008 the applicant signed a contract with a law firm under the terms of which he instructed F., the firm’s managing partner, and K., another lawyer of the firm, to represent him in the criminal proceedings against him.
47. On an unspecified date the applicant also instructed Z. as his lawyer.
48. On 26 December 2008 the Kyiv Court of Appeal, having considered the applicant’s appeal in his absence but in the presence of his lawyer, upheld the detention order of 23 December 2008 (see paragraph 31 above).
49. On 18 February 2009 the Pechersky Court examined a request by the prosecutor to extend the applicant’s detention to four months. The applicant and his lawyers were not present. According to the applicant, they had not been informed about the hearing and had not been notified of the prosecutor’s request for an extension of his detention. According to a copy of the court decision submitted by the applicant, he was represented at that hearingby S., who was a lawyer. The applicant stated that he had not retained that lawyer personally as his representative, but that she was an associate of his lawyers, F. and K. (see paragraph 46 above). According to the applicant, his lawyers had learned about the hearing “by chance” just an hour before it took place and, being unable to attend, had sent S. to the court with a request to adjourn the hearing. Instead, the court had put down S.’s name as the applicant’s representative even though she had made no submissions on his behalf.
50. At the close of the hearing the court allowed the prosecutor’s request and extended the applicant’s detention to four months. The court held that, if the applicant were released, there was a risk that he might abscond, interfere with the establishment of the truth in the case and prevent the implementation of procedural decisions. A number of investigative steps, including questioning of judges of the Commercial Court and examination of a number of documents on the court’s premises, needed to be conducted.
51. In their appeal the applicant’s lawyers, F. and K., raised, inter alia, the matter of the applicant’s representation before the first-instance court, in the terms set out in paragraph 49 above.
52. On 25 February 2009 the Kyiv Court of Appeal upheld the first‑instance court’s decision of 18 February 2009 in the presence of the applicant’s two lawyers. It did not comment on their allegations concerning the applicant’s representation at the first-instance court’s hearing.
53. On 21 April 2009 the Kyiv Court of Appeal held a hearing in the presence of the prosecutor and the applicant’s lawyer K., and extended the applicant’s detention to six months. The court held that there was a need to conduct a number of additional investigative actions, including an expert analysis of the audio recordings, and to furnish the results of that analysis to the defence, draw up the act of indictment, and so on. The applicant stood accused of a particularly serious offence and there were no grounds to change the previously imposed preventive measure.
54. On 16 June 2009 the Kyiv Court of Appeal held a hearing in the presence of a prosecutor, who made submissions in favour of the extension of the applicant’s detention. The court extended the applicant’s detention to eight months. Neither the applicant nor his counsel were present. The court’s order does not contain any comment in that regard. According to the applicant, neither he nor his lawyers were informed of the hearing. The grounds for the extension order were similar to those stated in the order of 21 April 2009 (see paragraph 53 above).
55. Following subsequent extensions of the applicant’s detention, on 19 February 2010 the Kherson Court of Appeal released him on an undertaking not to abscond, requiring him not to leave his place of registered residence without the investigating authority’s permission.
F. The applicant’s conviction and its reversal
56. On 4 October 2013 the Kherson Komsomolsky District Court convicted the applicant of bribery and abuse of power in connection with the episodes involving G., Ga. and R. (see paragraphs 7 to 10, 17 and 18 above).
57. On 18 March 2014 the Kherson Court of Appeal quashed the applicant’s conviction and remitted the case to the prosecutor’s office for further investigation. Among the reasons given was that the Court of Appeal considered the evidence collected on 16 November 2007 to be inadmissible, as there was a strong indication that the “unidentified individuals” who had used force against the applicant (see paragraphs 14 and 70) had in fact been police officers. It followed that the applicant had been arrested on 16 November 2007 in the absence of Parliament’s consent (see the relevant provision of the Constitution in paragraph 90 below), rendering the evidence collected inadmissible.
58. At the time of the last communication from the applicant, on 26 March 2019, the investigation was still pending.
G. The proceedings concerning the lifting of the undertaking not to abscond
59. On 2 April 2018 the applicant lodged an application with the Pechersky Court seeking the lifting of the undertaking not to abscond imposed on him on 19 February 2010 (see paragraph 55 above).
60. On 4 April 2018 the Pechersky Court rejected the application, holding that it lacked jurisdiction to entertain such applications.
61. On 20 September 2018 the Kyiv Court of Appeal rejected an appeal by the applicant against the decision of 4 April 2018, finding that it had been lodged outside of the five-day time-limit for appeal.
62. On 5 December 2018 the Kyiv Court of Appeal examined an application by the applicant for extension of the time-limit for appeal. It found that the applicant had learned about the decision of the first-instance court with a delay since he had not been duly informed of that decision. Accordingly, the Court of Appeal extended the time-limit for appeal, examined the appeal and upheld the decision of 4 April 2018, considering it to be correct.
H. Investigations into the applicant’s allegations of ill-treatment
1. Investigation into the applicant’s alleged ill-treatment on 16 November 2007
63. On 17 November 2007 the applicant felt unwell, allegedly owing to his ill-treatment on 16 November 2007 (see paragraph 13 above), and called an ambulance. The doctors who examined the applicant noted that he had concussion and a kidney contusion.
64. In November and December 2007 the applicant underwent in-patient treatment for concussion, chest and lower back contusions, knee abrasions and rib fractures.
