FIFTH SECTIONCASE OF KUROCHENKO AND ZOLOTUKHIN v. UKRAINE(Applications nos. 20936/16 and 53257/16)     JUDGMENT STRASBOURG11 February 2021    This judgment is final but it may be subject to editorial revision. In the case of Kurochenko and Zolotukhin v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Arnfinn Bårdsen, President, Ganna Yudkivska, Mattias Guyomar, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the applications (nos. 20936/16 and 53257/16) 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 Volodymyr Volodymyrovych Kurochenko and Mr Vladyslav Viktorovych Zolotukhin (“the applicants”), on 7 April 2016 and 9 August 2016 respectively;the decision to give notice to the Ukrainian Government (“the Government”) of the first applicant’s complaints under Article 5 §§ 1 and 4, Article 6 § 1 and Article 13 of the Convention and Article 2 of Protocol No. 7, and to declare inadmissible the remainder of the first application and give notice to the Government of the second application;the parties’ observations;Having deliberated in private on 21 January 2021,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. Criminal proceedings are pending against the applicants in respect of offences committed in the part of the Luhansk Region which the Ukrainian Government no longer control. They cannot be completed because the authorities are unable to access the case files concerning those proceedings. The applicants complained that the authorities were not taking sufficient measures to advance the examination of their cases under the circumstances or regulate their status in that connection in a clear manner. They invoked Article 6 § 1 and Article 13 of the Convention and Article 2 of Protocol No. 7 to the Convention. The first applicant also complained, under Article 5 §§ 1 and 4 of the Convention, that his detention in that situation had been unlawful, and that he had had no effective procedure for a review of its lawfulness. The second applicant also complained, under Article 2 of Protocol No. 4, that a restriction had been imposed on his freedom of movement in the context of the criminal proceedings in question.THE FACTS2. The first applicant was born in 1982 and lives in Yuzhne in the Odessa Region. He was represented before the Court by Mr M. Tarakhkalo, Ms O. Protsenko, Ms O. Chilutyan, Ms A. Saliuk, Ms A. Martynovska and Mr O. Levytskyi, lawyers practising in Kyiv.3. The second applicant was born in 1972 and lives in Sofiyivska Borshchagivka in the Kyiv Region. He was also represented by Mr Tarakhkalo, Ms  Protsenko, Ms Chilutyan and Ms  Saliuk, as well as Ms V. Lebid, a lawyer practising in Kyiv.4. The Government were represented by their Agent, Mr I. Lishchyna.5. The facts of the case, as submitted by the parties, may be summarised as follows.Proceedings prior to events of 2014The first applicant’s case6. On 19 September 2010 the applicant was arrested on suspicion of having committed a murder in Perevalsk, in the Luhansk Region. On 22 September 2010 the Perevalsk Court remanded the applicant in custody as a preventive measure to ensure his proper conduct in the proceedings.7. On 27 September 2013 the Alchevsk Court sentenced the applicant to fourteen years and six months’ imprisonment for murder, theft and carjacking. He had been convicted of stabbing a taxi driver at night in the absence of eyewitnesses.The court’s conclusions were based on a detailed analysis of numerous pieces of witness and forensic evidence, mobile phone data, a comparison between the applicant’s initial videotaped confessions and his subsequent denials, and other evidence. Based on the assessment of the various pieces of evidence, the court concluded that the applicant’s initial confession, made in the presence of a lawyer and recorded on videotape, was more credible and consistent with other evidence – including various forensic data on how the injuries had been inflicted – than his subsequent denials of guilt.The court ordered that the term of imprisonment should be counted from the time of the applicant’s arrest, and that he should remain in custody pending the examination of the case on appeal.8. On 11 October 2013 the applicant appealed to the Luhansk Regional Court of Appeal (“the Court of Appeal”), which was located in Luhansk at that time. In that appeal, the applicant challenged in detail the trial court’s assessment of the evidence, arguing that the evidence showed his innocence.The second applicant’s case9. On 15 July 2013 the police instituted criminal proceedings against the second applicant in relation to an offence of unlawful coal mining in the Antratsyt District of the Luhansk Region. Pursuant to domestic law, information about those proceedings, including the applicant’s name and the charges against him, was entered into the electronic national Register of Pre-Trial Investigations (see paragraph 60 below for the rules of domestic law on what information the register must contain).10. On 16 July 2013 the investigating judge of the Luhansk Leninsky District Court set bail at the equivalent of 2,125 euros (EUR) in Ukrainian hryvnias (UAH) and imposed on the second applicant an obligation not to leave his registered place of residence (which was in Antratsyt at the time) without permission. The latter obligation was imposed for a period lasting until 16 October 2013.11. On 25 January 2014 the bill of indictment in respect of the second applicant was submitted to the Antratsyt Court.Loss of files in 2014, reassignment of jurisdiction and relocation of the courts12. As a result