FIFTH SECTION     CASE OF RUDNICHENKO v. UKRAINE (Application no. 2775/07)   JUDGMENT    STRASBOURG  11 July 2013  FINAL 11/10/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Rudnichenko v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President, Angelika Nußberger, Boštjan M. Zupančič, Ann Power-Forde, Ganna Yudkivska, Helena Jäderblom, Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 11 June 2013,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 2775/07) 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 Sergey Vladimirovich Rudnichenko (“the applicant”), on 4 December 2006.2. The applicant, who had been granted legal aid, was represented by Mr Sergey Zayets, a lawyer practising in Sevastopol. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Nazar Kulchytskyy.3. The applicant complained, in particular, that his pre-trial detention had been unlawful and unreasonably long. He raised these complaints in his initial application of 4 December 2006. Subsequently, on 23 September 2010, the applicant submitted an additional complaint that the judge dealing with his criminal case had not been impartial and that he had been unable to obtain the attendance of a key witness during his trial.4. On 14 February 2012 the application was communicated to the Government.THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1981. On 9 January 2013 he was due to be released from Sukhodilska Prison no. 36 in the Lugansk Region, having served his sentence. His current place of residence is unknown.6. On 22 October 2005 two people attempted to break into a car belonging to K., who impeded the thieves and caught one of them (“B.”).7. On 6 January 2006, at about 6 p.m., the applicant broke into a car belonging to N. and tried to dismantle some equipment therein. N. caught the applicant and handed him over to the police.8. On the same date, one of the arresting officers wrote a report to his superior in the Sevastopol Police Department about the aforementioned incident, referring to the car theft, the complaint by N. in that regard, and the applicant’s apprehension and arrest. It was mentioned in the report that the applicant had been drunk and had to be restrained with handcuffs.9. On 7 January 2006 the Leninskyy District Court of Sevastopol (“the Leninskyy Court”) ordered that the applicant be placed in administrative detention for three days for being drunk in a public place at 6 p.m. on 6 January 2006.10. On 9 January 2006 an investigator of the Leninskyy District Police Department, referring to the events of 6 January 2006, arrested the applicant on suspicion of robbery.11. On 12 January 2006 the Leninskyy Court remanded the applicant in custody for two months, allowing an application by the investigator to that effect. The court noted that the applicant had been caught in flagrante delicto. Furthermore, he had committed the offence in question while drunk, and within a year of being released from prison. The court also noted that the applicant was unemployed. It was mentioned in the ruling that the decision could be appealed against within three days.12. From 13 January 2006 the applicant was represented by a lawyer.13. With regard to the events of 22 October 2005 (see paragraph 6 above), on 7 February 2006 the Leninskyy Court, sitting in a single-judge formation (“Judge R.”), found B. guilty of robbery while drunk and following conspiracy by a group. It relied on the factual account given by B., who had said that he had become acquainted with the applicant (referred to in the verdict as “the other person” and known to B. as “Sergey”) shortly before the incident, and that it had been the applicant’s initiative to steal stereo equipment from cars. According to B., the applicant had undertaken to teach him car theft techniques.14. The court also established that the applicant had tried to break into K.’s car using scissors, while B. had been standing by. As the car had had tinted windows, the thieves had not noticed that K. had been inside. He had opened the door and asked them what they had been doing. The applicant had threatened K. with the scissors and had rudely told him to leave the scene, while B. had taken a knife out of his pocket and had pointed it at him. As the owner of the car resisted, the applicant had hit him with a bottle, which had been in his other hand. B. and the applicant had then tried to escape. K. had however managed to catch B.15. Judge R. sentenced B. to three years and six months’ imprisonment. The punishment, being more lenient than the minimum sentence prescribed by the criminal legislation, was deemed appropriate given that B. had confessed in full to having committed the crime and had shown genuine remorse. He had compensated the victim for the pecuniary and non-pecuniary damage suffered, and K. had submitted that he had no further complaints or claims against B.16. The applicant was not involved in the above proceedings.17. The judgment of 7 February 2006 was