FIFTH SECTIONCASE OF GRANKOV v. UKRAINE(Application no. 16800/16)   JUDGMENT STRASBOURG11 February 2021    This judgment is final, but it may be subject to editorial revision. In the case of Grankov 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 application (no. 16800/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Sergiy Oleksandrovych Grankov (“the applicant”), on 15 March 2016;the decision to give notice of the application to the Ukrainian Government (“the Government”);the parties’ observations;Having deliberated in private on 21 January 2021,Delivers the following judgment, which was adopted on that date:INTRODUCTION1.  The applicant was detained on criminal charges in a part of Donbass under the Ukrainian Government’s control, while his criminal case file remained in a part which the Government no longer control. He was eventually released because the courts could not proceed with his trial in the absence of the case file. He alleged that his detention in circumstances where the courts had been unable to examine his criminal case had been contrary to the requirements of Article 5 §§ 1-4 of the Convention. He also alleged that he did not have an enforceable right to compensation in that regard.THE FACTS2.  The applicant was born in 1971 and lives in Kostyantynivka. He was granted legal aid and was represented by Ms N.G. Okhotnikova, a lawyer practising in Kyiv.3.  The Government were represented by their Agent, Mr I. Lishchyna.4.  The facts of the case, as submitted by the parties, may be summarised as follows.5.  In May 2012 criminal proceedings were instituted against the applicant in relation to offences of robbery and attempted rape of a minor committed in Horlivka on 12 May 2012.6.  On 25 May 2012 the applicant was arrested.7.  On 1 June 2012 the Horlivka Tsentralno-Misky District Court remanded the applicant in custody. It noted the investigator’s arguments and stated that the applicant had four prior convictions, no occupation and no strong social connections, and therefore, if released, he could continue his criminal activity and abscond.8.  On 17 December 2013 the Horlivka Tsentralno-Misky District Court convicted the applicant of theft and attempted aggravated rape, and sentenced him to seven years and six months’ imprisonment. The term of his imprisonment was to be counted from 25 May 2012, and he was to remain in detention pending an appeal.9.  On 14 May 2014 the Donetsk Regional Court of Appeal quashed the judgment and remitted the case for a retrial by the same trial court, and it extended the applicant’s detention without indicating any grounds for the detention or a time-limit for it. The court held that the change of the charges from robbery to theft had not been presented to the applicant properly, and that the charges and assessment of the evidence in that regard were unclear.10.  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 Horlivka. At the time those events were unfolding the applicant was detained in Artemivsk[1] Prison, located in a part of the Donetsk Region that remains under the control of the Ukrainian Government. He remained in that prison until his release (see paragraph 18 below).11.  In September 2014 the jurisdiction of the Horlivka Court was reassigned to the Slovyansk Court (hereinafter “the new trial court”) under Law No. 1632-VII (see paragraph 32 below). However, the case-file material was not sent to the new trial court. The case file in the applicant’s criminal case remained at the original trial court’s building in Horlivka.12.  On 20 April 2015 the applicant lodged an application for release with the Artemivsk Court.13.  On 6 July 2015 the new trial court rejected an application by the prosecutor for the case to be scheduled for trial, reasoning that it was unable to do so in the absence of the case-file material and the bill of indictment in particular. On 31 July 2015 the State Judicial Administration (the agency responsible for the administrative and organisational aspects of courts’ work) informed the new trial court that it was not possible to safely transfer the file from the Horlivka Court.14.  On 22 July 2015 the Parliamentary Commissioner for Human Rights asked the Artemivsk Court why the applicant’s application for release had not been examined.15.  On 30 July 2015 the applicant lodged an application for release with the new trial court.16.  On 4 August 2015 the Artemivsk Court informed the applicant and the Parliamentary Commissioner that on 8 July 2015 it had asked the State Judicial Administration to provide information as to the possibility of transferring the file from the territory not under the Government’s control.17.  On 7 August 2015 the new trial court refused to examine the applicant’s application for release on the grounds that it had no case file.18.  On 16 September 2015 the Artemivsk Court held a habeas corpus hearing in the presence of the applicant (see paragraph 29 below for the relevant provision of the Code of Criminal Procedure) and released him. The court noted that the applicant had been detained lawfully, on the basis of the order of the Horlivka Court of 1 June 2012 (see paragraph 7 above). At the same time, the court noted the difficulties regarding the new trial court starting the trial (see paragraph 13 above) and noted that on 16 July 2015 the new trial court had informed the Artemivsk Court that it had still not received the case file. The Artemivsk Court concluded that it was unclear when the proceedings against the applicant could continue. Owing to this uncertainty, he had to be released. This was because under the Code of Criminal Procedure, the aim of preventive measures such as detention was to ensure the effectiveness of criminal proceedings, and detention effectively in the absence of proceedings was in breach of the principle of legality of detention (see paragraphs 26 and 27 below). The court invoked Article 5 § 4 of the Convention and the provisions of the Code of Criminal Procedure providing for 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 25 and 26 below).19.  