CASE OF SAMOYLENKO v. UKRAINE (European Court of Human Rights)

FIFTH SECTION
CASE OF SAMOYLENKO v. UKRAINE
(Application no. 45050/10)

JUDGMENT
STRASBOURG
24 October 2019

This judgment is final but it may be subject to editorial revision.

In the case of Samoylenko v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Gabriele Kucsko-Stadlmayer, President,
Yonko Grozev,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 1 October 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 45050/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Oleg Nikolayevich Samoylenko (“the applicant”), on 2 August 2010.

2.  The applicant was granted leave to represent himself. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice.

3.  The applicant complained of the authorities’ failure to give relevant and sufficient reasons to justify his pre-trial detention. He further complained that the court decisions to extend his detention in April and June 2010 had been taken in his and his lawyer’s absence and that there had been no effective procedure available to him to challenge the lawfulness of his detention.

4.  On 9 December 2015 notice of the application was given to the Government.

5.  On 6 October 2017 the applicant died. On 9 November 2017 his wife, Ms Tatyana Samoylenko, expressed the wish to pursue the proceedings before the Court.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

6.  The applicant, Mr Oleg Nikolayevich Samoylenko, was a Ukrainian national who was born in 1962.

7.  On 8 February 2010 the Dnipropetrovsk regional prosecutor’s office arrested the applicant on suspicion of having engaged in fraudulent business activities.

8.  On 11 February 2010 the Zhovtneviy District Court of Dnipropetrovsk (“the District Court”) extended his custody to ten days with a view to carrying out a personality assessment.

9.  On 18 February 2010 the District Court ordered the applicant’s detention on remand. The court noted, in particular, that the applicant was unemployed, had poor character references from his place of residence and could potentially influence witnesses and abscond.

10.  The applicant, represented by a lawyer, appealed, noting, in particular, that he had no prior criminal record, that he had a permanent place of residence and a family to support, including a pregnant wife and ailing elderly parents, and that he was suffering from various health conditions which could deteriorate in detention.

11.  On 24 February 2010 the Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal”) upheld the District Court’s decision. It noted, in particular, that there was no evidence that the applicant’s state of health was incompatible with detention, and that the offence he was accused of was quite serious, as it was punishable by a prison term of up to five years.

12.  On 6 April 2010 the District Court extended the applicant’s detention until 8 June 2010. The court substantiated its decision with the need to carry out further investigation into the case and the absence of the grounds for the applicant’s release. The above decision was taken in a court hearing in the presence of the prosecutor but without the applicant or his lawyer being present; according to the applicant, they had not been summoned for the hearing.

13.  According to the applicant, he appealed against the decision of 6 April 2010. He also stated that on an unspecified date the Court of Appeal had dismissed his appeal, having held a hearing in the presence of the prosecutor; the applicant and his lawyer had not been summoned. The applicant did not submit a copy of the decision of the Court of Appeal.

14.  On 7 June 2010 the Court of Appeal, acting as a first-instance court, again extended the applicant’s detention until 8 July 2010. The court noted that there were no grounds to release the applicant. The court hearing was held in the presence of the prosecutor. According to the applicant, he and his lawyer were not summoned to the hearing. The decision of the Court of Appeal was not subject to appeal.

15.  On an unspecified date the criminal case against the applicant was transferred to the trial court and the applicant was committed for trial. The trial court maintained the applicant’s detention on remand.

16.  On 6 September and 28 October 2010 the applicant applied to be released pending trial. These applications were dismissed by the trial court as unfounded on 2 November 2010. The trial court found, in particular, that the crimes imputed to the applicant were sufficiently serious as to potentially warrant a prison sentence of ten years or more, that he pleaded not guilty and refused to give testimonies. It also ruled, without providing any details, that the applicant might influence witnesses and thus obstruct the proceedings if he were to be released.

THE LAW

I.  LOCUS STANDI OF THE APPLICANT’S WIFE

17.  The Court notes at the outset that the applicant died while the case was pending before the Court. His wife Ms Tatyana Samoylenko informed the Court that she wished to pursue his application. In a number of cases in which an applicant died in the course of the proceedings the Court has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings (see, for example, DimitarKrastev v. Bulgaria, no. 26524/04, § 42, 12 February 2013, with further references). It sees no reason to reach a different conclusion in the present case and therefore accepts that Ms Tatyana Samoylenko can pursue the application initially brought by the applicant.

