FIFTH SECTION      CASE OF KATAN v. UKRAINE (Application no. 19397/10)         JUDGMENT  STRASBOURG 10 October 2019      This judgment is final but it may be subject to editorial revision. In the case of Katan v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Síofra O’Leary, President, Ganna Yudkivska, Lado Chanturia, judges,and Milan Blaško, Deputy Section Registrar,Having deliberated in private on 17 September 2019,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 19397/10) 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, Ms Olga Ivanovna Katan (“the applicant”), on 16 March 2010.2. The applicant was represented by Ms A. Kulchytska, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.3. On 12 June 2018 notice of the complaints concerning the lawfulness of the applicant’s detention ordered on 31 January and 5 February 2009, the overall length of her pre-trial detention, and the lack of effective judicial review of the lawfulness of her continued detention, as well as the complaint of a lack of access to a court, were given 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 CASE4. The applicant was born in 1954 and lives in Kyiv.5. On 28 January 2009 criminal proceedings were instituted against the applicant, then advisor to the mayor of Dnipropetrovsk, in connection with a number of incidents of fraud. She was suspected of forging documents to sell apartments that were in communal ownership. It was alleged that she had conspired with other individuals to transfer the ownership rights to the apartments to third parties for remuneration.6. On the same date the applicant was arrested by the investigator as a suspect in the context of the above-mentioned criminal proceedings.7. On 31 January 2009 the investigator requested the Babushkinskyy District Court of Dnipropetrovsk (“the District Court”) to order the applicant’s detention as a preventive measure on the grounds that she was suspected of a serious crime and might, as advisor to the mayor, hinder the investigation by putting pressure on witnesses or victims. He also submitted that not all of the applicant’s accomplices had yet been identified. The applicant in turn requested the court not to order her detention as she needed to undergo medical treatment.8. On the same day the District Court refused the investigator’s request but extended the applicant’s police custody until 5 February 2009 pursuant to Article 165-2 of the Code of Criminal Procedure of Ukraine (“the CCP”) in order to obtain information on the need for her to undergo medical treatment. It also instructed the investigating authorities to provide more evidence of the applicant’s involvement in the crime. The decision was not amenable to appeal.9. On 5 February 2009 the District Court allowed the investigator’s request and ordered the applicant’s detention as a preventive measure with effect from the same date. It noted that she was suspected of a serious crime and might, if released, hinder the investigation by influencing witnesses. No further details were provided in that regard. That decision was amenable to appeal within three days of service.10. On 9 February 2009 the applicant appealed against the decision of 5 February 2009. The documents in the file indicate that the applicant’s appeal was received by the Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal”) on the same date. In her appeal, the applicant also requested an extension of the time-limit for lodging it as the last day of the three-day’ time limit set by the law in this respect had fallen on Sunday, 8 February 2009. According to the applicant, she has no knowledge as to whether her appeal was ever examined by that court.11. On 25 March 2009, at the investigator’s request, the District Court extended the applicant’s detention until 28 May 2009 on the grounds that additional time was required to complete the investigation. The court further found that there were no grounds for changing the preventive measure as the applicant was accused of a serious crime and might, if released, abscond or in some other way impede the investigation and trial. The court noted that the applicant’s reference to her poor state of health could not serve as grounds for changing the preventive measure as her health conditions, according to the medical evidence in the case file, did not prevent her from participating in court hearings. The applicant did not appeal against that decision.12. On 27 May 2009 the Court of Appeal extended the applicant’s detention until 9 June 2009 on the grounds that she had been examining the case file and, accordingly, more time was required to complete the investigation. That decision was not amenable to appeal.13. On 25 June 2009, when committing the applicant for trial, the District Court found that there were no grounds for changing the previously chosen preventive measure and accordingly rejected a request by the applicant for release.14. During the trial the applicant regularly asked to be released, merely relying