FIFTH SECTION      CASE OF ORLOVSKIY v. UKRAINE (Application no. 12222/09)      JUDGMENT    STRASBOURG 2 April 2015  FINAL 02/07/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Orlovskiy v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President, Angelika Nußberger, Boštjan M. Zupančič, Ganna Yudkivska, Vincent A. De Gaetano, Helena Jäderblom, Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 10 March 2015,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 12222/09) 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, Mr Sergey Vladimirovich Orlovskiy (“the applicant”), on 5 May 2009.2. The applicant, who had been granted legal aid, was represented by Mr A.L. Lesovoy, a lawyer practising in Simferopol. The Ukrainian Government (“the Government”) were represented, most recently, by their then Acting Agent, Ms O. Davydchuk, of the Ministry of Justice.3. The applicant сomplained, in particular, that his detention from 28 July to 1 August 2006 and from 19 February to 18 March 2009 was devoid of any legal basis, that the length of his detention was unreasonable, that he had no effective procedure by which to challenge the lawfulness of his detention, and that during his detention he was not allowed to see or correspond with his family.4. On 15 November 2012 the application was communicated to the Government.THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1968 and, at the time of the most recent communication from the applicant, was detained in Odessa.A. The applicant’s arrest6. On an unspecified date in 2006 K. mentioned in a confession given whilst being questioned by the police that the applicant had participated in the murder of Z., a gang member, in 2002.7. On 28 July 2006 the applicant was stopped on the motorway and arrested by police, who also seized his car.8. According to the applicant, the reasons for his arrest were not clearly explained to him. Between 28 July and 1 August 2006 he was transferred to various police units and questioned.9. On 30 July 2006 the police found explosives in the car which had been seized from the applicant upon his arrest.10. On 1 August 2006 criminal proceedings were instituted against the applicant on suspicion of the illegal possession of explosives and the murder of Z., and an arrest report was drafted and countersigned by the applicant.B. Criminal proceedings against the applicant and his detention11. On 4 August 2006 the Kyivskiy District Court of Odessa (“the Kyivskiy Court”) remanded the applicant in custody for ten days pending collection of information concerning his person.12. On 10 August 2006 the applicant was formally charged with possessing illegal explosives and taking part in the murder of Z., which had been committed by an organised gang in 2002.13. On 11 August 2006 the Kyivskiy Court remanded the applicant in custody for two months, to be counted from 28 July 2006. The court noted that the gravity of the charges against the applicant constituted a sufficient basis for the fear that he would abscond or interfere with the investigation if released.14. On the same day the court made a separate ruling drawing the attention of the Minister of the Interior to breaches of the applicant’s rights whilst effecting his arrest. It noted, in particular, that the applicant’s undocumented detention between 28 July and 1 August 2006 was unlawful. The court asked the Minister to investigate the incident. The case file does not show any follow-up.15. The applicant, acting through his lawyer, appealed against the detention order. He submitted that he had good references from his employer, had a family including three children who were minors, and that he had been suffering from health problems.16. On 17 August 2006 the Odessa Regional Court of Appeal (“the Odessa Court of Appeal”) rejected the applicant’s appeal. The court noted, in particular, that taking into account the gravity of the charges against the applicant, together with the fact that he resided in Crimea ‒ whereas the investigative authority was located in Odessa ‒ there was reason to fear that he might abscond or interfere with the investigation if released.17. On 25 September 2006 the Odessa Court of Appeal extended the applicant’s detention until 28 February 2007, stating in general terms that the applicant might abscond, pressure witnesses or interfere with the investigation if released.18. On 23 February 2007 the applicant, represented by his lawyer, lodged an objection against the investigative authority’s request to extend his detention. He reiterated that he had a permanent address, a family with three children who were minors, and that prior to his arrest he had been engaged in lawful business activity. He referred to the aggravation of his ulcers and stated that during the time he had been held in custody, no investigative action involving him had been initiated and no new evidence of his involvement in any crime had been discovered.19. On 26 February 2007 the Odessa Court of Appeal allowed the investigative authority’s request and extended the applicant’s detention until 28 April 2007, giving the same reasons as in its decision of 25 September 2006.20. On 20 April 2007 the applicant, represented by his lawyer, and citing the same reasons as before, again brought an objection against the investigative authority’s request to extend his detention.21. On 24 April 2007 the Supreme Court further extended the applicant’s detention until 22 August 2007, stating that additional investigative action needed to be taken and there