FIFTH SECTION

DECISION

Application no. 33736/16 Dmytro Mykhaylovych SAGURA against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 21 January 2021 as a Committee composed of:

Arnfinn BÃ¥rdsen , President, Ganna Yudkivska , Mattias Guyomar , judges, and Martina Keller, Deputy Section Registrar ,

Having regard to the above application lodged on 31 May 2016,

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 Dmytro Mykhaylovych Sagura , is a Ukrainian national, who was born in 1983 and lives in Kompaniyivka in the Kirovograd Region. He was represented before the Court by Mr G. Tokarev and Ms H. Ovdiyenko , lawyers practising in Kharkiv .

2 . The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna .

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

4 . On 3 November 2012 the applicant was arrested on charges of murder committed earlier that same day in Luhansk.

5 . On 11 March 2014 the Luhansk Kamyanobridsky District Court convicted the applicant as charged and sentenced him to twelve years ’ imprisonment, to be counted from 3 November 2012. It ordered that the applicant remain in detention pending appeal.

6 . The prosecutor, the applicant and his lawyer lodged appeals. The applicant provided no information concerning the grounds for appeal.

7 . On 28 April 2014 the Luhansk Regional Court of Appeal (“the Court of Appeal”) ruled to accept the appeals for examination and initiate the appeal proceedings in the applicant ’ s case.

8 . As a result of events of spring and summer 2014 described in Khlebik v. Ukraine (no. 2945/16, §§ 9-12, 25 July 2017) and Tsezar and Others v. Ukraine (nos. 73590/14 and 6 others, §§ 6-12, 13 February 2018) the Government ceased to control Luhansk where the alleged offence had been committed and where the trial court and the Court of Appeal used to be located.

9 . The case file in the applicant ’ s criminal case remained in that territory.

10 . At the time those events were unfolding, the applicant was detained in Starobilsk prison, located in the part of the region that remains under the control of the Ukrainian Government. He remained in that prison until his release (see paragraph 17 below).

11 . In February 2015 the Court of Appeal resumed its operations in Sieverodonetsk , in the part of the region which remains under the Ukrainian Government control. The regional prosecutor ’ s office was likewise relocated to Sieverodonetsk .

12 . On 01 July 2015 the Markivsky District Prosecutor ’ s Office lodged an application for the restoration of the applicant ’ s case file, enclosing the copies of some material from the case it had collected: most notably the trial court ’ s judgment, documents concerning the applicant ’ s arrest and extension of his detention in the course of pre-trial investigation, report on the personal search of the applicant at the time of arrest, trial court ’ s rulings requesting opinions of forensic medical experts etc.

13 . On 24 November 2015 the Starobilsk Court held a hearing on the prosecutor ’ s office application in the presence of the applicant and his lawyer. They opposed restoration, considering the materials insufficient, the applicant in particular considered that it was impossible to restore the file “while the war lasted” ( не вижу возможности возобновить данное прозиводство пока идет война ). The court discontinued the proceedings for restoration finding that the available material was insufficient for restoration.

14 . The applicant lodged a habeas corpus application with the Starobilsk Court arguing that he should be released as there no legal grounds for his detention.

15 . On 14 December 2015 the Starobilsk Court rejected the applicant ’ s habeas corpus application. It found that he was detained lawfully, on the basis of his conviction and the preventive measure imposed on him and maintained pending appeal.

16 . He lodged another such application on 26 May 2016.

17 . On 9 June 2016 the Starobilsk Court allowed the application and released the applicant.

The court noted that the applicant was being detained lawfully, on the basis of his conviction and the preventive measure maintained pending appeal. At the same time the court noted the Court of Appeal inability to examine the applicant ’ s appeal due to insufficiency of the material available and concluded that it was unclear when the proceedings against the applicant could continue.

Due to this uncertainty his continuing detention would be contrary to Article 5 of the Convention and the constitutional provision guaranteeing the right to liberty and he had to be released. This was because under the Code of Criminal Procedure the aim of preventive measures such as detention on remand was to ensure the effectiveness of criminal proceedings and therefore detention in the effective absence of proceedings was in breach of the requirement of legality of detention.

18 . The relevant provisions of the domestic law can be found in Khlebik v. Ukraine (no. 2945/16, §§ 9-12, 25 July 2017).

COMPLAINTS

19 . The applicant complained under Article 5 § 1 of the Convention that his detention following the events of 2014 as a result of which his case file had been lost had been unlawful

20 . He also complained under Article 6 § 1 of the Convention and Article 2 of Protocol No. 7 of prolonged failure to examine his case and the uncertainty concerning the progress in his and his status in that connection.

