FIFTH SECTION      CASE OF SIRENKO AND OTHERS v. UKRAINE (Applications nos. 22964/11, 50441/13 and 57993/13)              JUDGMENT    STRASBOURG 24 October 2019   This judgment is final but it may be subject to editorial revision.In the case of Sirenko and Others v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Gabriele Kucsko-Stadlmayer, President, Yonko Grozev, Lado Chanturia, judges,and Milan Blaško, Deputy Section Registrar,Having deliberated in private on 1 October 2019,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in three applications (nos. 22964/11, 50441/13 and 57993/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Ukrainian nationals, Mr Dmitriy Mikhaylovich Sirenko (“the first applicant”), Mr Svyatoslav Yuryevich Tsypin (“the second applicant”) and Mr Sergey Andreyevich Gnatenko (“the third applicant”), on 1 April 2011, 22 June and 6 September 2013 respectively.2. The first applicant was granted leave to represent himself. The second applicant, who had been granted legal aid, was initially represented by Mr E. Markov, a lawyer admitted to practice in Odessa. He was succeeded by Mr T. Kalmykov, a lawyer practising in Kharkiv. The third applicant was represented by Mr M. Tarakhkalo, a lawyer practising in Kyiv.3. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna from the Ministry of Justice.4. The first applicant complained under Article 5 of the Convention of the unlawfulness of his arrest and detention, its unreasonable length and the impossibility of properly challenging his pre-trial detention and receiving compensation for the above violations. On 3 March 2014 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.5. The second applicant complained under Articles 5 and 13 of the Convention of the unlawfulness and length of his detention, and the lack of reasoning of the domestic courts’ decisions extending his detention. On 24 August 2015 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.6. The third applicant complained under Article 5 of the Convention that his detention had been unlawful and unreasoned, that there had been no meaningful review of the lawfulness of his detention and that it had been impossible to receive compensation for the above-mentioned violations. On 6 October 2015 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.THE FACTSI. THE CIRCUMSTANCES OF THE CASEA. Application no. 22964/11 (Sirenko v. Ukraine)7. The first applicant, Mr Dmitriy Mikhaylovich Sirenko, is a Ukrainian national who was born in 1981 and lives in Yevpatoria, Ukraine.8. On 8 February 2008 the applicant was charged with violating rules related to the protection of mineral resources and with abuse of power. Since March 2008 he has been subject to an undertaking not to abscond.9. On 24 March 2009 the applicant was arrested on the premises of the Prosecutor’s Office of the Autonomous Republic of Crimea. It was noted in his detention report that if he was not detained he could try to abscond from justice, obstruct the investigation and influence witnesses in the proceedings.10. On 27 March 2009 the Kyivskyy District Court of Simferopol (“the District Court”) extended the applicant’s detention until 7 April 2009 in order to check whether he had any prior convictions.11. On 3 April 2009 the District Court ordered the applicant’s initial pre‑trial detention, stating: “Given that the accused does not plead guilty, there are grounds to consider that he could obstruct the determination of the truth. Therefore, he should be placed in pre-trial detention.” The District Court did not indicate a time-limit in respect of the applicant’s detention. Under the provisions of the Code of Criminal Procedure (as in force at the material time), the maximum term of a suspect’s initial detention on remand was two months – that is to say (in the applicant’s case) until 24 May 2009. On 14 April 2009 that decision was upheld following an appeal by the applicant.12. On 18 May 2009 the criminal case against the applicant, together with the relevant bill of indictment, was transferred to the court for consideration on the merits.13. On 4 June 2009 the Saky Town Court (“the trial court”) committed the applicant for trial and authorised his further detention, having noted that there were no reasons for him to be released.14. On 24 September 2009 the trial court convicted the applicant as charged and sentenced him, inter alia, to five years and two months’ imprisonment. Following an appeal by the applicant, on 8 December 2009 that sentence was quashed and the case was remitted for fresh investigation. The Court of Appeal ordered the applicant’s further detention, without providing any reasons or indicating a time-limit for it.15. On 20 January 2010 the District Court extended the applicant’s pre‑trial detention until 10 March 2010. The court noted that the investigation in respect of the case was still pending and that there were no grounds for the applicant’s release.16. On 26 February 2010 the criminal case against the applicant, together with the bill of indictment, was transferred to the court for consideration