FIFTH SECTION      CASE OF MIRONENKO AND MARTENKO v. UKRAINE (Application no. 4785/02)        JUDGMENT   STRASBOURG 10 December 2009 FINAL 10/03/2010 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Mironenko and Martenko v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President, Renate Jaeger, Karel Jungwiert, Rait Maruste, Isabelle Berro-Lefèvre, Zdravka Kalaydjieva, judges, Mykhaylo Buromenskiy, ad hoc judge,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 17 November 2009,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 4785/02) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Mr Vladimir Anatolyevich Mironenko and Mr Nikolay Alekseyevich Martenko (“the applicants”), on 14 December 2000.2. The applicants were represented by Mr V.G. Zvolinskyy, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, from the Ministry of Justice.3. The applicants alleged, in particular, unlawfulness of their arrest and detention and unfairness of the criminal proceedings against them, including lack of impartiality on the part of the trial court.4. On 9 July 2007 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 applicants were born in 1957 and 1971 respectively. They live in Kyiv.1. Criminal proceedings against the applicants6. On 18 February 2000, formal charges were brought against the applicants and two co-suspects, Mr T. and Mr K., in connection with the kidnapping of a child earlier that month. Although the child's parents had received ransom demands, the perpetrators had released the child without a ransom having been paid to them.7. On 21 February 2000, the second applicant and, on 22 February 2000, the first applicant were arrested on suspicion of involvement in the kidnapping.8. On 7 June 2000, while the case was still at the pre-trial stage, the investigator decided to discontinue the criminal proceedings against the applicants under the Amnesty Act of 11 May 2000 and ordered their release. Two other suspects, Mr T. and Mr K., were committed for trial in July 2000.9. On 17 August 2000 the Darnitsky District Court of Kyiv (hereafter “the Darnitsky Court”), composed of a single judge, Mr B., allowed a motion by the victims' representatives for a further investigation to be carried out. The Darnitsky Court held that the abduction of the child was exacerbated by extortion, a more serious criminal offence, which was not covered by the amnesty. The investigating authorities had failed to establish who exactly called the child's parents and demanded a ransom. In that respect it noted that the first applicant had stated that he did not know who had done that. The Darnitsky Court suggested that the authorities should verify the truthfulness of this statement by means of voice identification. The court further stated:“The indicated insufficiency and incorrectness of the pre-trial investigation cannot be remedied in the trial proceedings; moreover, the case-file contains grounds for laying charges of the more serious offence of extortion against the defendants and [the applicants]...The Kyiv Prosecutor shall decide on the lawfulness of the decisions ... of 7 June 2000 to terminate the criminal proceedings against [the applicants] ... since their actions suggest that they were involved in committing the more serious offence of extortion. Their actions, in the court's opinion, should be qualified by a cumulation of the crimes ...Depending on the outcome [of the additional investigations] [the authorities] should resolve the question of the legal qualification of the acts committed by each accomplice to the offence. If the decision to discontinue the criminal proceedings against [the applicants] is revoked, [the authorities] should charge them anew and choose in accordance with law a preventive measure corresponding to the gravity of the offence.”10. On 22 October 2000 the investigator rearrested the applicants.11. On 24 October 2000 the Deputy Kyiv City Prosecutor ordered their detention.12. On 8 November 2000 the applicants filed an appeal against the prosecutor's detention order with the Moskovsky District Court of Kyiv (“the Moskovsky Court”).13. On 10 and 13 November 2000 and 4 January 2001 the Moskovsky Court unsuccessfully requested the Kyiv City Prosecutor's Office to provide it with the case file, which was the ground for the decision to arrest the applicants.14. On 16 November 2000, in the presence of an investigator, the child's father recognised the recorded voice of the first applicant as the voice of the person who had called to demand a ransom.15. On 20 November 2000 the pre-trial investigation was completed and the applicants were given access to the case file.16. On 10 January 2001 the Moskovsky Court referred the letter to the General Prosecutor's Office of Ukraine, requesting it to take measures in respect of the failure of the Kyiv City Prosecutor's Office to dispatch necessary case file.17. On 15 January 2001 the Moskovsky Court was informed that the pre-trial investigation in the applicants' case had been completed on 20 November 2000.18. On 17 January 2001 the Moskovsky Court, in the absence of the applicants and their lawyer, discontinued the proceedings on the applicants' appeal against the prosecutor's detention order on the ground that, according to Resolution no. 10 of the Plenary Supreme Court of 30 September 1994 (see paragraph 34 below), the pre-trial investigation in the case had been completed.19. On 13 February 2001 the prosecutor sent the applicants' case file together with the bill of indictment to the Darnitsky Court, which, later still, held a preparatory hearing, at which it found that the case was ready for trial and ordered the applicants' detention