FIFTH SECTION    CASE OF NIKOLAY KUCHERENKO v. UKRAINE (Application no. 16447/04)        JUDGMENT  STRASBOURG 19 February 2009   FINAL 19/05/2009 This judgment may be subject to editorial revision.In the case of Nikolay Kucherenko v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President, Rait Maruste, Karel Jungwiert, Renate Jaeger, Isabelle Berro-Lefèvre, Mirjana Lazarova Trajkovska, judges, Stanislav Shevchuk, ad hoc judge,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 27 January 2009,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 16447/04) 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 Nikolay Nikolayevich Kucherenko (“the applicant”), on 3 April 2004.2. The applicant was represented by Mr P. Dubrovin, a lawyer practising in Odessa. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.3. The applicant alleged, in particular, that his detention between 29 July 2002 and 2 January 2003 had been unlawful and constituted a violation of Article 5 § 1 of the Convention.4. On 15 June 2006 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1969 and lives in Odessa.6. On 27 April 2002, in the course of a police operation, an undercover police officer bought a substantial quantity of cannabis from the applicant. The applicant was immediately arrested in accordance with Article 263 of the Administrative Offences Code for a violation of the drug circulation rules which constituted an administrative offence laid down in Article 44 of that Code. Following a body search and a search of the applicant’s car, the police found further quantities of the drug.7. On 29 April 2002 the local police office instituted criminal proceedings against the applicant for drug trafficking.8. On 2 May 2002 the Ovidiopolskyy District Court of Odessa (hereinafter “the District Court”) considered a request by the investigator for the applicant to be placed in pre-trial detention and rejected it. However, it extended the period of the applicant’s arrest up to a total of ten days, ordering the investigative authorities to obtain more information on the identity of the applicant and establish further circumstances justifying his detention pending trial.9. On 8 May 2002 the District Court ordered the applicant’s pre-trial detention on the ground that the applicant was charged with a serious crime and, if at large, would continue his criminal activity and abscond from the investigation and trial.10. On 25 June 2002 the District Court extended the period of the applicant’s pre-trial detention until 29 July 2002 as the investigative authorities needed more time to complete the case file, namely, to complete the biological expert examination, to order and carry out a narcotics forensic examination, to question Mr. Sh., who was the witness in the case, to familiarise the applicant with the case file, and to draw up the bill of indictment. The District Court also found that, given the character of the applicant and the gravity of the crime that had been committed, the preventive measure should be left unchanged.11. On 29 July 2002 the applicant was provided with access to the criminal case file to prepare his defence.12. On 6 August 2002 the applicant lodged a complaint against the investigation authorities with the District Court, claiming that there had been no legal basis for his detention, in so far as the period of his detention, fixed in the District Court’s decision of 25 June 2002, had expired on 29 July 2002 and had not been extended. This complaint was joined to the criminal case file.13. On 17 September 2002 the applicant finished studying the case file.14. On 18 September 2002 the supervising prosecutor approved the bill of indictment and the case file was referred to the District Court for adjudication.15. On 2 January 2003 the District Court considered the applicant’s complaint of 6 August 2002 in the course of the preliminary hearing and found that the applicant’s detention after 29 July 2002 had been lawful. In particular, the District Court established that during the period between 29 July and 17 September 2002 the applicant had been studying the case file and, in accordance with Article 156 of the Code of Criminal Procedure, this period was not taken into account in calculating the overall period of his detention pending trial. It further noted that on 18 September 2002 the case file had been referred to the District Court and therefore the applicant’s complaint was unsubstantiated. The District Court did not specify the reasons or legal basis for the applicant’s detention after the case had been referred to the court. At the same hearing the District Court considered that there had been no grounds for changing the preventive measure in respect of the applicant, but did not state this conclusion in the operative part of the decision. The preliminary hearing was held in the presence of the prosecutor; the applicant and his lawyer were absent.16. According to the Government, on several occasions in the course of the trial, namely 15 July 2003, 22 October 2003, 22 January 2004, 4 February 2004, and 27 April 2004, the District Court considered the applicant’s requests for release and rejected all of them because he was charged with a serious crime and might abscond from the investigation and trial if at liberty.17. On 12 May 2004 the District Court found the applicant guilty of drug trafficking and sentenced him to six years’ imprisonment, having included in the sentence the period of the applicant’s detention from 27 April 2002.18. On the same day the District Court issued a separate ruling to the effect that the applicant’s arrest on 27 April 2002 conducted under the Administrative Offences Code had not been lawful since Article 44 of that Code, relied on by the police officers, did not cover drug trafficking and was therefore evidently inapplicable to the applicant, who had been arrested when selling the drug to the undercover agent. The District Court notified the Odessa Regional Police Department of the established violation of the procedural law committed by the police officers and ordered that an internal inquiry into the circumstances of the applicant’s arrest be carried out.II. RELEVANT DOMESTIC LAWA. Administrative Offences Code of 7 December 1984 as worded at the material time (“the AOC”)19. Article 44 of the AOC prohibits the fabrication, purchase, storage, transport, or dispatch of drugs or psychotropic substances in small quantities without the purpose of trafficking. A breach of this provision is punishable by a fine of up to forty-three tax-free monthly incomes[1].20. Article 263 of the AOC provides, inter alia, that anyone who violates drug-circulation rules may be arrested for up to three hours for the purpose of drawing up a report on the administrative offence. However, in order to identify the perpetrator of the offence, subject him to a medical examination, clarify the circumstances