11930/09

FIFTH SECTION             CASE OF OLEYNIKOVA v. UKRAINE   (Application no. 11930/09)     JUDGMENT                 STRASBOURG     20 December 2011     This judgment is final but it may be subject to editorial revision. In the case of Oleynikova v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a committee composed of:  Mark Villiger, President,  Ganna Yudkivska,  André Potocki, judges, and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 29 November 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in an application (no. 11930/09) 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 Tamara Alekseyevna Oleynikova (“the applicant”), on 17 February 2009. 2.  The Ukrainian Government (“the Government”) were represented by their Agents, Ms Valeria Lutkovska and Mr Yuriy Zaytsev. 3.  On 10 February 2010 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges. THE FACTS I.  THE CIRCUMSTANCES OF THE CASE 4.  The applicant was born in 1959 and lives in Simferopol. 5.  On 16 March 2005 the prosecutors started criminal investigations against her on suspicion of fraud. 6.  On 5 October 2005 she was arrested and placed in a cell in the Simferopol Kyivskyy District Police Station. According to the applicant, the conditions of her detention were degrading. In particular, she was not provided with medical aid, food, or a place to sleep. 7.  The applicant alleges that during her first questioning, on 6 October 2005, she was not assisted by a lawyer. 8.  On 7 October 2005 the Kyivskyy District Court of Simferopol ordered the applicant’s release subject to an undertaking not to abscond. 9.  On 23 July 2007 the Tsentralnyy District Court of Simferopol (“the Tsentralnyy Court”) convicted the applicant of several counts of fraud and sentenced her to five years’ imprisonment with confiscation of all her property. The court also ordered the applicant’s placement in custody pending the entry into force of its judgment. 10.  On the same day the applicant was placed in the Simferopol Temporary Investigative Isolation Unit no. 15 (“the SIZO”). 11.  The applicant maintains that the findings of the first-instance court concerning her responsibility for the crimes of which she had been convicted on 23 July 2007 were subsequently relied upon by the same court in a judgment of 30 November 2007 concerning a similar case against another person. She provided no further details of the latter case. 12.  On 20 December 2007 the Crimea Court of Appeal (“the Court of Appeal”) quashed the judgment of 23 July 2007 and remitted the case to the Tsentralnyy Court for fresh consideration. At the same time, it ordered the applicant to remain detained, without providing reasons or a time-limit for her continued detention. 13.  In the course of the new consideration of the case by the Tsentralnyy Court, the charges against the applicant were changed to one count of fraud. 14.  On 6 February 2008 the court rejected the applicant’s request for release stating in particular that there were no grounds for the release, whereas a quashing of the judgment was not a reason for changing a detention order as such. 15.  On 20 August 2008 the court changed the applicant’s preventive measure in view of the new charges against her and her state of health. It ordered the applicant’s release subject to an undertaking not to abscond. 16.  In a judgment of 27 August 2008 it convicted the applicant of fraud and sentenced her to thirteen months’ imprisonment. The court further held that the applicant was not required to serve her sentence, as she had been detained for the same period of time in the course of the proceedings. By the same judgment, the court ordered the destruction of certain items in evidence, which, according to the applicant, included some of her personal belongings seized in the course of the investigations. 17.  The applicant did not appeal against that judgment. 18.  She unsuccessfully lodged a number of complaints with the prosecutors, courts, and the Council of Judges, accusing the investigators and judges of falsification of the case materials and of various procedural violations. She also raised allegations that some of the witnesses against her had made false statements, but to no avail. II.  RELEVANT DOMESTIC LAW 19.  The law is summarised in the judgments in the cases of Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 53-54, ECHR 2005‑II (extracts) and Yeloyev v. Ukraine (no. 17283/02, § 35, 6 November 2008). THE LAW I.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 20.  The applicant complained that her detention between 20 December 2007 and 20 August 2008 was contrary to the requirements of Article 5 § 1 (c) of the Convention, which reads 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”. A.  Admissibility 21.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.  Merits 22.  The Government contested the applicant’s complaint. 23.  The Court observes that on 20 December 2007 the applicant’s sentence was quashed, but she had remained in custody until released on 20 August 2008. Thus her detention between those dates, while her trail was pending, fell within the scope of Article 5 § 1 (c) of the Convention, yet a judicial decision that authorised the continuous detention of the applicant contained no reasons or a time-limit for such deprivation of liberty (see paragraph 12 above). The first-instance court’s decision of 6 February 2008 did not remedy the applicant’s situation (see paragraph 14 above). 24.  The Court recalls that it has previously examined similar situations in other cases against Ukraine and found them to be incompatible with the requirements of lawfulness under Article 5 § 1 of the Convention. In particular, there were instances of the failure of the judicial authorities to give reasons for their decisions authorising detention or to fix a time-limit for such detention (see, e.g., Yeloyev, cited above, §§ 52-55, and Doronin v. Ukraine, no. 16505/02, § 59, 19 February 2009). Moreover, in the judgment of Kharchenko v. Ukraine (no. 40107/02, §§ 98 and 101, 10 February 2011), the Court held that the situation where the court orders made during the trial stage fix no time-limits for further detention, is a recurrent problem of structural nature in Ukraine. There are no arguments in this case capable of persuading the Court to reach a different conclusion. It concludes that the applicant’s detention from 20 December 2007 and 20 August 2008 was unlawful. 25.  There has accordingly been a violation of Article 5 § 1 (c) of the Convention in this respect. II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION 26.  The applicant also complained under Articles 3 and 5 § 1 of the Convention about the conditions and lawfulness of her detention from 5 to 7 October 2005. 27.  The applicant further relied on Article 6 §§ 1, 2 and 3 (c) and (d) of the Convention complaining, in particular, of the length, unfairness and outcome of the criminal proceedings. She argued that the courts had based their decisions on an incorrect assessment of the facts and had applied the law incorrectly. She alleged that the principle of presumption of innocence had not been respected, given that having quashed the first instance judgment the Court of Appeal had refused to release her from detention; that her right of defence had been infringed; and that the courts had failed to summon some of the witnesses against her. 28.  She also complained of a violation of Article 6 § 2 of the Convention, stating that the judicial authorities had considered her guilty before the judgment of 23 July 2007 became final, as the findings contained in that judgment had been relied upon in another case. 29.  Invoking Article 8 § 1 of the Convention, the applicant alleged that some of her personal belongings had been destroyed pursuant to the judgment of 27 August 2008. 30.  She lastly complained under Article 13 of the Convention that the authorities had failed to respond to her complaints against the investigators and judges dealing with her criminal case and against some of the witnesses. 31.  Having carefully examined these submissions in the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. 32.  It follows that these complaints must be declared manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.   III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION 33.  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.” 34.  The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award her any sum on that account. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.  Declares the complaint under Article 5 § 1 (c) of the Convention concerning the applicant’s detention from 20 December 2007 to 20 August 2008 admissible and the remainder of the application inadmissible;   2.  Holds that there has been a violation of Article 5 § 1 (c) of the Convention in respect of the applicant’s detention from 20 December 2007 to 20 August 2008. Done in English, and notified in writing on 20 December 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen Phillips Mark Villiger Deputy Registrar President