FIFTH SECTION

DECISION

Application no . 35807/05 Grygoriy Denysovych CHOSTA against Ukraine

The European Court of Human Rights ( Fifth Section ), sitting on 14 January 2014 as a Chamber composed of:

Mark Villiger, President, Ann Power-Forde, Ganna Yudkivska, André Potocki, Paul Lemmens, Helena Jäderblom, Aleš Pejchal, judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 5 August 2005 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows :

THE FACTS

The case originated in an application (no. 35807/05) 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 Grygoriy Denysovych Chosta (“the applicant”), on 5 August 2005.

The Ukrainian Government (“the Government”) were represented by their Agent, Mr Nazar Kulchytskyy, of the Ministry of Justice.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant was born in 1943 and lives in Kramatorsk .

At the material time the applicant worked at a steel factory owned by a company in which the State held about 25% of the share capital. The company operated under its articles of association and was managed by a director appointed by the general meeting of shareholders, which was the highest authority deemed competent since shareholders represented over 60% of the votes. The company ’ s supervisory board included one representative of the State Property Fund.

On 13 February 2002 the director of the company, noting an increase in instances of staff members presenting for work under the influence of alcohol, and relying on paragraph 23 of the company ’ s internal regulations, which “forbade attendance at work in a state of intoxication and ... drinking at work”, instructed the departmental factory guards ( “the guards” ) – who were employees of the company – to “apprehend, in compliance with the legislation of Ukraine, anyone appearing to be in a state of alcoholic (narcotic) intoxication and take them to [the guards ’ ] office for a report subsequently to be drawn up”. Employees who disagreed with the report were to be escorted to a local clinic for an alcohol test.

At about 10 p.m. on 3 August 2002, a guard at the factory gate suspected that the applicant, who was on his way out after working two shifts in succession, was drunk and asked him whether he had drunk alcohol. Following the applicant ’ s reply that he had drunk “a glass of vodka”, guards S. and P. seized the applicant ’ s badge and would not allow him to leave the premises of the factory. After about half an hour the senior guard, N. arrived, questioned the applicant and drew up a report indicating that the applicant was drunk and “looked untidy”, and that “there was a strong smell of alcohol on his breath”. The applicant, who disagreed with those conclusions and refused to sign the report, was then taken to the office of the chief guard, M., for further questioning. M. asked several factory workers to smell the applicant ’ s breathe and say whether he was drunk. Eventually, the applicant was escorted to a local clinic where at 11.30 p.m. he was given an alcohol test and was found to be sober. Subsequently, at an unspecified time, the applicant was allowed to leave, his badge having been returned to him.

On an unspecified date, upon the applicant ’ s complaint, the head of the company ’ s trade union initiated an internal investigation into the incident. The investigation established that the report drawn up by guard M . on 3 August 2002 had been based on the statements of S. and P., “external signs of the applicant ’ s alcoholic intoxication”, and the applicant ’ s behavior after he had been stopped by S. and P. It was also noted that the applicant had consented to undergo an alcohol test at the clinic.

On 22 August 2002, the chief guard of the factory, referring to the findings of that investigation, issued an instruction indicating a number of shortcomings in the conduct of the guards involved in the incident on 3 August 2002. In particular, it was noted that guard M . had failed to describe the signs of alcoholic intoxication which the applicant had allegedly displayed or to record the statements given by S. and P. The chief guard also noted that the guards had failed to draw up a separate report on the applicant ’ s refusal to cooperate.

On 4 February 2003 the applicant instituted proceedings before the Kramatorsk Court against the company, seeking 12,000 Ukrainian hryvnias (UAH) [1] in compensation for non-pecuniary damage allegedly caused to him by the unlawful actions of the guards on 3 August 2002.

On 3 June 2003 the court rejected the applicant ’ s claim. It found that the guards had acted in line with the company ’ s internal regulations and therefore their actions had been lawful. Having heard all the eyewitnesses of the incident on 3 August 2002, the court concluded that there was no evidence that the guards ’ conduct caused damage to the applicant ’ s reputation, health, lifestyle or working relationships. The court relied on the report of 3 August 2002 and the internal investigation report, plus the records of the applicant ’ s alcohol test on that date and statements by S. and P. The court invoked Articles 440-1 and 441 of the Civil Code of 1963 .

On 26 August 2003 the Donetsk Regional Court of Appeal rejected an appeal by the applicant.

The applicant appealed in cassation, stating, in particular, that the Court of Appeal had failed to verify whether his detention had been compatible with the requirements of the Convention. According to the applicant, his detention on 3 August 2002 had not been justified by any of the grounds in Article 5 § 1 of the Convention but no compensation had been available to him, contrary to Article 5 § 5 of the Convention. On 4 April 2005 the Supreme Court refused the applicant leave to appeal in cassation on the ground that there was no evidence suggesting that the decisions of the lower courts were unlawful or inaccurate.