were no reasons to release the applicant.22. On 9 August 2007 the applicant was charged with participation in several other offences committed in a gang, including murders, abductions, and torture.23. On 14 August 2007 the Supreme Court granted the investigative authority’s request to extend the detention of six purported criminal gang members, including the applicant, until 17 February 2008. It noted the gravity of the charges, the fact that the investigation related to thirty different episodes of alleged crimes committed by a criminal association and that the investigative authorities needed more time to finish their work.24. According to the Government, during the pre-trial investigation the authorities interviewed in total 17 defendants, 21 victims and 275 witnesses, conducted 30 face-to-face confrontations, 37 identification parades, 20 reconstructions and 14 seizures, obtained 66 experts’ reports and carried out a number of other investigative actions.25. On 18 December 2007 the applicant was presented with the final bill of indictment. In addition to previous charges, the applicant was also indicted for participation in an armed gang (banditry).26. On 24 December 2007 the investigation was completed and the applicant and his co-defendants were given time to study the case file.27. On 24 January 2008 the Kyiv City Court of Appeal (“the Kyiv Court of Appeal”) extended the applicant’s detention until 20 August 2008, noting the gravity of the charges, confirming that the decision to place him in detention was correct, and referring to the need to complete the study of the case file.28. On 14 August 2008 the applicant lodged an objection against the investigative authority’s request to extend his detention. He argued, in particular, that the reason that familiarisation with the case file materials was taking so long was poor procedural organisation.29. On 15 August 2008 the Kyiv Court of Appeal extended the applicant’s detention until 20 October 2008, citing the same reasons as in its decision of 24 January 2008.30. On 9 October 2008 the applicant notified the prosecutor’s office that although there was some case file material he had not yet seen, he waived his right to further study and asked to be released pending trial.31. On 12 October 2008 the General Prosecutor’s Office promised to send the applicant the relevant procedural forms but stated that there were no grounds for his release.32. On 14 October 2008 the applicant again objected, in similar terms, to the prosecution’s request for extension of his detention.33. On 15 October 2008 the Kyiv Court of Appeal allowed the prosecution’s request, extending the applicant’s detention until 20 December 2008, and stating, in addition to reasons given previously, that the defendants needed time to complete the study of the case file.34. On 16 December 2008 the Kyiv Court of Appeal further extended the applicant’s detention until 19 February 2009, citing the same reasons.35. Between 19 February and 18 March 2009 the applicant remained in detention.36. On 18 March 2009 the Odessa Court of Appeal, acting as the trial court, held a preparatory hearing in the applicant’s and his co-defendants’ case. It rejected the applicant’s request for release, lodged on the same day, stating that there was no basis for granting it.37. On 15 June 2011 the applicant, represented by his lawyer, asked to be released pending trial, arguing that his health was deteriorating, that there was insufficient evidence against him, that because all the witnesses and victims had already testified at trial the applicant would not be able to pressure them, and lastly that he had good references, two dependent children who were minors, and a permanent address.38. On 15 June 2011 the Odessa Court of Appeal rejected the applicant’s request, noting the gravity of the charges against him and stating that the trial was not complete and that there was no reason to release him.39. According to the Government, a total of 151 hearings were held in the case by the Odessa Court of Appeal, a number of which were adjourned, some due to the failure of one of the defendants ‒ who was at liberty ‒ to attend.40. On 18 October 2011 the Odessa Court of Appeal found the applicant guilty of murder, kidnapping, and banditry and sentenced him to fourteen years’ imprisonment with confiscation of his property.41. According to the applicant, on 30 July 2013 the Higher Civil and Criminal Court, on appeal from him and his lawyer, upheld his conviction and amended the judgment of the trial court, rectifying the domestic legal classification of one of the offences.C. Family visits and correspondence during detention42. On 16 October 2006 the General Prosecutor’s Office rejected the request for a meeting with the applicant lodged by I.O., the applicant’s wife. The General Prosecutor’s Office noted there was “no indication that a meeting between the relatives and [the applicant] was necessary” at the time.43. According to the applicant, he was denied the possibility of meeting or corresponding with his family for the entire period of his pre-trial detention.44. On 25 May 2009 the applicant lodged a request with the Odessa Court of Appeal for permission for a visit from his family, namely his mother, wife and children. He stated that throughout the period of his pre-trial detention the investigative authorities had rejected his requests for family visits without sufficient justification.45. According to the Government, the applicant’s request of 25 May 2009 was granted