not challenged on appeal and became final.18. On 23 February 2006 K. identified the applicant as the second thief who had tried to break into his car. B. also identified the applicant as his accomplice.19. On 1 March 2006 the applicant requested the investigator to consider replacing his detention with a less restrictive preventive measure; however, on the same date the investigator rejected that request. He noted that the applicant had an extensive criminal record (four convictions), that his pre-trial detention had been authorised by a reasoned court decision, and that, having been legally represented from the day after the decision of 12 January 2006 had been delivered, he could have, but had chosen not to, appeal.20. On 7 March 2006 the applicant was indicted on two counts of robbery in respect of the incidents involving K. and N.21. On 9 March 2006 the case was sent to the Leninskyy Court for trial.22. On 10 March 2006 the applicant’s lawyer, relying on Article 5 §§ 1 and 5 of the Convention, complained to the Leninskyy Court that his client had been unlawfully detained between 6 and 12 January 2006 and had a right to compensation. He requested the court to summon N. and the police officers who had arrested the applicant on 6 January 2006. They had witnessed the events and could potentially confirm that the applicant had in fact been detained as a criminal suspect rather than someone who had committed an administrative offence.23. On the same date the applicant’s lawyer lodged an administrative claim against the Governor of the Simferopol Pre-Trial Detention Centre (SIZO) with the Zaliznychnyy District Court of Simferopol (“the Zaliznychnyy Court”), alleging that the continued detention of the applicant after 6 March 2006 (that is, after the expiry of his two months’ pre-trial detention calculated from 6 January 2006) was unlawful. Relying on Article 5 § 4 of the Convention, the lawyer requested the immediate examination of his complaint and the applicant’s release.24. On 21 March 2006 the applicant’s lawyer again requested the SIZO administration to release his client immediately. On the same date he complained to the President of the Zaliznychnyy Court about the delay in the examination of his claim of 10 March 2006.25. On 21 March 2006 a judge of the Leninskyy Court rejected the applicant’s request to have witnesses summoned with a view to determining that his detention on 6 January 2006 had been unlawful.26. On 29 March 2006 the Leninskyy Court rejected the applicant’s complaint regarding the alleged unlawfulness of his detention from 6 to 12 January 2006. The court noted in its ruling as follows:“The court has established that the pre-trial investigation authority was clearly aware of the fact that the applicant had been arrested immediately after having committed a criminal offence on 6 January 2006. Nevertheless, his arrest [as a criminal suspect] only took place on 9 January 2006. Those circumstances disclose a violation by the pre-trial investigation authority of the provisions of the Code of Criminal Procedure ... concerning detention and would justify the delivery of a special ruling”.27. Nevertheless, the court arrived at a general conclusion that there had been no significant violation of the criminal procedural legislation and rejected the complaint.28. The applicant appealed.29. On 7 April 2006 the Leninskyy Court held a preparatory hearing for the trial. It rejected the applicant’s request for release given, in particular, his criminal record, lack of employment and the fact that he had no permanent place of residence.30. On 1 June 2006 the applicant’s mother was admitted in the proceedings as his lay representative in her capacity as a close relative.31. On 6 June 2006 the Sevastopol Court of Appeal (“the Court of Appeal”) upheld the ruling of the Leninskyy Court of 29 March 2006 (see paragraphs 26-27 above). It noted that the issue of the applicant’s administrative detention from 6 to 9 January 2006 was beyond the scope of the examination. The subsequent detention was regarded as being in compliance with the law. As to the applicant’s unsuccessful request to have the witnesses to his arrest on 6 January 2006 summoned, the appellate court pointed out that such a request had no basis in the applicable provisions of the Code of Criminal Procedure.32. On 19 September 2006 the applicant requested the Leninskyy Court to release him subject to him giving an undertaking not to abscond. He contended that there were no reasons to fear that he would abscond or impede the investigation if at liberty. The applicant provided his address and stated that before the arrest he had been working on a construction site. He further stated that his past criminal convictions should not be used to justify his pre-trial detention in the ongoing criminal proceedings.33. On the same date the Leninskyy Court rejected the request. It noted that, in the light of all the circumstances, the applicant