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Sirenko and Others v. Ukraine
Sirenko and Others v. Ukraine
JUDGMENT
STRASBOURG
24 October 2019
PROCEDURE
1. The case originated in three applications (nos. 22964/11, 50441/13
and 57993/13) against Ukraine lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by three Ukrainian nationals, Mr Dmitriy
Mikhaylovich Sirenko (“the first applicant”), Mr Svyatoslav Yuryevich
Tsypin (“the second applicant”) and Mr Sergey Andreyevich Gnatenko
(“the third applicant”), on 1 April 2011, 22 June and 6 September 2013
respectively.
2. The first applicant was granted leave to represent himself. The second
applicant, who had been granted legal aid, was initially represented by
Mr E. Markov, a lawyer admitted to practice in Odessa. He was succeeded
by Mr T. Kalmykov, a lawyer practising in Kharkiv. The third applicant was
represented by Mr M. Tarakhkalo, a lawyer practising in Kyiv.
3. The Ukrainian Government (“the Government”) were represented by
their Agent, most recently Mr I. Lishchyna from the Ministry of Justice.
4. The first applicant complained under Article 5 of the Convention of
the unlawfulness of his arrest and detention, its unreasonable length and the
impossibility of properly challenging his pre-trial detention and receiving
compensation for the above violations. On 3 March 2014 the above
complaints were communicated to the Government and the remainder of the
application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules
of Court.
5. The second applicant complained under Articles 5 and 13 of the
Convention of the unlawfulness and length of his detention, and the lack of
reasoning of the domestic courts’ decisions extending his detention. On
24 August 2015 the above complaints were communicated to the
Government and the remainder of the application was declared
inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.
6. The third applicant complained under Article 5 of the Convention that
his detention had been unlawful and unreasoned, that there had been no
2 SIRENKO AND OTHERS v. UKRAINE JUDGMENT
meaningful review of the lawfulness of his detention and that it had been
impossible to receive compensation for the above-mentioned violations. On
6 October 2015 the above complaints were communicated to the
Government and the remainder of the application was declared
inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
and could thus interfere with the investigation. Following an appeal by the
applicant, on 29 November 2012 that decision was upheld.
26. On 27 December 2012 the criminal case against the applicant,
together with the relevant bill of indictment, was submitted to the court. The
applicant argued that the period of his authorised pre-trial detention had
expired on that date.
27. On 12 February 2013 the Artemivsk Court (“the trial court”)
returned the indictment to the prosecutor for corrections and extended the
applicant’s detention until 15 March 2013. By way of explaining its
decision to extend the detention the court stated that the applicant had been
accused of serious offences involving repeated unlawful acts against several
victims, which, the court believed, demonstrated that he was likely to
continue in his unlawful activity, evade justice and interfere with
proceedings. Both the applicant and the prosecutor appealed.
28. On 14 March 2013 the Court of Appeal, sitting in camera, scheduled
a hearing of the applicant’s and the prosecutor’s appeals and extended the
applicant’s detention until 15 April 2013 on the grounds that the applicant
had asked to be present in person at the hearing.
29. On 21 March 2013 the Court of Appeal held a hearing in the
presence of the applicant and the prosecutor, quashed the ruling of the trial
court of 12 February 2013 in relation to the part concerning the decision to
return the indictment to the prosecutor, and upheld the decision concerning
the applicant’s detention.
30. On 11 April 2013 the trial court extended the applicant’s detention
until 13 June 2013, stating that the applicant had been accused of several
violent offences, that the victims had supported the extension of his
detention, and that no other preventive measure would ensure that the
applicant would comply with his obligations as a defendant and prevent him
from influencing the victims and other witnesses.
31. On 7 June 2013 the trial court extended the applicant’s detention
until 7 August 2013, stating that the parties had failed to identify any new
circumstances not previously examined by the trial court and the Court of
Appeal.
