FIFTH SECTION

DECISION

Application no . 5976/08 Valeriy Vladyslavovych ZGONNIK against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 18 December 2012 as a Chamber composed of:

Mark Villiger , President, Angelika Nußberger , Boštjan M. Zupančič , Ann Power-Forde , Paul Lemmens , Helena Jäderblom , Aleš Pejchal , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 18 January 2008,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Valeriy Vladyslavovych Zgonnik , is a Ukrainian national, who was born in 1965 and lives in Kostyantynivka , Donetsk region. He was represented before the Court by Mr M. Anikin , a lawyer practising in Kerch .

A. The circumstances of the case

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

1. Criminal proceedings against the applicant

On 9 July 2006 the applicant was detained on suspicion of murder.

On 11 July 2006 he was taken to the Kostyantynivskyy Town Court , which held that it was necessary to make further enquiries about him and decided to extend the term of his detention to ten days.

On 21 July 2006 the Kostyantynivskyy Court remanded the applicant in custody pending trial.

The applicant ’ s pre-trial detention was extended by judicial decisions on three occasions, until 9 November 2006.

On 7 November 2006 the investigator applied to the Donetsk Regional Court of Appeal (“the Donetsk Regional Court ”) for another extension of the applicant ’ s detention, this time until 9 December 2006. According to the investigator, the applicant and his lawyer had received access to the case file only on 27 October 2006 and needed more time for studying it.

On 9 November 2006 the Donetsk Regional Court refused to accept the investigator ’ s application as submitted with a delay. It held that the delayed provision of access for the applicant to the case file was not a valid reason for extending his detention and that he was to be released immediately after the expiry of the authorised detention term.

The investigator referred the case for trial instead. However, he immediately requested the court to return it back for additional investigation on the grounds that the applicant and his lawyer had not had sufficient time to study the case file. According to the applicant, by doing so the investigator circumvented the legally established time-limits for his pre-trial detention.

On 4 December 2006 the Donetsk Regional Court remitted the case for additional investigation in allowing the investigator ’ s application. It noted that the term of the applicant ’ s pre-trial detention had expired and that it had not been extended. At the same time, it held that, given the seriousness of the crime the applicant was charged with, he was to remain in detention.

The applicant unsuccessfully challenged the above ruling to the Supreme Court, which held on 25 January 2007 that the issue of the preventive measure in his case was to be decided by the investigating authorities.

On 23 April 2007 the investigator once again referred the case to the court for trial.

However, on 17 May 2007 the Donetsk Regional Court remitted it for additional investigation once again. It held that the applicant had not been provided with the possibility to study the case file. Furthermore, the term of his pre-trial detention had been breached. Nonetheless, the court decided to keep the applicant in detention with reference to the seriousness of the criminal offence he was charged with. It therefore rejected his request for release.

On 19 July 2007 the Supreme Court rejected the applicant ’ s cassation appeal against the above ruling.

At some point thereafter the case was reassigned to another investigator.

On 25 December 2007 the investigator terminated the criminal proceedings against the applicant for the absence of sufficient evidence that he had committed the crime in question. The applicant was released immediately.

2. Compensation proceedings brought by the applicant

In November 2010 the applicant lodged a civil claim with the Voroshylivskyy District Court of Donetsk (“the Voroshylivskyy Court ”) against the Donetsk Regional Prosecutor ’ s Office and the State Treasury seeking compensation for damages in respect of his allegedly unlawful criminal prosecution and detention. Namely, he claimed 39,057 Ukrainian hryvnias (UAH) in respect of pecuniary damage and UAH 10,000,000 in respect of non-pecuniary damage.

The applicant submitted, in particular, that because of the inherent stress he had become ill with psoriasis during his detention. He referred in this connection to a medical certificate of 20 April 2010, according to which he had been assigned to the second category (medium) of disability on account of this disease, which was incurable and which had apparently been triggered by his stress related to his criminal prosecution and detention.

On 15 November 2011 the Voroshylivskyy Court allowed the applicant ’ s claim in part and awarded him UAH 87,741.94 [1] in compensation for non-pecuniary damage, UAH 7,280 in respect of lost income and UAH 19,262.25 in respect of medical treatment costs.

The court held that the applicant had been a victim of unlawful criminal prosecution and detention from 9 July 2006 to 25 December 2007 (for seventeen months and seventeen days). It relied on the Law “On the Procedure for the Compensation of Damage caused to Citizens by the Unlawful Actions of Bodies in charge of Operational Enquiries, Pre-trial Investigation Authorities, Prosecutors or Courts”, according to which the termination of criminal proceedings for the lack of corpus delicti , like in the applicant ’ s case, provided grounds for compensation of damages.

The Voroshylivskyy Court also referred to the medical certificate concerning the applicant ’ s disease of psoriasis and its link with his criminal prosecution and detention.

On 16 December 2011 the Donetsk Regional Court of Appeal upheld the above judgment in the part regarding the compensation for the non-pecuniary damage. As to the compensation for the lost income and the medical treatment costs, it held that, according to the legally envisaged procedure, the applicant had to address first the respective investigation authorities which had been dealing with his case.

On 2 February 2012 the Supreme Court upheld that ruling.