II.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

18.  The applicant complained that the domestic courts’ decisions on his detention were arbitrary and lacked reasoning. He further complained that the courts’ decisions of 6 April and 7 June 2010 to extend his detention had been taken without him or his lawyer present, and that there had been no effective procedure available to him to challenge the lawfulness of his detention. He relied on Article 5 §§ 1, 3 and 4 of the Convention. Being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), the Court decides to examine those complaints under Article 5 §§ 3 and 4 of the Convention.

The relevant provisions of Article 5 §§ 3 and 4 of the Convention read as follows:

“… 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.  Admissibility

19.  The Government argued, as far as it concerns the applicant’s complaint under Article 5 § 4 regarding the extension of his detention on 6 April 2010 without him or his lawyer present (see paragraph 12 above), that the applicant had failed to exhaust effective domestic remedies, notably to appeal against the decision of the District Court of 6 April 2010.

20.  The applicant did not comment on that argument.

21.  The Court takes note of the applicant’s allegations made in the application form that he did appeal against the decision of the District Court of 6 April 2010 (see paragraph 13 above). However, the applicant failed to develop that complaint by responding to the Government’s objection. Moreover, the Court notes that the applicant was represented by a lawyer at the domestic level and thus he could have full access to the domestic case file including the decision of the Court of Appeal which was allegedly rendered following his appeal against the decision of the District Court of 6 April 2010.

22.  In the light of the foregoing, the Court does not consider it established that the applicant appealed against the decision of the District Court of 6 April 2010. The Court furthermore finds that the appeal procedure, to which the Government have referred, should in principle be regarded as an ordinary and accessible domestic remedy for the purposes of Article 35 § 1 of the Convention. It does not find any special circumstances in the present case which would absolve the applicant from having recourse to it. Moreover, the applicant has successfully used that procedure when challenging the decision of the District Court of 18 February 2010 ordering the applicant’s detention on remand (see paragraph 11 above).

23.  It follows that the applicant’s complaint under Article 5 § 4 of the Convention regarding the extension of his detention on 6 April 2010 without him or his lawyer present (see paragraph 12 above) must be rejected for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.

24.  The Court further notes that the reminder of the application is neither manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  Article 5 § 3 of the Convention

25.  The applicant submitted that the decision of the District Court of 18 February 2010 to place him in custody and the further court decisions extending his detention had been formalistic and had not been based on relevant and sufficient reasons.

26.  The Government submitted that the domestic court had carefully examined the circumstances of the case when taking decisions on the applicant’s detention and had provided well-reasoned decisions in compliance with both the domestic legislation and the Convention.

27.  The applicable general principles are set out in Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 84-91 and 102, 5 July 2016).

28.  The Court observes that the decision of 18 February 2010 was taken in the context of the criminal case against the applicant concerning engagement in fraudulent business activities (see paragraph 7 above). The above decision mentioned the risk of the applicant’s absconding or influencing witness as the reasons for his detention. The Court notes however, that no further details explaining the probability of those risks were provided by the District Court.

29.  The Court furthermore observes that the decisions of the domestic courts on extension of the applicant’s detention taken on 6 April and 7 June 2010 contain even less justification, merely referring to the need to carry out further investigation into the case and the absence of the grounds for the applicant’s release (see paragraphs 12 and 14 above).

30.  The Court notes in this connection that the decisions on the applicant’s detention were couched in general terms and contained repetitive phrases. They do not suggest that the courts made an appropriate assessment of the facts relevant to the question of whether such a preventive measure was necessary in the circumstances at the respective stage of proceedings. Furthermore, the domestic authorities did not consider any other preventive measures as an alternative to detention (see Osypenko v. Ukraine, no. 4634/04, §§ 77 and 79, 9 November 2010).

31.  Having regard to the above, the Court considers that by referring to the same set of grounds, if there were any, throughout the period of the applicant’s detention, the authorities failed to comply with their obligation under Article 5 § 3 of the Convention to justify the applicant’s detention pending trial on “sufficient” and “relevant” grounds. There has accordingly been a violation of that provision.

