Judgment (Merits and Just Satisfaction) of Court (Fifth Section), January 19, 2012 (case CASE OF KORNEYKOVA v. UKRAINE)

Judge:TOKAREV G.
Defense:UKRAINE
Resolution Date:January 19, 2012
Issuing Organization:Court (Fifth Section)
SUMMARY

Remainder inadmissible Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention Article 5-1-c - Reasonably necessary to prevent fleeing Reasonably necessary to prevent offence) Violation of Article 5 - Right to liberty and security (Article 5-3 - Trial within a reasonable time) Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of... (see full summary)

 
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FIFTH SECTION

CASE OF KORNEYKOVA v. UKRAINE

(Application no. 39884/05)

JUDGMENT

STRASBOURG

19 January 2012

FINAL

19/04/2012

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Korneykova v. Ukraine,

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

             Dean Spielmann, President,              Elisabet Fura,              Karel Jungwiert,              Boštjan M. Zupančič,              Mark Villiger,              Ganna Yudkivska,              Angelika Nußberger, judges,and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 13 December 2011,

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

PROCEDURE

  1. The case originated in an application (no. 39884/05) 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, Ms Viktoriya Yuryevna Korneykova (“the applicant”), on 18 October 2005.

  2. The applicant was represented by Mr G. Tokarev, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.

  3. The applicant alleged that she had been unlawfully and arbitrarily arrested and detained and that she had had no effective opportunity to bring proceedings to challenge her detention or to obtain compensation for the unlawful deprivation of liberty.

  4. On 2 December 2009 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  5. The applicant was born in 1990 and lives in Kharkiv.

  6. On an unspecified date the Dzerzhinsky District Police of Kharkiv instituted criminal proceedings against the applicant, who was fourteen years old at the material time, on suspicion of theft of a mobile telephone and acting as an accomplice in an unsuccessful attempted robbery of earrings, a watch and a mobile telephone, in company with two other minors, in January 2005. The robbery attempt was interrupted when two witnesses to the incident intervened.

  7. On 29 March 2005 a bill of indictment was drafted and the investigator ordered the district police to bring the applicant in for questioning. In addition, the investigator imposed an undertaking not to abscond on the applicant as a preventive measure.

  8. On the same date the police reported that it was impossible to locate the applicant and placed her on the “wanted list”.

  9. On 19 April 2005 the Dzerzhinsky District Police of Kharkiv arrested the applicant at her mother’s home address and drew up an arrest report, the relevant parts of which read as follows:

    “Investigator ... L., on 19 April 2005 at 15:00 in accordance with Article 115 of the Criminal Procedure Code of Ukraine detained, on suspicion of the commission of a crime: Korneykova Viktoriya Yuryevna ...

    The crime which Korneykova V. Y. was detained on suspicion of having committed falls under Article 15 paragraph 2 [and] Article 186 paragraph 2 of the Criminal Code of Ukraine.

    Grounds and motives for detention: commission of a grave offence; may abscond from investigation and court, obstruct establishment of the facts of the case ...”

  10. On 21 April 2005 Mr Tokarev, the applicant’s lawyer, lodged a complaint with the Dzerzhinsky District Court of Kharkiv (hereinafter – “the District Court”) alleging, in particular, that the applicant’s arrest and detention were in contravention of Article 29 of the Constitution of Ukraine, which authorised extra-judicial detention only where it was necessary to prevent or stop a crime. He argued that, since the crimes imputed to the applicant had taken place in January 2005, in accordance with Article 165-2 of the Code of Criminal Procedure of Ukraine (hereafter – “the CCP”) the investigating authorities had been under an obligation to seek a judicial order in order to arrest the applicant. In addition, he noted that Article 434 of the CCP allowed the detention of minors only in exceptional circumstances, which were absent in the applicant’s case.