of events in spring and summer 2014 which are described in Khlebik v. Ukraine (no. 2945/16, §§ 9-12, 25 July 2017) and Tsezar and Others v. Ukraine (nos. 73590/14 and 6 others, §§ 6-12, 13 February 2018), the Government ceased to control the areas where the alleged offences had been committed and where the trial courts and the Court of Appeal were located.13. The case files in the applicants’ criminal cases remained in that territory.14. At the time those events were unfolding the first applicant was detained in Starobilsk Prison, located in a part of the region that remains under the control of the Ukrainian Government. He remained in that prison until his release (see paragraph 33 below).15. In the course of those events or thereafter the second applicant moved to the Kyiv Region. He has the status of an internally displaced person.16. On 20 August 2014 the general assembly of judges of the Court of Appeal decided to suspend the work of the court, owing to the armed conflict in the region.17. In September 2014, pursuant to Law No. 1632-VII (see paragraph 63 below), the jurisdiction of the Alchevsk Court (the trial court in the first applicant’s case) was reassigned to the Lysychansk Court, and that of the Antratsyt Court (the trial court in the second applicant’s case) was reassigned to the Starobilsk Court.18. In February 2015 the Court of Appeal resumed its operations in Sieverodonetsk, in the part of the Luhansk Region which remains under the control of the Ukrainian Government. The regional prosecutor’s office was likewise relocated to Sieverodonetsk.Subsequent proceedingsThe first applicantCriminal proceedings against the applicant and proceedings concerning his detention19. On 11 March 2015 the registry of the Lysychansk Court (the court replacing the trial court, see paragraph 17 above) refused to register an application by the first applicant to change the preventive measure in respect of him to one which was non-custodial (see paragraphs 55 and 56 below for the relevant provisions of domestic law). The registry informed that applicant that, since it had no case file in his criminal case, it could not accept an application lodged in connection with it.20. In April 2015 the Luhansk Regional Court of Appeal informed the applicant that it was open to him to lodge a habeas corpus application under the 2012 Code of Criminal Procedure with the Starobilsk Court, the court with territorial jurisdiction over his place of detention (see paragraph 59 for the relevant provision of domestic law).21. On 7 April 2015 the applicant lodged such a habeas corpus application with the Starobilsk Court.22. On 4 November 2015 the Starobilsk Court informed the applicant that his habeas corpus application was pending and that, in order to examine it effectively, it had requested information from the State Judicial Administration (the body responsible for the organisation of the technical and administrative aspects of courts’ work), the Anti-Terrorism Centre of the Security Service of Ukraine (the body responsible for the coordination of Ukraine’s military action in the region at the time) and the Mission of the International Committee of the Red Cross (ICRC) concerning possible means of transferring the case from the territory not under the Government’s control. The applicant’s application would be examined once responses were received.23. On 23 December 2015 the Starobilsk Court, having examined the applicant’s habeas corpus application, refused to release him, finding that he was being detained lawfully on the basis of both his conviction and the preventive measure imposed by the Perevalsk Court on 22 September 2010, which was still in effect while his appeal was pending (see paragraphs 6 and 7 above). The Court of Appeal had competence to change the preventive measure imposed on the applicant.24. On 3 February 2016 the applicant lodged a new appeal against his conviction, arguing in general terms that there was no admissible evidence of his guilt. On 19 February 2016 the applicant asked for an extension of the time-limit to lodge that appeal. The Court of Appeal instructed the new trial court to send it the case file.25. On 22 March 2016 the Starobilsk Court rejected another habeas corpus application by the applicant, essentially for the same reasons as those given in its decision of 23 December 2015 (see paragraph 23 above) on his application for release.26. On 1 June 2016 the registry of the Lysychansk Court returned the applicant’s application to change the preventive measure in respect of him from detention to a non-custodial measure. The registry indicated that the Lysychansk Court was not competent to examine the matter, and that all questions should be addressed to the Court of Appeal.27. On 25 July 2016 the applicant lodged another habeas corpus application with the Starobilsk Court.28. On 8 or 10 August 2016, in preparation for the examination of the applicant’s habeas corpus application, the Starobilsk Court sent letters to the Lysychansk Court, the Court of Appeal, the regional prosecutor’s office and the Anti-Terrorism Centre, requesting information concerning any possible progress in the applicant’s case, the possible location of the case file and any efforts to ensure the transfer of the case file.29. On 15 August 2016 the Court of Appeal informed the Starobilsk Court that it had no file and that the applicant’s case had never been registered in its electronic case management system.30. On 22 August 2016 the Lysychansk Court sent the restored case file (see paragraph 34 