of purchase of the drugs or psychotropic substances and examine them, the arrest may be extended up to three days. In such cases the prosecutor shall be informed of the extension in writing within twenty-four hours. In case the arrested person does not have identity documents, the arrest may be extended up to ten days pursuant to an order of the prosecutor.21. Article 267 of the AOC provides, inter alia, that an arrest on grounds of an administrative offence may be challenged by the aggrieved person before the supervising authority, the prosecutor or the court.B. Code of Criminal Procedure 28 December 1960 as worded at the material time (“the CCP”)22. Article 156 of the CCP provides, inter alia, that the period of detention during pre-trial investigation shall expire on the day the court receives the case file; however, the time taken by the accused and his or her representatives to familiarise themselves with the materials in the criminal case file shall not be included in the calculation of the period for which the accused has been detained as a preventive measure.Save where the period has been extended pursuant to the procedure established by the CCP, in the event of the expiry of the maximum period of detention as a preventive measure allowed by the CCP, the body of inquiry, the investigator or the prosecutor shall be obliged to release the person from custody without delay.Governors of pre-trial detention centres shall promptly release from custody any accused in respect of whom a court order extending the period of detention has not been received by the time the period of detention allowed by the CCP expires. They shall notify the person or body before whom the case is pending and the prosecutor supervising the investigation.In 2003 this Article was amended as regards the rules on calculation of time, taken by the detainee and his or her representative for studying the case file.23. In accordance with Article 165 of the CCP, detention as a preventive measure shall be applied only by a reasoned decision or ruling of the court.THE LAWI. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION24. The applicant complained that he had been unlawfully arrested by the police officers on 27 April 2002. He further complained that his detention between 29 July 2002 and 2 January 2003 had been unlawful in so far as it had not been authorised by a court order. The applicant 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:...(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’ submissions25. The Government, referring to Article 267 of the AOC, contended that the applicant had not challenged before the court his arrest which took place on 27 April 2002 and, accordingly, had not exhausted domestic remedies in this respect. They further maintained that the applicant had failed to comply with the six-month rule when submitting the complaint to the Court.26. The applicant disagreed.2. The Court’s assessmenta. As regards the arrest on 27 April 200227. The Court observes that under Article 267 of the AOC it was open to the applicant to challenge before the local court the arrest which took place on 27 April 2002. The applicant failed to do so however. Even assuming the applicant complied with requirement of exhaustion of domestic remedies, this complaint falls in any event outside the six-month period. It follows that this part of the application must be dismissed pursuant to Article 35 §§ 1 and 4 of the Convention.b. As to the applicant’s detention between 29 July 2002 and 2 January 200328. The Court has recognised that Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism (see Akdivar and Others v. Turkey, 16 September 1996, § 69, Reports 1996‑IV, and Ječius v. Lithuania, no. 34578/97, § 44, ECHR 2000‑IX).29. The Court observes that during the period of the applicant’s detention of which he complains, and during the subsequent period, until his conviction, the applicant was held in custody as a result of the preventive measure applied. It follows that the applicant’s uninterrupted detention during those periods was of the same legal nature and constituted for the purpose of the Convention a continuous situation which had ceased to exist on 12 May 2004, when the applicant was convicted. As the applicant was still in custody on 3 April 2004, when he lodged the present complaint, this part of the application cannot be dismissed as being out of time (see, mutatis mutandis, Ječius, cited above, § 44). The Court therefore dismisses the Government’s objection in this respect.30. The Court further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits1. The parties’ submissions31. The Government maintained that the applicant’s pre-trial detention had been lawful.32. The applicant disagreed.2. The Court’s assessment33. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. However, the “lawfulness” of detention under domestic law is not always the decisive element. The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion. The Court must moreover ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this last point, the Court stresses that, where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Baranowski v. Poland, no. 28358/95, §§ 50-52, ECHR 2000-III).34. The Court reiterates that a period of detention is, in principle, “lawful” if it is based on a court order (see Ječius, cited above, § 68, and Nevmerzhitsky v. Ukraine, no. 54825/00, § 116, ECHR 2005‑II (extracts) §116).35. In the present case the Court observes that throughout the whole period of the applicant’s detention under consideration there existed no court decision validating the detention.36. The Court further notes that during the impugned period the applicant was initially held in custody on the ground that he was studying the case file (from 29 July until 17 September 2002) and, subsequently (from 18 September 2002 until 2 January 2003), because he was waiting for his committal for trial.37. The Court has held that the legal situation in which an accused person is detained for an indeterminate period of time without any judicial authorisation for his prolonged detention purely on the ground that he or she was studying the case file is not compatible with the requirements of Article 5 of the Convention (see Ječius, cited above, §§ 57-59, and Nevmerzhitsky, cited above, § 133). Likewise, 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 the case file has been submitted to the trial court. In those cases 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 the protection from arbitrariness, which are common threads throughout the Convention and the rule of law (see Korchuganova v. Russia, no. 75039/01, § 57, 8 June 2006; Nakhmanovich v. Russia, no. 55669/00, §§ 67-68, 2 March 2006; Khudoyorov v. Russia, no. 6847/02, §§ 146-48, ECHR 2005‑X; and Yeloyev v. Ukraine, no. 17283/02, § 50, 7 October 2008).38.

Outcome for Article 5: violation