Lexploria

FIFTH SECTION

CASE OF KIRILLOV v. UKRAINE

( Application no. 64603/12 )

JUDGMENT

This version was rectified on 9 June 2021 under Rule 81 of the Rules of Court.

STRASBOURG

27 May 2021

This judgment is final but it may be subject to editorial revision.

In the case of Kirillov v. Ukraine ,

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

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

Having regard to:

the application (no. 64603/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Igor Alekseyevich Kirillov (“the applicant”), on 29 September 2012;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaints concerning the alleged unlawfulness of the applicant ’ s detention from 10 to 11 August 2009, from 31 May to 12 August 2010, and from 12 August 2010 to 27 April 2012 and to declare the remainder of the application inadmissible;

the decision to reject the Government ’ s objection to examination of the application by a Committee;

the parties ’ observations;

Having deliberated in private on 22 April 2021 ,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1 . The case concerns the alleged unlawfulness of the applicant ’ s detention during the examination of the criminal cases against him, in breach of Article 5 § 1 of the Convention.

THE FACTS

2 . The applicant was born in 1962 and lives in Feodosiya. He was represented by Mr A.P. Podgornyy , a lawyer practising in Feodosiya.

3 . The Government were represented by their Agent, Mr Ivan Lishchyna , of the Ministry of Justice.

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

5 . On 9 August 2004 criminal proceedings in respect of a corruption ‑ related offence (“the first criminal case”) were instituted against the applicant, who was a customs official at the material time.

6 . On 10 August 2004 the applicant was arrested and subsequently remanded in custody in connection with those proceedings.

7 . On 8 November 2007 the Shevchenkivskiy District Court in Zaporizhzhia convicted the applicant as charged and sentenced him to nine years and six months ’ imprisonment, running with effect from the day of his arrest on 10 August 2004.

8 . On 23 June 2008 the Zaporizhzhia Regional Court of Appeal (“the Court of Appeal”) upheld that judgment and reduced the sentence to five years ’ imprisonment.

9 . In the meantime, on 23 November 2007, a second criminal case had been instituted against the applicant as new charges relating to corrupt dealings had been filed.

10 . On 7 August 2008, while the applicant was still serving the sentence imposed on him in connection with the first criminal case, the Zhovtnevyy District Court in Zaporizhzhia ordered his concurrent detention on remand for two months in connection with the investigation of the second criminal case. On several subsequent occasions the courts extended that detention for consecutive periods, with one of the last decisions having been taken on 29 April 2009 by the Supreme Court of Ukraine, which extended the applicant ’ s detention on remand until 7 August 2009.

11 . On 10 August 2009 the applicant was formally released from detention as the prison term imposed in connection with the first criminal case had ended. He was immediately arrested in connection with the second criminal case pending the examination of a request by the prosecutor for an extension of his detention on remand.

12 . On 11 August 2009 the Supreme Court of Ukraine decided to extend the applicant ’ s detention on remand pending the investigation in the second criminal case.

13 . On 22 October 2009 the Supreme Court of Ukraine, having reviewed on points of law the judgment delivered by the Court of Appeal on 23 June 2008 in the first criminal case, quashed the judgment and remitted the case for a new appellate review.

14 . According to the documents available to the Court, on several subsequent occasions the courts extended the applicant ’ s detention on remand in connection with the second criminal case. One of the last decisions, taken by the Court of Appeal [1] on 29 March 2010, extended the applicant ’ s detention until 31 May 2010.

15 . In the meantime, on 19 April 2010, the Court of Appeal had quashed the judgment of 8 November 2007 in the first criminal case and remitted that case to the Feodosiya Court for a fresh trial. Subsequently, the two criminal cases against the applicant were joined.

16 . On 12 August 2010 the Feodosiya Court held a preliminary hearing and decided “to leave unchanged the preventive measure” (namely detention on remand) that had been ordered previously. Neither the reasons for the decision nor the term of the detention were indicated in the court decision.