could not be trusted to cooperate with the investigation or to not commit further offences.34. On 10 December 2006 the term of office of the judge dealing with the applicant’s case in the Leninskyy Court expired.35. On 25 April 2007 the case was referred to Judge R., the same judge who had earlier tried B. (see paragraphs 13-15 above).36. On 12 October 2007 Judge R. sought to recuse herself from the case. Her reasons were as follows:“Given that I have examined the criminal case of [B.] and that I have already expressed my opinion as regards the incident involving both [the applicant] and [B.], I withdraw from the case.”37. On 22 October 2007 the President of the Leninskyy Court rejected Judge R.’s application for self-recusal, having found no grounds for it under Article 54 of the Code of Criminal Procedure (see paragraph 56 below).38. With regard to the incident involving K., on 14 November 2007 the Leninskyy Court, sitting in a single-judge formation (Judge R.), found the applicant guilty of robbery following conspiracy with B. and sentenced him to seven years’ imprisonment with confiscation of all his personal property. Referring to the judgment of 7 February 2006 in respect of B., the court relied on the evidence given by B. during that trial (see paragraphs 13-14 above), which were read out at the hearing. The applicant’s submissions that he and B. had been merely looking at K.’s car without any intention of breaking into it, and that the applicant had hit K. with a bottle in self-defence, were dismissed by Judge R. as untruthful.39. As to the incident with N., the Leninskyy Court classified the applicant’s actions as attempted petty theft, an administrative (minor) rather than a criminal offence. Accordingly, the applicant was acquitted in that regard for lack of corpus delicti in his actions.40. Lastly, the Leninskyy Court stated that the term of imprisonment was to be calculated from 9 January 2006. It also decided that the applicant should remain in detention as a preventive measure pending the verdict’s entry into force.41. In the course of the trial, the applicant had unsuccessfully requested the attendance and questioning of B. as a witness. According to the Government, his request had been made at an inappropriate stage of the proceedings and never repeated thereafter.42. The applicant appealed. He submitted, in particular, that it was unacceptable to rely on the statements B. had made in a trial in which the applicant himself had not participated. Alleging a breach of Article 6 § 3 (d) of the Convention, the applicant emphasised that B. had not been summoned to attend his (the applicant’s) trial, and that he had therefore not had the opportunity to contest his submissions or to have him questioned as a key witness. The applicant further pointed out in this connection that Judge R., who had dealt with both his and B.’s cases, had in fact admitted to having a preconceived opinion about the circumstances of the case and had asked to withdraw from it.43. The applicant further complained that his actions had wrongly been classified as robbery following conspiracy by a group. He contended that he and B. had been surprised that K. had been in the car, and that they could not have possibly planned to assault him. The applicant also noted several inconsistencies and changes to B.’s statements. He stated, in particular, that he had not met B. on the day of the events, but that they had once served a sentence together in the same prison. That being said, the applicant denied that it had been his initiative to steal property from cars or that he had undertaken to teach B. anything in that domain, given that the latter had himself already had a criminal conviction for several counts of car theft.44. On 28 July 2009 the Court of Appeal, following a hearing with the participation of the applicant’s lawyer, but in the absence of the applicant, upheld the judgment of 14 November 2007, without undertaking its own judicial investigation of the witnesses’ statements and other evidence in the case. At the same time, it invited the first-instance court to clarify the date from which the term of imprisonment was to be calculated. While acknowledging that the Leninskyy Court had relied on the statements B. had made in the framework of a different trial, the Court of Appeal noted that those statements were concordant with the other evidence and that there was therefore no reason to question their credibility.45. On 16 September 2009 the applicant, relying on the above-mentioned ruling, requested the Leninskyy Court to rectify the calculation of his term of imprisonment to have started running from 6 January 2006. On 20 October 2009 his request was rejected as unfounded.46. On 30 December 2009 the applicant’s mother, acting in his interests, lodged an appeal on points of law against the judgment of 14 November 2007 and the Court of Appeal’s ruling of 28 July 2009. She complained, in particular, relying on