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

FIFTH SECTION
CASE OF SHTEPA v. UKRAINE
(Application no.16349/17)

JUDGMENT
STRASBOURG
24 October 2019

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

In the case of Shtepa 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. 16349/17) against Ukraine lodged with the Court under Article34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms NelyaIgorivnaShtepa (“the applicant”), on 17 February 2017.

2. The applicant was represented by Mr O.V. Tananakin, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna, from the Ministry of Justice.

3. The applicant complained, under Article 5 § 3 of the Convention, that her pre-trial detention had been lengthy and unjustified. She further complained, under Article 6 § 1 of the Convention, that the criminal proceedings against her had been unreasonably long.

4. On 17 October 2017 the Court rejected the applicant’s request for an interim measure under Rule 39 of the Rules of Court, to provide her with necessary medical treatment in detention. On 20 April 2018 the application was granted priority under Rule 41 of the Rules of Court.

5. On 11September 2018 notice of the application was given to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1962 and lives in Slovyansk.

7. The applicant was the mayor of Slovyansk between November 2010 and April 2014.

8. On 12 July 2014 criminal proceedings on a charge of infringement of State sovereignty and inviolability were instituted against the applicant. On the same day the investigator requested the court to detain her pending completion of the investigation, relying on the seriousness of the charges against her and the risk that she might abscond and hinder the investigation by witnesses tampering or destroying or concealing evidence, or that she might pursue her criminal activity.

9. On 13 July 2014 the KharkivChervonozavodskyi District Court (“the District Court”) ordered the applicant’s detention within the framework of the above proceedings. The relevant decision stated that she was accused of a serious offence, and that she might otherwise escape and hinder the investigation or continue with her criminal activity. It was also mentioned in the court decision that the applicant was not living at her registered address in Slovyansk and that as former city mayor she might influence a victim and witnesses. No further details of the above-mentioned reasons were provided by the court.

10. In the meantime, additional terrorism charges were brought against the applicant.

11. On 13 February 2015 the District Court committed the applicant for trial. Given that the parties did not submit any requests to change or revoke the preventive measure, the court ruled that the applicant’s detention was deemed extended until 28 May 2015.

12. In the course of the pre-trial investigation and the trial, the courts, at the request of the prosecution, extended the applicant’s detention on remand on twenty occasions in total. In their reasoning for the decisions on the applicant’s continued detention the courts referred to the same grounds as those mentioned in the court decision of 13 July 2014 (see paragraph 9 above). In some decisions the courts, without providing further details, additionally noted that:

(i) the applicant had failed to present evidence confirming that the risks in favour of her detention that had previously been assessed by the courts were no longer pertinent;

(ii) the applicant as former city mayor might influence witnesses;

(iii) the applicant’s arguments in favour of her release did not outweigh the public interest in keeping her detained; and

(iv) the provisions of the Code of Criminal Procedure barred the use of any preventive measures other than pre-trial detention in her case.

13. In the course of the court hearing on 20 September 2017, the prosecution, relying on reasons similar to those given earlier (see paragraph 8 above), requested the District Court to extend the applicant’s detention for another term. The court found that the prosecution had failed to prove the existence of the risk that the applicant might abscond and hinder the investigation. The court changed the preventive measure in respect of the applicant to house arrest, having released her from detention. When deciding on the applicant’s release, the District Court took note of the fact that the applicant had a family and a permanent place of residence in Slovyansk (the same place the applicant had prior to her arrest in July 2014, see paragraph 9 above), had no criminal record, had previously served as a city mayor and had a good reputation.

14. The criminal case against the applicant is currently pending before the trial court.

15. According to the applicant, in the course of the trial, nineteen of the judges who heard her case withdrew, were disqualified or were dismissed, took sick or paternity leave under pressure from the prosecution, or quit their career entirely. As a result, the trial was restarted four times.

16. In the course of the trial, the court held 69 hearings in total. On 32 occasions the court dealt with the merits of the case (hearing the parties’ submissions and the witness testimony, and examined the evidence).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

17. The applicant complained that the decisions of the domestic courts ordering her pre-trial detention had been arbitrary and lacked reasoning. She further complained that her detention had been unreasonably long. She relied on Article 5 § 3 of the Convention, which reads 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 …”

A. Admissibility

18. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

19. The applicant submitted that her detention had been based solely on the seriousness of the crimes of which she stood accused. She further stated that the courts had failed to give relevant and sufficient reasons for her detention, which had been unreasonably long, and that there had been no risk of her absconding from justice.

20. The Government submitted that the applicant’s detention had been under the permanent supervision of the courts, which had provided reasoned decisions for that measure. They further maintained that the applicant’s detention had been justified by the risk of her absconding from justice.

21. 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).

22. Turning to the circumstances of the present case, the Court observes that the applicant was held in detention within the meaning of Article 5§ 1 (c) of the Convention from 13 July 2014 to 20 September 2017. Her pre‑trial detention therefore lasted for around three years and three months.

23. The Court observes that, contrary to the Government’s argument, the District Court’s decision of 13 July 2014 did not contain clear and precise reasons for the applicant’s detention but simply referred to the investigator’s submissions, without any examination of the plausibility of the grounds invoked by the latter (seeparagraphs 8 and 9 above).