below) to the Court of Appeal so that the applicant’s 2016 appeal could be examined.31. On 31 August 2016 the Court of Appeal refused to initiate appeal proceedings based on the restored file, considering the material available in the restored file insufficient.32. On 27 September 2016 the Starobilsk Court asked the Court of Appeal to inform it of any progress in the examination of the applicant’s appeals, indicating that the information was needed for the speedy examination of the applicant’s application for release in the habeas corpus procedure.33. On 12 October 2016 the Starobilsk Court held a habeas corpus hearing and, at the close of it, ordered the applicant’s release. The court noted that the applicant was being detained lawfully on the basis of both his conviction and the preventive measure, which was to be maintained pending an appeal. At the same time the court noted that the Court of Appeal was unable to examine the applicant’s appeal, owing to the material available being insufficient (see paragraph 31 above), and concluded that it was unclear when the proceedings against the applicant could continue.Owing to this uncertainty, the applicant’s continuing detention would be contrary to Article 5 of the Convention and the constitutional provision guaranteeing the right to liberty (see paragraph 51 below), and he had to be released. This was because under the Code of Criminal Procedure, the aim of preventive measures such as detention on remand was to ensure the effectiveness of criminal proceedings, and therefore detention effectively in the absence of proceedings was in breach of the requirement of legality of detention (see paragraphs 54 and 57 below). The court relied on provisions of the Code of Criminal Procedure proclaiming the primacy of international treaties over the provisions of the Code, the binding nature of the Court’s case-law and the principle of legality (see paragraphs 53 and 54 below).Restoration proceedings34. On 18 March 2016 the Lysychansk Court allowed the applicant’s application and restored the case file in his criminal case. The restored file contained only copies of the Alchevsk Court’s judgment and the applicant’s appeal.35. On 21 July 2016 the Luhansk regional prosecutor’s office asked the Luhansk regional police to search for available material concerning the applicant’s case.36. On 4 August 2016, in response to the above request, the police informed the prosecutor’s office that it had identified the officer who had been in charge of the applicant’s case in 2011 and had preserved electronic copies of some documents from the file. The police forwarded the documents to the prosecutor’s office.37. On 17 August 2017 the regional prosecutor’s office lodged an application for the case file in the applicant’s case to be restored on the basis of documents provided by the police. In addition to the material already in the file (the trial court’s judgment and the appeal), the prosecutor’s office provided decisions concerning the institution, merging and separation of the criminal proceedings, an expert opinion on a video-recording, an expert report on a polygraph examination and a cover letter to the appeal.38. On 13 September 2017 the court held that the application for restoration did not comply with formal legal requirements, namely it had failed to identify why restoration was sought (see paragraph 60 below for the relevant domestic legislative provision), and the court invited the prosecutor’s office to rectify that within ten days.39. On 29 September 2017, noting that the application had not been rectified and the purpose of restoration had still not been identified, the court returned the application to the prosecutor’s office without examining it on the merits.The second applicant40. On 22 August 2015 the regional prosecutor’s office informed the second applicant that Antratsyt and Luhansk were no longer under the Government’s control. The regional prosecutor’s office had no files related to the applicant’s case and had no knowledge of where the case file was.41. The applicant obtained similar letters from the police and the regional Court of Appeal.42. The applicant filed an application with the Starobilk Court (the court which replaced the trial court, see paragraph 17 above), requesting that the court restore the case file and discontinue the proceedings. He provided the above-mentioned letters and an extract from the Register of Pre-Trial Investigations.43. On 15 January 2016 the Starobilsk Court rejected his application on the grounds that there were not enough documents to restore the file and there was no judgment in the case, and the Code of Criminal Procedure provided for the restoration procedure only in cases which had ended in a judgment (see the relevant provisions of domestic law in paragraph 60 below). The Starobilsk Court’s decision stated that an appeal could be lodged against it.44. On 4 February 2016 the Court of Appeal rejected an appeal by the applicant against the decision of 15 January 2016, considering that no appeal lay against the decision.45. The applicant appealed, arguing that his application was a sui generis application owing to the exceptional situation in the Luhansk Region and could not be examined strictly in accordance with the rules concerning restoration of a file. There was no clear procedure in domestic law for dealing with this type of situation, and this was in breach of his right to a fair trial within a reasonable time under Article 6 of the Convention.46. On 19 April 2016 the High Specialised