65. The applicant lodged complaints with the prosecutor’s office alleging that on 16 November 2007 he had been arrested unlawfully, since Parliament had not authorised his arrest (see the relevant provision of the Constitution in paragraph 90 below), that he had been ill-treated in the course of his arrest and that the subsequent searches at his home and the homes of his relatives and at his office (see paragraph 16 above) had been unlawful.
66. The GPO conducted several rounds of pre-investigation enquiries (for an explanation of that procedure see paragraph 94 below) into the applicant’s complaints.
67. The police also conducted an internal investigation.
68. On 28 December 2007 the police issued a report setting out the results of its internal investigation, based on statements taken from the officers who had taken part in the operation on 16 November 2007 and from the applicant. The report was based on the police officers’ accounts set out in paragraph 14 above. The conclusion was that the applicant’s allegations were unfounded. The report was sent to the GPO to be used in its pre‑investigation enquiries.
69. On 25 January 2008 a commission of experts concluded that the diagnoses of concussion and rib fractures had been based solely on the applicant’s claims, with no objective evidence to back them up.
70. On 4 August 2008 the GPO decided not to institute criminal proceedings against the police officers. The prosecutor noted the conclusion of the commission of experts of 25 January 2008 (see paragraph 69 above) as well as a number of medical opinions according to which the diagnosis of kidney contusion was unjustified and not based on objective evidence. In addition, the prosecutor noted the statement made by a laboratory technician, according to which the blood and urine samples on which that diagnosis had been based had been provided not by the applicant but by his son-in-law. The prosecutor also noted that the applicant’s son-in-law had been convicted, in separate proceedings, of the administrative offence of pressurising the medical personnel into providing him with the applicant’s medical records. According to the prosecutor, the applicant’s remaining injuries could be explained by his fall. The prosecutor’s office concluded that the “unidentified individuals” had taken action against the applicant simply to prevent him from fleeing.
71. On 3 March 2009 the Pechersky Court quashed the decision of 4 August 2008, finding that the prosecutor’s office had failed to take sufficient steps to establish the identity of the officers who had stopped the applicant from fleeing.
72. On 25 December 2009 the GPO again decided not to institute criminal proceedings. The applicant was informed of this decision on 14 March 2011.
73. On 18 July 2011 the Pechersky Court quashed that decision, on essentially the same grounds as those in the decision of 3 March 2009. It noted, in particular, that the legality of the applicant’s arrest had not been conclusively established.
74. On 25 August 2011 the GPO again decided not to institute criminal proceedings.
75. On 15 December 2011 the Pechersky Court upheld the decision of 25 August 2011. It considered the investigation to be complete. It took note in particular of the prosecutor’s examination of the medical evidence, endorsed the prosecutor’s reliance on the expert report of 25 January 2008 casting doubt on the correctness of the original diagnoses (see paragraph 69 above), and noted the steps taken by the prosecutor’s office to try and identify the persons who had stopped the applicant from fleeing. The court found those efforts to have been sufficient.
76. On 30 January 2012 the Kyiv City Court of Appeal upheld the first‑instance court’s decision of 15 December 2011.
77. An appeal on points of law lodged by the applicant against the Court of Appeal’s decision was rejected for non-compliance with the procedural formalities.
2. Investigation into the conditions of the applicant’s transportation from Kyiv to Mykolaiv on 23 December 2008
78. In response to the applicant’s complaint concerning the conditions of his transportation (see paragraph 41 above), the prosecutor’s office conducted several rounds of pre-investigation enquiries and adopted several decisions not to institute criminal proceedings against the police officers who had escorted the applicant.
79. The first of those decisions was taken on 19 January 2009. The prosecutor’s office established that the commanding officer of the convoy detail had been briefed on the applicant’s flight attempt of 16 November 2007 and his efforts to obstruct the investigation. He had accordingly decided, under the Police Act (see paragraph 96 above), that the applicant posed a flight and self-harm risk and that it could not be ruled out that an attempt would be made to liberate him and that the applicant would need to be handcuffed to minimise those risks.
80. The superior prosecutors quashed those decisions. The copies of the relevant decisions have not been provided to the Court, but it appears that the primary reason for the quashing of the decisions lay in unsuccessful efforts to clarify the circumstances of the applicant’s initial placement in the police detention facility (see paragraph 40 above), a matter which is beyond the scope of the present case.
81. On 19 November 2012 a new Code of Criminal Procedure came into force. Under the new Code an investigation is commenced without pre‑investigation enquiries, by creating an entry in the Unified Register of Pre-Trial Investigations (hereafter “the Register of Investigations”, see paragraph 95 below).
82. On 20 February 2013 the relevant entry was created in the Register of Investigations.
83. The applicant and the members of the police detail who had escorted him made statements which are summarised in paragraphs 38 and 39 above.
84. On 24 February 2015 the prosecutor’s office discontinued the investigation in this regard for lack of the constituent elements of an offence in the relevant officers’ actions.
85. On 29 February 2016 the Mykolaiv Tsentralny District Court quashed the prosecutor’s office’s decision and remitted the case for further investigation. It considered, in particular, that the efforts made to find the detainee with whom the applicant had shared the cell at the police facility had not been sufficient. The circumstances of the applicant’s handcuffing had also not been sufficiently established: while it was clear that the applicant had been handcuffed to a pole in the minibus, it was not clear how comfortable the applicant had been and why he could not be handcuffed to one of the guards instead.
