Communicated on 5 January 2018

FOURTH SECTION

Application no. 68353/17 Sergiy Vasylyovych KRAYNYAK against Ukraine lodged on 7 September 2017

STATEMENT OF FACTS

The applicant, Mr Sergiy Vasylyovych Kraynyak , is a Ukrainian national, who was born in 1994 and is detained in Kyiv. He is represented before the Court by Mr O.V. Zaru tskyy , a lawyer practising in Kyiv.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 31 August 2015 the Parliament of Ukraine was debating draft legislation providing for allocation of greater powers to the local authorities of certain districts of the Donetsk and Luhansk regions. Legislation was introduced within the framework of implementation of the so-called Minsk Agreements and the Package of Measures for their Implementation which provide for ceasefire in those regions (see Khlebik v. Ukraine , no. 2945/16 , § 12 , 25 July 2017) .

Draft legislation inspired considerable opposition. A crowd of protesters gathered in front of the Parliament. The applicant was among them. The crowd behaved violently and attacked the National Guard troops who were guarding the Parliament. A hand grenade was thrown from the crowd. It exploded killing four servicemen and injuring more than a hundred people.

On the same day the applicant was arrested on suspicion of having participated in a mass disorder (riot) and having committed violent acts against law enforcement officers.

On 2 September 2015 the Kyiv Pechersky District Court (“the Pechersky Court”) ordered the applicant ’ s pre-trial detention until 29 October 2015. The court found that there was reasonable suspicion against the applicant, supported by witness statements and results of visual identification by witnesses. The court stated that, in ordering the applicant ’ s pre-trial detention, it took into account the gravity of the offence he was suspected of and the circumstances under which it had been committed. It considered that there was a risk that the applicant would influence witnesses, would abscond and continue criminal activity and that a non-custodial preventive measure was insufficient to guard against those risks. The court, given the extreme dangerousness of the violent acts the applicant was suspected of, decided not to set bail. On 15 September 2015 the Kyiv City Court of Appeal upheld the detention order.

On 16 September 2015 the applicant was charged with participation in a terrorist act which resulted in a death, an offence carrying the maximum sentence of life imprisonment.

On 27 October 2015 the Pechersky Court extended the applicant ’ s detention. It cited reasons similar to those in the original detention order, adding in particular that the acts, of which the applicant was suspected, had caused mass casualties. This meant that there was strong public interest in ensuring an orderly investigation and that there was a risk that the applicant may flee, influence witnesses and other suspects, destroy evidence and otherwise interfere with the investigation. Lastly, the court referred to Article 176 § 5 of the Code of Criminal Procedure, which provided that pre ‑ trial detention was the only possible preventive measure for individuals suspected of terrorism.

On 16 December 2015 and 15 February 2016 the court extended the applicant ’ s detention. It relied on essentially the same grounds as those in the previous order.

In extending the applicant ’ s detention on 24 March 2016 the court stated that reasonable suspicion against the applicant was supported by the evidence, that the risks identified in the original detention order continued to exist and that, in particular in view of the gravity of potential punishment, there was a risk of flight which could not be avoided through a non-custodial preventive measure. Moreover, the investigating authority needed more time to complete the investigation, in particular because more than seventy expert examinations had been commissioned and had not been completed yet, measures were being taken to identify the organisers and other active participants in the offences, intelligence was being gathered, and confrontations needed to be organised between the suspects and victims and other witnesses. The court, given the extreme dangerousness of the violent acts the applicant was suspected of, decided not to set bail.

On 16 May 2016 and 30 August 2016 the court extended detention on the grounds similar to those stated in the previous order. It also referred to Article 176 § 5 of the Code of Criminal Procedure.

On 10 August 2016 a bill of indictment was drawn up in respect of the applicant and his co-defendant, a certain Mr Gumenyuk . According to the indictment, the applicant, acting in conspiracy with Mr Gumenyuk , had thrown a smoke grenade at the National Guardsmen, thus creating the cover for Mr Gumenyuk to throw the live grenade. Prior to the attack the defendants had known each other as activists of the Sokil youth organisation. Since June 2014 Mr Gumenyuk served in a special volunteer police unit Sich which had participated in the anti-terrorist operation in the Donetsk and Luhansk regions (see Khlebik , cited above, §§ 9-11) . The applicant had also visited the theatre of operations there as a volunteer. Based on this experience and contacts Mr Gumenyuk had enlisted the applicant ’ s help in the commission of the terrorist act near the Parliament. In order to dissimulate their identity and plans Mr Gumenyuk and the applicant had arrived on the scene of the future attack separately and covered their faces. Mr Gumenyuk had been intercepted in flight and resisted the police.

On 30 August 2016 the Kyiv Shevchenkivsky District Court (“the trial court”), in returning the indictment to the prosecutor for clarification, extended the applicant ’ s and his co-defendant ’ s detention. It stated that, even though the defendants had strong social connections, families and addresses, it was likely that, given the severity of the punishment they were facing, they could abscond. Moreover, the court considered reasonable the prosecutor ’ s argument that, in view of their military experience, the applicants had acquired particular skills making it possible that they would interfere with the investigation.

