FIFTH SECTION

DECISION

Application no. 64887/13 Sergiy Mykhaylovych ZHUK

against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 25 March 2021 as a Committee composed of:

Ivana Jelić , President, Ganna Yudkivska , Arnfinn Bårdsen , judges,

and Liv Tigerstedt, Deputy Section Registrar,

Having regard to the above application lodged on 30 September 2013,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

tHE FACTS

The applicant , Mr Sergiy Mykhaylovych Zhuk , is a Ukrainian national, who was born in 1989 and lives in Crimea.

He was represented by Mr S.S. Ponomaryov , a lawyer practising in Belogorsk .

The applicant ’ s complaints under Article 5 § 3 of the Convention concerning the lack of relevant and sufficient reasons for detention and Article 5 § 5 of the Convention as to the lack of an effective and enforceable right to compensation for the alleged violation of Article 5 § 3 were communicated to the Ukrainian Government (“the Government”) .

On 16 July 2013 the applicant was arrested under Article 208 of the Code of Criminal Procedure of Ukraine (immediately after committing a crime).

On 18 July 2013 a local court ordered the applicant ’ s pre-trial detention until 13 September 2013. The court referred to the fact that the applicant was charged with several counts of serious crime (in two sets of criminal proceedings the applicant was charged with drug offences) and that there was a risk of absconding and committing other crimes since he was unemployed.

In its subsequent rulings of 6 September 2013 and 23 September 2013 on setting the preliminary hearings in the applicant ’ s trial, the court extended his detention without providing any reasoning whatsoever.

On 27 September 2013 the applicant was convicted and sentence d to imprisonment.

THE LAW

The applicant complained that he had been held in pre-trial detention without relevant and sufficient reasons. He 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.”

The Government at the outset noted that they could not provide any supporting documents as all documents were stored in the territory of the Autonomous Republic of Crimea, currently not controlled by the State. However, referring to the courts ’ rulings provided by the applicant, the Government maintained that his pre-trial detention had been justified, mainly relying on the reasons provided by the local court in the ruling of 18 July 2013.

The Court has previously held that th e persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices: the Court must then establish whether the other grounds cited by the judicial authorities continue to justify the deprivation of liberty. Where such grounds are “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Galuashvili v. Georgia , no. 40008/04, § 47, 17 July 2008).

The Court observes that there were clearly sufficient grounds for the applicant ’ s initial detention in view of the existence of a reasonable suspicion that he had committed a serious offence, for which he had been charged and which could warrant his detention, as well as due to his personal situation.

As to the applicant ’ s detention between 13 and 27 September 2013, the Court notes that this period of 14 days immediately followed the initial detention order and that the applicant was well aware of the reasons for why he was being kept in detention, given that in the initial decision the domestic court had provided other reasons apart from the existence of a reasonable suspicion, and that such reasons remained relevant at the time. The Court therefore accepts the Government ’ s submission that the impugned grounds remained unchanged and continued to justify the applicant ’ s deprivation of liberty for the following two weeks until his conviction (see, mutatis mutandis, Sardinas Albo v. Italy , no. 56271/00, §§ 89 and 93, 17 February 2005) .

In this respect the Court also takes into account that the applicant was speedily tried and convicted and the authorities dealt with the case with special diligence, this factor being of further importance in assessing the compatibility of pre-trial detention with Article 5 § 3 of the Convention (see Klamecki v. Poland , no. 25415/94, §§ 74 and 76, 28 March 2002).

Whilst it would certainly have been desirable for the domestic courts to have given more detailed reasoning as to the grounds for the applicant ’ s extended detention after 13 September 2013, in the circumstances of the present case, the Court finds that it did not amount to a violation of his rights under Article 5 § 3 of the Convention (see, mutatis mutandis , Galuashvili , cited above, §§ 48-51).

In view of the above, the Court finds that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

The applicant also complained under Article 5 § 5 of the Convention that he had no right to compensation under domestic law in respect of his complaints under Article 5 § 3 of the Convention. The relevant part of this provision reads as follows:

“5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation”.

The Court reiterates that paragraph 5 of Article 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 ( Wassink v. the Netherlands , 27 September 1990, § 38, Series A no. 185‑A). The right to compensation set forth in paragraph 5 therefore 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.

Accordingly, the Court cannot consider an applicant ’ s claim based exclusively on Article 5 § 5 unless a breach of Article 5 §§ 1 to 4 has been established directly or in substance, either by the domestic authorities or by the Court itself. It follows that as the applicant ’ s case does not disclose such a breach, his claim under Article 5 § 5 should be rejected for being incompatible ratione materiae with the provisions of the Convention.

It follows that this part of the application must be 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 15 April 2021 .

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Liv Tigerstedt Ivana Jelić Deputy Registrar President