but the applicant’s relatives did not avail themselves of it and did not visit the applicant.II. RELEVANT DOMESTIC LAW46. The relevant provisions of the Code of Criminal Procedure of Ukraine with respect to detention pending investigation and trial can be found in the Court’s judgment in the case of Molodorych v. Ukraine (no. 2161/02, §§ 56-58, 28 October 2010).47. The relevant provisions of the Code of Criminal Procedure of Ukraine concerning family visits can be found in the Court’s judgment in the case of Shalimov v. Ukraine (no. 20808/02, § 44, 4 March 2010).48. The relevant provision of the Civil Code of Ukraine of 2003 which became effective on 1 January 2004 provides:Article 1167Basis of Responsibility for Non-Pecuniary Damage“...2. Non-pecuniary damage shall be compensated irrespective of the guilt of the government, the governmental body of the Autonomous Republic of Crimea, the local self-government, or the physical or legal person that inflicted it:...2)  if damage to a physical person has resulted from his or her illegal imprisonment ...”49. The relevant provisions of the Compensation Act (the Law “on the procedure for the compensation of damage caused to a citizen by the unlawful actions of bodies of inquiry, pre-trial investigative authorities, prosecutors or courts”) of 1 December 1994 (with amendments), provide:Section 1“Under the provisions of this Law a citizen is entitled to compensation for damage caused by:(1)  unlawful conviction, unlawful indictment, unlawful arrest and detention, unlawful conduct of a search, seizure of property during the investigation and trial, unlawful removal from work (office) or other procedural actions that interfere with a citizen’s rights;(2)  the unlawful imposition of administrative arrest or correctional labour, unlawful confiscation of property, the unlawful imposition of a fine;(3)  the unlawful conduct of search and seizure activities as provided in by the Laws of Ukraine on “Search and Seizure Activities”, “the Organisational Legal Basis for Combating Organised Crime”, and other legal instruments.In the cases indicated in part 1 of this section, the damage sustained shall be compensated in full, irrespective of the guilt of the officials of the bodies of inquiry, the pre-trial investigative authorities, prosecutors or courts.”Section 2“The right to compensation for damage in the amount, and in accordance with the procedure, established by this Law shall arise in cases of:(1)  acquittal by a court;(2)  the termination of a criminal case on grounds of the absence of proof of the commission of a crime, the absence of a corpus delicti, or a lack of evidence of the accused’s participation in the commission of the crime;(3)  the refusal to initiate criminal proceedings or the termination of criminal proceedings on the grounds stipulated in paragraph 2 of part 1 of this section;(4)  the termination of proceedings for an administrative offence.The right to compensation for damage caused by the search and seizure activities indicated in section 1 of this Law, conducted prior to the institution of criminal proceedings, arises in the cases set out in paragraph 1(1) of part 1 of section 1, or in cases in which no decision was taken on instituting criminal proceedings within six months of the conduct of such activities, as a result of which such activities ... were cancelled.”50. Following the amendments to the Compensation Act of 1 December 2005, effective 1 January 2006, the list of cases where the right to compensation would arise was expanded by the inclusion of the following point:“(1-1) where ... unlawfulness of remand and holding in custody ... has been established by a conviction or other judgment of a court (save for rulings on remittal of cases for additional investigation)”.THE LAWI. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION51. The applicant complained that he had been detained unlawfully between 28 July and 1 August 2006 and between 19 February and 18 March 2009, in breach of Article 5 § 1 of the Convention, which reads in so far as relevant:“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;(b)  the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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. Admissibility1. The parties’ submissions52. The Government argued that the applicant had failed to exhaust domestic remedies in respect of his complaint concerning his detention from 28 July to 1 August 2006. They maintained that the Kyivskiy Court in its separate ruling of 11 August 2006 had acknowledged the unlawfulness of the applicant’s detention during that period. This acknowledgment had provided the applicant with an opportunity to claim compensation under the Civil Code of Ukraine and the Compensation Act. They provided copies of domestic court decisions which in their opinion proved the availability of the remedy in the applicant’s case.53. The Government did not raise any objections to the admissibility of the applicant’s complaint concerning his detention from 19 February to 18 March 2009.54. The applicant contested the Government’s non-exhaustion argument. He submitted that the practice of unrecorded detention represented a systemic problem for Ukraine and that ‒ despite the acknowledgement that the detention was unlawful ‒ no police officer had been held responsible. He also asserted that in the cases relied upon by the Government, damages had been awarded to plaintiffs more than six and seven years after unlawful detention had ended. For the applicant, this