Article 6 §§ 1 and 3 (d) of the Convention, that the applicant had been deprived of the opportunity to challenge B.’s depositions, which had been given in a different trial and which had been used for the applicant’s conviction.47. On 14 January 2010 a judge of the Supreme Court, in written proceedings without the parties’ notification or participation, rejected the applicant’s mother’s request for leave to appeal on points of law.48. According to a letter of the Supreme Court to the applicant’s lawyer of 28 December 2010, sent in reply to an enquiry by the latter about how the case was progressing, the aforementioned ruling had been sent to the applicant’s mother on 14 January 2010.49. According to the applicant, his mother had never received the Supreme Court’s letter with the ruling. The applicant also submitted a document from the local authorities, which suggested that there was another street in the town with the same name as the street where his mother lived.50. The applicant submitted that he, his lawyer and his mother as his lay representative only found out about the Supreme Court’s ruling of 14 January 2010 in December 2010.II. RELEVANT DOMESTIC LAW AND PRACTICE51. Article 29 of the Constitution of Ukraine on the right to freedom and personal inviolability can be found in the judgment in the case of Nechiporuk and Yonkalo v. Ukraine (no. 42310/04, § 121, 21 April 2011).52. Under Article 187 of the Criminal Code, robbery is punishable by a term of three to seven years’ imprisonment (paragraph 1). Robbery following conspiracy by a group is punishable by seven to ten years’ imprisonment, with confiscation of property (paragraph 2).53. Article 178 of the Code on Administrative Offences provides that the punishment for being drunk in public is, inter alia, administrative detention for up to fifteen days. Pursuant to Article 287 (as worded at the material time), a court’s decision imposing a penalty for an administrative office was final and not amenable to appeal.54. The provisions concerning the application of preventive measures and their types, time-limits for pre-trial detention, and the grounds for and procedure of detention by an investigation authority can be found in the judgment in the case of Molodorych v. Ukraine (no. 2161/02, §§ 56-58, 28 October 2010).55. Under Article 23-2 of the Code of Criminal Procedure, if the court discovers a violation of law and/or of citizens’ rights in the course of a pre-trial enquiry or investigation, or during an examination of a case in a lower-level court, it issues a separate ruling by which it draws the attention of the respective authorities to the established facts and directs them to take certain measures to remedy the situation.56. Article 54 of the Code of Criminal Procedure provides that a judge is precluded from participating in a trial in the following cases:“(1) if he or she is a victim, a civil claimant, a civil defendant, or a relative of anyone of them, or a relative of the investigator, the inquiry officer, the prosecutor or the accused;(2) if he or she has already participated in the proceedings as a witness, an expert, a specialist, an interpreter, the inquiry officer, the investigator, the prosecutor, a defence counsel or a representative of the victim, the civil claimant or the civil defendant;(2-1) if during the pre-trial investigation he or she: ordered searches, seizures or inspections; ordered, changed or discontinued preventive measures or extended time-limits for detention on remand; examined appeals against arrest warrants or examined appeals against the discontinuation of criminal proceedings;(2-2) if during the pre-trial investigation he or she examined the issue of [the defence counsel’s removal from the proceedings];(3) if he or she, or his or her relatives, are interested in the outcome of the proceedings;(4) if there are other circumstances giving rise to doubts about the impartiality of the judge ...”III. RELEVANT INTERNATIONAL DOCUMENTS57. Relevant international documents concerning the impartiality of judges can be found in the judgment in the case of Harabin v. Slovakia (no. 58688/11, §§ 104-110, 20 November 2012).THE LAWI. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION58. The applicant complained that his detention from 6 to 12 January 2006 had been unlawful. He relied on Article 5 § 1 of the Convention which reads, in so far as relevant, 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:(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 ...”A. Admissibility59. The Government contended that the applicant’s complaint regarding the alleged unlawfulness of his detention from 6 to 9 January 2006 had been lodged out of the six-month time-limit, to be calculated from the last‑mentioned date. They noted that during those three days, the applicant had been in administrative detention on account of his being drunk in public, and that the relevant ruling had not been amenable to appeal. Accordingly, the