17 . On 27 April 2012 the applicant was convicted of several corruption ‑ related offences and sentenced to seven years and nine months ’ imprisonment, running with effect from the date of his initial arrest (10 August 2004).

18 . On 10 May 2012 the applicant ’ s term of imprisonment ended and he was released from prison.

THE LAW

19 . The applicant complained that his detention during the periods from 10 to 11 August 2009 and from 31 May to 12 August 2010 had not been justified by any formal decision. He further complained that the court order for his detention from 12 August 2010 to 27 April 2012 had not cited any grounds for his detention and had not specified its duration.

He relied on Article 5 § 1 of the Convention, the relevant parts of which 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;

...”

20 . The Government did not provide their observations on the admissibility or merits of the application.

21 . The Court observes that the material submitted by the applicant was of a general nature and lacked several important details and documentary evidence, such as the arrest report of 10 August 2009; information about the date of completion of the investigation in the second criminal case; and the transfer of that case to the trial court for consideration on the merits. Furthermore, the applicant failed to elaborate on his allegations of unlawful detention after the respondent Government were given notice of the case.

22 . It does not appear from the available material that the applicant, who was represented by a lawyer both in the domestic proceedings and in the proceedings before the Court, experienced any difficulties in obtaining substantiating documents during his detention or after his release in May 2012.

23 . In the light of the available material, the Court does not find the applicant ’ s allegation that he had been unlawfully detained from 10 to 11 August 2009 and from 31 May to 12 August 2010 sufficiently established.

24 . Accordingly, this part of the application is manifestly ill-founded and should be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

25 . The Court notes that the applicant ’ s complaint concerning the arbitrariness of his detention from 12 August 2010 to 27 April 2012 is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

26 . The Court observes that, although on 12 August 2010 the Feodosiya Court upheld the measure of pre-trial detention in respect of the applicant, it did not set a time-limit for his continued detention, nor did it give any reasons for its decision. This left the applicant in a state of uncertainty as to the grounds for his detention after that date and until his conviction on 27 April 2012. In this connection the Court reiterates that the absence of any grounds in decisions by the judicial authorities authorising detention for a prolonged period of time is incompatible with the principle of protection from arbitrariness enshrined in Article 5 § 1 (see Kharchenko v. Ukraine , no. 40107/02, §§ 73-76 and 98, 10 February 2011). In these circumstances the Court considers that the Feodosiya Court ’ s decision of 12 August 2010 did not afford the applicant adequate protection from arbitrariness, which is an essential element of the “lawfulness” of detention within the meaning of Article 5 § 1 of the Convention, and that therefore the applicant ’ s detention from 12 August 2010 to 27 April 2012 was likewise not in accordance with Article 5 § 1 of the Convention.

27 . There has accordingly been a violation of that provision.

28 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

29 . The applicant claimed 4,800 euros (EUR) in respect of pecuniary damage for the alleged loss of income and EUR 20,000 in respect of non ‑ pecuniary damage.

30 . The Government submitted that the applicant ’ s claim was unsubstantiated and excessive.

As regards the claim in respect of just satisfaction for pecuniary damage, the Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, making its assessment on an equitable basis, it awards the applicant EUR 1,800 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable.

31 . The applicant further claimed EUR 3,700 for costs and expenses, consisting of EUR 500 in legal fees and EUR 3,200 for the purchase of additional food and its delivery to him by his wife while he was held in detention. The Government submitted that the applicant ’ s claim was unsubstantiated.

32 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.

33 . The Court notes that the applicant ’ s claim for legal fees is not supported by any evidence and therefore rejects it. As regards the expenditure for additional food, the Court notes that the issue of the conditions of the applicant ’ s detention was not considered in the present case. It therefore rejects that claim (see, for example, Molodorych v. Ukraine , no. 2161/02, §§ 119-22, 28 October 2010).

34 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay the applicant, within three months, EUR 1,800 (one thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 27 May 2021 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller Stéphanie Mourou -Vikström Deputy Registrar President

[1] Rectified on 9 June 2021: the text was “ the Supreme Court of Ukraine ” .