Court for Civil and Criminal Matters rejected the appeal on the same grounds as those relied on by the Court of Appeal.47. On 23 October 2017 the applicant lodged an application seeking: a declaration that the case against him had been lost, the return of the bail money which had been paid, and an order for information about him to be removed from the Register of Pre-Trial Investigations and the Ministry of the Interior’s criminal records database.48. On 5 January 2018 the Starobilsk Court returned the application without examining it, considering that domestic law did not provide for such proceedings.49. On 22 May 2018 the Starobilsk Court ordered that the second applicant was no longer subject to bail, and it ordered that the bail money which had been paid should be returned to him.Criminal records50. According to the applicants’ most recent submissions (in February 2019), the criminal proceedings against them were still pending. The criminal records database maintained by the Ministry of the Interior lists the first and second applicants as being charged with murder and unlawful mining respectively. Extracts from the database contain a disclaimer to the effect that information in respect of records maintained by the Luhansk regional police was last updated on 4 September 2014.RELEVANT LEGAL FRAMEWORK AND PRACTICEThe 1996 Constitution51. Article 29 of the Constitution guarantees to everyone the right to freedom and personal inviolability, and provides that no one can be arrested or detained other than pursuant to a reasoned court decision, and only on the grounds of and in accordance with a procedure established by law.Rules of criminal procedure52. On 19 November 2012 the new 2012 Code of Criminal Procedure entered into force, replacing the 1960 Code. However, the latter continued to apply under certain circumstances to proceedings started before the entry into force of the new Code.Principles of legality and rule of law in criminal procedure53. Article 9 of the 2012 Code guarantees the general principle of legality, meaning that all public authorities involved in criminal procedure must act in accordance with the law. Paragraph 4 of that Article provides that in the event of a conflict between a binding international treaty and a provision of the Code, a court must apply the treaty. Paragraph 5 provides that criminal procedure legislation is to be applied, taking into account the case-law of the European Court of Human Rights.54. Article 12 of the 2012 Code provides that arrest and detention can only be based on the grounds set out in the Code, and can only be ordered in accordance with the procedures set out in the Code; it also provides that any person detained in excess of the time-limits set out in the Code must immediately be released.Preventive measures, including detention on remand55. The 1960 and 2012 Codes of Criminal Procedure provide for a range of “preventive measures” intended to ensure a defendant’s proper conduct in proceedings. Preventive measures include detention on remand, personal undertakings not to abscond and bail. The relevant provisions of the 1960 Code can be found in Molodorych v. Ukraine (no. 2161/02, §§ 56-58, 28 October 2010), and the relevant provisions of the 2012 Code appear in Korban v. Ukraine (no. 26744/16, § 96, 4 July 2019).56. A person detained on remand can be released if the preventive measure of detention on remand is replaced by a non-custodial measure, such as a personal undertaking or bail. Under the 1960 Code, an application to change or revoke the preventive measure was the only way in which release from detention on remand could be sought. In addition, the 2012 Code instituted the habeas corpus procedure (see paragraph 59 below).57. Article 131 of the 2012 Code provides that preventive measures such as detention on remand aim to ensure the effectiveness of criminal proceedings (“заходи забезпечення кримінального провадження застосовуються з метою досягнення дієвості цього провадження”).Post-conviction detention58. Both the 1960 and 2012 Codes require the convicting court to decide, in particular, on the preventive measure to be applied to a convicted person until the judgment becomes final. A person sentenced to imprisonment is considered to be serving his or her sentence from the date on which the judgment becomes final, namely the date on which it is upheld on appeal. However, if the convicted person is detained on remand, that period of detention counts towards his or her sentence (see Khlebik v. Ukraine, no. 2945/16, §§ 38 and 39, 25 July 2017).Habeas corpus procedure59. Article 206 of the 2012 Code provides for a habeas corpus procedure, whereby the court with territorial jurisdiction over a place where a person is detained must direct the detaining authority to bring to court any person in respect of whom the court has information indicating that he or she may have been detained without sufficient legal grounds. The judge has the power to release any such person, should he or she find that the legal grounds for detention are lacking, defective or insufficient.Restoration of files60. The relevant procedure is set out in Articles 524 to 531 of the 2012 Code of Criminal Procedure. In accordance with those provisions, any party to proceedings may apply to the court which delivered the relevant judgment in order to restore a lost case file. Article 527 of the Code requires persons applying for restoration: to explain why restoration is sought; to provide detailed information as to the specific material that was in the