24. The Court further observes that the seriousness of the charges against the applicant and the risk of her absconding or interfering with the investigation were mentioned in the initial order for her detention (ibid.). However, that reasoning did not evolve with the passage of time and continued to consist of the same formulaic and stereotypical conclusions (see paragraph 12 above). Moreover, when committing the applicant for trial on 13 February 2015, the District Court maintained the applicant’s detention but without giving any reasons whatsoever for its decision (see paragraph 11 above).

25. The Court particularly notes that, in the present case, the domestic courts repeatedly justified the applicant’s further detention by the absence of reasons to release her, while Article 5 § 3 of the Convention implies an opposite approach and requires the national authorities to indicate grounds for the person’s continuing detention (see Neumeister v. Austria, 27 June 1968, § 4, Series A no. 8).

26. The Court further observes that the applicant’s absence from her registered address in Slovyansk and her potential influence on a victim and witnesses in her capacity as former city mayor (see paragraph 9 above) were mentioned by the domestic court as justification for her detention. At the same time, these elements, while they seem to remain unchanged according to the case file materials (see paragraphs 9 and 13 above), were relied upon by the domestic court to dismiss, on 20 September 2017, the prosecution’s request for an extension of the applicant’s uninterrupted detention. In the absence of any explanation in the relevant judicial decision and the Government’s observations, it remains unclear how factors which were interpreted in her favour in 2017 had been initially used against the applicant in 2014.

27. The Court has often found a violation of Article 5 § 3 of the Convention in cases against Ukraine on the basis that, even for lengthy periods of detention, the domestic courts referred to the same set of grounds, if there were any, throughout the period of the applicant’s detention (see, for example,Komarova v. Ukraine, no. 13371/06, §§ 77-81, 16 May 2013).

28. Having regard to the above, the Court considers that by failing to address specific facts or consider alternatives to pre-trial detention and by relying essentially and routinely on the seriousness of the charges, the authorities extended the applicant’s detention pending trial on grounds which cannot be regarded as “sufficient” and “relevant” such as to justify its duration.

29. There has accordingly been a violation of Article 5 § 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

30. The applicant complained that the length of the criminal proceedings in her case had been incompatible with the “reasonable time” requirement. She relied on 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 …”

A. Admissibility

31. The Court notes that the above complaint 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

32. The applicant reiterated her initial submission that the length of the criminal proceedings in her case had been in breach of the “reasonable time” requirement.

33. The Government disputed that submission, arguing that the case had been complex. They further stated that the proceedings had been delayed due to the conduct of the applicant’s defence lawyers, who had lodged numerous appeals and requests for the replacement of the trial court judges. Overall, in their view, the court hearings had been scheduled with reasonable intervals and there were no delays which could be attributed to the State.

34. In the present case, the proceedings started on 12 July 2014, when a criminal investigation for infringement of State sovereignty and inviolability was instituted in respect of the applicant (see paragraph 8 above), and appear to be currently pending before the trial court. They have thus lasted for about five years and two months at one level of jurisdiction.

35. 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 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).

36. 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.

37. The Court further reiterates that it is the role of the domestic courts to manage their proceedings so that they are expeditious and effective (see, Silin v. Ukraine, no. 23926/02, § 34, 13 July 2006). However, in the Court’s opinion the national court did not act with due diligence in the present case. In particular, according to the information provided by the Government, the hearings were often scheduled with intervals of three to four weeks and on six occasions the hearings were postponed owing to the failure of witnesses to appear before the court. The witnesses’ failures resulted in the postponement of the hearings for three and a half months in total. The Government did not state whether any measures had been taken in order to shorten the intervals between the hearings or discipline the absent witnesses.

38. As regards the judges’ repeated withdrawals from the case, the Court notes that each withdrawal resulted in the trial being restarted from the very beginning (see paragraph 15 above). The total delay in the proceedings was therefore more than seven months. In this connection, having no doubt about the right of any judge to withdraw from a case, the Court reiterates that Article 6 § 1 of the Convention imposes on the Contracting States the duty to organise their legal systems in such a way that their courts can meet the requirement to hear cases within a reasonable time (see, among many other authorities, Duclos v. France, 17 December 1996, § 55 in fine, Reports of Judgments and Decisions 1996‑VI).

39. Having examined all the material submitted to it and in the light of its case-law on the subject, the Court considers that, in the instant case, the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

40. There has accordingly been a violation of Article 6 § 1 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

41. Lastly, the applicant complained under Article 3 of the Convention, that she had been subjected to physical and psychological ill‑treatment in detention and that the material conditions of her detention, including medical treatment, had been inadequate. She further complained under Articles 14 and 18 in conjunction with Article 5 of the Convention, that she had suffered discriminatory treatment aimed at her isolation from political activity while in detention.

42. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the above issues do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

43. 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

44. The applicant claimed 8,650 euros (EUR) in respect of pecuniary damage which she had sustained in the form of potential salary loss. She further claimed EUR 30,000 in respect of non-pecuniary damage.

45. The Government considered the claims unsubstantiated and excessive.

46. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 2,600 in respect of non‑pecuniary damage.

B. Costs and expenses

47. The applicant also claimed EUR 21,450 for the costs and expenses incurred both before the domestic courts and before the Court.

48. The Government considered the amount claimed unsubstantiated.

49. 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. In the present case, regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 1,000 covering costs under all heads.

C. Default interest

50. 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 concerning the lack of reasons for the applicant’s detention on remand and the excessive length of criminal proceedings against her admissible and the remainder of the application inadmissible;

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

3. Holdsthat there has been a violation of Article 6 § 1 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 2,600 (two thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. 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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