Meanwhile, on 6 February 2003 a t 11.20 p.m., guards P. and I., suspecting the applicant of being drunk, had stopped him as he was leaving the factory. The guards took the applicant to their office and questioned him. The senior guard L. drew up a report stating that the applicant was drunk and noting that the latter disagreed with th at conclusion . According to the applicant, the guards refused to take him to a clinic for an alcohol test and did not allow him to leave until 2.30 a.m. on 7 February 2003. From 11.20 on 6 February to 2.30 a.m on 7 February 2003 the guards allegedly pressured and threatened the applicant. According to the Government, the applicant was kept in the guards ’ offi ce for only twenty minutes on 6 February 2003.

On 7 February 2003 at about 2.30 a.m. the applicant, who wished to prove that he was sober, went to a local clinic and at 3.50 a.m. on that day took an alcohol test. There were two reports drawn up following the test, which came to opposite conclusions; the disparity between the conclusions was explained by the different techniques that had been used.

The company carried out an internal inves tigation into the incident of 6 February 2003 and found no fault in the guards ’ conduct. The investigation report mentioned, inter alia , that the guards had not taken the applicant to a clinic for an alcohol test because of poor weather conditions.

On 21 April 2003 the applicant instituted proceedings before the Kramatorsk Court against the company, seeking UAH 35,000 [2] in compensation for the non-pecuniary damage allegedly caused to him by his unlawful detention on 6 February 2003.

On 1 October 2003 the court rejected the applicant ’ s claim, relying on essentially the same grounds as in its judgment of 3 June 2003 (see above). The court also noted that according to the statements of guards P. and I., the applicant had been released within twenty minutes of his apprehension.

On 18 March 2004 and 12 October 2006 the Donetsk Regional Court of Appeal and the Supreme Court, respectively, rejected appeals by the applicant and upheld the first-instance court ’ s judgment.

According to the applicant, the judges of the courts dealing with his complaints were biased and corrupt.

B. Relevant domestic law and practice

Article 440-1 of the Civil Code of 1963, in force up to 1 September 2005 , provided that non-pecuniary damage caused to a person or an organization was to be compensated by the person who had caused it unless the latter proved not to be responsible for the damage. Article 441 provided that an employer was liable for harm caused by an employee, in the performance of his or her work duties, to a third person.

Article 146 of the Criminal Code of 2001 provided that unlawful deprivation of liberty or abduction of an individual were punishable by restriction of liberty or imprisonment for up to five years.

COMPLAINTS

The applicant complained under Article 3 of the Convention that the factory guards subjected him to inhuman and degrading treatment. He complained under Article 5 § 1 of the Convention that on 3 August 2002 and 6 February 2003 he was prevented from leaving the factory premises. He complained under Articles 5 § 5 and 13 of the Convention that there was no effective domestic remedy for his complaint under Article 5 § 1 of the Convention. Relying on Article 6 § 1 of the Convention the applicant challenged the outcome of both sets of proceedings against the company.

In his submissions of 21 March 2011, the applicant further complained that the guards ’ conduct on 3 August 2002 and 6 February 2003 amounted to a violation of his rights under Article 8 of the Convention.

THE LAW

1. The applicant complained that the factory guards had prevented him from leaving the factory premises on 3 August 2002 and 6 February 2003, contrary to Article 5 § 1 of the Convention which reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfillment of any obligation 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;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

The Government contended that the company guards were employed by and answerable to the company, which was operationally independent and institutionally autonomous of the State. Accordingly, the authorities had not been involved in the events at issue and Article 5 was not applicable to the present case. Moreover , unlike in the case of Storck v. Germany (no. 61603/00, ECHR 2005 ‑ V ), the applicant had not been vulnerable and therefore the domestic courts had not been obliged to apply Article 5 § 1 of the Convention. They further noted that the applicant had not lodged a complaint under Article 146 of the Criminal Code, thereby preventing the law-enforcement bodies from investigating the events complained of. They further argued that the factory guards had acted in accordance with the company ’ s internal regulations, which the applicant had agreed to abide by when he had been hired.

The applicant disagreed . H e stated , in particular, that he had been in a vulnerable situation during the impugned events because his first detention had t aken place after he had worked two shifts in succession, thus causing him serious mental distress , and the second detention had been attended by numerous flaws. He also argued that the word “departmental” in the official name of the guards (see above ) implied a clear relationship with a certain State department , thus making the State responsible for the guards ’ actions. The applicant did not deny that he had been aware of the company ’ s internal regulations.