At some point thereafter the new trial court scheduled the applicant’s case for trial on 2 February 2016. It is unclear on what case-file material its decision to do so was based. It is possible that some case-file material was either transferred from the territory not under the Government’s control or otherwise recovered and submitted to the new trial court, or that the trial court decided to proceed on the basis of the limited material already available to it.20.  On 2 February 2016 the new trial court noted that the applicant had failed to appear for his trial when summoned and his whereabouts were unknown. The court accordingly put him on the wanted list and ordered his arrest. On 26 July 2016 the applicant was arrested.21.  On 5 October 2016 the new trial court convicted the applicant of the same charges and sentenced him to seven years’ imprisonment. However, counting one day spent in pre-trial detention as two days of post-conviction imprisonment under the provisions of the Code of Criminal Procedure which was then in force (see Khlebik, cited above, § 46), the applicant’s term of imprisonment was considered served and he was released; he had previously been in pre-trial detention from 25 May 2012 to 16 September 2015, and from 26 July 2016 to 5 October 2016.RELEVANT LEGAL FRAMEWORK AND PRACTICEThe 1960 and 2012 Codes of Criminal Procedure22.  On 19 November 2012 the 2012 Code of Criminal Procedure (“the 2012 Code”) entered into force. However, the 1960 Code of Criminal Procedure (“the 1960 Code”) continued to apply under certain circumstances to proceedings started before the entry into force of the 2012 Code.23.  The relevant provisions of the 1960 Code concerning detention pending investigation and trial can be found in the Court’s judgment in the case of Molodorych v. Ukraine (no. 2161/02, §§ 56-58, 28 October 2010).24.  In accordance with item 9 of the Transitional Provisions of the 2012 Code, preventive measures, including detention on remand, imposed pursuant to the rules of the 1960 Code prior to 20 November 2012 have to remain in effect until such time as they are altered, revoked or discontinued in accordance with the provisions of the 1960 Code.25.  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.26.  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.27.  Article 131 of the 2012 Code provides that preventive measures such as pre-trial detention (detention on remand) aim to ensure the effectiveness of proceedings (“заходи забезпечення кримінального провадження застосовуються з метою досягнення дієвості цього провадження”).28.  Article 194 § 1 of the 2012 Code provides that, in examining an application for a preventive measure, a court must consider whether the prosecutor has proved: (i) that there is a reasonable suspicion against the defendant; (ii) that there is a risk of the defendant absconding, obstructing the investigation, reoffending, and so on; and (iii) that that risk cannot be prevented through less stringent preventive measures.29.  Article 206 of the 2012 Code provides for a habeas corpus procedure, whereby the court with jurisdiction over a place where a person is detained must direct the detaining authority to bring to court any person in respect of whom that 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.The Civil Code 200330.  Article 1176 of the Code imposes on the State an obligation to fully compensate an individual for damage caused to him or her by an unlawful conviction, the unlawful imposition of criminal liability, the unlawful application of a preventive measure (including detention on remand) or unlawful arrest, regardless of the guilt of the officials or authorities involved. It further specifies that the right to compensation “arises in cases provided for by law”.Law No. 1632-VII on the Administration of Justice and Criminal Proceedings in Connection with the Anti‑Terrorist Operation31.  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”.32.  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 criminal 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.33.  Section 1(3) provides that cases pending before courts that are prevented from operating will be transferred to courts which have been designated in accordance with the Law. If the case file cannot be transferred, proceedings are to be conducted on the basis of the material submitted by the parties, “provided that such material is sufficient for the court to decide on the matter”.The 1994 Law on the Procedure for Compensation for Damage caused by Law-Enforcement Authorities and Courts (“the Compensation Act”)34.  Under section 1 of the Act, a person is entitled to compensation for damage caused by an unlawful conviction, an unlawful indictment, unlawful arrest or unlawful detention on remand. In such cases, persons are to be compensated for damage, regardless of whether the relevant officials from the law-enforcement authorities or courts were at fault. Section 2 makes provision for cases where the right to compensation arises, among them cases where there is an acknowledgement, in a judicial decision, that the detention on remand was unlawful.THE LAWALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION35.  The applicant complained that his detention from 14 May 2014 to 16 September 2015 had been contrary to the requirements of Article 5 §§ 1 and 3 of the Convention, which, in so far as relevant, 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.”Admissibility36.  The Court notes that this part of the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.MeritsThe parties’ submissions(a)   The applicant37.  