32. On 7 August 2013 the trial court extended the applicant’s and his
two co-defendants’ detention by sixty days, stating that if they were to be at
liberty they could influence the victims and other witnesses.
33. On 1 October 2013 the trial court refused the applicant’s and his
co-defendants’ requests for release and extended their detention by sixty
days. In refusing the defendants’ requests for release the trial court stated
that no new circumstances warranting release had been identified.
34. On 31 October 2013 the trial court extended the applicant’s and his
co-defendants’ detention by sixty days, stating that the circumstances that
had led to the decision to place the defendants in detention pending their
SIRENKO AND OTHERS v. UKRAINE JUDGMENT 5
record. In view of those facts the District Court considered that, if at liberty,
the applicant might interfere with the investigation or abscond.
44. On 30 November 2012 the criminal case against the applicant,
together with the relevant bill of indictment, was submitted to the District
Court.
45. On 6 December 2012 the District Court, at the close of a preliminary
hearing, returned the indictment against the applicant to the prosecutor,
finding that it contained certain omissions. Given that the parties had not
lodged any requests for the preventive measure to be changed or revoked,
the District Court ruled that the applicant’s detention should be deemed
extended. The District Court did not indicate a time-limit in respect of the
applicant’s detention. Under the provisions of the Code of Criminal
Procedure, as worded at the time in question, the term of validity of a ruling
by an investigating judge or a court ordering an accused’s detention or
continued detention could not exceed sixty days (see Ignatov v. Ukraine,
no. 40583/15, § 25, 15 December 2016) – that is (in the applicant’s case)
until 3 February 2013.
46. On 14 January 2013 the District Court again returned the indictment
to the prosecutor. By the same ruling the court refused a request lodged by
the applicant for release, stating that the applicant had failed to prove that
the risks on which the court had relied in remanding him in custody had
ceased to exist – in particular that he had failed to provide documents
proving his assertions as to his place of residence, family and dependants.
The court made no other order concerning the applicant’s detention.
47. On 14 March 2013 the District Court again returned the indictment
to the prosecutor. It also decided to extend the applicant’s detention until
1 May 2013.
48. On 30 April 2013 the District Court again returned the indictment to
the prosecutor and extended the applicant’s detention until 31 May 2013.
By the same ruling the court refused a request lodged by the applicant on an
unknown date for release, stating that the applicant was accused of serious
crimes involving violence, had a criminal record, and prior to his arrest had
been on the list of wanted persons. The court stated that that meant that
there was a risk that he might abscond, reoffend or interfere with the
investigation.
49. On 30 May 2013 the District Court returned the indictment to the
prosecutor. Given that the parties did not lodge any requests for the
preventive measure to be changed or revoked, the court ruled that the
applicant’s detention should be deemed extended until 5 July 2013.
50. On 1 July 2013 the case against the applicant, together with the bill
of indictment, was again resubmitted to the District Court.
51. On 4 July 2013 the District Court extended the detention of the
applicant and his three co-defendants until 12 July 2013, stating that in
reaching this decision it had taken into account (i) the defendants’ personal
SIRENKO AND OTHERS v. UKRAINE JUDGMENT 7
characteristics, (ii) the gravity of the charges, (iii) the lack of any guarantees
and verified social relationships that would outweigh the existing risk that
they would abscond, and (iv) the lack of any information indicating that
their state of health was incompatible with detention.
52. On 12 July, 3 September, 28 October and 24 December 2013 and
17 February, 16 April, 13 June, 19 June, 18 August and 15 October 2014
the District Court extended the applicant’s detention until 3 September,
1 November, 3 and 30 December 2013 and 21 February, 17 April, 16 June,
19 June, 19 August, 18 October and 15 December 2014, respectively, citing
the same reasons as those contained in its rulings of 30 April and 4 July
2013.
53. On 8 December 2014 the District Court convicted the applicant and
sentenced him to seven years’ imprisonment.
