FIFTH SECTION

DECISION

Application no. 60022/11 Ruslan Valentynovych MAKSYMCHUK against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 22 April 2021 as a Committee composed of:

Stéphanie Mourou-Vikström, President, Ganna Yudkivska, Lado Chanturia, judges, and Martina Keller, Deputy Section Registrar ,

Having regard to the above application lodged on 16 September 2011,

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

1 . The applicant, Mr Ruslan Valentynovych Maksymchuk, is a Ukrainian national, who was born in 1976 and lives in Shatsk. He was represented before the Court by Mr O.V. Levytskyy, a lawyer practising in Kyiv.

2 . The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice .

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

4 . On 21 December 2009 the Military Court of the Kyiv Garrison convicted the applicant, a border control officer, of a corruption-related offence and sentenced him to two years ’ “restraint of liberty”, a two-year ban on occupying managerial posts with the law-enforcement authorities, and a fine of 17,000 Ukrainian hryvnyas ( UAH ) .

5 . On 2 March 2010 the Military Court of Appeal of the Central Region upheld the above judgment and the sentence thus became enforceable. The applicant lodged an appeal on points of law on an unspecified date. The lodging of such an appeal does not have automatic suspensive effect.

6 . On 10 March 2010 the President of the Military Court of the Kyiv Garrison issued an order addressed to the enforcement office for immediate enforcement of the sentence of 21 December 2009.

7 . On 16 March 2010 the Supreme Court of Ukraine, on the applicant ’ s request which was the part of his appeal on points of law , suspended the execution of the sentence in the applicant ’ s case for the duration of the examination of his appeal on points of law. On the same day the above decision was forwarded to the Military Court of the Kyiv Garrison for execution. According to the applicant, the Supreme Court ’ s decision was not notified on him and he remained unaware of it until after his release on 30 March 2011.

8 . On 8 July 2010, on the basis of a warrant issued by the enforcement office, which was apparently unaware of the Supreme Court ’ s decision of 16 March 2010, the applicant was admitted to the Domnytskyi correctional centre (“the correctional centre”) for execution of his sentence.

9 . On 22 March 2011, in the absence of a final decision in the proceedings concerning the applicant ’ s appeal on points of law, the Menskyy Local Court of the Chernigiv Region held that the unserved part of the sentence (14 months and 29 days ’ restraint of liberty) should be converted into corrective labour, a punishment which consisted in 20% of the applicant ’ s monthly salary being payable to the State.

10 . On 30 March 2011 the applicant was released from the correctional centre and started serving his sentence of corrective labour.

11 . On 15 August 2011 the Shatskyy Local Court of the Volyn Region granted amnesty to the applicant on the basis of the Amnesty Act 2011.

12 . On 13 March 2012 the Higher Specialised Civil and Criminal Court examined the appeal on points of law lodged by the applicant in March 2010, quashed the judgments of 21 December 2009 and 2 March 2010 and remitted the applicant ’ s case to the first-instance court for fresh examination.

13 . On 20 August 2012 the Shatskyy Local Court of the Volyn Region once again convicted the applicant and sentenced him again to two years ’ restraint of liberty, a two-year ban on occupying managerial posts with the law-enforcement authorities, and a fine of UAH 12,750. The court formally released the applicant from serving a sentence in the form of restraint of liberty having had regard to the periods of his previous pre-trial detention (between 24 and 28 January 2009), the period during which he had served the sentence of restraint of liberty - between 8 July 2010 and 30 March 2011, and the period when he had served the punishment of corrective labour - from 1 April 2011 to 15 August 2011. In respect of the remainder of the sentence, by the same judgment the applicant was again granted an amnesty on the basis of the Amnesty Act 2011.

14 . After his release on 30 March 2011 the applicant did not inquire about the circumstances which had led to him or the penitentiary authorities not having been notified of the suspension of the execution of his sentence, did not lodge any complaints with the police or prosecution authorities and did not institute any domestic proceedings concerning his allegation that his detention in the correctional centre between 8 July 2010 and 30 March 2011 had been unlawful .

15 . The provisions of the Code concerning pre-investigation enquiries can be found in Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012) and Davydov and Others v. Ukraine (nos. 17674/02 and 39081/02, §§ 101-108, 1 July 2010).

In particular, Article 4 of the Code provided that a court, prosecutor, investigator or body of inquiry had, to the extent that it is within their power to do so, to institute criminal proceedings in every case where signs of a crime have been discovered, to take all necessary measures provided by law to establish the circumstances surrounding the crime, to identify those guilty of the crime and punish them.