B. Relevant domestic law and practice

The relevant provisions of the Law “On the Procedure for the Compensation of Damage caused to Citizens by the Unlawful Actions of Bodies in charge of Operational Enquiries, Pre-trial Investigation Authorities, Prosecutors or Courts” can be found in judgment on the case of Afanasyev v. Ukraine , no. 38722/02, § 52, 5 April 2005.

COMPLAINTS

In his first letter to the Court of 18 January 2008 and in the application form introduced on 25 June 2008 the applicant complained under Article 5 §§ 1 and 3 of the Convention about the alleged unlawfulness and length of his pre-trial detention.

On 23 July 2012 he additionally complained under Articles 3 and 13 of the Convention about the allegedly poor conditions of his detention and the lack of effective domestic remedies in that regard.

THE LAW

1. The applicant complained under Article 5 §§ 1 and 3 of the Convention that his pre-trial detention had been unlawful and excessively long. He submitted, in particular, that by repeated referrals of the case to the court, even though it had not been ready for the trial, and by immediately seeking additional investigation, the investigator had knowingly circumvented the legally established time-limits for the applicant ’ s pre-trial detention.

The provisions relied on 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.”

The Court reiterates that an applicant is deprived of his or her status as a victim if the national authorities have acknowledged, either expressly or in substance, and then afforded appropriate and sufficient redress for, a breach of the Convention (see, for example, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-193, ECHR 2006 ‑ V).

As regards the present case, the Court notes that the domestic authorities examined the applicant ’ s grievances in respect of his unlawful pre-trial detention for seventeen months and seventeen days, which are also the subject matter of his application before this Court. Furthermore, the national courts explicitly acknowledged the violations alleged by the applicant and awarded him compensation in respect of the non-pecuniary damage.

It remains to be seen whether the compensation in question can be regarded as having provided appropriate and sufficient redress to the applicant. In assessing this, the Court will have regard to all the circumstances of the case, taking into account, in particular, the nature of the Convention violation at stake (see Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010).

The Court observes that in the present case the domestic courts awarded the applicant compensation equivalent of about EUR 8,000 in respect of the non-pecuniary damage he suffered on account of his unlawful criminal prosecution and detention during seventeen months and seventeen days.

The Court reiterates in this connection that the question whether the applicant received reparation for the damage caused – comparable to just satisfaction as provided for under Article 41 of the Convention – is an important issue (see, among other authorities, Shilbergs v. Russia , no. 20075/03 , § 72, 17 December 2009) .

It is noteworthy though that the compensation which is lower than the amount the Court would itself award may still be considered reasonable, provided that the relevant decision of the domestic courts is consonant with the legal tradition and standard of living in the country concerned and is speedy, reasoned and executed quickly (see Scordino , cited above, §§ 189 and 206, and Dubjakova v. Slovakia ( dec .), no. 67299/01, 19 October 2004).

The Court will determine whether the amount of the compensation awarded to the applicant in the present case is comparable to that it awarded itself in respect of similar violations in other cases against Ukraine .

The Court notes that in the case of Korneykova v. Ukraine ( no. 39884/05 , 19 January 2012) it awarded EUR 6,000 in respect of the violations of the applicant ’ s rights under Article 5 §§ 1, 3, 4 and 5 of the Convention. Namely, the violations concerned the unlawful detention of the fourteen-year-old applicant for twelve days and her inability to get judicial review of its lawfulness, as well as the lack of an enforceable right to compensation in that regard domestically.

In the case of Tretyakov v. Ukraine ( no. 16698/05 , 2 9 September 2011) the applicant was awarded EUR 8,000 in respect of his pre-trial detention for four years and nearly two months in breach of Article 5 §§ 1 and 3 of the Convention. The Court also found violations of Article 5 § 4 in this case, as well as Article 6 § 1 as regards the length of the proceedings.

The Court found violations of the same provisions of the Convention in the case of Vitruk v. Ukraine (no. 26127/03 , 16 September 2010), in which the applicant had been unlawfully detained for four years and almost eight months. The award in this case was EUR 6,000.

In its judgment on the case of Khayredinov v. Ukraine (no. 38717/04 , 14 October 2010) the amount of the compensation awarded by the Court in respect of the non-pecuniary damage related to the violations of the applicant ’ s rights under Article 5 §§ 1 and 3 of the Convention was EUR 5,000.

Turning to the present case, the Court considers that the domestic award of EUR 8,000 to the applicant in respect of his unlawful detention for one and a half year appears reasonable. It also takes into account the promptness of the judgments and the award made by domestic courts (see Iliev and Others v. Bulgaria , nos. 4473/02 and 34138/04 , § 43, 10 February 2011).

In view of the foregoing, the applicant should be considered as having lost his victim status in relation to these complaints. They must therefore be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. The applicant also complained under Articles 3 and 13 about the conditions of his detention.

The Court notes that these complaints were raised for the first time on 23 July 2012.

Given that the detention in question had been terminated with the applicant ’ s release on 25 December 2007, this complaint should be rejected as being out of the six-month time limit, pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Mark Villiger Registrar President

[1] 1. An equivalent of about 8,000 euros .