86. On 30 August 2016 the prosecutor’s office discontinued the investigation again. Following additional questioning of the commanding officer of the convoy detail, the prosecutor established that the applicant had been handcuffed to the vertical pole right next to his seat, allowing him to move his arm and hand fairly freely and without strain.
87. On 17 April 2018 the Mykolaiv Tsentralny District Court quashed the above decision, considering the reasons given for it to be insufficient. The court did not state the reasons for this conclusion.
88. There is no information in the case file concerning the further progress of this investigation.
II. RELEVANT DOMESTIC LAW
89. The relevant legislative provisions, as they stood at the material time, are described below.
A. Constitution of 1996
90. Article 126 provided that a judge could not be apprehended or arrested (затриманий чи заарештований) without Parliament’s consent. Judges could be dismissed by the body that elected or appointed them (that is, the President and Parliament) in an exhaustive number of situations, most notably where they had attained the age of sixty-five, had engaged in an activity incompatible with judicial office, or had been convicted of a crime.
91. Article 129 provided that in the administration of justice, judges were independent and subject only to the law.
92. Article 131 established the High Council of Justice, which, among other things, had the exclusive power to propose the dismissal of judges. The President of the Supreme Court was an ex officio member of the Council, along with the Minister of Justice and the Prosecutor General. Other members were appointed or elected by Parliament, the President and by assemblies of judges, prosecutors, licensed advocates and legal academics.
93. Details of the other constitutional and legislative provisions concerning the status of judges, judicial careers and the system of judicial discipline in effect at the relevant time can be found in Oleksandr Volkov v. Ukraine (no. 21722/11, §§ 56-74, ECHR 2013).
B. Codes of Criminal Procedure of 1960 and 2012
94. At the material time the 1960 Code of Criminal Procedure provided for a procedure known as “pre-investigation enquiries”. That procedure resulted in a decision either not to institute criminal proceedings or to institute them. In the latter case, a fully-fledged criminal investigation was conducted. The relevant provisions can be found in the judgment in the case of Kaverzi v. Ukraine (no. 23893/03, § 45, 15 May 2012).
95. On 19 November 2012 a new Code of Criminal Procedure came into force. The new Code eliminated the pre-investigation enquiry stage. Under the new Code a fully-fledged investigation is commenced directly, without any need for prior enquiries, by creating an entry in the Register of Investigations.
C. Police Act of 1990
96. Section 14 provided, inter alia, that police officers could use handcuffs in order to protect themselves and others from attacks and other actions which endangered life or health, in order to arrest offenders if they were resisting police officers or if there were reasons to consider that they might escape or cause harm to themselves or others, and in order to overcome resistance to the police.
D. Status of Judges Act of 1992
97. Section 33 empowered the President of the Supreme Court, as well as the presidents of the judges’ disciplinary commissions and the presidents of the high and appellate courts, to initiate disciplinary proceedings against judges before the relevant disciplinary commissions, composed primarily of other judges.
E. Parliament’s Rules of Procedure of 2008
98. Rule 218 of the Parliament’s Rules of Procedure (Регламент Верховної Ради)established the procedure for the submission and approval of applications for the arrest and pre-trial detention of judges. Any such application had to be prepared by the investigating or adjudicating body and submitted for prior approval to the President of the Supreme Court. The application had to be sufficiently reasoned and contain concrete facts and evidence demonstrating that the judge concerned had committed a criminal offence. The necessity of detention had to be clearly substantiated.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION
99. The applicant complained that (i) he had been ill-treated by the police on 16 November 2007 and that there had been no effective investigation in that regard. He further complained that (ii) the conditions of his detention and transportation on 23 and 24 December 2008, and (iii) the material conditions of his detention in the Mykolaiv SIZO, had been contrary to Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Admissibility
1. Alleged ill-treatment by the police on 16 November 2007
(a) The parties’ submissions
100. The Government submitted that the applicant had failed to prove his allegation that he had been ill-treated by the police. In their submission, his allegations in that regard had not been corroborated in the course of the domestic investigation.
101. The applicant contended that the decisions of the domestic courts delivered in the proceedings he had sought to institute against the police officers (see paragraphs 75 and 76 above) had been unfounded. In quashing his conviction on 18 March 2014 the Kherson Court of Appeal had found it established that on 16 November 2007 he had been arrested and injured by the police officers (see paragraph 57 above). However, following that decision the authorities had failed to investigate the matter further. In addition, the further investigation ordered by the Kherson Court of Appeal had been conducted by the GPO while, by law, it should have been conducted by the National Anti-Corruption Bureau.
(b) The Court’s assessment
102. The applicant, by his own admission, attempted to flee from the police, even though he sought to explain his escape attempt as a misunderstanding (see paragraph 13 above). This circumstance counts against the applicant, with the result that the burden on the Government to prove that the use of force was not excessive is less stringent (see, for example, Kapustyakv. Ukraine, no. 26230/11, § 63, 3 March 2016, with further references).
103. The domestic investigation eventually concluded that only the injuries caused by the applicant’s fall while he was fleeing from the police could be confirmed. Those conclusions were upheld by the domestic courts at two levels of jurisdiction (see paragraphs 70, 75 and 76 above).
104. The Court must be cautious in taking on the role of a first‑instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Though the Court is not bound by the findings of domestic courts and remains free to make its own appreciation in the light of all the material before it, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by the domestic courts (see S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 154, 22 October 2018).
