FIFTH SECTION
\nCASE OF SAMOYLENKO v. UKRAINE
\n(Application no. 45050\/10)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n24 October 2019<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Samoylenko v. Ukraine,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:<\/p>\n Gabriele Kucsko-Stadlmayer, President, Having deliberated in private on 1 October 2019,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 45050\/10) against Ukraine lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Ukrainian national, Mr Oleg Nikolayevich Samoylenko (\u201cthe applicant\u201d), on 2 August 2010.<\/p>\n 2.\u00a0\u00a0The applicant was granted leave to represent himself. The Ukrainian Government (\u201cthe Government\u201d) were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice.<\/p>\n 3.\u00a0\u00a0The applicant complained of the authorities\u2019 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\u2019s absence and that there had been no effective procedure available to him to challenge the lawfulness of his detention.<\/p>\n 4.\u00a0\u00a0On 9\u00a0December 2015 notice of the application was given to the Government.<\/p>\n 5.\u00a0\u00a0On 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.<\/p>\n THE FACTS<\/strong><\/p>\n THE CIRCUMSTANCES OF THE CASE<\/p>\n 6.\u00a0\u00a0The applicant, Mr Oleg Nikolayevich Samoylenko, was a Ukrainian national who was born in 1962.<\/p>\n 7.\u00a0\u00a0On 8 February 2010 the Dnipropetrovsk regional prosecutor\u2019s office arrested the applicant on suspicion of having engaged in fraudulent business activities.<\/p>\n 8.\u00a0\u00a0On 11 February 2010 the Zhovtneviy District Court of Dnipropetrovsk (\u201cthe District Court\u201d) extended his custody to ten days with a view to carrying out a personality assessment.<\/p>\n 9.\u00a0\u00a0On 18 February 2010 the District Court ordered the applicant\u2019s 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.<\/p>\n 10.\u00a0\u00a0The 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.<\/p>\n 11.\u00a0\u00a0On 24 February 2010 the Dnipropetrovsk Regional Court of Appeal (\u201cthe Court of Appeal\u201d) upheld the District Court\u2019s decision. It noted, in particular, that there was no evidence that the applicant\u2019s 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.<\/p>\n 12.\u00a0\u00a0On 6 April 2010 the District Court extended the applicant\u2019s 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\u2019s 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.<\/p>\n 13.\u00a0\u00a0According to the applicant, he appealed against the decision of 6\u00a0April 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.<\/p>\n 14.\u00a0\u00a0On 7 June 2010 the Court of Appeal, acting as a first-instance court, again extended the applicant\u2019s detention until 8\u00a0July\u00a02010. 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.<\/p>\n 15.\u00a0\u00a0On 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\u2019s detention on remand.<\/p>\n 16.\u00a0\u00a0On 6\u00a0September and 28\u00a0October 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.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0LOCUS STANDI OF THE APPLICANT\u2019S WIFE<\/p>\n 17.\u00a0\u00a0The 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\u2019s heirs or of close family members expressing the wish to pursue the proceedings (see, for example, DimitarKrastev v. Bulgaria, no. 26524\/04, \u00a7 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.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION<\/p>\n 18.\u00a0\u00a0The applicant complained that the domestic courts\u2019 decisions on his detention were arbitrary and lacked reasoning. He further complained that the courts\u2019 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 \u00a7\u00a7 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.\u00a0Croatia [GC], nos.\u00a037685\/10 and 22768\/12, \u00a7\u00a7 114 and 126, 20 March 2018), the Court decides to examine those complaints under Article 5 \u00a7\u00a7 3 and 4 of the Convention.<\/p>\n The relevant provisions of Article 5 \u00a7\u00a7 3 and 4 of the Convention read as follows:<\/p>\n \u201c… 3. Everyone arrested or detained in accordance with the provisions of paragraph\u00a01 (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.<\/p>\n 4.\u00a0\u00a0Everyone 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 …\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 19.\u00a0\u00a0The Government argued, as far as it concerns the applicant\u2019s complaint under Article 5 \u00a7 4 regarding the extension of his detention on 6\u00a0April 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\u00a0April 2010.<\/p>\n 20.\u00a0\u00a0The applicant did not comment on that argument.<\/p>\n 21.\u00a0\u00a0The Court takes note of the applicant\u2019s allegations made in the application form that he did appeal against the decision of the District Court of 6\u00a0April 2010 (see paragraph 13 above). However, the applicant failed to develop that complaint by responding to the Government\u2019s 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\u00a0April 2010.<\/p>\n 22.\u00a0\u00a0In 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\u00a0April 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 \u00a7 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\u2019s detention on remand (see paragraph 11 above).<\/p>\n 23.\u00a0\u00a0It follows that the applicant\u2019s complaint under Article 5 \u00a7 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 \u00a7\u00a7 1 and 4 of the Convention.<\/p>\n 24.\u00a0\u00a0The Court further notes that the reminder of the application is neither manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0Article 5 \u00a7 3 of the Convention<\/em><\/p>\n 25.