Recently, the European Court of Human Rights decided a case Ignatov v. Ukraine (application no. 40583/15, judgment of 15 December 2016). The Law Firm “Nazar Kulchytskyy and Partners” prepared unofficial Ukrainian translation of the judgment which is available via this link.
Circumstances of the Case
The applicant was arrested with a suspicion of stealing a car. Investigative judge remanded the applicant in pre-trial detention on the grounds that the applicant was suspected of a serious crime, was unemployed, did not live in the area or at his official registered address and he might abscond to avoid investigation and trial and hinder the investigation and trial.
Further, the case of robbery against the applicant and V. was referred to the court.
At a preliminary hearing the judge extended the detention of the applicant and V. referring to the fact that other preventive measures will not ensure the appropriate behaviour of the accused.
Further, the preventive measure was extended for another two months. The judgement was based on the same grounds as those given in the initial decision ordering his detention.
Additionally, the judge stated that the applicant and V. might influence witnesses and other participants in the proceedings or otherwise obstruct criminal proceedings.
Thus, the applicant was remanded in custody for one year and eight months until his conviction.
During that period the preventive measure was extended on the same reasons or without any grounds at all.
The Court’s assessment
The European Court found a violation of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (right to liberty and security).
In particular, the Court stated:
Article 315 of the Code of Criminal Procedure of Ukraine (hereafter – CCP) did not provide a clear procedure for deciding the question of extending preventive measure;
The judge did not indicate the risks in relation to every co-accused. Therefore, the judgment was arbitrary and did not meet the requirement of “lawfulness”;
During the whole period the applicant was remanded in custody on the base of allegation that he might influence witnesses and hinder the investigation and trial. At the same time, Article 5 of the Convention requires public authorities to present factual evidence of those risks;
Applicant’s requests to change the preventive measure was examined by the domestic courts with significant delays.
Most of the above-mentioned violations was stated by the Court in its judgment Kharchenko v. Ukraine, nonetheless the state did not take necessary measures to address them, and, thus, the government should take actions to change the legislation or practice of domestic courts in terms of extending the detention on remand.
How could violations be avoided?
This judgment would have never happened, if the court had properly reviewed the requests for extension/change of the preventive measure.
In this case the applicant would be released from custody or the prosecutor would have to file a reasonable request for the detention on remand and the court’s decision would describe in detail why risks listed in Article 177 of the CCP continue to exist.
Thus, in this case Ukraine would not violate Article 5 of the Convention even despite the legislative shortcomings found by the European Court.
Indeed, the applicant among other things complained that Article 315 of the CCP did not contain requirements for determining the time‑limits of preventive measure, but the domestic courts, extending preventive measure, defined the period of validity of the decision within two months.
Consequently, the Court found no violation in that respect, noting that “the Court is not called upon to decide as a purely theoretical exercise whether Article 315 should contain specific reference to the courts’ obligation to fix time‑limits when extending pre-trial detention.”
The story repeats
Ignatov v. Ukraine is the second judgment from the adoption of new CCP where the European Court states that existing judicial practice calls into question the effectiveness of criminal justice reform in general and in particular the application of preventive measures.
The first case was Chanyev v. Ukraine (application no. 46193/13, judgment of 9 October 2014) where the Court found a systemic problem in application of preventive measures. In particular, the Court noted:
“All his [applicant’s] complaints concerning the unlawfulness of his pre-trial detention without a judicial decision and his requests for release were rejected on the ground that his detention was in accordance with the law. In particular, the investigating judge rejected his complaint, stating that the trial court had two months to decide on his continued detention, under Article 331 § 3 of the CCP (see paragraphs 13, 18 and 23 above). Thus, the domestic authorities considered that there had been no violation of the applicant’s right to liberty, despite the clear fact that he had been detained without a judicial decision for one and a half months. What is more, they referred to the provisions of the CCP as permitting such a situation to exist.”
Thus, the omission of the investigating judge led to a violation of Article 5 of the Convention.
Nevertheless, the High Specialized Court of Ukraine for Civil and Criminal Cases in its Informational Letter “On taking general measures due to a violations of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms that were found in the Judgment of the European Court of Human Rights of 9 October 2014 in the case Chanyev v. Ukraine” neither analyzed the actions of the investigating judge nor oriented the investigating judges toward the need to immediately release persons illegally remanded in custody.
Most of the violations of the Convention occur due to the shortcomings in domestic judicial practice. Indeed, existing legislative lacunas may be compensated by the judicial practice or in contrast turned into absurd.
Unfortunately, Ukrainian courts chose the second option in most case.