FIFTH SECTION

DECISION

Application no . 1467/07 Denys Leonidovych TSYPIN against Ukraine

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

Angelika Nußberger, President, Ganna Yudkivska, André Potocki, judges, and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 23 December 2006,

Having regard to the declaration submitted by the respondent Government on 5 September 2013 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant, Mr Denys Leonidovych Tsypin, is a Ukrainian national, who was born in 1972 and lives in Kyiv.

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

The part of the application concerning alleged violations of Article 5 § 1 (c), § 3 and § 4 of the Convention had been communicated to the Government .

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

On 18 February 2005 the applicant was arrested on suspicion of extort ion .

On 21 February 2005 the Pechers ky y District Court of Kyiv (“the Pecherskyy Court”) ordered that the applicant be remanded in custody for ten days to collect further information concerning his person and the likelihood that he would abscond, interfere with the investigation or commit other unlawful acts if released pending the investigation against him.

On 28 February 2005 the Pecherskyy Court extended the applicant ’ s detention for two months, the relevant part of the decision reading as follows:

“ ... [the applicant] is accused of having committed a grave offence which, according to the law, may entail a punishment in the form of imprisonment for more than three years; therefore, remaining at liberty he may abscond ... , interfere with the establishment of the truth; additionally, his person, age, health status, family and financial status, type of activity, etc. are also taken into account.”

On 14 April 2005 the applicant was committed to stand trial in the Pecherskyy Court on charges of extortion.

On 28 April 2005 the Pecherskyy Court held a preparatory hearing and found that there were no reasons to release the applicant from custody.

On 17 March 2006 the applicant requested remit tal of the case for additional investigation and release from custody pending further investigative actions.

On 24 March 2006 the Pecherskyy Court remitted the case for additional investigation and extended the applicant ’ s detention for another two months ’ term.

The prosecution appealed, alleging that the trial should proceed. The applicant also appealed, seeking to be released from custody. He referred to Article 5 § 3 of the Convention and submitted that his further detention was unwarranted and disproportionate. In particular, his previous procedural conduct was beyond reproach; he was well-integrated in the community, had a permanent place of residence and employment, as well as four minor children in his care.

On 22 June 2006 the Kyiv City Court of Appeal (“Court of Appeal”) allowed the appeal by the prosecution and remitted the case back to the Pecherskyy Court for trial. The Court further rejected the applicant ’ s appeal, considering that regard being had to the renewal of the trial, he should be considered as detained pursuant the decision of 28 April 2005, which was not subject to appeal.

On 6 July 2006 the applicant again requested the Pecherskyy Court to release him pending trial, but, a ccording to the applicant, this request was never examined by the court.

On 17 August 2006 the applicant lodged a new request for release, based on his earlier arguments.

On the same day the Pecherskyy Court examined and rejected it, referring to the gravity of the charges against the applicant .

On 5 September 2006 the Pecherskyy Court refused to examine the applicant ’ s new request for release.

On 9 October 2006 the Pecherskyy Court examined and rejected the applicant ’ s further request for release lodged on that day referring to essentially the same arguments.

On 15 November 2006 the Pecherskyy Court decided to transfer the case for further examination to the Shevchenkivsk y y District Court of Kyiv (“the Shevchenkivsk y y Court”). It ordered that the applicant remain in custody subject to the further discretion of the Shevchenkivsk y y Court.

The applicant appealed against this decision requesting the Court of Appeal to release him from custody. Subsequently (on 7 December 2006) the Pecherskyy Court set aside this appeal without consideration, having found that the applicant had no procedural standing to lodge one. The court, however, accepted the appeal by the injured party and transferred the case for review by the Court of Appeal.

On 16 November 2006 the applicant requested the Shevchenkivsk y y Court to release him from custody.

On 30 November 2006 this request was returned without consideration, as the case had not arrived at the Shevchenkivsk y y Court.

