CASE OF ICHIN AND OTHERS v. UKRAINE
Preliminary objection dismissed (victim);Remainder inadmissible;Violation of Art. 5-1;Non-pecuniary damage - award
Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
5. Ms Ichina was born in 1960, Mr Ichin was born in 1991, Ms Dmitriyeva was born in 1969 and Mr Dmitriyev was born in 1990. They live in Sevastopol. 6. On 31 December 2003 Mr Ichin, Mr Dmitriyev and another individual Mr K., all of them minors, stole food supplies and kitchen appliances from a school canteen. 7. On 5 January 2004 they were questioned by the police and confessed to the theft. They returned some of the stolen goods. 8. On 7 January 2004 the investigator instituted criminal proceedings into the theft, after having noted that, between 30 December 2003 and 2 January 2003, unknown persons had broken into a school canteen and stolen food supplies and kitchen appliances. 9. On 13 January 2004 the investigator, with the approval of the District Prosecutor, lodged requests with the Sevastopol Nakhimovskiy District Court (“the Nakhimovskiy Court”) to place Mr Ichin and Mr Dmitriyev in a juvenile holding facility in accordance with Article 7-3 of the Code of Criminal Procedure. The investigator noted that Mr Ichin and Mr Dmitriyev had committed deliberate actions that could be classified as a crime under part 3 of Article 185 of the Criminal Code, that both of them came from big families with low incomes, had contact with criminals, had poor references from school, had a tendency to take part in illegal activities and could not be influenced by their parents. The investigator noted that, in view of the above considerations, there were sufficient grounds to believe that Mr Ichin and Mr Dmitriyev could commit socially dangerous acts (суспільно небезпечні діяння) again. 10. The same day the applicants were summoned by the investigator to appear before the court on 14 January 2004 as witnesses, with their lawful representatives, for having committed socially dangerous acts foreseen by part 3 of Article 185 of the Criminal Code. 11. On 14 January 2004 the Nakhimovskiy Court examined the requests in the presence of the applicants and the prosecutor. By two decisions of the same day, the court ordered Mr Ichin and Mr Dmitriyev to be placed in a juvenile holding facility. The court noted that Mr Ichin and Mr Dmitriyev were accused of socially-dangerous acts and that criminal proceedings had been instigated against them on 7 January 2004. With regard to the reasons given in the investigator's requests (see paragraph 9 above), the court concluded that there were sufficient grounds to believe that Mr Ichin and Mr Dmitriyev could evade the investigation and the course of justice and could continue their criminal activities. The court's decision was final and not subject to appeal. 12. Mr Ichin and Mr Dmitriyev remained in the juvenile holding facility until 13 February 2004. 13. On 3 March 2004 the investigator instituted criminal proceedings against Mr Dmitriyev and Mr Ichin for stealing food supplies and kitchen appliances from the school canteen. 14. On 3 and 4 March 2004 respectively, Mrs Dmitriyeva and Mrs Ichina wrote to the President of the Nakhimovskiy Court complaining of degrading treatment of their sons by the personnel of the juvenile holding facility. In his reply of 15 March 2004 the President of that court informed them that he lacked the power to instigate criminal proceedings against the personnel of the holding facility. 15. According to Mrs Ichina, her complaints to the prosecutor alleging degrading treatment of Mr Ichin in the juvenile holding facility were answered only by a letter from the prosecutor informing her that there were no grounds for a criminal investigation regarding the personnel of the holding facility. 16. According to Mrs Dmitriyeva, her complaints to the prosecutor alleging the degrading treatment of Mr Dmitriyev in the holding facility remained unanswered. 17. On 26 April 2004 the investigator decided that the criminal proceedings against Mr Ichin and Mr Dmitriyev should be terminated as they were under the age of criminal liability and the case should be referred to a court for the application of compulsory educational measures. 18. On 14 May 2004 the Sevastopol Nakhimovskiy District Prosecutor approved the decision of 26 April 2004. 19. On 4 February 2005 the Nakhimovskiy Court examined the materials concerning the application of compulsory educational measures with respect to Mr Ichin and Mr Dmitriyev and decided to limit the punishment to a warning to both of them. There is no evidence that this decision was appealed against. 20. Relevant provisions of the Code as in force at the material time provide as follows: Article 7-3 Procedure for consideration of cases involving socially dangerous acts committed by persons who have not yet reached the age of criminal responsibility “Where an investigator establishes in a criminal case that the socially dangerous act in question was committed by a person between the age of eleven and the age of criminal responsibility, he or she shall give a reasoned decision for terminating the case and applying compulsory educational measures to the minor. The case shall then be sent to the prosecutor together with the decision. ... If it has been established that a person aged between eleven and fourteen who has committed a socially dangerous act resembling an act punishable under the Criminal Code of Ukraine by more than five years' imprisonment requires urgent removal from society, then upon the decision of the investigator or the inquiry body, and with the consent of the prosecutor and by a reasoned decision of the court, he or she may be placed in a juvenile holding facility for a period of up to thirty days. The participation of the defence counsel in such a measure shall be