105. The Court notes that the applicant never provided the Court with a detailed account of his alleged ill-treatment. Thus, in his application form the applicant submitted that on 16 November 2007 he had been “cruelly beaten” (жорстокопобито) (see paragraph 13 above). He never elaborated on this description.
106. In such circumstances, the applicant failed to provide the Court with cogent elements which would allow it to cast doubt on the domestic authorities’ conclusions, upheld by the domestic courts. The findings of the domestic Court of Appeal, which quashed the applicant’s conviction (see paragraph 57 above), were not such as to put that conclusion in doubt. That court dealt with the admissibility of evidence against the applicant, which turned on the question of whether the police had the power to arrest him in the absence of the Parliament’s prior consent. In this sense the findings of that court did not set aside or discredit the factual findings of the GPO endorsed by the domestic courts in the proceedings dedicated specifically to the question of alleged ill-treatment (see paragraphs 70, 75 and 76 above).
107. In the circumstances the Court considers that the applicant has failed to lay the basis of an arguable complaint that he was ill-treated as alleged. Therefore, it is not open to him to contest the effectiveness of the domestic investigation. The Court notes that the applicant’s allegations at the national level were likewise quite general and mainly concerned the alleged unlawfulness at domestic level of his arrest and of the other investigative actions against him rather than the alleged ill-treatment (see Igars v. Latvia (dec.), no. 11682/03, § 72, 5 February 2013; Gavulav. Ukraine, no. 52652/07, § 61, 16 May 2013; and Kravchenko v. Ukraine (dec.), no. 23275/06, § 51, 24 June 2014).
108. Accordingly, the applicant’s complaint under both the substantive and procedural limbs of Article 3 of the Convention is manifestly ill‑founded and should be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
2. Conditions of detention and transportation on 23 and 24 December 2008
(a) The parties’ submissions
109. The Government submitted that the applicant’s handcuffing in the course of his transportation had been in accordance with the Police Act (see paragraph 96 above) and had been motivated by the risk of flight and self‑harm. This had been due to the applicant’s prior flight attempt on 16 November 2007. The applicant had filed complaints in that connection, which had been duly investigated, and the conclusion had been reached that there had been no constituent elements of an offence in the police officers’ actions (see paragraphs 78 to 88 above).
110. The applicant provided the account of events summarised in paragraph 37 above. He also submitted that the Government’s reference to his conduct on 16 November 2007 as grounds for his handcuffing was unfounded, because on that date he had been arrested unlawfully and the police officer who had pursued him on that day had been in civilian clothing.
(b) The Court’s assessment
111. The Court notes at the outset that the applicant’s statements at the domestic level to the effect that he had been given an overcoat and some food in the course of the journey from Kyiv to Mykolaiv (see paragraph 38 above) run counter to his submissions in the proceedings before this Court, which could be understood to mean that he was exposed to cold and deprived of food for an extended period of time (see paragraphs36, 37 and 110 above).
112. The present case should be distinguished from cases in which prisoners were transported in special rail cars or vans for prisoners and where violations of Article 3 were found on account of the cramped conditions and the other particular features of transportation in such vehicles (see, for example, Yakovenko v. Ukraine, no. 15825/06, §§ 105-33, 25 October 2007; Koktyshv.Ukraine, no. 43707/07, §§ 106-08, 10 December 2009; and Konovalchuk v. Ukraine, no. 31928/15, §§ 66-70, 13 October 2016).
113. By contrast, in the present case the applicant was transported in a minibus widely used for commercial passenger transportation, including on intercity lines (see paragraph 33 above, and compare Korban v. Ukraine, no. 26744/16, § 105, 4 July 2019). In addition, in contrast to the above‑mentioned cases, in which the prisoners were repeatedly transported in special vehicles, in the present case the transfer was conducted only once, for nine hours, even if it took place in less-than-ideal conditions (ibid., § 107).
114. Likewise, the presence of an armed police officer as such (see paragraphs 37 and 110above), in the absence even of any suggestion that the applicant was threatened with the officer’s firearm, is clearly not sufficient to bring Article 3 into play.
115. The only remaining element of the applicant’s situation which requires comment is his handcuffing.
116. In this context the Court reiterates that the use of handcuffs or other instruments of restraint does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with a lawful detention and does not entail the use of force, or public exposure, exceeding what is reasonably considered necessary. In this regard it is important to consider, for instance, the danger of the person’s absconding or causing injury or damage (see, for example, Mathew v. the Netherlands, no. 24919/03, § 180, ECHR 2005‑IX).
117. The applicant failed to provide a detailed account of his handcuffing from 10 a.m. on 23 December to midnight, and in particular whether he was handcuffed without interruption. Likewise, his domestic complaints mainly focused on his handcuffing and other aspects of his situation during and following his transportation to Mykolaiv (see paragraphs 41 and 85 above).