2.  Article 5 § 4 of the Convention

32.  The applicant submitted that the court’s decision to extend his detention taken on 7 June 2010 had been in breach of the fairness requirements as neither he nor his lawyer had been summoned or had been present in the courtroom. He further stated that in the course of the trial there had been no effective procedure available to him to challenge the lawfulness and necessity of his continued detention.

33.  The Government admitted that the applicant and his lawyer had been absent from the court hearings on 7 June 2010, where the extension of the applicant’s detention had been examined. They pointed out that the domestic legislation had not obliged the courts to hold a hearing in the presence of the applicant or his lawyer. As regards the review of the lawfulness of the applicant’s detention after the criminal case had been transferred for trial, they argued that the applicant had had such a review.

34.  The applicable general principles emerging from the Court’s case‑law are set out in Molodorych v. Ukraine (no. 2161/02, §§ 97-101, 28 October 2010).

(a)  Hearing on 7 June 2010

35.  The Court observes that the Government did not deny that the above hearing had been held without informing, let alone inviting, the applicant or his defence lawyer, who had thus not been given an opportunity to put forward any arguments concerning the applicant’s detention (contrast Malkhasyan v. Armenia, no. 6729/07, § 83, 26 June 2012).

36.  Since the applicant was unable to present any arguments to the court, either in writing or orally, the Court considers that he could not effectively exercise his rights under Article 5 § 4 of the Convention in the proceedings before the Court of Appeal. Accordingly, there has been a violation of the procedural aspect of the above provision because the principle of “equality of arms” was not respected.

(b)  Review of the lawfulness of the applicant’s detention during the trial

37.  The Court notes that on 2 November 2010 the trial court dismissed the applicant’s applications for release, which he lodged on 6 September and 28 October 2010, as unfounded (see paragraph 16 above). It furthermore notes that the trial court did not provide any specific reasons in its decision that addressed the applicant’s arguments in favour of release. It also notes that the application of 6 September 2010 was in fact examined fifty-seven days after its introduction, which does not meet the requirement for speedy review.

38.  The Court observes, in this connection, that it has previously found a violation of Article 5 § 4 of the Convention in similar cases against Ukraine (see Kharchenko v. Ukraine, no. 40107/02, § 100, 10 February 2011). It does not see any reason to depart from its findings in the present case.

(c)  Conclusion

39.  The Court concludes that the hearing at the Court of Appeal on 7 June 2010, which was held in the absence of the applicant and his lawyer, and the review of the lawfulness of the applicant’s detention during the trial did not meet the requirement of Article 5 § 4 of the Convention. Accordingly, there has been a violation of that provision.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

40.  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.”

41.  The applicant claimed 25,000 United States dollars (USD) in respect of pecuniary damage, USD 25,000 in respect of non-pecuniary damage, and USD 50,000 for the costs and expenses incurred before the domestic courts.

42.  The Government did not comment on the applicant’s claims.

43.  The Court notes that the applicant’s claims in respect of pecuniary damage and his claims for costs and expenses are not supported by any evidence and contain no substantiation; it therefore rejects them. On the other hand, it awards the applicant EUR 4,000 in respect of non-pecuniary damage. This amount is to be paid to his wife, Ms Tatyana Samoylenko.

44.  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.  Declaresthat the applicant’s wife, Ms Tatyana Samoylenko, has standing to continue the present proceedings in the applicant’s stead;

2.  Declares admissible the applicant’s complaints under Article 5 § 3 of the Convention concerning the lack of justification of his detention on remand and the complaints under Article 5 § 4 of the Convention concerning the hearing at the Court of Appeal on 7 June 2010, which was held in the absence of the applicant and his lawyer, and the review of the lawfulness of the applicant’s detention during the trial, and the remainder of the application inadmissible;

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

4.  Holdsthat there has been a violation of Article 5 § 4 of the Convention;

5.  Holds

(a)  that the respondent State is to pay the applicant’s wife, Ms Tatyana Samoylenko, within three months, EUR 4,000 (four thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, 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;

6.  Dismissesthe remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 24 October 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško                                                      Gabriele Kucsko-Stadlmayer
Deputy Registrar                                                                  President

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