on the merits.17. On 29 March 2010 the trial court committed the applicant for trial and authorised his further detention, having noted that there were no reasons for him to be released.18. On 13 September 2010 the same court convicted the applicant as charged and sentenced him to five years’ imprisonment.19. Following an appeal by the applicant, on 22 February 2011 that sentence was quashed and the case was remitted for fresh investigation. The Court of Appeal ordered the applicant’s further detention, without providing any reasons or indicating a time-limit for it.20. On 31 March 2011 the case file reached the investigators; subsequently the criminal case against the applicant, together with the bill of indictment, was transferred to the court on 31 May 2011.21. On 19 July 2011 the trial court referred the case back for further investigation. It furthermore ordered that the applicant’s pre-trial detention be continued, as there were no reasons for him to be released. That decision was upheld following an appeal by the applicant on 20 September 2011.22. On 19 December 2011 the applicant was released, subject to an undertaking not to abscond.B. Application no. 50441/13 (Tsypin v. Ukraine)23. The second applicant, Mr Svyatoslav Yuryevich Tsypin, is a Ukrainian national who was born in 1975 and lives in Slovyansk.24. On 15 November 2012 the applicant was arrested on suspicion of kidnapping, extortion, carjacking, and unlawful possession of ammunition.25. On 17 November 2012 the Leninskyy District Court of Donetsk remanded the applicant in custody “for the period of the pre-trial investigation”. By way of reasoning the court stated that since not all witnesses of the alleged offences had been identified and interviewed, the applicant could threaten them or collude with them if he was left at liberty and could thus interfere with the investigation. Following an appeal by the applicant, on 29 November 2012 that decision was upheld.26. On 27 December 2012 the criminal case against the applicant, together with the relevant bill of indictment, was submitted to the court. The applicant argued that the period of his authorised pre-trial detention had expired on that date.27. On 12 February 2013 the Artemivsk Court (“the trial court”) returned the indictment to the prosecutor for corrections and extended the applicant’s detention until 15 March 2013. By way of explaining its decision to extend the detention the court stated that the applicant had been accused of serious offences involving repeated unlawful acts against several victims, which, the court believed, demonstrated that he was likely to continue in his unlawful activity, evade justice and interfere with proceedings. Both the applicant and the prosecutor appealed.28. On 14 March 2013 the Court of Appeal, sitting in camera, scheduled a hearing of the applicant’s and the prosecutor’s appeals and extended the applicant’s detention until 15 April 2013 on the grounds that the applicant had asked to be present in person at the hearing.29. On 21 March 2013 the Court of Appeal held a hearing in the presence of the applicant and the prosecutor, quashed the ruling of the trial court of 12 February 2013 in relation to the part concerning the decision to return the indictment to the prosecutor, and upheld the decision concerning the applicant’s detention.30. On 11 April 2013 the trial court extended the applicant’s detention until 13 June 2013, stating that the applicant had been accused of several violent offences, that the victims had supported the extension of his detention, and that no other preventive measure would ensure that the applicant would comply with his obligations as a defendant and prevent him from influencing the victims and other witnesses.31. On 7 June 2013 the trial court extended the applicant’s detention until 7 August 2013, stating that the parties had failed to identify any new circumstances not previously examined by the trial court and the Court of Appeal.32. On 7 August 2013 the trial court extended the applicant’s and his two co-defendants’ detention by sixty days, stating that if they were to be at liberty they could influence the victims and other witnesses.33. On 1 October 2013 the trial court refused the applicant’s and his co‑defendants’ requests for release and extended their detention by sixty days. In refusing the defendants’ requests for release the trial court stated that no new circumstances warranting release had been identified.34. On 31 October 2013 the trial court extended the applicant’s and his co-defendants’ detention by sixty days, stating that the circumstances that had led to the decision to place the defendants in detention pending their trial persisted; in particular, certain evidence against the defendants remained unexamined.35. On 25 December 2013 the trial court refused a request lodged by the applicant for release, and extended his and his co-defendants’ detention by sixty days, until 27 February 2014, on the same grounds as those given in its decision of 31 October 2013.36. On 25 February 2014 the trial court refused a