ensured from the time of the placing of the minor in the juvenile holding facility...” Article 447 Procedure for the application of compulsory educational measures to a minor “When in the course of the criminal case examination the court finds that the young offender, who had committed a minor offence or an offence of medium severity, can be corrected, it may issue a decision, by resolution of the judge, terminating the case and imposing on the minor one of the compulsory educational measures mentioned in Article 105 § 2 of the Criminal Code of Ukraine. The judge or the president of the court shall, within ten days, schedule the hearing of the case transferred by the prosecutor under the procedure prescribed by Articles 73 or 9 of this Code if he/she agrees with the decision reached by the prosecutor or investigator. In the event of disagreement, the case shall be returned to the prosecutor with the reasoned decision. The examination of the case mentioned in paragraph 2 of this Article shall be held in public with the compulsory presence of a prosecutor and a defence counsel. In the course of examination, the minor and his/her defence counsel may argue their case and evidence substantiating or disproving the commitment of the offence by the person concerned is examined also. The court also examines other aspects of the circumstances which are essential for the purpose of making a decision as to the application of the compulsory education measures. Minutes shall be taken during the court hearing. After the court's examination is completed, the prosecutor and then the counsel for the defence may express their opinions. If there are sufficient grounds to consider that the person, who, by the court's decision, is to be transferred to the special educational support institution, will take part in illegal activity, then as well as with the aim of ensuring the execution of its decision, the court can, for a temporary period of up to thirty days, place this person in a juvenile holding facility which may transfer him or her afterwards to a special educational support institution.” 21.The relevant provisions of the Law provided as follows: Article 6 Courts “The courts examine cases: concerning minors who have committed a crime; ... concerning detention of minor-offenders in a juvenile holding facility... Cases referred to in the first part of this article shall be examined by the specifically authorised judges (the panel of judges) with the participation of juvenile services, unless otherwise provided by law.” Article 7 Juvenile holding facility “...Minors aged between 11 and 18 may be sent to the juvenile holding facilities for up to thirty days where they: have committed an offence before reaching the age of criminal responsibility for such offence if it is considered necessary to isolate them from society (by a resolution of the body of inquiry and the investigator sanctioned by the prosecutor or by a resolution of the court); ... are transferred to the special institutions for minors by a decision of the court; are absent without official leave from the special educational support institution in which they were staying ...” 22. Relevant provisions of the Regulations read as follows: “1.1. Juvenile holding facilities (hereinafter JHF) are special institutions of the bodies of the Interior for minors, which are designed for temporary detention of certain categories of minors that need to be isolated. 1.2. Juvenile holding facilities (JHF) are created for temporary detention of minors under the age of 11 to 18 ... 1.3. The main tasks of the holding facilities are: prevention of the juvenile offenses; conducting preventive and educational work with them; identification of the causes and conditions which lead to delinquency among the teenagers; ensure appropriate conditions of their detention. ... 5. Preventive and education work in the holding facilities: 5.1. Preventive and education work with minors, who are held in the holding facilities, shall be conducted taking into consideration the age, degree of pedagogical neglect, social danger of the previously committed offenses and other circumstances that are important for effective preventive measures of influence. 5.2. In order to prevent juvenile delinquency, identifying and eliminating causes and conditions that contribute to it, the officials of the holding facilities: 5.2.1. Shall identify the living conditions and education of minors in the family, their personal qualities, interests, reasons for absence without leave from the special educational institution, deficiencies in the activity of enterprises, institutions and educational institutions that contributed to the commission of offenses; reasons for committing crimes, persons participating in them, those places on the list of wanted persons, as well as those who are missing; places of selling stolen goods, the cases of involving minors in criminal and other antisocial activities. 5.2.2. Shall immediately notify the local departments of the Interior in the Crimea, Kiev, Kiev Region, Regional Departments and the City Department of Sevastopol and the departments on transport about the identification of persons who have committed crimes or other circumstances that are important for their successful investigation. 5.2.3. Shall carry out individual educational activities with minors who are held in the holding facilities, focusing on the development of positive predispositions and interests, elimination of behavioural deficiencies, involving them in education and work. 5.2.4. Shall inform the interested government agencies and NGOs on the causes of juvenile offences, make proposals for elimination of such causes and conditions, as well as on improving the organization of education and labour education of minors, who are held in the holding facilities.”