In December 2006 the applicant requested the Governor of the pre-trial detention facility to release him on the ground that there was no longer any valid decision to hold him in custody. His request having been rejected, the applicant instituted administrative proceedings against the Governor. Subsequently (on 4 March 2008) the Higher Administrative Court discontinued these proceedings referring to lack of jurisdiction.

On 22 March 2007 the Kyiv Court of Appeal quashed the decision of 15 November 2006 and remitted the case back to the Pecherskyy Court for examination on the merits.

On 31 May 2007 the Pecherskyy Court started the trial and rejected the applicant ’ s further request for release, referring to the fact that the applicant was pleading innocent, to the gravity of the charges against him, and finding that there was no evidence that a milder preventive measure would guarantee his proper procedural conduct.

On 12 and 18 June 2007 the Pecherskyy Court rejected two further requests by the applicant on essentially the same grounds.

On 15 August 2007 the Pecherskyy Court found that there was no evidence that the applicant had extorted money from the injured parties. On the other hand, he had fraudulently convinced them that it was in his power to have the protesters call off or continue their action. Having re-qualified charges against the applicant in law as fraud, the Pecherskyy Court sentenced him to three years ’ imprisonment and ordered that his personal property be confiscated.

On 8 February 2008 the Court of Appeal upheld this judgment.

The applicant did not lodge a further cassation appeal, purportedly to avoid extension of his detention for a longer period.

On 18 February 2008 the applicant was released from detention as, having been detained for three years by that time, he was considered to have served his sentence.

COMPLAINTS

The applicant complained under Article 5 § 1 of the Convention that his detention after 24 March 2006 was arbitrary.

He further complained under Article 5 § 3 of the Convention that starting from the above date his detention was not based on relevant and sufficient reasons and its length was unreasonable.

The applicant also complained under Article 5 § 4 of the Convention that he had no meaningful opportunity to bring proceedings by way of which the lawfulness of his detention after 24 March 2006 would be decided speedily.

The applicant next complained under Article 6 § 1 of the Convention that the criminal proceedings against him and the administrative proceedings against the Governor of the detention facility were unfair and lengthy.

Finally, the applicant complained under Article 13 of the Convention that he had no effective remedies for his complaints concerning arbitrary deprivation of liberty.

THE LAW

The applicant complained that his pre-trial detention was arbitrary and unjustifiably long and he could not challenge its reasonableness in a meaningful manner . He relied on Article 5 §§ 1 (c), 3 and 4 of the Convention.

After the failure of attempts to reach a friendly settlement, by a letter of 5 September 2013 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“The Government of Ukraine acknowledge that domestic authorities have violated the applicant ’ s rights, guaranteed by Article 5 of the Convention.

I, Markiyan Bem, for the Agent of the Government of Ukraine before the European Court of Human Rights, declare that the Government of Ukraine are ready to pay Mr Denys Leonidovych Tsypin the just satisfaction in the amount of EUR 5 000.

The Government therefore invite the Court to strike the application out of the list of cases. They suggest that the present declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court ’ s list of cases, as referred to in Article 37 § 1 (c) of the Convention.

The sum of EUR 5 000, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be converted into the national currency of the respondent State at the rate applicable on the date of payment, and free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the above three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

This payment will constitute the final resolution of the case.”

By a letter of 24 October 2013 , the applicant indicated that he was not satisfied with the terms of the unilateral declaration.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application” .

It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey , [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).

The Court has established in a number of cases, including those brought against Ukraine , its practice concerning complaints about the violation of Article 5 in the context of criminal proceedings (see Kharchenko v. Ukraine , no. 40107/02 , § § 98-100 , 10 February 2011

Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine ).

Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

Relying on Article 6 § 1 of the Convention the applicant also complained that the criminal proceedings against him and the administrative proceedings against the Governor of the detention facility had been unfair and lengthy.

Having regard to all the evidence in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols.

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

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration under Article 5 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Declares the remainder of the application inadmissible.

Stephen Phillips Angelika Nußberger Deputy Registrar President