19.05.2019 | Автор: Зеров Костянтин
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«Капштан проти України»: Суд, не встановивши граничного строку тримання Заявника під вартою, порушив його права, гарантовані Конвенцією (ст. 5 Конвенції, заява № 56224/10, від 16.05.2019 р.)

Фабула судового акта: Заявник, громадянин України А.М. Капштан, скаржився на порушення його прав, гарантованих Конвенцією, зокрема на те, що тримання під вартою було свавільним і необґрунтованим, що він не отримав належної конпенсації за свавільне затримання та ін.

Щодо Заявника було порушено кримінальну справу у зв`язку з шахрайством та хабарництвом. Вироком суду Заявника було засуджено до двох років позбавлення волі та повернуто під варту. Суд апеляційної інстанції скасував вирок та направив справу на новий розгляд; Заявника було залишено під вартою.

Заявник неодноразово звертався до суду з клопотаннями про звільнення з-під варти, проте такі клопотання були відхилені судом з мотивів серйозності их вчинених злочинів, можливого перешкоджання слідству та ін. Згодом Заявника було звільнено з під варти, а справу передано до прокуратури на дорозслідування. Вироком суду Заявника було визнано винним у вчиненні шахрайства, а провадження припинено.

ЄСПЛ встановив порушення пункту 1 статті 5 Конвенції, оскільки апеляційний суд, передаючи справу на новий розгляд, залишив Заявника під вартою, не визначивши граничного строку тримання під вартою, що порушувало права Заявника.

ЄСПЛ вирішив, що мало місце порушення пункту 4 статті 5 Конвенції, оскільки суд належним чином не розглянув клопотання Заявника про звільнення з-під варти, не обґрунтував рішення про залишення Заявника під вартою, пославшись на загальні підстави.

ЄСПЛ також встановив порушення пункту 5 статті 5 Конвенції, оскільки Заявник з огляду на положення національного законодавства не міг отримати компенсацію у зв`язку з незаконним триманням під вартою.

Аналізуйте судовий акт: «Харченко проти України» (Kharchenko v. Ukraine), заява № 40107/02

«Сінькова проти України» (Sinkova v. Ukraine), заява № 39496/11

«Тахсін Аджар проти Туреччини» [ВП] (Tahsin Acar v. Turkey [GC]), заява № 26307/95

«Ангелов та інші проти Болгарії» (Angelov and Others v. Bulgaria), заява № 43586/04

«Ракич та інші проти Сербії» (Rakić v. Serbia), заява № 47460/07



(Application no. 56224/10)



16 May 2019

This judgment is final but it may be subject to editorial revision.

In the case of Kapshtan v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Yonko Grozev, President,
Gabriele Kucsko-Stadlmayer,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 23 April 2019,

Delivers the following judgment, which was adopted on that date:


1. The case originated in an application (no. 56224/10) 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, Mr Andriy Mykhaylovych Kapshtan (“the applicant”), on 13 September 2010.

2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice.

3. On 5 January 2016 notice of the complaints under Article 5 §§ 1, 4 and 5 of the Convention was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.



4. The applicant was born in 1969 and lives in Romny.

5. In September 2009 criminal proceedings in respect of fraud and bribery were instituted against the applicant.

6. On 12 January 2010 the Romny Court convicted the applicant of both charges and sentenced him to two years’ imprisonment. By the same decision the court remanded him in custody pending the execution of its judgment.

7. On 23 March 2010, upon an appeal by the applicant, the Sumy Regional Court of Appeal (“the Regional Court”) quashed the judgment of 12 January 2010 and remitted the case for retrial. By the same decision it also ordered his continued pre-trial detention, without providing any reasons or indicating a time-limit for it.

8. On 27 April 2010 the applicant asked the Romny Court to order his release from custody, subject to an undertaking not to abscond. He noted, in particular, that his conviction having been quashed, an undertaking not to abscond would constitute a sufficient measure for ensuring the proper conduct of proceedings. In that regard he submitted that he had no prior criminal record and that the crimes imputed to him were not serious. In addition, he had a permanent residence and had obtained positive character references. He also needed to support a family, including a child, and was suffering from several chronic illnesses which required regular medical supervision and which might deteriorate if he remained in detention. The applicant also submitted that, having been bound by an undertaking not to abscond throughout the first round of the proceedings, he had never attempted to abscond or to obstruct the investigation and had dutifully complied with all his procedural obligations.

9. On an unknown date in May 2010 the Romny Court refused the applicant’s request for release, having found that the crimes imputed to him were sufficiently serious as to potentially warrant a prison sentence of three years or more. It also ruled, without providing any details, that there was sufficient evidence that the applicant might obstruct the proceedings if he were to be released.

10. On several further occasions (in particular, on 13 July, 29 September and 7 December 2010) the applicant lodged similar requests for release; the court rejected each such application on the date on which it was lodged, referring to the seriousness of the offences imputed to the applicant and to the lack of any valid reasons justifying his release.

11. On 10 February 2011 the applicant again asked to be released from custody pending the proceedings against him, reiterating his previous arguments and emphasising that it was very difficult while in detention to keep to his special diet and secure the necessary medical supervision for his chronic medical conditions.