on her poor state of health. In a number of requests she also argued that there were no grounds to believe that she would abscond or in any way impede the investigation and trial as she had no criminal record, had a permanent place of residence and had been given a positive character reference by others.15. On 20 and 25 August, 4 September, 27 October and 29 December 2009, and on 19 January, 2 February, 27 April, 20 May and 19 October 2010 the District Court dismissed the applicant’s requests for release with the same reasoning. In particular, it found, without providing any details, that all the relevant circumstances, including the applicant’s health conditions, had been taken into account when her pre-trial detention as a preventive measure had been ordered. It went on to note that she had failed to provide any evidence which could serve as grounds for changing the preventive measure.16. On 10 December 2010 the District Court convicted the applicant of fraud and forgery of documents and sentenced her to five and a half years’ imprisonment, with confiscation of property. On 15 June 2011 the Court of Appeal upheld her conviction.17. On 11 August 2011 the applicant’s husband concluded an agreement authorising a lawyer, Sh., to provide legal assistance to her in proceedings before the higher court. On 12 September 2011 Sh., acting on the basis of that agreement, applied for leave to appeal in cassation on the applicant’s behalf. On 26 October 2011 the Higher Specialised Civil and Criminal Court (“the HSCCC”) refused to grant him leave to appeal in cassation on the grounds that there was no evidence that he had had authority to sign the leave for appeal form on the applicant’s behalf.18. On unspecified date Sh. relodged the request for leave to appeal in cassation, providing arguments as regards his authority to act as the applicant’s representative. He also requested that the examination of the applicant’s appeal on points of law be carried out in the applicant’s presence. Both requests were allowed by the HSCCC, and on 2 February 2012, in the presence of the applicant and Sh., the appeal on points of law was rejected as unsubstantiated and the judgment of the Court of Appeal upheld in substance.II. RELEVANT DOMESTIC LAW19. The provisions of the CCP, as worded at the material time, concerning the types of preventive measures and their application, the time‑limits for pre-trial detention, and the grounds for and procedure of detention, can be found in Molodorych v. Ukraine (no. 21618/02, §§ 56-58, 28 October 2010).THE LAWI. SCOPE OF THE CASE20. In her reply to the Government’s observations, the applicant complained under Article 5 § 1 of the Convention about the lawfulness of her arrest on 28 January 2009 and detention under the District Court’s decision of 25 March 2009. She further complained under Articles 3, 8 and 34 of the Convention that a number of other violations of her rights had occurred during her pre-trial detention.21. The Court notes that these new, belated complaints do not constitute an elaboration of the applicant’s original complaint, on which the parties have commented. The Court considers, therefore, that it is not appropriate to take up these matters in the context of the present case (see, for example, Kapustyak v. Ukraine, no. 26230/11, § 52, 3 March 2016).II. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 and 3 OF THE CONVENTION22. The applicant complained under Article 5 § 1 of the Convention that the court order of 31 January 2009 to remand her in police custody and the court’s decision of 5 February 2009 ordering her pre-trial detention had been unlawful and had not been based on sufficient reasons. Furthermore, she complained under Article 5 § 3 of the Convention about the overall length of her pre‑trial detention. The relevant parts of the provisions relied on 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 ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.A. Admissibility23. The Government maintained that the applicant had failed to exhaust effective domestic remedies in respect of her complaint under Article 5 § 1 of the Convention about the lawfulness of her detention under the District Court’s decision of 5 February 2009. In particular, it had been open for her to challenge that decision before the Court of Appeal but she had failed to do so.24. The applicant argued that she had in fact challenged the lawfulness of the decision of 5 February 2009 before the Court of Appeal but had never been informed of the outcome. She provided the Court with a copy of her appeal bearing a stamp of the Court of Appeal. The Government provided no comments whatsoever on this factual submission of the applicant.25. The stamp on the applicant’s appeal against the decision of 5 February 2009 suggests that it was received by the Dnipropetrovsk Court of Appeal on 9 February 2009. However, there is no evidence in the case file, with the Government being silent on the matter, that any decision was taken