request lodged by the applicant for release, stating that no evidence had been provided indicating that the circumstances that had led the court to remand the applicant in custody had changed. The court extended the applicant’s and his co‑defendants’ detention by sixty days, until 26 April 2014, giving the same reasons as those given for its decisions of 31 October and 25 December 2013.37. On 23 April 2014 the trial court held a hearing at the detention facility where the applicant was being held, in the presence of the applicant and his lawyer. At the close of the hearing it extended the applicant’s and his co-defendants’ detention by sixty days, until 23 June 2014. In dismissing the applicant’s request for release the court stated that the applicant had a permanent address at a shop in Slovyansk that was the scene of anti-terrorist operations and that for this reason any non-custodial preventive measure would not be enforceable. The court also stated that there was no evidence that there had been a change in the circumstances that had led to the initial decision to remand the applicant in custody.38. On an unspecified date the applicant was released from detention and placed under house arrest.C. Application no. 57993/13 (Gnatenko v. Ukraine)39. The third applicant, Mr Sergey Andreyevich Gnatenko, is a Ukrainian national who was born in 1983 and lives in Kyiv.40. On 11 January 2011 criminal proceedings were instituted against the applicant on suspicion of kidnapping committed in a group. Subsequently additional charges of attempted aggravated fraud, aggravated violent robbery, theft of important documents, and endangerment with grave consequences (залишення в небезпеці, що спричинило тяжкі наслідки) were brought against the applicant.41. On 3 February 2011 the Kyiv Shevchenkivskyy District Court (“the District Court”) issued a warrant for the applicant’s arrest.42. On 24 October 2012 the applicant was arrested.43. On 2 November 2012 the District Court ordered the applicant to be detained until 1 December 2012. The court stated that it had taken into account the fact that the applicant did not have a permanent residence in Kyiv or the Kyiv region, did not live at his registered address in the Lugansk region, was accused of a serious offence, and had a prior criminal record. In view of those facts the District Court considered that, if at liberty, the applicant might interfere with the investigation or abscond.44. On 30 November 2012 the criminal case against the applicant, together with the relevant bill of indictment, was submitted to the District Court.45. On 6 December 2012 the District Court, at the close of a preliminary hearing, returned the indictment against the applicant to the prosecutor, finding that it contained certain omissions. Given that the parties had not lodged any requests for the preventive measure to be changed or revoked, the District Court ruled that the applicant’s detention should be deemed extended. The District Court did not indicate a time-limit in respect of the applicant’s detention. Under the provisions of the Code of Criminal Procedure, as worded at the time in question, the term of validity of a ruling by an investigating judge or a court ordering an accused’s detention or continued detention could not exceed sixty days (see Ignatov v. Ukraine, no. 40583/15, § 25, 15 December 2016) – that is (in the applicant’s case) until 3 February 2013.46. On 14 January 2013 the District Court again returned the indictment to the prosecutor. By the same ruling the court refused a request lodged by the applicant for release, stating that the applicant had failed to prove that the risks on which the court had relied in remanding him in custody had ceased to exist – in particular that he had failed to provide documents proving his assertions as to his place of residence, family and dependants. The court made no other order concerning the applicant’s detention.47. On 14 March 2013 the District Court again returned the indictment to the prosecutor. It also decided to extend the applicant’s detention until 1 May 2013.48. On 30 April 2013 the District Court again returned the indictment to the prosecutor and extended the applicant’s detention until 31 May 2013. By the same ruling the court refused a request lodged by the applicant on an unknown date for release, stating that the applicant was accused of serious crimes involving violence, had a criminal record, and prior to his arrest had been on the list of wanted persons. The court stated that that meant that there was a risk that he might abscond, reoffend or interfere with the investigation.49. On 30 May 2013 the District Court returned the indictment to the prosecutor. Given that the parties did not lodge any requests for the preventive measure to be changed or revoked, the court ruled that the applicant’s detention should be deemed extended until 5 July 2013.50. On 1 July 2013 the case against the applicant, together with the bill of indictment, was again resubmitted to the District Court.51. On 4 July 2013 the District Court extended the detention