Judgment (Merits and Just Satisfaction) of Court (Fifth Section), June 04, 2015 (case CASE OF RUSLAN YAKOVENKO v. UKRAINE)

JudgeLEVYTSKYY O.V.
DefenseUKRAINE
Resolution DateJune 04, 2015
Issuing OrganizationCourt (Fifth Section)

FIFTH SECTION

CASE OF RUSLAN YAKOVENKO v. UKRAINE

(Application no. 5425/11)

JUDGMENT

STRASBOURG

4 June 2015

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Ruslan Yakovenko v. Ukraine,

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

             Mark Villiger, President,              Angelika Nußberger,              Boštjan M. Zupančič,              Ganna Yudkivska,              Vincent A. De Gaetano,              André Potocki,              Aleš Pejchal, judges,and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 21 April 2015,

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

PROCEDURE

  1. The case originated in an application (no. 5425/11) 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 Ruslan Anatoliyovych Yakovenko (“the applicant”), on 17 January 2011.

  2. The applicant was represented by Mr O.V. Levytskyy, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their then Agent, Mr Nazar Kulchytskyy.

  3. The applicant complained about the unlawfulness of his detention and the violation of his right of appeal in the criminal proceedings.

  4. On 12 December 2012 the application was communicated to the Government.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  5. The applicant was born in 1979 and lives in Korolivka, the Kyiv region.

  6. On 12 July 2010 the Bila Tserkva Town Court (“the Bila Tserkva Court”) found the applicant guilty of infliction of grievous bodily injuries on a certain Mr N. on 12 May 2006. While this type of crime was punishable with five to eight years’ imprisonment, the court considered it possible to apply a more lenient sanction to the applicant. It had regard, in particular, to the fact that he had pleaded guilty and had shown remorse. Accordingly, the court sentenced the applicant to four years and seven months’ imprisonment. It also decided to include in the served part of the applicant’s sentence the period from 20 October 2005 to 3 May 2006 (six months and fourteen days), during which he had been detained in the context of another criminal case. Lastly, the court noted that in fixing the applicant’s sentence it had regard to the fact that he “had spent more than four years in [pre-trial] detention facilities, in which the detention conditions were considerably harsher than in a post-conviction prison, and the previous judgments in his respect had been quashed”. There is no further information on the aforementioned earlier detention of the applicant, or on the other criminal cases in his regard, or on the judgments quashed.

  7. In the operative part of its judgment, the Bila Tserkva Court also ruled to keep the applicant’s pre-trial detention in a pre-trial detention centre (SIZO) as a preventive measure pending the entry of that judgment into force. It further noted that the judgment could be challenged on appeal within fifteen days from the date of its pronouncement.

  8. On 15 July 2010 the term of the applicant’s sentence expired, and he requested the SIZO administration to release him. His request was rejected. On the same day the SIZO administration, however, applied to the Bila Tserkva Court for permission to release the applicant under an undertaking not to abscond, given that he had served his prison sentence in full. No reply followed.

  9. On 19 July 2010 the applicant’s lawyer applied once again to the SIZO administration for the applicant’s immediate release. He submitted, in particular, that there were no grounds for his client’s continued detention. A copy of that letter was also sent to the Kyiv Region Prosecutor’s Office.

  10. On 27 July 2010 the fifteen-day time-limit for lodging appeals against the judgment of 12 July 2010 expired, and, in the absence of any appeals, it became final.

  11. On the same day the SIZO administration wrote to the applicant’s lawyer that it could not release the applicant until either the preventive measure in his respect was changed or the judgment became final. It was noted in the letter that, in any event, it was for the Bila Tserkva Court to authorise the applicant’s release.

  12. On 29 July 2010, when the SIZO received the court’s order to execute the final judgment, the applicant was released.

  13. On 5 August 2010 the State Prisons Department wrote to the applicant’s lawyer, in reply to his complaints about the delayed release of the applicant, that there had been no violation of the Code of Criminal Procedure.

