FIFTH SECTION      CASE OF STASZUK v. UKRAINE (Application no. 70840/10)         JUDGMENT This version was rectified on 21 November 2017under Rule 81 of the Rules of Court. STRASBOURG 5 October 2017    This judgment is final but it may be subject to editorial revision. In the case of Staszuk v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Erik Møse, President, Yonko Grozev, Gabriele Kucsko-Stadlmayer, judges,and Anne-Marie Dougin, Acting Deputy Section Registrar,Having deliberated in private on 12 September 2017,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 70840/10) 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 Polish national, Mr Jan Michal Staszuk (“the applicant”), on 13 November 2010.2. The applicant was represented by Mr S.V. Zakharov, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.3. On 4 June 2015 the applicant’s complaints under Article 5 §§ 1, 3 and 4 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.4. The Polish Government were informed of their right to intervene in the proceedings in accordance with Article 36 § 1. They chose not to avail themselves of that right.THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1985 and lives in Warsaw.6. On 14 May 2010 the applicant was arrested in Kyiv by officers of the Security Service of Ukraine (“the SBU”) on suspicion of unlawfully importing equipment for the covert surveillance of telephone networks and using it to intercept private telephone conversations (see paragraph 24 below), an offence committed in collaboration with M., a Russian national.7. An SBU investigator lodged a request with the Shevchenkivskyy District Court of Kyiv (“the District Court”) seeking that the applicant be remanded in custody pending the investigation. He submitted that the applicant’s detention was necessary in order to prevent him from absconding and interfering with the investigation, given that the applicant was a foreign national, did not have a permanent place of residence in Ukraine and was suspected of a serious offence.8. On 17 May 2010 the District Court held a hearing in the presence of the prosecutor and his lawyer, remanded the applicant in custody, and ordered that he be placed in an SBU detention facility. It held that the arguments submitted by the investigator were sufficiently strong to allow the conclusion that the applicant should be detained.9. On 27 May 2010 the Court of Appeal held a hearing to examine the applicant lawyer’s appeal against the order of 17 May 2010 in the presence of a prosecutor and the applicant’s lawyer and upheld the order.10. On 13 July 2010 the District Court held a hearing in the presence of the prosecutor, the applicant and his lawyer and extended the applicant’s detention until 14 September 2010. It noted that there were no reasons to release the applicant and that the investigative authority needed time to complete the investigation.11. On 26 July and 6 August 2010 the Court of Appeal held hearings to examine, respectively, the applicant lawyer’s and the applicant’s own appeals against the District Court’s decision of 13 July 2010. Only a prosecutor was present at the former hearing, whereas the latter hearing was attended by the prosecutor, the applicant and his lawyer. The Court of Appeal rejected both appeals and upheld the District Court’s decision on both occasions.12. On 9 September 2010 the Court of Appeal held a hearing in the presence of the prosecutor and the applicant’s lawyer, granted the investigative authority’s request, and extended the applicant’s detention until 14 November 2010. The court noted that the charges against the applicant were serious, that there were no reasons to release him and that the investigative authority needed more time to complete the investigation.13. On 1 November 2010 the investigator charged the applicant with several additional offences in connection with the same events: breaching the privacy of telephone communications and unlawful transfer of equipment subject to export control, committed in a group (see paragraph 24 below).14. On 12 November 2010 the Court of Appeal extended the applicant’s detention until 14 December 2010.15. On 14 December 2010 the applicant’s case was sent to the District Court for trial.16. On 27 April 2011 the District Court committed the applicant for trial, rejected the applicant’s request for release and ordered his continuing detention pending trial. The court stated that the applicant was charged with a serious offence, was a foreign national and had no permanent place of residence in Ukraine. No time-limit was set for his detention.17. On 25 August 2011 the District Court rejected the applicant’s requests for release. It gave reasons similar to those given in its decision of 27 April 2011 and added that there was no reason to set an end-date for the applicant’s detention since his detention was needed to complete the trial.18. On 14 October, 24 November 2011, and 11 January 2012 the District Court rejected the applicant’s further requests for release. It gave reasons similar to those given in its decision of 27 April 2011.19. On 19 March 2012 the District Court convicted the applicant as charged, sentencing him to four years’ imprisonment.20. On 7 December 2012 the Court of Appeal quashed the conviction and remitted the case for additional investigation. It ordered the applicant’s continuing detention without giving reasons.21. On 15 January 2013 the District Court set bail for the applicant.22. On 16 January 2013 the applicant was released on bail.23. On 17 May 2013 the District Court approved the applicant’s plea bargain, convicted him, and sentenced him to two years and eight months’ imprisonment, which was to be considered fully served in view of the time the applicant had spent in pre-trial detention.II. RELEVANT DOMESTIC LAW24. Article 163 § 2 of the Criminal Code makes breaching the privacy of telephone communications, if committed using special equipment for covert surveillance, punishable by three to seven years’ imprisonment.Article 359 § 2 of the Code makes unlawful use of equipment for covert surveillance of telephone networks committed in a group punishable by four to seven years’ imprisonment.Article 333 § 1 of the Code makes unlawful transfer of equipment subject to export control punishable by a fine or by up to three years’ of restriction of liberty (i.e. detention in a semi-open institution) or by imprisonment for the same term with or without a prohibition on the right to occupy certain positions or engage in certain activities for the term of up to three years.THE LAWI. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION25. The applicant complained that his detention between 14 December 2010 and 27 April 2011 and between 27 April 2011 and 19 March 2012 had not been lawful and that his detention in the course of pre-trial investigation and trial had been unreasonably lengthy. He relied on Article 5 §§ 1 and 3 of the Convention which read 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:... (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 ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”The Government disagreed and submitted that there had been no violation of the above provisions.[1]A. Admissibility26. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.B. Merits1. Article 5 § 127. The Court observes that between 14 December 2010 and 27 April 2011 there was no court order authorising the applicant’s detention and that from 27 April 2011 to 19 March 2012 the applicant’s detention was based on a legislative framework which did not require the courts to provide any grounds for detention or to set a time-limit for it, and indeed, no-time limit had been set in the applicant’s case. The Court has dealt with similar situations in the past and found that such practice was incompatible with the requirement of lawfulness enshrined in Article 5 § 1 (see Kharchenko v. Ukraine, no. 40107/02, §§ 70-76, 98, 10 February 2011). It does not see any reason to depart from that conclusion in the present case.28.

Article of the Convention at issue: Article 5
Outcome: violation