21 . Finally, he complained under Article 13 that he had no effective domestic remedy in respect of his complaints under Article 6 § 1 of the Convention and Article 2 of Protocol No. 7.

THE LAW

22 . Article 5 § 1 of the Convention reads, insofar as relevant:

“ “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;

...”

23 . The Government submitted that the applicants ’ detention had been covered by Article 5 § 1 (a) and had been, as such, lawful. The fact that under domestic law this detention was classified as detention or remand was irrelevant. Moreover, the first applicant in particular had benefitted from that classification under domestic law since this had allowed him to be released after having served only a quarter of his sentence.

24 . The applicant submitted that he had been deprived of justice for more than five years since the Court of Appeal could not examine his case. He considered this to be a “flagrant denial of justice”, that the proceedings manifestly contrary to the provisions of Article 6, and detention resulting from that denial was accordingly unlawful within the meaning of Article 5 § 1 (citing Stoichkov v. Bulgaria , no. 9808/02, § 51, 24 March 2005). There was no time-limit on the applicant ’ s detention pending his appeal. The domestic court, in releasing the applicant, itself recognised that his detention during the stalled appeal proceedings had been unlawful.

25 . The Court sees no reason to reach a different conclusion from that it reached in the case of Khlebik :

87. The Court, like the parties, finds that the relevant period of the applicant ’ s detention falls within the ambit of Article 5 § 1 (a) (see Yaroshovets and Others v. Ukraine , nos. 74820/10, 71/11, 76/11, 83/11, and 332/11, §§ 134-35, 3 December 2015). As the applicant was detained following conviction by a competent court (see paragraph 7 above), it is clear that his detention was lawful in terms of domestic law and that its length did not exceed his sentence (contrast ibid., § 150). There is no other indication that his detention was not in conformity with the purposes of the deprivation of liberty permitted by Article 5 § 1 (a) (see, mutatis mutandis , V. v. the United Kingdom [GC], no. 24888/94, § 104, ECHR 1999-IX).

88. Accordingly, and also in light of its findings under Article 6 of the Convention, the Court considers that the applicant has failed to make out an arguable case that his detention did not comply with Article 5 § 1 of the Convention.

89. The Court observes that different considerations could conceivably apply had the applicant been able to show that as a result of the delay on the part of the domestic courts in the examination of his appeal, he had spent or would assuredly spend more time in detention than he would under normal circumstances. That would have been the case, for instance, if his detention had exceeded the term of imprisonment to which he had been sentenced (compare Yaroshovets , cited above, §§ 149 and 150) or if the failure to examine his appeal had deprived him of access to early release on parole. However, no such considerations apply in this case.

26 . In particular, none of the scenarios identified in § 89 of Khlebik occurred. In fact, the applicant served substantially less time than his sentence. The fact that the domestic court was willing to release the applicant early cannot be held against the respondent State. This is because the decision was based on the applicant ’ s detention being classified as pre-trial detention under domestic law. However, as state above, under the Convention, the applicant ’ s detention fell within the ambit of Article 5 § 1 (a).

27 . It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

28 . Article 6 § 1 of the Convention and Article 2 of Protocol No. 7 read,

insofar as relevant:

Article 6

“1. In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

Article 2 of Protocol No. 7

“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.”

(a) The Government

29 . The Government submitted that the transfer of the case files in the applicant ’ s cases had not taken place due to the difficult situation in the Luhansk Region. The prosecutor ’ s office had taken steps to collect case-file material for the restoration of the file but the domestic court, having examined it, considered the material insufficient to proceed.

30 . Referring to Khlebik (cited above), the Government submitted that, like in that case, the length of proceedings was caused by objective reasons. The domestic legislative and executive authorities were undertaking possible measures in the face of the current situation to ensure the rights of the citizens who found themselves in the situation such as the applicant.

(b) The applicant

31 . The applicant asked the Court to distinguish his case from that of Khlebik (cited above). The applicant considered that it was not right that the Government were unable to say exactly when they lost control over the territory where the file was stored. The seizure of territory by armed groups had not been unexpected or simultaneous, the Government could anticipate it and had to take measures to secure the files or make electronic copies. However, they had not done anything. There was no action either at the local or central Government level: no person took the responsibility for moving the files while there was time. Legislation reassigning jurisdiction of cases whose operations were affected was only adopted with considerable delay, in August 2014. Had it been enacted and implemented earlier, the applicant ’ s file could have been saved. Since 2014 the Parliament enacted no legislation addressing the problem of blocked case files. The violation on the part of the Government consisted not in their inaction now but in their failure to take appropriate steps in time in 2014.