lost file, the names and addresses of parties to the proceedings, the possible location of the lost material and the circumstances in which it was lost; and to furnish the court with all available documentation.Article 529 provides that the court, having received the application, must ask the prosecutor’s office for information and documentation which may help in restoring the case file. Under Article 530, the court can examine as witnesses officials and other persons who took part in procedural actions and, where necessary, judges who examined the case. On the basis of the information and documentation collected in this way, the court may deem the file to be restored in its entirety or in part, or, if it finds the available information insufficient, it may discontinue the proceedings and explain to the parties that they have a right to reapply for restoration if the necessary documentation becomes available (Article 531).Register of Pre-Trial Investigations61. At the material time the relevant rules concerning the Register of Pre-Trial Investigations were contained in the Regulations on Maintaining the Register, enacted by Order no. 69 of the General Prosecutor’s Office of 17 August 2012. The following information had to be included in the register:(i)  the date and time of the crime report;(ii)  the details of the victim or other person reporting the crime;(iii)  a short summary of the crime report or other information on the basis of which the investigation was initiated;(iv)  a criminal-law classification;(v)  details on any transfer of the investigation between various authorities, any suspension [or] renewal of the investigation, [and any] splitting [or] merging of the proceedings;(vi)  details of the official who entered the data into the register;(vii)  information on any arrests, [or] the imposition, change [or] revocation of any preventive measures (detention on remand, bail, a personal undertaking, and so on);(viii)  details of any formal notification of suspicion – the person notified, [and] the criminal classification of the suspicion;(ix)  information on any suspects placed on the list of wanted persons;(x)  the extension of the time-limits of [either] the investigation [or] detention on remand;(xi)  information on any damage caused by the crime, any claims lodged in that regard, [or] the attachment of assets in connection with the proceedings;(xii)  the discontinuation of proceedings.Law No. 1632-VII on the Administration of Justice and Criminal Proceedings in Connection with the Anti‑Terrorist Operation62. The Law was enacted on 12 August 2014 and came into force on 20 August 2014. At the relevant time the military action of the Ukrainian Government forces in the Donetsk and Luhansk Regions was designated as an anti-terrorist operation.63. At the relevant time section 1(1) of the Law authorised the President of the High Specialised Court for Civil and Criminal Matters to designate the courts with jurisdiction over сases which would normally have been examined by courts located in the area where the anti-terrorist operation was being conducted that were prevented from operating at that time.Other relevant material64. Other relevant Ukrainian and international material can be found in Khlebik v. Ukraine (no. 2945/16, §§ 35-55, 25 July 2017).THE LAWJOINDER OF THE APPLICATIONS65. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT66. The first applicant complained that his detention following the events of 2014 – events that had resulted in his case file being lost – had been unlawful under Article 5 § 1 of the Convention, which reads 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;...”The parties’ submissions67. The Government submitted that the first applicant’s detention had been covered by Article 5 § 1 (a) and, as such, had been lawful, since the applicant had been sentenced to fourteen years’ imprisonment. The fact that, under domestic law, such detention was classified as detention on remand was irrelevant. Moreover, the applicant had benefitted from that classification under domestic law, since this had allowed him to be released after spending only a quarter of his sentence in custody.68. The first applicant, citing Creangă v. Romania ([GC], no. 29226/03, § 120, 23 February 2012), submitted that domestic law did not “define clearly the conditions for detention” and had left him in a state of uncertainty as to the duration of his detention pending the appellate proceedings. The applicant also referred to the domestic court’s decision to release him (see paragraph 33 above). He considered that it had implied that he had been detained without a sufficient legal basis.The Court’s assessment69. The Court sees no reason to reach a conclusion in the present case which is different from that reached in the case of Khlebik:“87. The Court, like the parties, finds that the relevant period of the applicant’s detention falls within the ambit of Article 5 § 1 (a) (see Yaroshovets and Others v. Ukraine, nos. 74820/10, 71/11, 76/11, 83/11, and 332/11, §§ 134-35, 3 December 2015). As the applicant was detained following conviction by a competent court ... it is clear that his detention was lawful in terms of domestic law and that its length did not exceed his sentence (contrast ibid., § 150). There is no other indication that his detention was not in conformity with the purposes of the deprivation of liberty permitted by Article 5 § 1 (a) (see, mutatis mutandis, V. v. the United Kingdom [GC], no. 24888/94, § 104, ECHR 1999-IX).88.

Outcome for Article 6: violation