\u00a0\u00a0The applicant submitted that the decision of the District Court of 18\u00a0February 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.<\/p>\n 26.\u00a0\u00a0The Government submitted that the domestic court had carefully examined the circumstances of the case when taking decisions on the applicant\u2019s detention and had provided well-reasoned decisions in compliance with both the domestic legislation and the Convention.<\/p>\n 27.\u00a0\u00a0The applicable general principles are set out in Buzadji v.\u00a0the\u00a0Republic of Moldova ([GC], no. 23755\/07, \u00a7\u00a7 84-91 and 102, 5 July 2016).<\/p>\n 28.\u00a0\u00a0The 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\u2019s 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.<\/p>\n 29.\u00a0\u00a0The Court furthermore observes that the decisions of the domestic courts on extension of the applicant\u2019s detention taken on 6 April and 7\u00a0June 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\u2019s release (see paragraphs 12 and 14 above).<\/p>\n 30.\u00a0\u00a0The Court notes in this connection that the decisions on the applicant\u2019s 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.\u00a0Ukraine, no.\u00a04634\/04, \u00a7\u00a7 77 and 79, 9\u00a0November 2010).<\/p>\n 31.\u00a0\u00a0Having 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\u2019s detention, the authorities failed to comply with their obligation under Article 5 \u00a7 3 of the Convention to justify the applicant\u2019s detention pending trial on \u201csufficient\u201d and \u201crelevant\u201d grounds. There has accordingly been a violation of that provision.<\/p>\n 2.\u00a0\u00a0Article 5 \u00a7 4 of the Convention<\/em><\/p>\n 32.\u00a0\u00a0The applicant submitted that the court\u2019s 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.<\/p>\n 33.\u00a0\u00a0The 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\u2019s 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\u2019s detention after the criminal case had been transferred for trial, they argued that the applicant had had such a review.<\/p>\n 34.\u00a0\u00a0The applicable general principles emerging from the Court\u2019s case\u2011law are set out in Molodorych v. Ukraine (no. 2161\/02, \u00a7\u00a7 97-101, 28\u00a0October 2010).<\/p>\n (a)\u00a0\u00a0Hearing on 7 June 2010<\/p>\n 35.\u00a0\u00a0The 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\u2019s detention (contrast Malkhasyan v. Armenia, no.\u00a06729\/07, \u00a7 83, 26 June 2012).<\/p>\n 36.\u00a0\u00a0Since 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 \u00a7 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 \u201cequality of arms\u201d was not respected.<\/p>\n (b)\u00a0\u00a0Review of the lawfulness of the applicant\u2019s detention during the trial<\/p>\n 37.\u00a0\u00a0The Court notes that on 2 November 2010 the trial court dismissed the applicant\u2019s 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\u2019s 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.<\/p>\n 38.\u00a0\u00a0The Court observes, in this connection, that it has previously found a violation of Article 5 \u00a7 4 of the Convention in similar cases against Ukraine (see Kharchenko v. Ukraine, no.\u00a040107\/02, \u00a7 100, 10 February 2011). It does not see any reason to depart from its findings in the present case.<\/p>\n (c)\u00a0\u00a0Conclusion<\/p>\n 39.\u00a0\u00a0The Court concludes that the hearing at the Court of Appeal on 7\u00a0June 2010, which was held in the absence of the applicant and his lawyer, and the review of the lawfulness of the applicant\u2019s detention during the trial did not meet the requirement of Article 5 \u00a7 4 of the Convention. Accordingly, there has been a violation of that provision.<\/p>\n III.\u00a0\u00a0APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n 40.\u00a0\u00a0Article\u00a041 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n 41.\u00a0\u00a0The 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.<\/p>\n 42.\u00a0\u00a0The Government did not comment on the applicant\u2019s claims.<\/p>\n 43.\u00a0\u00a0The Court notes that the applicant\u2019s 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.<\/p>\n 44.\u00a0\u00a0The 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declaresthat the applicant\u2019s wife, Ms Tatyana Samoylenko, has standing to continue the present proceedings in the applicant\u2019s stead;<\/p>\n 2.\u00a0\u00a0Declares admissible the applicant\u2019s complaints under Article 5 \u00a7 3 of the Convention concerning the lack of justification of his detention on remand and the complaints under Article 5 \u00a7 4 of the Convention concerning the hearing at the Court of Appeal on 7\u00a0June 2010, which was held in the absence of the applicant and his lawyer, and the review of the lawfulness of the applicant\u2019s detention during the trial, and the remainder of the application inadmissible;<\/p>\n 3.\u00a0\u00a0Holdsthat there has been a violation of Article 5 \u00a7 3 of the Convention;<\/p>\n 4.\u00a0\u00a0Holdsthat there has been a violation of Article 5 \u00a7 4 of the Convention;<\/p>\n 5.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant\u2019s 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\u2011pecuniary damage;<\/p>\n (b)\u00a0\u00a0that 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;<\/p>\n 6.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 24 October 2019, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Milan Bla\u0161ko\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Gabriele Kucsko-Stadlmayer
\nYonko Grozev,
\nLado Chanturia, judges,
\nand Milan Bla\u0161ko, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n