The Court reiterates that in order to determine whether someone has been “ deprived of his liberty ” within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects, manner and context of implementation of the measure in question (see Creangă v. Romania [GC], no. 29226/03 , § 91, 23 February 2012 and Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09 , § 59, ECHR 2012) . The notion of deprivation of liberty within the meaning of Article 5 § 1 contains both a n objective element of a person ’ s confinement in a particular restricted space for a not negligible length of time, and an additional subjective element in that the person has not validly consented to the confinement in question (see Stanev v. Bulgaria [GC], no. 36760/06 , § 117, ECHR 2012) . Relevant objective factors to be considered include the possibility to leave the restricted area, the degree of supervision and control over the person ’ s movements and the extent of isolation (see, for example, Guzzardi v. Italy , 6 November 1980, § 95, Series A no. 39 ; H.M. v. Switzerland , no. 39187/98, § 45, ECHR 2002 ‑ II ; H.L. v. the United Kingdom , no. 45508/99, § 91, ECHR 2004 ‑ IX ; and Storck v. Germany , cited above, § 73 ).

On the basis of the material in its possession the Court concludes that during the incidents on 3 August 2002 and 6 February 2003 the applicant ’ s liberty was restricted. The Court, however, does not find it necessary to decide whether that restriction amounted to a “deprivation of liberty”, because even assuming that the applicant was deprived of his liberty the present complaint is inadmissible for the reasons outlined below.

T he Court recalls that in certain situations Article 5 of the Convention can be applicable to detention by private persons. T he responsibility of a State is engaged in particular if, being aware of such detention, the authorities acquiesced or failed to put an end to it (see Riera Blume and Others v. Spain , no. 37680/97, §§ 29-35, ECHR 1999 ‑ VII ; Medova v. Russia , no. 25385/04, §§ 123-125, 15 January 2009 ; Rantsev v. Cyprus and Russia , no. 25965/04, §§ 319-321 , ECHR 2010 (extracts) ). In the case of Storck (cited above) the Court also found that a State is obliged to prevent a “vulnerable person” ‘ s deprivation of liberty of which it has or ought to have knowledge.

Even assuming that the applicant ’ s confinement in the factory premises amounts to deprivation of liberty extending beyond the time strictly necessary to accomplish certain formalities (see Foka v. Turkey , no. 28940/95, § 75 , 24 June 2008 and Gahramanov v. Azerbaijan (dec.) , no. 26291/06, §§ 41-44, 15 October 2013), the Court notes that in the present case it was not ordered by the State authorities . There i s no sufficient information demonstrating that the guards of the company for which the applicant worked could be considered as the State agents. Although it was partly owned by the State, the company enjoyed institutional and operational independence from it and the guards acted up on the instructions of the company ’ s management. Accordingly, the authorities were not directly responsible for the applicant ’ s stay with the factory guards .

The Court finds that it has not been demonstrated that the authorities were aware of or agreed to the applicant ’ s confinement in the factory premises while it lasted. Moreover, it considers that, c ontrary to the applicant ’ s allegations, at the material time he could not be considered “vulnerable” and was able to make use of the means of protection offered by Ukrainian law (see the description of the facts above and compare and contrast with the situation in Storck , cited above, § 105). In particular, it was open to the applicant either to make a complaint pursuant to Article 146 of the Criminal Code of 2001, or to lodge a civil claim for damages under Articles 440-1 and 441 of the Civil Code of 1963. The applicant availed himself of the latter avenue and had his claims examined on the merits by the civil courts. It cannot be said that the courts ’ decisions in the applicant ’ s case were arbitrary or manifestly unreasonable.

The Court finds that the above considerations are sufficient to conclude that the situations complained of did not engage the State ’ s responsibility and thus they do not attract protection of Article 5 § 1 of the Convention. It follows that this part of the application must be rejected as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. The applicant complained under Articles 5 § 5 and 13 of the Convention that there was no effective domestic remedy in respect of the violations of his right protected by Article 5 § 1 of the Convention as on both occasions the domestic courts had dismissed his claims. He also relied on Article 6 § 1 of the Convention, challenging the outcome of both sets of proceedings against the company.

The Court reiterates that the right to compensation set forth in paragraph 5 presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court . In the present case the Court found the applicant ’ s complaint under Article 5 § 1 of the Convention inadmissible. Accordingly, the complaint under Article 5 § 5 must also be rejected.

As regards the complaints under Articles 6 § 1 and 13 of the Convention, the Court notes that t he applicant enjoyed the right to adversarial proceedings with the participation of interested parties. Within the framework of the proceedings the applicant was able to present all necessary arguments in defence of his interests, and the judicial authorities gave them due consideration. It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention

3. The applicant complained under Article 3 of the Convention that he had been ill-treated by the factory guards on 3 August 2002 and 6 February 2003. In particular, he alleged that the guards ’ conduct (namely, making unfounded allegations against him, smelling his breath, escorting him to the clinic to undergo testing, submitting him to psychological pressure) had been inhuman and degrading. In his submissions of 21 March 2011, the applicant further complained of a violation of Article 8 of the Convention on the basis of the same facts.

Having considered the applicant ’ s submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the applications inadmissible.

Claudia Westerdiek Mark Villiger Registrar President

[1] . About 2,000 euros (EUR)

[2] . About EUR 5,800