  11. On the same day the investigating authorities requested the District Court to authorise the applicant’s remand in custody. Having held a hearing in the presence of the applicant and her advocate, the court authorised the measure requested. In its reasoning the court noted that the applicant had been charged with serious offences and had absconded from the investigating authorities, and that this justified her placement on the wanted list. Furthermore, her mother, who had been deprived of her parental rights, was unlikely to be able to ensure that the applicant would appear before the investigating authorities, as she herself had a criminal record and suffered from alcoholism. In addition, the court referred to a report from the staff responsible for the applicant’s welfare at the boarding school where she was officially residing, which stated that the applicant had behavioural problems, including a proneness to run away from the school. In the light of these findings the court concluded that if not detained the applicant might commit another crime or obstruct the investigation. The court’s decision bore no reference to the applicant’s advocate’s complaint about the unlawfulness of her arrest and detention between 19 and 21 April 2005.

  12. On 24 April 2005 Mr Tokarev appealed against the court decision of 21 April 2005. He alleged, in particular, that the District Court had failed to analyse the applicant’s situation from the angle of Article 434 of the Code of Criminal Procedure, which allowed for the placement of a minor in detention pending trial only on condition that there existed “exceptional circumstances”. He submitted that in the circumstances of the present case the detention was unwarranted. In particular, the crimes with which the applicant had been charged were not exceptionally serious and the findings that she might abscond, obstruct the investigation or commit another offence were speculative. In particular, no evidence had been presented that during the three months which had passed since the applicant’s alleged offences she had attempted to commit another crime or obstruct the investigation. Moreover, by April 2005 the evidence had been largely collected, which made it improbable that the applicant would obstruct the investigation. As regards the allegation that the applicant had already absconded, which justified her placement on the wanted list, the authorities had presented no evidence that the applicant had ever been subpoenaed to appear for questioning either at her school or at her mother’s address. She had been placed on the wanted list on the day the order to bring her in for questioning had been issued. Eventually she had been arrested at her mother’s address, which was her permanent address and whose location was well known to the police. In the meantime, the applicant’s health and well-being was likely to be seriously endangered by detention in an ordinary pre-trial detention facility, as she was suffering from tuberculosis and had a history of in-patient treatment for psychiatric disturbances. Mr Tokarev also noted that he had not been given a copy of the decision of 21 April 2005 and requested that the applicant be invited to participate in the appeal hearing in person.

  13. On 25 April 2005 the investigator in the applicant’s case informed Mr Tokarev in a letter that he could access the decision of 21 April 2005 at the investigator’s office at ‘any convenient time’.

  14. On 26 April 2005 Mr Tokarev amended his initial appeal against the decision of 21 April 2005. In particular, he noted that his complaint that the applicant’s arrest and detention between 19 and 21 April 2005 had been unlawful had not been considered. The applicant submitted to the Court a copy of this amended appeal bearing Mr Tokarev’s original signature. There is no receipt slip or any other evidence that the document was ever submitted for judicial consideration.

  15. On 27 April 2005 the Kharkiv Regional Court of Appeal (hereinafter – “the Court of Appeal”) dismissed Mr Tokarev’s appeal following a hearing at which the prosecutor and Mr Tokarev, but not the applicant herself, were present. In its decision the Court of Appeal referred to the same arguments as the first-instance court and additionally mentioned that the applicant’s state of health was irrelevant to the finding that she might abscond, obstruct the investigation or commit another crime.

  16. In the meantime, on 26 April 2005 the Dzerzhinsky District Police suspended the criminal proceedings against the applicant on account of her state of health, stating in its decision that all investigative actions necessary at the material time had been completed. Subsequently the investigation was resumed and suspended on several occasions on account of the applicant’s state of health.

  17. On 12 May 2005 Mr Tokarev inquired of the District Court in a letter as to the state of consideration of his complaint about the unlawfulness of the applicant’s arrest and detention between 19 and 21 April 2005 and allegedly received no answer.

  18. On 18 May 2005 the District Court decided, without a hearing but in presence of the prosecutor, to commit the applicant for an in-patient psychiatric assessment.

  19. On 30 May 2005 the Dzerzhinsky District Prosecutor allowed the applicant’s premature release from detention under an obligation not to abscond, referring to her tuberculosis, which required in-patient treatment. On an unspecified date the applicant was committed for in-patient psychiatric assessment.

  20. On 24 June 2005 the applicant was released from the psychiatric institution following her psychiatric assessment, according to which she was not suffering from any psychotic disorders.

    1. RELEVANT...

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