Article 97 of the Code provided that a prosecutor, investigator, body of inquiry or judge had to accept applications or communications about crimes [which have been] committed, including in cases that are outside their jurisdiction. Those bodies had to adopt, within three days, the decision to institute criminal proceedings or to refuse to institute criminal proceedings or to remit the application or communication for examination in accordance with [the rules of] jurisdiction.

Articles 99-1 and 236-1 of the Code provided that a decision refusing to institute criminal proceedings could be appealed against to the relevant prosecutor or to a court.

Article 388 of the Code provided that appeals on points of law had to be examined by a judge of the Supreme Court [the Court of Cassation] who decided whether the case file needed to be requested from the trial court. Along with requesting the case file, a judge could decide on suspension of enforcement of the court decision if there were valid reasons to do so.

Article 404 of the Code provided that a sentence had to be subjected to enforcement by a court which rendered that sentence, no later than in three days after it became final or after the case file was returned from the Court of Appeal or the Court of Cassation.

Article 415 of the Code provided that a prosecutor had to exercise supervision over enforcement of the court sentences. The instructions of the prosecutor regarding the enforcement of the court sentences were mandatory for all bodies and officials responsible for enforcement of the court sentences.

16 . Article 367 of the Criminal Code provides that responsibility for negligence that is non-performance or improper performance of duties by an official which caused sufficient damage to rights, freedoms, and interests of individuals shall be punishable with a fine, correctional labour restriction of liberty or deprivation of liberty.

17 . Under section 12(1) of the Prosecution Service Act, the public prosecutor was to deal with petitions and complaints concerning breaches of the rights of citizens and legal entities, with the exception of complaints that fell within the jurisdiction of the courts. Subsection 4 provided that an appeal against a prosecutor ’ s decision was to be lodged with the hierarchically superior prosecutor or a court.

18 . Under section 44(1), the matters subject to the public prosecutor ’ s supervision were to extend to the following areas: adherence to the legal rules on correctional labour or supervision of those establishments responsible for the enforcement of sentences or coercive measures ordered by a court; adherence to the procedures and conditions for holding or sanctioning persons in such establishments; the rights of such persons; the manner in which the relevant authorities carried out their duties under the criminal law; and compliance with the legislation on the enforcement of sentences. The public prosecutor could at any time visit establishments where prisoners were serving their sentences, in order to conduct interviews or consult documents; he or she could also examine the legality of orders, resolutions and decrees issued by the administrative authorities of such institutions, terminate the implementation of sanctions or measures imposed on prisoners, appeal against such sanctions or measures or annul them if they did not comply with the law, and request officials to give explanations concerning breaches.

19 . By Order No. 68 of 27 June 2006 the State Court Administration adopted the instructions on record keeping and case management at local and appellate courts of general jurisdiction. They were repealed on 17 December 2013.

20 . Paragraph 16.1 stipulated the recourse to enforcement of court decisions. Sentences and other court decisions were to be transmitted for enforcement after them having become final. Maintaining the correspondence regarding the recourse to enforcement of court decisions was entrusted with the registry of the court. Procedural issues related to enforcement of the court decision in criminal proceedings had to be resolved by the judge of the first instance court.

COMPLAINTS

21 . The applicant complained under Article 5 §§ 1 and 4 and Article 13 of the Convention that his detention between 8 July 2010 and 30 March 2011, while the execution of his sentence was suspended pending the examination of his appeal on points of law, had been unlawful and that he had had no effective remedy in respect of that complaint.

THE LAW

22 . In reply to the applicant ’ s complaints, the Government submitted that Article 5 of the Convention was inapplicable since the penalty applied to the applicant could not be considered a deprivation of liberty. They contended that the applicant ’ s stay in the correctional centre had significantly differed from imprisonment. They also argued that the applicant should have demonstrated due diligence in the proceedings on points of law before the Supreme Court. Lastly, they pointed out that the applicant could have lodged an application with the public prosecutor or a court in order to challenge the lawfulness of his placement and subsequent stay in the correctional centre.

23 . The applicant submitted that he had been detained on the basis of the sentence whose execution had been suspended. He further stated that the order initially issued by the President of the Military Court of the Kyiv Garrison on 10 March 2010 (see paragraph 6 above) had been lawful, as the sentence against the applicant had entered into legal force at the material time. He added that the above sentence had ceased to be enforceable as of 16 March 2010, following the decision of the Supreme Court. Moreover, he had not been aware of the aforementioned decision of the Supreme Court as it had never been served on him. Without specifying the relevant date, he stated that he had telephoned the registry of the Supreme Court to find out about the outcome of his appeal on points of law, and had only been informed that the proceedings had been opened.