of the applicant and his three co-defendants until 12 July 2013, stating that in reaching this decision it had taken into account (i) the defendants’ personal characteristics, (ii) the gravity of the charges, (iii) the lack of any guarantees and verified social relationships that would outweigh the existing risk that they would abscond, and (iv) the lack of any information indicating that their state of health was incompatible with detention.52. On 12 July, 3 September, 28 October and 24 December 2013 and 17 February, 16 April, 13 June, 19 June, 18 August and 15 October 2014 the District Court extended the applicant’s detention until 3 September, 1 November, 3 and 30 December 2013 and 21 February, 17 April, 16 June, 19 June, 19 August, 18 October and 15 December 2014, respectively, citing the same reasons as those contained in its rulings of 30 April and 4 July 2013.53. On 8 December 2014 the District Court convicted the applicant and sentenced him to seven years’ imprisonment.II. RELEVANT DOMESTIC LAW AND PRACTICE54. The provisions of the 1960 Code of Criminal Procedure concerning pre-trial detention can be found in Yeloyev v. Ukraine (no. 17283/02, § 35, 6 November 2008); Makarenko v. Ukraine (no. 622/11, § 50, 30 January 2018); and Shavel v.Ukraine ((dec.), no. 25486/03, 8 January 2007).55. The Code of Criminal Procedure of 28 December 1960 was repealed with effect from 19 November 2012, when the 2012 Code of Criminal Procedure came into force. The relevant provisions of the new Code concerning pre-trial detention can be found in Ignatov v. Ukraine, cited above, § 25).THE LAWI. JOINDER OF THE APPLICATIONS56. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION57. The applicants complained under Article 5 § 1 of the Convention that their detention on remand had been unlawful and unjustified. The first applicant furthermore complained under the same provision that his arrest on 24 March 2009 without a court warrant had been in breach of the domestic law, and that his pre-trial detention had been too lengthy.The applicants also complained under Article 5 §§ 1 and 3 of the Convention that their detention on remand had been unjustified. Being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), and having regard to the substance of the applicants’ complaints, the Court decides to examine them under Article 5 § 3 of the Convention.The relevant provisions of Article 5 §§ 1 and 3 of the Convention read 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;...3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power, and 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. Admissibility58. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.B. Merits1. Article 5 § 1 of the Convention59. The first applicant submitted that his detention from 24 May until 4 June 2009 (see paragraphs 11-13 above), from 10 until 29 March 2010 (see paragraphs 15-17 above) and from 22 February until 19 July 2011 (see paragraphs 19-21 above) had been arbitrary, as it had not been authorised by a court order.60. The second applicant submitted that his detention from 27 December 2012 until 12 February 2013 (see paragraphs 26-27 above) had been arbitrary, as it had not been covered by a court order.61. The third applicant submitted that his detention from 1 until 6 December 2012 (see paragraphs 43-45 above) and from 3 February until 14 March 2013 (see paragraphs 45-47 above) had been arbitrary, as it had not been covered by a court order.62. He furthermore submitted that his detention from 6 December 2012 until 3 February 2013 (see paragraph 45 above) and from 31 May until 4 July 2013 (see paragraphs 48-51 above) had been based on a court order that had contained no reasoning whatsoever.63. The Government disagreed and submitted that the applicants’ detention had been lawful and that there had been no breach of their Convention rights.64. The Court observes that the basis of the applicants’ being held in custody during the periods of time indicated in paragraphs 59-61 above was based on the fact that a bill of indictment had been submitted to the relevant trial court. In that connection, the Court notes that it has previously examined similar situations in other cases against Ukraine and found them to be incompatible with the principles of legal certainty and protection from arbitrariness under Article 5 § 1 of the Convention (see Kharchenko v. Ukraine, no. 40107/02, § 71 10 February 2011).65. The Court furthermore observes that the situation regarding the third applicant’s detention during the periods of time indicated in paragraph 62 above, is similar to that examined by the Court in the case of Ignatov (see Ignatov v. Ukraine, cited above §§ 35-37). In that case, the Court found that the fact that the judicial authorities had not given any grounds for their decisions authorising detention for a prolonged period of time had been incompatible with the principle of the protection from arbitrariness (ibid.).66. The Court does not see any reason to depart from its earlier findings in the present case.

Outcome for Article 5: violation