118. As far as the applicant’s handcuffing in the course of his transportation is concerned, there was no element of public exposure or humiliation in it (contrast, for example, Erdoğan Yağız v. Turkey, no. 27473/02, § 45, 6 March 2007, and Gorodnitchev v. Russia, no. 52058/99, § 108, 24 May 2007). There is no indication that the applicant was particularly vulnerable, leaving aside the element of vulnerability inherent in the very fact of his detention (contrast, for example, Mouisel v. France, no. 67263/01, § 46, ECHR 2002‑IX; Kaverzinv. Ukraine, no. 23893/03, § 159, 15 May 2012; Ilievskav. the former Yugoslav Republic of Macedonia, no. 20136/11, § 61, 7 May 2015; Korneykova and Korneykovv. Ukraine,no. 56660/12, § 115, 24 March 2016; and Zherdev v. Ukraine, no. 34015/07, § 91, 27 April 2017, which concerned applicants who were seriously ill, disabled or, in the last two cases, a woman in labour and a minor left in a state of undress on police premises respectively).
119. The applicant’s handcuffing had a basis in domestic law (see paragraph 96 above). It was not a measure applied systematically for no specific reason on a regular basis (contrast Kashavelov v. Bulgaria, no. 891/05, § 39, 20 January 2011; Kaverzin, cited above, § 158; and Salakhov and Islyamovav. Ukraine, no. 28005/08, § 155, 14 March 2013), but rather was applied for a defined period of time owing to specific security considerations based on the applicant’s prior conduct (see paragraph 79 above). In view of that conduct, which involved an attempt to flee from arrest and attempts to obstruct the investigation (see paragraphs 21 to 27 and 31 above), the Court sees no reason to question the domestic assessment that handcuffing was justified under the circumstances.
120. As to the manner in which the handcuffing was carried out, the Court notes that the police officers, even by the applicant’s own admission, took measures to alleviate the discomfort caused by the handcuffing (see paragraphs 38 and 39 above and contrast, for example, Kucherukv. Ukraine, no. 2570/04, § 144, 6 September 2007). The applicant did not explain why he considered those efforts insufficient. Neither did he allege that he had sustained any enduring physical or mental damage as a result of the handcuffing (compare Shyti v. Romania, no. 39756/07, §§ 23 and 24, 27 May 2014, and Zakshevskiy v. Ukraine, no. 7193/04, § 75, 17 March 2016).
121. The Court concludes, therefore, that the applicant has failed to make an arguable case that the treatment he was subjected to on 23 and 24 December 2008 fell within the ambit of Article 3 of the Convention.
122. Accordingly, this part of the application is manifestly ill-founded and should be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
3. Conditions of detention at the Mykolaiv SIZO
(a) The parties’ submissions
123. The parties’ submissions are set out in paragraphs 43 to 45 above.
(b) The Court’s assessment
124. The Court reiterates that information regarding the physical conditions of detention falls within the knowledge of the domestic authorities. Accordingly, applicants might experience certain difficulties in procuring evidence to substantiate a complaint in that connection. Nevertheless, in such cases applicants may well be expected to submit at least a detailed account of the facts complained of and to provide – to the greatest possible extent – some evidence in support of their complaints (see, for example, Visloguzov v. Ukraine, no. 32362/02, § 45, 20 May 2010).
125. This is all the more relevant in the case of the applicant, a judge who was legally represented and who exhaustively litigated all aspects of his situation. In such circumstances the applicant could be expected to make at least some effort to detail and substantiate his complaint. However, he did not do so. In particular, he failed to provide any details as to the length of time he had spent in the single-occupancy and the double-occupancy cell respectively. The other aspects of his allegations are equally vague (see paragraphs 43 and 44 above).
126. In view of the above considerations the Court concludes that the applicant has failed to provide a coherent and sufficiently detailed account of the physical conditions of his detention at the Mykolaiv SIZO which would permit it to conclude that he was held there in conditions contrary to Article 3 of the Convention.
127. Accordingly, this part of the application is manifestly ill-founded and should be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
128. The applicant, relying on Articles 5 §§ 3 and 4 of the Convention, complained that the domestic courts which had decided to place him in detention had lacked impartiality on account of the fact that the request for his pre-trial detention had been supported by the President of the Supreme Court.
Relying on Article 5 § 4 of the Convention, the applicant complained that neither he nor his lawyers had been informed of the pre-trial detention hearings held on 18 February, 21 April and 16 June 2009 and that the defence had been unable to prepare and present counterarguments to those presented by the prosecutors, notably because the defence had not been given an opportunity to have knowledge of the prosecutors’ requests to extend the applicant’s detention.
The above-mentioned provisions of the Convention 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 brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
A. Alleged violation of Article 5 §§ 3 and 4 in respect of the requirements of independence and impartiality
Admissibility
(a) The parties’ submissions
129. The Government submitted that the President of the Supreme Court, in endorsing the application for the applicant’s detention, had acted within his lawful powers. They pointed to the constitutional guarantees of judges’ independence (see paragraph 91 above). The applicant’s detention had lasted for one year and two months, which could not be regarded as unreasonable. As soon as the reasons for the applicant’s detention had ceased to exist he had been released. The decision of the President of the Supreme Court to support the pre-trial detention application had been taken on objective grounds and had been part of standard legal procedure, with no evidence of any bias. The application had not been binding on the courts, which, having considered all aspects of the case, had come to the reasoned conclusion that pre-trial detention had been necessary.
130. The applicant submitted that the judges who had ordered his detention and upheld that decision on appeal could not be considered independent and impartial since the application for detention had been supported by the President of the Supreme Court, of whom the judges had not been independent. This was so because the President of the Supreme Court was a member of the High Council of Justice, which had the power to recommend the judges’ dismissal, and because he had the power to initiate disciplinary proceedings against those judges (see paragraphs 92 and 97 above).