32 . Since the initiation of the appeal proceedings in April 2014 the Court of Appeal had not conducted any hearings. Nothing has changed in the case since and the applicant has doubts as to whether it would ever change. The applicant ’ s case was not complicated and the main obstacle to its examination was that the staff of the courts in Luhansk had lost or, in other words, left his case file there. The situation was independent of the applicant ’ s actions: having been in detention at the time, he could not have transferred the case in time nor restore the material in it.

33 . In Khlebik (cited above, § 71, with further references), the Court formulated the relevant question to be answered in the cases of this type as follows: whether the respondent State has taken all the measures available to it to organise its judicial system in a way that would render the rights guaranteed by Article 6 effective in practice in the applicant ’ s situation, in the light of the long ‑ established principle that the Convention is intended to guarantee rights that are practical and effective, and not theoretical and illusory but also taken into account the context in which a given case arose.

34 . In assessing the respondent State ’ s compliance with that obligation it is a relevant consideration whether the authorities have taken reasonable measures available to them to mitigate, to the extent possible, the negative consequences for the applicant resulting from the lack of access to the case file (see Khlebik , cited above, § 78, where the Court found it relevant, in assessing compliance with Article 6 of the Convention, that the domestic authorities released the applicant from detention). The Court stresses, however, that that obligation must be exercised in a manner consistent with the public interest involved in ensuring good administration of justice as well as the respondent State ’ s obligations under other provisions of the Convention, most notably those under Articles 2 and 3 of the Convention.

35 . As to the applicant ’ s argument (see paragraph 31 above) that the domestic authorities were to blame for the loss of the files due to their inaction in the spring and summer 2014, it is unclear whether the applicant ever raised this argument before the domestic authorities. In any event, the applicant ’ s submissions on this point are too vague to make an arguable case that there was any failing on the part of the domestic authorities in that respect. As to the applicant ’ s other arguments, the Court sees no causal connection between any alleged failings on the part of the authorities and the delay in the examination of the applicant ’ s case.

36 . With that in mind, the Court sees no reason to reach a conclusion it reached in Khlebik . In particular, given that all the relevant events concerning the applicant ’ s case had taken place in Luhansk (see paragraphs 4 to 7 above), the Court sees no reason to doubt the domestic court ’ s conclusion, reached in the file restoration proceedings that no relevant material concerning the case was available to them. The applicant, in those proceedings, took the same view (see paragraph 13 above).

37 . In this context the Court notes that, because of the domestic classification of the applicant ’ s post-conviction detention as detention on remand and the domestic courts ’ favourable and extensive interpretation of the general principles of the domestic law and of the Convention in his favour, the applicant was released after serving only three years and seven months out of his twelve-year sentence.

38 . By contrast, had the applicant ’ s conviction been upheld prior to the loss of the Government ’ s control over the territory where his file had been stored, he might have spent the entire length of his sentence in detention.

39 . The authorities have, therefore, taken reasonable steps to mitigate, to the extent possible, the negative consequences the applicant was suffering on account of the unavailability of the full case file concerning his case. The Court reiterates in this context that in determining the reasonableness of the length of proceedings in criminal cases, the question of whether the applicant is in detention is a relevant factor. This is particularly so in the cases of the present type (see Khlebik , cited above, § 78 ). In this context, the Court notes that the applicant was not only released from detention but no restrictive measure of any kind was imposed on him upon release.

40 . On balance, the Court considers that positive measure in the applicant ’ s favour sufficiently offset the negative results of any uncertainty the applicant experienced and continues to experience.

41 . Given the gravity of charges on which the applicant was convicted and the sentence to which he was sentenced, the length of proceedings cannot be considered unreasonable in the particular circumstances of his case.

42 . The Court is concerned, however, that, as of the date of the latest communication from the applicant, in February 2019, criminal proceedings against him remained on the record as pending and there was apparently no prospect of their completion in the foreseeable future. Should they remain so pending without progress for a considerable period of time , notably longer than the applicant ’ s sentence would have lasted, that might raise an issue under Article 6 § 1.

43 . It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

44 . For the reasons set out above in respect of the applicant ’ s complaint under Article 6 § 1 of the Convention, his complaint under Article 2 of Protocol No. 7 is equally manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

45 . Article 13 of the Convention reads:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

46 . The Court has concluded that all the applicant ’ s substantive claims were manifestly ill-founded. For the same reasons the Court considers that, for the purposes of Article 13 of the Convention, there was no “arguable claim” of a breach of any other provision of the Convention (see Shari and Others v. Italy ( dec. ), no. 57/03, 5 July 2005). The applicant ’ s complaint under Article 13 of the Convention is, therefore, equally manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 11 February 2021 .

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Martina Keller Arnfinn BÃ¥rdsen Deputy Registrar President