    1. RELEVANT DOMESTIC LAW AT THE MATERIAL TIME

    1. Code of Criminal Procedure (1960)

  14. Article 148 specified the purpose and grounds for the application of preventive measures. It stated, in particular, that a preventive measure was to be imposed where there were sufficient grounds to believe that a suspect, an accused, a defendant or a convict would attempt to abscond, or fail to comply with procedural decisions, or obstruct the establishment of the truth in the case or pursue criminal activities.

  15. At the stage of judicial proceedings a detainee could be released only on the basis of a respective decision of the judge or the court (Article 165). As also stipulated in Article 165, a preventive measure was to be lifted or changed if there was no need for the measure earlier applied or for any preventive measure at all.

  16. While during the pre-trial investigation a detainee was to be released immediately by the administration of the respective detention facility if the term of his or her detention had expired and if no court ruling on its extension had been received by that time (Article 156 in fine), no such provision existed in respect of the modalities of a detainee’s release at the stage of judicial proceedings.

  17. Article 274 concerned the application, lifting or change of a preventive measure by a trial court. It obliged the court to be guided by the respective provisions of Chapter 13 (“Preventive measure” – Articles 148 to 165-3).

  18. Article 324 required the sentencing court to decide, in particular, on the preventive measure to be applied to the convict pending the entry of the judgment into force.

  19. Article 343 reiterated in substance the above provision and further specified that the court could remand a convict in custody as a preventive measure only on the grounds provided for in the pertinent provisions of Chapter 13.

  20. Article 358 listed the issues, which the appellate court could consider at a preparatory hearing. It could decide, in particular, to change, to lift or to apply a preventive measure in respect of a convict.

  21. Under Article 401, a judgment would enter into force if it was not challenged on appeal within the established deadline (fifteen days – Article 349). If an appeal was lodged, a judgment would enter into force after the examination of the case by the appellate court (unless quashed). An acquittal judgment, or a judgment lifting the punishment, was to be enforced immediately, whereas a guilty judgment was to be enforced once entered into force. Article 404 stipulated that the court, which delivered the judgment, had to send the case for enforcement no later than within three days after the entry of that judgment into force.

    1. Civil Code (2003)

  22. Article 1176 imposed on the State an obligation to “fully compensate an individual for the damage caused to him or her by unlawful conviction, unlawful imposition of criminal liability, unlawful application of a preventive measure [or] arrest ... regardless of the guilt of officials of the bodies of inquiry, pre-trial investigation, prosecution or courts” (paragraph 1). It further specified that “the right to compensation for damage caused to an individual by unlawful actions of a body of the inquiry, pre-trial investigation, prosecution or judiciary [would] arise in cases envisaged by law” (paragraph 2).

    1. Law of Ukraine on the Procedure for the Compensation of Damage caused to Citizens by the Unlawful Actions of Bodies in charge of Operational Enquiries, Pre-trial Investigation Authorities, Prosecutors or Courts” 1994 (“the Compensation Act”)

  23. Under Section 1, a person was entitled to compensation for damage caused, in particular, by an unlawful conviction, unlawful indictment, unlawful arrest and detention on remand. In the listed cases damage was to be compensated regardless of the guilt of officials of the bodies of inquiry, pre-trial investigation, prosecution or courts.

  24. Section 2 listed the cases in which the right to compensation arose. They included the following: (1) an acquittal judgment; (1-1) a judicial decision acknowledging, in particular, unlawfulness of detention; and (2) discontinuation of the criminal proceedings on the grounds of the lack of corpus delicti or for the want of proof of guilt of an accused.

    THE LAW

    1. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

  25. The applicant complained that that his detention from 15 to 29 July 2010 had been unlawful. He relied on Article 5 § 1 of the Convention, which reads as follows in the relevant part:

    “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;

    ...

    (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;

    ...”

    1. Admissibility

  26. Exhaustion of domestic remedies

    (a) The parties’ submissions

  27. The Government argued that the applicant had not complied with the rule of exhaustion of domestic...

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