(b) The Court’s assessment
131. The Court notes at the outset that the first hearing before the Pechersky Court on 23 December 2008, at which the applicant’s detention was ordered, falls within the ambit of Article 5 § 3 (see, for example, Lebedev v. Russia, no. 4493/04, § 74, 25 October 2007). Meanwhile, all the subsequent proceedings concerning the appeal against that initial detention order, and all the subsequent orders extending the applicant’s detention and the appeals against those orders, attract the guarantees of Article 5 § 4 of the Convention (ibid., §§ 72 and 73).
(i) Relevant general principles
132. The Court reiterates that the role of “the officer authorised by law to exercise judicial power” referred to in Article 5 § 3 is to review the circumstances militating for and against detention and to decide, by reference to legal criteria, whether there are reasons to justify detention and to order release if there are no such reasons. The “officer” must be independent of the executive and of the parties (see, for example, Nikolova v. Bulgaria [GC], no. 31195/96, § 49, ECHR 1999‑II, with further references).
133. The Court has held that independence from the executive is one of the most important constitutive elements of the notion of a “court” under Article 5 § 4. In the Court’s opinion, it would be inconceivable that Article 5 § 4 of the Convention, relating, inter alia, to such a sensitive issue as the deprivation of liberty of a person, should not equally envisage, as a fundamental requisite, the impartiality of that court (see Bülbül v. Turkey, no. 47297/99, § 26, 22 May 2007).
134. In examining matters of independence and impartiality under Article 5 §§ 3 and 4 of the Convention the Court has reference, where appropriate, to its case-law under Article 6 of the Convention (see, for example, Bülbül, cited above, §§ 23 and 27, and Lebedev, cited above, § 71, with further references).
135. In order to establish whether a tribunal can be considered to be “independent” within the meaning of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 144, 6 November 2018).
136. The existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (ibid., § 145).
137. The concepts of independence and objective impartiality are closely linked and, depending on the circumstances, may require joint examination (ibid., § 150).
138. Judicial independence demands that individual judges be free from undue influence – not only from outside the judiciary, but also from within. This internal judicial independence requires that they be free from directives or pressures from fellow judges or those who have administrative responsibilities in the court, such as the president of the court or the president of a division in the court. The absence of sufficient safeguards securing the independence of judges within the judiciary and, in particular, vis-à-vis their judicial superiors, may lead the Court to conclude that an applicant’s doubts as to the independence and impartiality of a court were objectively justified (see Parlov-Tkalčić v. Croatia, no. 24810/06, § 86, 22 December 2009, with further references).
(ii) Application of the above principles to the present case
139. The applicant has not alleged that the judges who ordered his arrest and placement in pre-trial detention and upheld that decision on appeal lacked impartiality from a subjective perspective. He has not made any submissions in respect of the status of those judges, in particular in terms of the manner of their appointment and terms of office, which would throw doubt on their “independence” from the executive.
140. The only question before the Court is whether an absence of sufficient safeguards securing the independence of judges within the judiciary and, in particular, vis-à-vis the President of the Supreme Court, should lead it to conclude that the applicant’s doubts as to the independence and impartiality of those judges were objectively justified.
141. However, the applicant has not submitted that there were no such safeguards in place. He merely stated that the President of the Supreme Court was a member of the High Council of Justice, which had the power to recommend the dismissal of judges, and that the President himself had the power to initiate disciplinary proceedings against judges (see paragraph 130 above). In other words, the only circumstance to which the applicant pointed is the theoretical power of the President of the Supreme Court to initiate proceedings against the judges who examined the applicant’s case.
142. However, in Parlov-Tkalčić (cited above, § 92) the Court held that a court president’s power to institute disciplinary proceedings did not raise an issue in terms of a lack of “internal” judicial independence where the authority to conduct disciplinary proceedings and acquit or impose a penalty lay exclusively with another body. This is also the situation in the present case.
143. Moreover, in Ramos Nunes de Carvalho e Sá (cited above, § 163) the Court held that a theoretical risk consisting in the fact that judges hearing disciplinary cases against another judge were themselves subject to a set of disciplinary rules was not in itself a sufficient basis for finding a breach of the requirements of impartiality, in the absence of a specific disciplinary case pending against those judges.
144. The shortcomings in the organisation and powers of the High Council of Justice and other aspects of the system of judicial discipline then in effect in Ukraine, identified in Oleksandr Volkovv.Ukraine (no. 21722/11, §§ 109-30, ECHR 2013), in no way affected the applicant or concerned his case (compare Ramos Nunes de Carvalho e Sá, cited above, § 159).
145. The instant case presents none of the features which led the Court, in previous cases, to examine whether the requirements of “internal independence” had been observed: the President of the Supreme Court was not a hierarchical superior of the judges who examined the applicant’s case (contrast Daktaras v. Lithuania, no. 42095/98, § 33, ECHR 2000‑X), nor was he involved in the assignment or reassignment of the applicant’s case (contrast Daktaras, cited above, § 36, and Moiseyev v. Russia, no. 62936/00, § 182, 9 October 2008).
146. Moreover, the Court notes that the President of the Supreme Court did not issue instructions to the judges deciding the case (see Ramos Nunes de Carvalho e Sá, cited above, § 155) but merely endorsed, in the ordinary exercise of his powers, the prosecutor’s application for arrest. It would appear that his involvement in the process was aimed at providing an additional safeguard of judicial independence by ensuring that a request for a judge’s arrest, before being submitted to Parliament – a political body – had been verified by and obtained the consent of one of the most senior figures in the judicial branch, namely the President of the Supreme Court.