by that court following the applicant’s appeal. In these circumstances, the Court therefore dismisses the Government’s objection as to the non-exhaustion of domestic remedies.26. The Court further notes that the complaints under Article 5 §§ 1 and 3 of the Convention are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.B. Merits1. Lawfulness of the applicant’s detention under the court’s decisions of 31 January and 5 February 2009 (Article 5 § 1)(a)  The parties’ arguments27. The applicant complained that the court decisions in question had been arbitrary and had lacked reasoning. The need for the prosecution to collect additional evidence on her involvement in the crime and to clarify any need to undergo medical treatment, invoked by the court in the decision of 31 December 2009, could not serve as grounds for deprivation of liberty under domestic law. The existence of the risks referred to in the court’s decision of 5 February 2009 had not been supported by any factual examples. In addition, on both occasions the court had failed to take into account the applicant’s state of health or information about her character, behaviour and honours.28. The Government maintained that the impugned decisions had been lawful and based on relevant and sufficient reasons. The domestic court had not been guided by abstract assumptions, and had taken into account the available factual evidence and all relevant factors, including the risk of the applicant absconding from the investigation and trial or influencing witnesses and victims.(b)  The Court’s assessment29. The relevant general principles of the Court’s case-law are summarised in Merabishvili v. Georgia ([GC], no. 72508/13, §§ 181 to 186 and 222 to 225, 28 November 2017).(i)  Detention under the court’s decision of 31 January 200930. The Court notes that, once the applicant was brought before a court on 31 January 2009 she was not remanded in custody, but her detention was extended until 5 February 2009 with reference to Article 165-2 of the CCP, which provides that a court may extend a person’s detention for up to ten days (fifteen days at the request of the suspect or accused) in order to examine all the information necessary to take a balanced decision on the person’s detention. The Court has previously held that an extension of detention under Article 165-2 may be justified in certain circumstances where the court requires time to establish the person’s identity and collect other information crucial for taking a decision on his or her pre-trial detention. At the same time, the Court has noted that the reasons not to release the person should be compelling (see Barilo v. Ukraine, no. 9607/06, § 93, 16 May 2013). In the present case, the reasons for extending the applicant’s detention were the need to verify whether her state of health warranted her medical treatment, as suggested by her, and to obtain more evidence on her involvement into the crime (see paragraph 8 above). The Court notes that the reasons given do not substantiate the existence of any risks or circumstances justifying the need to keep her in detention in the meantime. In fact, the court’s decision did not contain any assessment of the applicant’s individual circumstances or the risks justifying her detention. It does not appear from the documents submitted by the parties that there were any compelling reasons for the applicant’s continued detention (see and compare Barilo, cited above, §§ 91-98; Gal v. Ukraine, no. 6759/11, § 32, 16 April 2015; and Kushch v. Ukraine, no. 53865/11, §§ 113-15, 3 December 2015).31. The Court thus considers that the applicant was detained in breach of Article 5 § 1 of the Convention between 31 January and 5 February 2009.(ii)  Detention under the court’s decision of 5 February 200932. The applicant was detained under the above-mentioned decision until 25 March 2009, when her detention was further extended by the trial court. When ordering her detention on 5 February 2009, the District Court did not set any time-limit. Furthermore, it simply relied on the reasons for detention listed in the investigator’s submissions, without any examination of the plausibility of the grounds invoked by the latter in the applicant’s particular circumstances. There appears to be no indication in the case file before the Court that prior to the imposition of the detention measure the applicant had attempted to obstruct the investigation, interfere with witnesses or abscond during the investigation or that there had been other reasons justifying her pre-trial detention.33. The Court has previously found a breach of Article 5 § 1 of the Convention in several cases against Ukraine owing to the combination of a lack of reasons for ordering pre-trial detention and a failure to limit its duration, even when the maximum possible duration of detention is known (see, for example, Gal, cited above, § 37, 16 April 2015, and Kleutin v. Ukraine, no. 5911/05, § 105, 23 June 2016).34.

Outcome for Article 5: violation