The applicant criticised the Government’s failure to identify with precision the moment when they had lost control over the territory where his case file was stored. The seizure of territory in Donbass by armed groups had not been unexpected or simultaneous, and the authorities had been in a position to anticipate it; they should have taken measures to secure files or make electronic copies ahead of time. However, they had not done anything. There had also been no action at either local or central Government level: no person at the courts had taken responsibility for moving the files while there was still time. Legislation reassigning jurisdiction over cases whose progress would be affected had only been adopted following a considerable delay, in August 2014 (see paragraph 31 above). Parliament had not enacted any legislation addressing the problem of blocked case files since 2014.38.  Once a case file was rendered inaccessible to the domestic authorities there was no reasonable suspicion against a defendant, since, in the absence of the file, they did not have the evidence to prove the defendant’s guilt. As the existence of a reasonable suspicion was a prerequisite for detention under domestic law (see, for example, paragraph 28 above), in the absence of such a suspicion, the applicant’s detention had not been “lawful”.39.  The lack of due process in domestic law had created a situation of legal uncertainty in which the applicant’s detention had not been “associated with any procedural requirements”. No time-limit for his detention had been fixed, and for more than a year and a half he had remained in a state of uncertainty as to the grounds for his detention. Had the domestic court not released him, he would have remained in such a state of uncertainty indefinitely.40.  For a year and six months the respondent State had not taken appropriate measures to stop the violation of the applicant’s rights. The Slovyansk Court had not made a formal decision on his applications for release. This had created a legal vacuum which, in the applicant’s opinion, amounted to a flagrant denial of justice by the Slovyansk Court.(b)   The Government41.  The Government submitted that the decision to remand the applicant in custody had been based on the fact that: he had been accused of serious offences punishable by more than five years’ imprisonment; he had had a criminal record; and he had had no employment or stable social connections, which had indicated that there was a risk that he might abscond, commit a new offence or disrupt the investigation (see paragraph 7 above). When the examination of the applicant’s case had been suspended owing to the lack of access to the case file, the domestic court had directly applied Article 5 of the Convention and released him, despite the lack of specific domestic regulations on this point.The Court’s assessment42.  The Court observes that from 14 May 2014 to 16 September 2015 (see paragraphs 9 and 18 above) the applicant’s detention was based on a legislative framework which did not require the courts, at the trial stage, to provide any grounds for detention or set a time-limit for such detention, and indeed in the applicant’s case, no reason was provided and no-time limit was set. The Court has dealt with similar situations in the past and has found that such a practice is incompatible with the requirement of lawfulness enshrined in Article 5 § 1 (see Kharchenko v. Ukraine, no. 40107/02, §§ 73‑76 and 98, 10 February 2011). It does not see any reason to depart from that conclusion in the present case. Accordingly, there is no call to examine separately the remainder of the applicant’s arguments in this regard.28.  The Court finds accordingly that there has been a violation of Article 5 § 1 of the Convention.43.  In view of the above finding, the Court considers that, in the circumstances of the present case, the applicant’s complaint under Article 5 § 3 of the Convention raises no issue requiring a separate examination (see, for example, Chuprikov v. Russia, no. 17504/07, § 67, 12 June 2014).ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION44.  The applicant complained that he did not have access to a procedure by which the lawfulness of his detention could be examined, a procedure as provided for in Article 5 § 4 of the Convention, which reads as follows:“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.”Admissibility45.  The Court notes that this part of the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.MeritsThe parties’ submissions46.  In his submissions, the applicant stated “the absence of court decisions to extend the detention period does not automatically lead to the recognition of the lawfulness of such detention”. He insisted that he had “repeatedly appealed to [the competent courts]”. Citing Stašaitis v. Lithuania, (no. 47679/99, § 67, 21 March 2002), the applicant submitted that the absence of any grounds given by the judicial authorities in their decisions authorising detention for a prolonged period of time might be incompatible with the principle of protection from arbitrariness enshrined in Article 5 § 1.47.  The Government submitted that the applicant had regularly been provided with responses to his applications for release.The Court’s assessment48.  The Court observes that in Molodorych v. Ukraine (no. 2161/02, § 108, 28 October 2010) it found that the old 1960 Code of Criminal Procedure did not provide for a procedure to review the lawfulness of continued detention after the completion of pre-trial investigations satisfying the requirements of Article 5 § 4 of the Convention. In the present case, however, the applicant’s applications for release were examined under the new 2012 Code. As the decision of the Artemivsk Court to release the applicant illustrates (see paragraph 18 above), under the 2012 Code, he did have at his disposal a procedure by which the lawfulness of his detention could be decided.49.  