147. The involvement of the President of the Supreme Court in the process was surrounded by appropriate safeguards, since the prosecutor’s application for arrest, endorsed by the President of the Supreme Court and Parliament, merely served as grounds for examination of the matter of pre-trial detention at the hearing before the competent court. In the course of that hearing the applicant was entitled to present his arguments against detention and the judges deciding the matter had unrestricted power, based on those arguments, to refuse to order his detention if they found it to be unjustified.
148. Finally, in contrast to the situation regarding the applicant’s initial arrest and detention, the President of the Supreme Court played no role in extending the applicant’s detention. There is no indication that his involvement at the initial stage influenced or was capable of influencing in any way the courts which later extended the applicant’s detention. In particular, it did not prevent them from releasing the applicant when his detention was judged no longer justified (see paragraph 55 above).
149. Accordingly, this part of the application is manifestly ill-founded and should be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
B. Alleged violation of Article 5 § 4 in respect of the pre-trial detention hearings held on 18 February, 21 April and 16 June 2009
1. Admissibility
150. The Court considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
2. Merits
(a) The parties’ submissions
151. In respect of the hearing held on 18 February 2009 the applicant made the submissions summarised in paragraph 49 above. He also alleged that he had not been informed of the hearings of 21 April and 16 June 2009 and had not been allowed to examine the prosecutors’ requests for extension of his detention.
152. The Government made the following comments in respect of the hearings in question:
(i) on 18 February 2009 the applicant had been represented by S.;
(ii) on 21 April 2009 the applicant had been represented by counsel of his choice;
(iii) the Government were not aware of the reasons for the defence’s absence at the hearing held on 16 June 2009 but the hearing had been held, and the decision to extend the detention had been made, in accordance with the law.
(b) The Court’s assessment
(i) Relevant general principles
153. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), Article 5 § 4 requires a hearing to be held (see Nikolova, cited above, § 58). The opportunity for a detainee to be heard either in person or through some form of representation features among the fundamental guarantees of procedure applied in matters of deprivation of liberty (see Kampanis v. Greece, 13 July 1995, § 47, Series A no. 318‑B).
154. However, Article 5 § 4 does not require that a detained person be heard every time he lodges an appeal against a decision extending his detention, but that it should be possible to exercise the right to be heard at reasonable intervals (see Altınok v. Turkey, no. 31610/08, § 45, 29 November 2011, andÇatal v. Turkey, no. 26808/08, § 33, 17 April 2012).
(ii) Application of the above principles to the present case
155. It is not contested that the applicant was not present at the hearings on 18 February, 21 April and 16 June 2009 at which the domestic courts decided to extend his pre-trial detention, or at the hearing of the Court of Appeal held on 25 February 2009 at which that court examined his appeal against the order of 18 February 2009 extending his detention.
156. The Government did not rebut the applicant’s allegation that the reason for his absence was the failure of the authorities to ensure his participation in the hearings, in particular by notifying him of them. It is notable that the Kyiv Court of Appeal, in considering the applicant’s appeal against the order of 18 February, did not comment on this complaint either (see paragraph 52 above). Accordingly, the Court finds it established that the authorities were responsible for the applicant’s absence.
157. As a result, even if the applicant was represented by his counsel at the hearings of 25 February and 21 April 2009, his personal presence at those hearings was not ensured. As a result, the applicant did not appear before the courts examining the matter of extension of his detention for at least six months, from 23 December 2008 to 16 June 2009.
158. The Court reiterates that a detainee should, as a general rule, have a right to participate in a hearing at which his detention is discussed. The detainee’s personal presence is always required when the court has to assess his personality, the risk of his absconding or his predisposition to further offences, when the court changes the basis for the detention or when it prolongs the detention after a significant lapse of time (see Lebedev, cited above, § 113).
159. Given the lapse of time in the present case, the applicant’s presence was required at more regular intervals (see Graužinis v. Lithuania, no. 37975/97, §§ 33-35, 10 October 2000; Husák v. the Czech Republic, no. 19970/04, §§ 43-45, 4 December 2008; and Idalov v. Russia [GC], no. 5826/03, §§ 162-64, 22 May 2012). In addition, the manner in which S. was designated as the applicant’s lawyer at the hearing of 18 February 2009 excluded any practical possibility for the applicant to give that lawyer any relevant information or instructions (see Shulenkov v. Russia, no. 38031/04, §§ 53-55, 17 June 2010; see also, mutatis mutandis, Mamedova v. Russia, no. 7064/05, §§ 90-93, 1 June 2006, and Farhad Aliyev v. Azerbaijan, no. 37138/06, §§ 207-11, 9 November 2010).
160. Moreover, neither the applicant nor his lawyers were present at the hearing of 16 June 2009. The Court has found above that their absence was attributable to the authorities’ inaction. However, the prosecutor was present and made submissions in favour of detention (see paragraph 54 above). Accordingly, there was a breach of the principle of equality of arms which forms part of the procedural guarantees of Article 5 § 4 (see, for example, Toth v. Austria, 12 December 1991, §§ 83-84, Series A no. 224; Samoilă Cionca v. Romania, no. 33065/03, § 74, 4 March 2008; and Altınok, cited above, §§ 57-61).