demonstrated that the remedy indicated by the Government had been slow and for this reason could not be seen as effective.2. The Court’s assessment(a)  The applicant’s complaint concerning his detention from 28 July to 1 August 200655. The Court has already considered a similar issue in the cases of Lopatin and Medvedskiy v. Ukraine (nos. 2278/03 and 6222/03, §§ 76 and 77, 20 May 2010) and Savin v. Ukraine (no. 34725/08, § 77, 16 February 2012) and found that the remedies in question, whether under the Civil Code or under the Compensation Act, could not be deemed effective under the circumstances.56. In those cases the Court noted that domestic authorities had acknowledged the unlawfulness of the applicants’ detention after significant delays. In the Lopatin and Medvedskiy case it had taken the investigator almost four years to recognise the detention, and another one and a half years to acknowledge its unlawfulness. In the Court’s view such belated acknowledgement did not deprive the applicants of their victim status (see Lopatin and Medvedskiy, cited above, § 75). A delay of more than ten years occurred in the Savin case (see Savin, cited above, §§ 7, 22, 28).57. Moreover, in the Lopatin and Medvedskiy case the Court considered that the Government had failed to demonstrate that the Civil Code of Ukraine of 2003 could provide a basis for a claim for damages in connection with unlawful detention, since in that case the relevant events occurred prior to the entry into force of the Civil Code (see Lopatin and Medvedskiy, cited above, § 77), that is to say prior to 1 January 2004. The Court also called into doubt the effectiveness of this remedy given that the right to compensation for unlawful detention ‒ regardless of acquittal ‒ was only introduced by amendments of December 2005 to the Compensation Act, that is to say later still than the relevant events in that case.58. The circumstances of the instant case are markedly different. Firstly, the Court notes that the unlawfulness of the applicant’s detention from 28 July to 1 August 2006 was acknowledged by the domestic court as early as 11 August 2006. Secondly, the applicant’s unlawful detention occurred on 28 July 2006, that is to say after the entry into force of both the Civil Code of 2003 and the 2005 amendments to the Compensation Act. For this reason, no doubt arises as to the applicability of both the Civil Code of 2003 and the amended Compensation Act. The applicant did not contest their applicability in his case.59. The Court points out that according to its established case-law it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Khokhlich v. Ukraine, no. 41707/98, § 149, 29 April 2003).60. The Court considers that in this case the Government satisfied their burden of proof. By contrast, the applicant did not put forward any convincing arguments to show that the remedy advanced by the Government was inadequate or ineffective or that there existed special circumstances absolving him from the requirement to exhaust it. Neither did he point to any specific circumstances that would make the remedy unacceptably slow in his case. Given that the applicant did not attempt to use the remedy, the Court is not prepared to evaluate in the abstract the applicant’s argument that the remedy would have been unacceptably slow. The Court reiterates that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Vorobyeva v. Ukraine (dec.), no. 27517/02, 17 December 2002).61. The Court therefore accepts the Government’s objection of non‑exhaustion and considers that the part of the applicant’s complaint concerning the unlawfulness of his detention from 28 July to 1 August 2006 must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 § 1 of the Convention.(b)  The applicant’s complaint concerning his detention from 19 February to 18 March 200962. 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. Merits1. The parties’ submissions63. The applicant maintained that his detention from 19 February to 18 March 2009 had been unlawful since it had not been authorised by any court order.64. The Government submitted that the applicant’s detention during the above-mentioned period had been lawful, and that the applicant had been held in detention because his criminal case file was being referred to the trial court.2. The Court’s assessment65. The Court observes that the applicant’s detention from 19 February 2009 to 18 March 2009 was justified solely on the basis of the fact that the case file was being transmitted to the court for examination. However, no decision was taken authorising the applicant’s detention during this period.66. The Court has already examined and found a violation of Article 5 § 1 of the Convention in a number of cases concerning the practice of holding defendants in custody solely on the basis of the fact that a bill of indictment has been submitted to the trial court. It has held that the practice of keeping defendants in detention without a specific legal basis or clear rules governing their situation – with the result that they may be deprived of their liberty for an unlimited period without judicial authorisation – is incompatible with the principles of legal certainty and protection from arbitrariness, which are common threads throughout the Convention and the rule of law (see, for example, Yeloyev v. Ukraine, no. 17283/02, § 50, 6 November 2008). This problem has been found to be of a structural nature in Ukraine at the relevant time (see Kharchenko v. Ukraine, no. 40107/02, § 98, 10 February 2011).67. The Court observes that the Government have not submitted any new arguments which could persuade it to depart from its previous conclusions in this case.68. In view of the above considerations the Court concludes that the applicant’s detention from 19 February to 18 March 2009 was unlawful.69. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION70. The applicant complained that the length of his pre-trial detention had been excessive. He relied on Article 5 § 3 of the Convention, which reads:“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.”A. Admissibility71. 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. Merits1. The parties’ submissions72. The applicant maintained that the period of his detention before conviction had been excessive. He stated that the charges against him were linked only with three co-defendants and not with the other thirteen co-defendants on trial. For this reason he contested the Government’s argument that the length of the applicant’s detention had been justified due to the large number of defendants in the case.73. The Government maintained that, given the circumstances of the case ‒ and in particular the gravity of the charges against the applicant and the complexity of the case ‒ there had been no breach of Article 5 § 3 in the present case. They pointed out in particular that proceedings against the applicant had been linked with proceedings against sixteen other individuals, who were represented. The defendants and their lawyers had exercised their procedural rights, resulting in the prolongation of the proceedings. The Government referred to the large number of investigative actions taken during the pre-trial investigation and a large number of hearings held in the course of the trial. Some of the hearings had had to be adjourned due to the state of health of defendants and counsel and due to the failure of defendants and witnesses to appear.2. The Court’s assessment74. The Court notes that the period to be taken into account commenced on 28 July 2006 (the date of the applicant’s arrest) and ended on 18 October 2011 (the date when the applicant was convicted by the first-instance court). The applicant’s detention therefore lasted over five years and two months.75. The Court has held that under Article 5 § 3, after a certain lapse of time, the persistence of a reasonable suspicion does not in itself justify deprivation of liberty, and the judicial authorities should give other grounds for continued detention (see, for example, Borisenko v. Ukraine, no. 25725/02, § 50, 12 January 2012). Those grounds, moreover, should be expressly mentioned by the domestic courts (see Yeloyev, cited above, § 60; Kharchenko, cited above, § 80).76. The Court has frequently found violations of Article 5 § 3 of the Convention where the domestic courts have extended an applicant’s detention, relying essentially on the gravity of the charges and using stereotyped formulae without addressing specific facts or considering alternative preventive measures (see, for example, Kharchenko, cited above, §§ 80-81; Tretyakov v. Ukraine, no. 16698/05, § 59, 29 September 2011).77. In the instant case, on several occasions between 25 September 2006 and 15 June 2011 domestic courts examined whether the applicant should remain in detention.78. However, in their decisions of 25 September 2006, 26 February 2007, and 24 April 2007, the domestic courts did not analyse the applicant’s situation in any detail, employing stereotyped language without addressing specific facts of the applicant’s case.79. In its ruling of 14 August 2007 extending the detention, the Supreme Court did address the specific circumstances of the case, stating that it was complex and required much investigative work. However, the Supreme Court did not address the individual situation of any defendant, the applicant included.80. Moreover, on 15 October 2008 the Kyiv Court of Appeal stated that the need to study the case file was the key reason for extending the applicant’s detention, even though the applicant had informed the prosecution as early as 9 October 2008 that he wished to discontinue his study of the case file. The domestic decisions do not disclose ‒ and the Court is unable to understand ‒ how the applicant’s continuing detention could be justified by his need to study the case file when he had explicitly stated that he considered such study complete. To the extent that the domestic courts referred to the other defendants’ need to continue studying the case file, this only reinforces the impression that the domestic courts did not attempt to assess the applicant’s specific situation.81. The Court is mindful of the gravity of the charges brought against the applicant and the difficulties the domestic authorities must have faced in investigating his case, involving, as it did, charges against multiple defendants allegedly engaged in a complex criminal enterprise. However, assessing the domestic courts’ decisions in the light of the principles developed in its case-law, the Court sees no reason to depart from its previous approach. The authorities did not show, in relevant decisions of domestic courts, that in addition to the overall complexity of the case, there existed specific circumstances relevant to the applicant’s particular situation which would justify the applicant’s detention for such a substantial period of time (see, a contrario, Ereren v. Germany, no. 67522/09, §§ 64 and 65, 6 November 2014).82.

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