The only question before the Court is whether that procedure was speedy.50.  The applicant’s application for release was lodged on 20 April 2015, but the domestic court did not rule on it until 16 September 2015 (see paragraph 18 above), almost five months later.51.  In the context of detention falling within the ambit of Article 5 § 1 (c) (as in the present case), the Court has found violations of the “speediness” requirement of Article 5 § 4 where domestic courts took much less time to examine applications for release than the court in the present case (see, for example, Kadem v. Malta, no. 55263/00, §§ 44-45, 9 January 2003, where the Court considered a period of seventeen days excessive, and Sizarev v. Ukraine, no. 17116/04, §§ 165-67, 17 January 2013, where a period of one month and five days raised an issue).52.  The Court is aware of the particular context in which the applicant’s application for release was lodged and examined. It has held that an exceptional context can sometimes render excusable a duration which would otherwise not meet the requirements of speediness under Article 5 § 4 (see Mehmet Hasan Altan v. Turkey, no. 13237/17, §§ 164-67, 20 March 2018).53.  The Court is therefore prepared to accept that before ruling on the applicant’s application for release the domestic courts needed a certain amount of time to make enquiries about the possible transfer of his case file from the territory the Government no longer controlled, and to evaluate whether the situation might develop favourably in order to facilitate that process. However, there is no explanation as to why the court proceeded to make such enquiries only on 8 July 2015, that is, more than two months after the application for release had been lodged (see paragraph 16 above).54.  These considerations are sufficient for the Court to conclude that the length of the proceedings for the review of the lawfulness of the applicant’s detention was not compatible with the “speediness” requirement, and there has therefore been a violation of Article 5 § 4 of the Convention.ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION55.  The applicant complained that that he had no enforceable right to compensation in respect of the breach of his rights under Article 5 §§ 1 to 4 of the Convention. He invoked Article 5 § 5 of the Convention, which reads as follows:“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.”Admissibility56.  The Court notes that this part of the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.MeritsThe parties’ submissions57.  The applicant submitted that the domestic court, in releasing him on 16 September 2015, had found that there were no grounds to detain him further. However, it had not found that his detention from 14 April 2014 to 16 September 2015 had been unlawful. There was no domestic judicial finding as to the unlawfulness of his detention, and therefore he could not apply for compensation under section 2 of the Compensation Act (see paragraph 34 above).58.  The Government submitted that the domestic court had released the applicant as soon as the unavailability of the case file had been definitely established. If domestic courts found that the applicant’s detention had been unlawful, he could claim compensation under Article 1176 of the Civil Code or section 1 of the Compensation Act (see paragraphs 30 and 34 above).The Court’s assessment59.  The Court has examined this issue in numerous other Ukrainian cases. It has found that a right to compensation under Article 5 § 5 of the Convention is not ensured in the domestic legal system when the Court establishes that there has been a violation of any of the preceding paragraphs of that Article, and when there is no domestic judicial decision establishing the unlawfulness of detention (see, for example, Taran v. Ukraine, no. 31898/06, §§ 89-90, 17 October 2013, and Korban v. Ukraine, 26744/16, § 201, 4 July 2019). The Court finds no reason to reach a different conclusion in the present case.60.  There has therefore been a violation of Article 5 § 5 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION61.  Article 41 of the Convention provides:“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”Damage62.  The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage.63.  The Government contested that claim, considering that it was exorbitant and that there was no causal link between the alleged violation and the amount of compensation claimed.64.  Taking note of the fact that the applicant’s early release (see paragraph 21 above) must have provided partial redress for the violation of Article 5 § 1 the Court has found in the present case, the Court finds it appropriate to award the applicant EUR 2,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable.Default interest65.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the application admissible;Holds that there has been a violation of Article 5 § 1 of the Convention;Holds that the applicant’s complaint under Article 5 § 3 of the Convention raises no issue requiring a separate examination;Holds that there has been a violation of Article 5 § 4 of the Convention;Holds that there has been a violation of Article 5 § 5 of the Convention;Holds(a)  that the respondent State is to pay the applicant, within three months, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;Dismisses the remainder of the applicant’s claim for just satisfaction.Done in English, and notified in writing on 11 February 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller  Arnfinn BårdsenDeputy Registrar President [1] Artemivsk was subsequently renamed Bakhmut.