pending the proceedings.20. The trial was held before Judge B., sitting as a single judge at the Darnitsky Court. On 20 March and 16 July 2001 the applicants challenged Judge B. before the President of the Darnitsky Court, arguing that on account of his previous involvement in the proceedings he had already formed a preconceived opinion on their guilt of extortion. On 20 March and 23 July 2001 the President of the Darnitsky Court refused the applicants' requests, noting that their reasoning as to the alleged bias of Judge B. could not serve a ground for his replacement.21. During the hearings the court granted several requests by the applicants for additional witnesses to be heard and certain investigative actions to be conducted. At the same time, the court dismissed the applicants' requests for it to hear the owner of the flat the child had been held in before his release, to establish the identity of an unknown individual who had allegedly forced the first applicant to commit the abduction and to examine the tapes of the telephone conversations made by the Security Service in the course of the search for the child. The court found that the proposed evidence was irrelevant to the case, holding, in particular, that the recording of conversations on the child's parents' telephone line had been commenced after the call with ransom demands had been made, and thus the tapes at issue had no evidential value.22. On 3 January 2002, the Darnitsky Court, composed of Judge B., found the applicants guilty of extortion and unlawful deprivation of liberty. The Darnitsky Court relied, inter alia, on the applicants' and their co‑defendants' partial confessions (they acknowledged having abducted the child, but denied having demanded a ransom, that is, committing extortion), the statements of the child and his father and the results of the voice identification. The first applicant was sentenced to ten and the second applicant to nine years' imprisonment.23. The applicants filed appeals against this judgment. They maintained, inter alia, that the manner in which the voice identification had been carried out was unlawful and challenged the impartiality of Judge B.24. By decision of 21 June 2002 the Kyiv City Court of Appeal (hereafter “the Court of Appeal”) upheld the judgment of 3 January 2002, finding, inter alia, that the voice identification had been carried out in accordance with the relevant procedural legislation.25. The applicants appealed in cassation, repeating their arguments made before the Court of Appeal. Neither the applicants nor their lawyer filed a request under Article 391 of the Code of Criminal Procedure (see paragraph 38 below) to attend the cassation hearing.26. On 10 April 2003 the Supreme Court, in absence of the applicants and their lawyer, but in presence of the prosecutor, rejected the applicants' appeal in cassation and upheld the decisions of the lower courts.27. Neither the Court of Appeal nor the Supreme Court addressed in their decisions the issue of the impartiality of Judge B.2. Alleged ill-treatment of the second applicant28. On 17 February 2000 the second applicant was arrested by the police for swearing in public. Immediately after the arrest he was allegedly questioned about his involvement in the above-mentioned kidnapping. According to him, from 17 to 25 February 2000 he was continuously subjected to ill-treatment by the police officers.29. On 18 February 2000 the Darnitsky Court sentenced the second applicant to ten days' administrative arrest for petty hooliganism.30. On the same day the second applicant was seen by his wife and a Mr Sh. in the police station.31. On 10 September 2002 the Darnitsky District Prosecutor's Office received a complaint by the second applicant alleging ill-treatment by the police on 18 to 25 February 2000.32. On 21 September 2002 the Darnitsky District Prosecutor's Office decided not to institute criminal proceedings into the second applicant's allegations of ill-treatment. This decision was based on the statements of the three police officers concerned, who denied ill-treating the applicant, and the evidence of Mr Sh., who said that when he had seen him on 18 February 2000 the second applicant's fingers were swollen, but there were no other injuries. The second applicant appealed.33. On 23 March 2004 the Darnitsky Court found that the preliminary inquiry had been adequate and sufficient and that no further investigations were required. On 26 May 2004 and 31 May 2005 respectively the Court of Appeal and the Supreme Court upheld this decision.II. RELEVANT DOMESTIC LAW1. Appeal against the prosecutor's detention order and requests for review of lawfulness of pre-trial detention34. The relevant domestic law and practice is summarised in the judgments Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 53-54, ECHR 2005‑II (extracts)) and Yeloyev v. Ukraine (no. 17283/02, § 35, 6 November 2008).35. According to Resolution no. 10 of the Plenary Supreme Court of 30 September 1994 “on certain issues arising from application by the courts of legislation providing for an appeal against a prosecutor's detention order” detained persons were entitled to appeal against a prosecutor's detention order at any moment during the pre-trial investigation. If, at the time of the examination of the appeal, the court established that the pre‑trial investigations had been completed, the proceedings concerning the appeal had to be discontinued.2. Challenging of the judge36. Article 54 of the Code of Criminal Procedure provides, inter alia, that a judge is precluded from participation in a trial if he or she – at the pre‑trial stage of the proceedings – ordered searches; 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. This Article also refers to “other circumstances, which give rise to doubts about the impartiality of the judge”.37. According to Article 55 of the Code, a judge who participated in the criminal proceedings before the first-instance court and whose judgment has been quashed on appeal cannot take part in a new examination of this case by the first-instance court.38. Article 57 of the Code provides that when the case is heard by a single judge, the parties' motions for his or her replacement are determined by the President of the relevant court.3. Attendance of hearings in the cassation court39. Article 391 of the Code of Criminal Procedure provides the following:“A hearing before the court of cassation instance, which is being held in the presence of the prosecutor, may be attended by [the convicted or acquitted persons, their representatives, civil parties and their representatives]. If need be, the court can invite these persons to attend the hearing to give statements. A request by a convicted person who is being held in detention to be brought to the cassation hearing must be granted by the court of cassation instance.The parties to the proceedings who appeared before the court are allowed to make submissions.”THE LAWI. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION40. The applicants contended that after their arrest they were not brought promptly before a judge. The applicants further complained that the Moskovsky District Court did not examine their request for release for several months and that the decision of that court to discontinue the review proceedings concerning their request was not based on law but on the Resolution of the Plenary Supreme Court (see paragraphs 18 and 34 above). The applicants referred to Articles 6 § 1 and 5 § 4 of the Convention. Relying on Article 5 § 5 they also complained that they had no enforceable right to compensation in respect of the alleged breaches of Article 5. The relevant provisions of Article 5 of the Convention read as follows:“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.4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”A. Admissibility41. The Government maintained that the applicants made no complaints under Article 5 § 3 of the Convention and accordingly did not claim to be victims of a violation of the above provision. Consequently, their complaint under Article 5 § 5 of the Convention was equally inadmissible.42. The applicants maintained that from the very first communication with the Court they had complained about the failure of the domestic authorities to arrange for judicial review of the lawfulness of their arrest ordered by the prosecutor, but they had referred erroneously to Article 6 § 1 of the Convention.43. The Court reiterates that Article 34 requires that individual applicants should claim to be a victim “of a violation of the rights set forth in the Convention”; it requires them to raise the substance of the complaint but it does not oblige them to specify which Article, paragraph or sub-paragraph, or even which right, they are praying in aid Any greater strictness would lead to unjust consequences; for the vast majority of “individual” petitions are received from laymen applying to the Court without the assistance of a lawyer (see, mutatis mutandis, Guzzardi v. Italy, 6 November 1980, § 61, Series A no. 39).44. The Court is satisfied that the applicants did complain about lack of proper judicial review of lawfulness of their detention ordered by the prosecutor and their erroneous reference to Article 6 does not preclude the Court, which is master of the characterisation to be given in law to the facts of the case, to examine the problem raised by the applicants under Article 5 § 3 of the Convention, which is the relevant provision. For the same reason their complaint under Article 5 § 5 must be declared admissible.45. The Court therefore dismisses this objection of the Government. It further notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.B. Merits1. Article 5 § 346. The Government referred to their objection on admissibility and made no further observations on the merits.47. The applicants made no further submissions.48. The Court reiterates that Article 5 § 3 of the Convention provides persons arrested or detained on suspicion of having committed a criminal offence with a guarantee against any arbitrary or unjustified deprivation of liberty. Article 5 § 3 is aimed at ensuring prompt and automatic judicial control of police or administrative detention ordered in accordance with the provisions of Article 5 § 1 (c) (see Harkmann v. Estonia, no. 2192/03, § 36, 11 July 2006, with further references).49. The Court further observes that under Ukrainian legislation, a prosecutor cannot be regarded as an officer exercising “judicial power” within the meaning of Article 5 § 3 of the Convention (see Nevmerzhitsky v. Ukraine, no. 54825/00, § 125, ECHR 2005‑II (extracts)).50. The Court notes that the applicants, having been rearrested on 22 October 2000, were not brought before a judge while the investigation was pending, that was, at least until mid-February 2001, when the criminal case against the applicants was referred to the court and the preparatory hearing was held (see paragraph 19 above). The Court is of the opinion that the applicants' detention for several months without any judicial control fell outside the strict constraints of time laid down by Article 5 § 3 of the Convention (see Brogan and Others v. the United Kingdom, 29 November 1988, Series A no. 145-B, pp. 30-35, §§ 55-62).51.

Outcome for Article 6: violation