Government maintained that this complaint, which had been lodged on 4 December 2006 (see paragraph 3 above), should be declared inadmissible.60. The applicant denied that the six-month rule applied to that period of his detention. He insisted that in reality it had been a part of the longer uninterrupted period of his detention as a criminal suspect under Article 5 § 1 (c). The applicant cited in this connection the Court’s judgment in the case of Doronin v. Ukraine (no. 16505/02, § 55, 19 February 2009), where a similar situation was examined.61. The Court considers that the applicant’s administrative detention was indeed closely linked to his arrest as a criminal suspect and his detention in this quality. It therefore joins the Government’s objection as to this period of the applicant’s detention to the merits of his complaint under Article 5 § 1 of the Convention (see Doronin, cited above, § 49).62. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Neither is it inadmissible on any other grounds. It must therefore be declared admissible.B. Merits1. The parties’ submissions63. The applicant maintained that his detention could not be regarded as lawful because from 6 to 9 January 2006 it had been based on fictitious grounds and from 9 to 12 January 2006 it had not been authorised by any court order.64. The Government contended that the applicant’s detention had been in compliance with the domestic legislation. Having regard to the circumstances of his apprehension on 6 January 2006, the Government noted that there had been a reasonable suspicion to justify the applicant’s arrest as a criminal suspect on 9 January 2006. As to his detention from 9 to 12 January 2006, which was not covered by any court order, they submitted that under the Ukrainian Constitution and the Code of Criminal Procedure, no such order was obligatory for the first seventy-two hours following arrest.2. The Court’s assessment(a)  The applicant’s detention from 6 to 9 January 200665. The Court observes that, as suggested by the facts of the case and admitted by the domestic authorities themselves (namely in the report by the arresting officer of 6 January and the ruling of the Leninskyy Court of 29 March 2006 – see paragraphs 8 and 26 above), on 6 January 2006 the applicant was arrested on suspicion of having committed a criminal offence (car theft). Nevertheless, his three-day detention was documented as a punishment for an administrative (minor) offence, namely being drunk in public.66. The Court notes that the practice of placing a person in administrative detention on an artificial pretext, in order to have him available for questioning in respect of a criminal offence under investigation appears to have been a recurring problem in Ukraine, and has been condemned in a number of the Court’s judgments (see Doronin, cited above, § 56; Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, § 88, 24 June 2010; and Nechiporuk and Yonkalo, cited above, § 264).67. In the present case, similarly, the Court considers that the authorities acted in bad faith and deceitfully in respect of the applicant, thus breaching the principles of legal certainty and protection from arbitrariness enshrined in Article 5 § 1 of the Convention.(b)  The applicant’s detention from 9 to 12 January 200668. The Court notes that on 9 January 2006, the three-day period of the applicant’s detention, documented as being administrative, expired. The investigator then re-arrested him, this time on suspicion that he had committed a criminal offence three days earlier.69. The Court observes that under Ukrainian law, deprivation of liberty without a reasoned court order was only possible in a limited number of situations. Article 29 of the Constitution permitted such a measure to be applied for a maximum of three days, only in cases where there was an urgent need to prevent or stop an offence being committed, while Articles 106 and 115 of the Code of Criminal Procedure provided that an investigator could arrest a person if the latter was caught in flagrante delicto, was identified as the perpetrator by eyewitnesses or the victim(s), or if there was clear evidence on his body or clothing which linked him to the crime (follow the references given in paragraphs 51 and 54 above).70. Turning to the facts of the present case, the Court notes that on 6 January 2006, the applicant was arrested having been caught in flagrante delicto. The procedural three-day time-limit for his detention without a court order should have started running from that date. The authorities, however, circumvented it by placing him in administrative detention on an artificial pretext.71. Accordingly, the malpractice regarding his initial detention criticised above also undermined the lawfulness of his detention without a court order during the subsequent three days, that is to say the period between 9 and 12 January 2006.(c)  Conclusion72.

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