12. On 23 February 2011 the Romny Court allowed that request and released the applicant, subject to an undertaking not to abscond. Referring to Article 5 of the Convention, the court noted that, regard being had to the applicant’s character (in particular, his age, health, family and social status, the absence of a prior criminal record and his positive character references), there was no reason to consider that he would abscond, obstruct the investigation or engage in criminal activity if released pending trial.

13. Subsequently, the case was remitted to the prosecutor’s office for further investigation. The charge of bribery was dropped by the prosecutor’s office, and the applicant was committed to stand trial on the charge of fraud alone.

14. On 23 November 2012 the Romny Court found the applicant guilty as charged and sentenced him to a fine. However, it released him from any liability to pay the fine levied for the crime for which he had been tried as the time-limit for implementing that sanction had expired. Accordingly, the court also terminated the proceedings as time-barred. The applicant did not appeal against this ruling and it became final.



15. By a letter of 30 December 2016 the Government requested the Court to strike the case out of its list and enclosed the text of a unilateral declaration with a view to resolving the issues raised by the applicant.

16. The applicant objected to the request and the contents of the declaration and submitted his comments on 21 February 2017. He argued that the terms of the declaration were unsatisfactory, in particular in the absence of any compensation being offered by the Government for the violation of his Convention rights.

17. The Court notes that, under certain circumstances, it may be appropriate to strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government even if the applicant wishes the examination of the case to be continued. It will, however, depend on the particular circumstances whether the unilateral declaration offers a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (see TahsinAcar v. Turkey (preliminary issue) [GC], no. 26307/95, § 75, ECHR 2003‑VI, and Angelov and Others v. Bulgaria, no. 43586/04, § 12, 4 November 2010).

18. Having studied the terms of the Government’s unilateral declaration, the Court considers, in the particular circumstances of the case and in particular because no compensation has been proposed by the Government, that the unilateral declaration does not provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the case (see Rakić v. Serbia [Committee], no. 78761/12, 7 April 2015).

19. This being so, the Court rejects the Government’s request to strike the application out under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case.


20. The applicant complained that the order of the Court of Appeal of 23 March 2010 to hold him in custody pending the outcome of the retrial in the proceedings against him had been arbitrary and unreasonable. He further complained that he had been denied the opportunity to bring proceedings in which the lawfulness of this decision could be effectively challenged. Lastly, he complained that he had had no enforceable right to compensation for his arbitrary detention. He relied on Article 5 §§ 1, 4 and 5 of the Convention, which 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;


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. Admissibility

21. The Court notes that these complaints 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. Merits

22. The Government did not comment on the substance of the claims. They acknowledged, however, that, in the light of the findings in the case of Kharchenko v. Ukraine (no. 40107/02, §§ 98 and 100, 10 February 2011), the issues raised by the applicant had been found by the Court to be in breach of Article 5 §§ 1, 4 and 5 of the Convention.

23. The applicant maintained his claims.

1. Article 5 § 1 of the Convention

24. The Court notes that on 23 March 2010 the Court of Appeal, having quashed the applicant’s conviction, ordered his retrial and further detention, yet provided no reasons and indicated no time-limit for that detention (see paragraph 7 above). It further observes that in theKharchenko case (cited above, § 98) it found a violation in similar circumstances. The Court does not see any reason to depart from its findings in the present case. Accordingly, there has been a violation of Article 5 § 1 of the Convention.

2. Article 5 § 4 of the Convention

25. The Court notes that the trial court rejected the applicant’s applications for release, which he lodged in 2010, indicating that there was sufficient evidence that the applicant, if released, might obstruct the proceedings, referring to the seriousness of the offences imputed to him, and to the absence of any valid reasons justifying his release (see paragraphs 8 - 10 above). It further notes that the trial court did not provide any specific reasons in its decisions that addressed the applicant’s arguments in favour of release. The Court observes, in this connection, that it has previously found a violation in similar cases against Ukraine (see Kharchenko, cited above, § 100). It does not see any reason to depart from its findings in the present case. Accordingly, there has also been a violation of Article 5 § 4 of the Convention.

3. Article 5 § 5 of the Convention

26. The Court observes that the applicant’s complaint in this regard is similar to the complaints examined by the Court in a number of other cases against Ukraine (see, as the most recent example, Sinkova v. Ukraine, no. 39496/11, §§ 79-84, 27 February 2018). The Court concludes that the applicant did not have an enforceable right to compensation for his unlawful detention, as required by Article 5 § 5 of the Convention. There has therefore been a violation of that provision.


27. 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.”

28. The applicant claimed 500,000 euros (EUR) in respect of non‑pecuniary damage. The Government argued that that claim was unsubstantiated and excessive.

29. Making its assessment on an equitable basis, the Court awards the applicant EUR 5,900 in respect of non-pecuniary damage.

30. The applicant did not request any sum in respect of costs and expenses. Therefore, the Court is not called upon to make an award under this head.

31. 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.


1. Rejects the Government’s unilateral declaration and their request to strike the application out of the Court’s list of cases;

2. Declares the application admissible;

3. Holds that there has been a violation of Article 5 § 1 of the Convention;

4. Holds that there has been a violation of Article 5 § 4 of the Convention;

5. Holds that there has been a violation of Article 5 § 5 of the Convention;

6. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 5,900 (five thousand nine hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non‑pecuniary damage;

(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;

7. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 16 May 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Yonko Grozev
Deputy Registrar President

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