THE LAW
56. Having regard to the similar subject matter of the applications, the
Court finds it appropriate to examine them jointly in a single judgment.
master of the characterisation to be given in law to the facts of the case (see
Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114
and 126, 20 March 2018), and having regard to the substance of the
applicants’ complaints, the Court decides to examine them under Article 5
§ 3 of the Convention.
The relevant provisions of Article 5 §§ 1 and 3 of the Convention 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;
...
3. Everyone arrested or detained in accordance with the provisions of paragraph 1
(c) of this Article shall be brought promptly before a judge or other officer authorised
by law to exercise judicial power, and shall be entitled to trial within a reasonable
time or to release pending trial. Release may be conditioned by guarantees to appear
for trial ...”
A. Admissibility
58. The Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It furthermore
notes that they are not inadmissible on any other grounds. They must
therefore be declared admissible.
B. Merits
14 March 2013 (see paragraphs 45-47 above) had been arbitrary, as it had
not been covered by a court order.
62. He furthermore submitted that his detention from 6 December 2012
until 3 February 2013 (see paragraph 45 above) and from 31 May until
4 July 2013 (see paragraphs 48-51 above) had been based on a court order
that had contained no reasoning whatsoever.
63. The Government disagreed and submitted that the applicants’
detention had been lawful and that there had been no breach of their
Convention rights.
64. The Court observes that the basis of the applicants’ being held in
custody during the periods of time indicated in paragraphs 59-61 above was
based on the fact that a bill of indictment had been submitted to the relevant
trial court. In that connection, the Court notes that it has previously
examined similar situations in other cases against Ukraine and found them
to be incompatible with the principles of legal certainty and protection from
arbitrariness under Article 5 § 1 of the Convention (see Kharchenko
v. Ukraine, no. 40107/02, § 71 10 February 2011).
65. The Court furthermore observes that the situation regarding the third
applicant’s detention during the periods of time indicated in paragraph 62
above, is similar to that examined by the Court in the case of Ignatov (see
Ignatov v. Ukraine, cited above §§ 35-37). In that case, the Court found that
the fact that the judicial authorities had not given any grounds for their
decisions authorising detention for a prolonged period of time had been
incompatible with the principle of the protection from arbitrariness (ibid.).
66. The Court does not see any reason to depart from its earlier findings
in the present case. Accordingly, there has been a violation of Article 5 § 1
of the Convention.
78. The second applicant was detained, within the meaning of Article 5
§ 1 (c) of the Convention, from 15 November 2012 until 23 April 2014. His
pre-trial detention therefore lasted for one year, five months and eight days.
79. The third applicant was detained, within the meaning of Article 5
§ 1 (c) of the Convention, from 24 October 2012 until 8 December 2014.
His pre-trial detention therefore lasted for two years, one month and
fourteen days.
80. The Court furthermore observes that the seriousness of the charges
against the applicants and the risk of their absconding or interfering with the
respective investigations were mentioned in the initial orders for their
detention (see paragraphs 11, 25 and 43 above). Those reasons remained the
main grounds for the applicants’ detention until their conviction or release,
with the exception of the decisions of 24 September 2009, 22 February 2011
and 6 December 2012 and 30 May 2013 taken in respect of the first and
third applicants, which contained no grounds whatsoever (see
paragraphs 14, 19, 45 and 49 above). The Court notes that the decisions on
the applicants’ detention were couched in general terms and contained
repetitive phrases. They did not suggest that the courts had made an
appropriate assessment of facts relevant to the question of whether such a
preventive measure was necessary in the circumstances at the respective
stages of proceedings. Moreover, with the passage of time, the applicants’
continued detention required further justification, but the courts did not
provide any further reasoning. Furthermore, with the exception of the
decision of 11 April 2013 (see paragraph 30 above), the domestic authorities
did not consider any other preventive measures as an alternative to detention
(see Osypenko v. Ukraine, no. 4634/04, §§ 77 and 79, 9 November 2010).