24 . The Court considers that it is not necessary to examine the Government ’ s argument concerning the alleged inapplicability of Article 5 of the Convention in the present case as in any event this application must be declared inadmissible for the following reasons.

25 . The Court reiterates that the purpose of the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court. Consequently, States do not have to answer for their actions before an international body before they have had an opportunity to put matters right through their own legal system (see Selmouni v. France [GC], no. 25803/94 , § 74, ECHR 1999 ‑ V, with further references, and Sabeh El Leil v. France [GC], no. 34869/05 , § 32, 29 June 2011, with further references). The Court further notes that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 74, 25 March 2014).

26 . The Court notes at the outset that the applicant requested from the Supreme Court the suspension of the execution of his sentence and that, while he submits that he inquired once over the telephone about the examination of his request, he has not specified the date when this happened and, in any event, never made a written inquiry as he could have. While it was the duty of the relevant authorities to notify the Supreme Court ’ s decision of 16 March 2010 and ensure its implementation, it remains the fact that the applicant, if need be with legal advice, could have inquired about the Supreme Court ’ s decision on his request and could have contested, in accordance with Article 415 of the Code of Criminal Procedure (see paragraph 15 above), the warrant issued by the enforcement office on 8 July 2010 on the basis that the execution of his sentence had been suspended. Had he inquired about the Supreme Court ’ s decision during the time when he was detained in the correction centre, it would have been open for him to challenge the lawfulness of his detention before a prosecutor (see paragraph 18 above).

27 . The Court (further) notes in the light of the parties ’ submissions and the material before it that after having learned about the suspension of execution of his sentence following his release, the applicant did not even once voice at the domestic level his grievances regarding the lawfulness of his placement in the correctional centre. He could have done so in accordance with the general procedure of pre-trial investigation (see paragraph 15 above).

28 . It is true that the Court has found on a number of occasions that the remedy referred to by the Government in paragraph 22 above, namely the possibility for the applicant to lodge an application with the public prosecutor or a court in order to challenge the lawfulness of his placement and subsequent stay in the correctional centre, was ineffective in respect of problems of a structural nature in the domestic penal system since it had not been shown that recourse to such proceedings could have brought an improvement in the applicant ’ s situation (see, for example, Kleutin v. Ukraine , no. 5911/05, § 78, 23 June 2016, as regards conditions of detention; Melnik v. Ukraine , no. 72286/01, §§ 69-71, 28 March 2006, as regards medical treatment in detention and Kaverzin v. Ukraine , cited above, § 130 ).

29 . However, the present case shall be distinguished from the examples mentioned above, as the problem raised by the applicant was not of a structural nature in the domestic penal system, but apparently concerned an incident of failure to notify a procedural decision taken by the Supreme Court and ineffective communication between the trial court and the enforcement office regarding the suspension of the enforcement of the court sentence in a particular case.

30 . Therefore, it was open for the applicant to seek from the prosecution authorities an investigation of the events that led to his placement to the correctional centre and the lawfulness of that placement.

31 . While it is true that the Government have not presented relevant examples regarding complaints to the prosecution authorities in circumstances identical to that in the applicant ’ s case, the Court cannot lose sight of the fact that the situation complained of was the result of a specific set of circumstances and that the Government did refer to the possibility to complain to the prosecution authorities who had general competence to investigate unlawful acts of officials and oversee the execution of sentences.

32 . In sum, the Court finds that the applicant ’ s repeated failure to undertake any step to bring to the attention of the domestic authorities the matter he now raises before the Court is incompatible with the requirements of Article 35 § 1 of the Convention (see Tuskia and Others v. Georgia , no. 14237/07 , § 91, 11 October 2018).

33 . In the light of the foregoing, the applicant ’ s complaint under Article 5 § 1 of the Convention regarding his placement in the correctional centre is inadmissible owing to his failure to exhaust domestic remedies.

34 . Finally, the considerations set out above regarding the applicant ’ s failure to bring the issue of the lawfulness of his detention to the attention of the domestic authorities lead the Court to conclude that his complaint that he had “no effective remedy in this respect” is manifestly ill-founded, being fully unsubstantiated in the particular circumstances of the case.

35 . The application is therefore rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 27 May 2021 .

Martina Keller Stéphanie Mourou-Vikström Deputy Registrar President