161. There has accordingly been a violation of Article 5 § 4 in respect of the hearings held on 18 February, 21 April and 16 June 2009.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
162. The applicant complained that the length of the criminal proceedings in his case had been incompatible with the “reasonable time” requirement of Article 6 § 1, 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 …”
163. The Government contested that argument, stating, inter alia, that the proceedings had been complex and had involved a large number of investigative actions, and that the applicant had contributed to the overall length of the proceedings, in particular by repeatedly appealing against the decisions to institute criminal proceedings against him (see paragraph 20 above) and by allegedly feigning illness, thereby delaying the proceedings for twenty-five and six months respectively.
A. Admissibility
164. The Court considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
165. In the present case the proceedings started on 16 November 2007, when the applicant was notified of the criminal proceedings against him, and are still pending. They have therefore lasted for twelve years so far, over two levels of jurisdiction.
166. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the applicant’s conduct and the conduct of the competent authorities (see, for example, Pélissier and Sassiv.France [GC], no. 25444/94, § 67, ECHR 1999‑II).
167. In 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.
168. 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, even after deduction of the periods of delay allegedly occasioned by the applicant’s actions (see paragraphs 163 and 21 to 27 above), was excessive and failed to meet the “reasonable time” requirement.
169. There has therefore been a violation of Article6 § 1 of the Convention in respect of the length of proceedings.
IV. ALLEGED VIOLATION OF ARTICLE 2 of PROTOCOL No. 4
170. In his letter of 20 April 2016 the applicant made the following statement:
“I consider that the unjustifiably lengthy examination of the criminal case against me violates my rights, in particular those guaranteed by Article 6 § 1 of the Convention concerning the examination of cases within a reasonable time, considering that the undertaking not to abscond imposed on me by the court currently remains in place and prevents me from leaving my place of residence without the investigating authority’s permission(Вважаю, що безпідставно тривалий розгляд кримінальної справи відносно мене при тому, що обраний судом відносно мене запобіжний захід у вигляді підписки про невиїзд є чинним на даний час і перешкоджає мені залишати без дозволу органу слідства постійне місце проживання, є порушенням моїх прав, у тому числі, передбачених ч. 1 ст. 6 Конвенції щодо розгляду справи впродовж розумних строків).”
171. The Government were given notice of the above complaint under Article 6 § 1 of the Convention (see above) and Article 2 § 1 of Protocol No. 4. The latter provision reads as follows:
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”
A. The parties’ submissions
172. The Government submitted that the applicant was a professional lawyer and a high-ranking judge. Therefore, his complaint in the application form could not be understood as a complaint concerning restrictions on his liberty of movement and had to be understood at face value, as part of his complaint regarding the length of proceedings under Article 6 § 1 of the Convention.
173. They also submitted that the applicant had failed to exhaust an effective domestic remedy in this regard since he had failed to appeal against the decision of the Pechersky Court of 4 April 2018 within the prescribed time-limit (see paragraph 61 above).
174. The applicant submitted that he had exhausted the relevant remedy, as the Court of Appeal had eventually examined on the merits his appeal against the Pechersky Court’s decision of 4 April 2018 (see paragraph 62 above). The applicant insisted that his complaint should be examined not only under Article 6 of the Convention but also under Article 2 of Protocol No. 4. He submitted that the restriction had remained in place since 19 February 2010 (see paragraph 55 above) and was not “necessary in a democratic society”, since throughout that period he had remained a public figure, had continued to work as a judge and had always appeared before the investigating authorities and courts when summoned.
B. The Court’s assessment
175. The Court considers that any complaint under Article 2 of Protocol No. 4 is in any event closely linked to the one concerning the length of proceedings under Article 6 § 1 and should, therefore, be declared admissible. However, the Court finds that it raises no issue requiring a separate examination.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
176. 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
177. The applicant claimed 30,000 euros (EUR) in respect of non‑pecuniary damage.
178. The Government submitted that there was no causal link between the alleged violations and the amount claimed and that the claim was in any case excessive.
179. The Court, ruling on an equitable basis, awards the applicant EUR 4,500 in respect of non-pecuniary damage.
B. Costs and expenses
180. In his observations in response to those of the Government the applicant also stated as follows: “I consider it necessary to arrange for reimbursement in respect of the services of my lawyer Yu. Zinchenko, for fees and expenses related to his participation in the Court hearings”. The applicant’s lawyer did not participate in any hearings before the Court, as none was held. He did not claim any specific amount in this or any other connection. Accordingly, the Court does not consider this to be a valid claim for costs and expenses.
C. Default interest
181. 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 § 4 of the Convention in respect of the hearings held on 18 February, 21 April and 16 June 2009, under Article 6 § 1 in respect of the length of proceedings and under Article 2 of Protocol No. 4, admissible and the remainder of the application inadmissible;
2. Holdsthat there has been a violation of Article 5 § 4 of the Convention in respect of the hearings held on 18 February, 21 April and 16 June 2009;
3. Holdsthat there has been a violation of Article 6 § 1 of the Convention in respect of the length of proceedings;
4. Holdsthat the complaint under Article 2 of Protocol No. 4 raises no issue requiring a separate examination;
5. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(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;
6. Dismissesthe remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 23 January 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško Síofra O’Leary
Deputy Registrar President
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