81. The Court has often found a violation of Article 5 § 3 of the
Convention in cases against Ukraine on the basis that even in respect of
lengthy periods of detention the domestic courts referred to the same set of
grounds (if there were any) throughout the period of the respective
applicant’s detention (see, for example, Kharchenko v. Ukraine, cited
above, §§ 80-81 and 99, and Ignatov v. Ukraine, cited above, §§ 41-42).
82. Having regard to the above, the Court considers that by failing to
address specific facts or consider other measures as an alternative to
pre-trial detention and by relying essentially and routinely on the
seriousness of the charges, the authorities extended the applicants’ detention
pending trial on grounds that cannot be regarded as “sufficient” and
“relevant” to justify its duration.
83. There has accordingly been a violation of Article 5 § 3 of the
Convention.
12 SIRENKO AND OTHERS v. UKRAINE JUDGMENT
A. Damage
87. The first applicant claimed 20,000 euros (EUR) in respect of non-
pecuniary damage. The Government considered this claim unsubstantiated
and excessive.
88. The second and the third applicants claimed EUR 20,000 and 80,000
respectively, in respect of non-pecuniary damage. The Government did not
comment on those claims.
89. Making its assessment on an equitable basis, the Court awards each
of the applicants EUR 6,000 in respect of non-pecuniary damage, plus any
tax that may be chargeable.
90. The first applicant did not request any sum in respect of costs and
expenses. Therefore, the Court is not called upon to make an award under
this head.
SIRENKO AND OTHERS v. UKRAINE JUDGMENT 13
91. The second applicant claimed EUR 500 for the costs and expenses
incurred before the domestic courts and EUR 1,992 for those incurred
before the Court. He asked that they be paid directly into his
representative’s bank account. The Government did not comment within the
established time-limit on the applicant’s claims.
92. The third applicant claimed UAH 125,000 for the costs and expenses
incurred before the domestic courts and EUR 5,532.8 for those incurred
before the Court. He asked that they be paid directly into his
representative’s bank account. The Government did not comment on the
applicant’s claims.
93. 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.
94. Regard being had to the documents in its possession, to the legal aid
granted to the second applicant in the amount of EUR 850 (see
paragraph 2 above) and the fact that the representative of the second
applicant intervened in the proceedings at the communication stage only,
the Court awards the second applicant EUR 150 for the proceedings before
the Court, plus any tax that may be chargeable to him. The award is to be
paid into Mr T. Kalmykov’s bank account, as indicated by the applicant
(see, for example, Belousov v. Ukraine, no. 4494/07, §§ 116-17,
7 November 2013, and Khlaifia and Others v. Italy [GC], no. 16483/12,
§ 288, ECHR 2016 (extracts)).
95. As regards the third applicant’s claims, regard being had to the
documents in its possession and the above criteria, the Court awards the
third applicant EUR 1,000 for the proceedings before the Court, plus any
tax that may be chargeable to him. The award is to be paid into
Mr Tarakhkalo’s bank account, as indicated by the applicant (see, for
example, Belousov, cited above, §§ 116-17, and Khlaifia and Others, cited
above, § 288).
C. Default interest
96. 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.
8. Holds
(a) that the respondent State is to pay, within three months, the
following amounts, to be converted into the currency of the respondent
State at the rate applicable at the date of settlement:
(i) EUR 6,000 (six thousand euros) to each of the applicants, plus
any tax that may be chargeable, in respect of non-pecuniary
damage;
SIRENKO AND OTHERS v. UKRAINE JUDGMENT 15
(ii) EUR 150 (one hundred and fifty euros), plus any tax that may
be chargeable to the second applicant, in respect of costs and
expenses, to be paid into the bank account of the second applicant’s
representative, Mr T. Kalmykov;
(iii) EUR 1,000 (one thousand euros), plus any tax that may be
chargeable to the third applicant, in respect of costs and expenses,
to be paid into the bank account of the third applicant’s
representative, Mr M. Tarakhkalo;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period, plus three percentage points;