On 25 October 2016 the trial court held a preparatory hearing at which it examined the amended indictment and committed the applicant and his co ‑ defendant for jury trial. At the same time it extended the applicant ’ s detention. It held that, since neither the prosecutor nor the defence submitted any motions in this respect, the defendants ’ detention had to be extended by virtue of Article 315 § 3 of the Code of Criminal Procedure. It further stated that the applicants stood accused of a highly dangerous crime against public safety and therefore the protection of the society required that detention be extended.

On 13 December 2016 the trial court extended the applicant ’ s detention in terms similar to those used in the order of 30 August 2016.

On 19 January 2017 Judge B. was assigned to the case as the presiding judge.

On 25 January 2017 the applicant challenged Judge B. He submitted that the special investigation commission established under the Restoration of Confidence in the Judiciary Act found that in December 2013 that judge had made politically motivated decisions against Euromaidan protesters (see Shmorgunov v. Ukraine , no. 15367/14, and 32 other applications, communicated on 6 October 2015). The applicant argued that, since he was accused of a crime which was motivated by his political views, he had doubts about the judge ’ s impartiality.

On 26 January, 23 March, 24 April and 19 June 2017 presiding judge B. extended applicant ’ s detention in terms similar to those used in the order of 30 August 2016. He also referred to Article 176 § 5 of the Code of Criminal Procedure.

On 2 August 2017 presiding judge B. examined the applicant ’ s challenge of 25 January 2017 and accepted it. He noted that the special investigation commission had indeed recommended to the High Council of Justice that he be dismissed for breach of oath but that the High Council had not followed that recommendation. While the facts cited by the applicant were not incontrovertible proof that he lacked impartiality, the judge nevertheless considered that they were such as to create an objective doubt as to his own impartiality in the eyes of the parties in this kind of proceedings.

On 15 August 2017 a new presiding judge extended the applicant ’ s detention. The decision included extensive references to the Strasbourg Court ’ s case-law concerning the reasons which could justify deprivation of liberty. The judge stated that the defendants presented the risk of flight and there were no sufficient factors which would deter them from fleeing. The fact that the defendants had families and stable addresses did not present sufficient guarantees in this respect. The gravity of the punishment they were facing was likely to outweigh in the defendants ’ minds the hypothetical negative consequences of absconding. There were also reasons to fear that the defendants may influence victims and other witnesses, especially given that the trial was in very early stages and those had not yet been examined. The circumstances under which the crime had been committed suggested with high probability that the defendants might commit another offence.

At the time of lodging of the application the case was pending before the trial court and the applicant remained in detention.

B. Relevant domestic materials

1. Code of Criminal Procedure 2012

Article 176 of the Code, as amended by the Law of 7 October 2014 no. 1689-VII, reads:

Article 176. General provisions on preventive measures

“1. Preventive measures are:

(1) a personal undertaking;

(2) a personal warranty;

(3) bail ;

(4) house arrest; and

(5) pre-trial detention.

...

4. ... [D] uring the trial [preventive measures] shall be applied by the court at the request of the prosecutor.

5. Preventive measures of a personal undertaking, a personal warranty, bail and house arrest may not be imposed on people who are suspected of or charged with the offences under Articles ... 258-5 ... of the Criminal Code of Ukraine.”

Article 315. Resolution of issues related to preparation for trial

“...

3. During the preparatory court hearing the court shall be entitled, at the request of participants in the trial, to impose, alter or revoke measures to ensure the conduct of the criminal proceedings, including any preventive measures imposed on the accused... In the absence of such a request from the parties to the trial, the measures to ensure the conduct of the criminal proceedings that were selected at the pre-trial investigation stage shall be deemed to be extended.”

2. Criminal Code 2001

Article 258 § 3 of the Code makes commission of a terrorist act which ended in a death punishable by imprisonment for a term of ten to fifteen years or by life imprisonment. This main punishment can be combined with confiscation of assets.

3. Restoration of Confidence in the Judiciary Act of 8 April 2014

The Act instituted a specific form of disciplinary proceedings against judges suspected of being involved in politically motivated persecution of participants in the protests in central Kyiv in November 2013-February 2014 known as the Euromaidan (see Shmorgunov communication, cited above). It provided for the appointment of a special commission charged with the investigation of such allegations and authorised to make recommendations to the High Council of Justice or to the Qualification Commission of Judges concerning disciplinary measures against such judges.

4. Circular letter of the High Civil and Criminal Court of 30 December 2016

In that circular letter to the courts of appeal, dedicated to the general measures to be taken in execution of this Court ’ s Chanyev v. Ukraine (no. 46193/13, 9 October 2014) judgment, the High Civil and Criminal Court stated, in particular, that in applying Article 315 § 3 of the Code of Criminal Procedure concerning extension of detention at preparatory hearings the court had to be conscious of the fact that the Strasbourg Court ’ s case-law condemned any “automatic” extension of detention. Therefore, if there were no requests or applications concerning pre-trial detention the court had to raise this issue ex officio and solicit the parties ’ opinion on the matter.

COMPLAINTS

The applicant complains under Article 5 § 1 that the decision of 25 October 2016 to extend his detention was unlawful because the domestic court took it of its own motion without the prosecutor ’ s application.

The applicant complains under Article 5 § 3 of the Convention that Article 176 § 5 of the Code of Criminal Procedure bars the use of any preventive measures other than pre-trial detention in his case, thus instituting a system of mandatory detention, and that his detention has been unreasonably lengthy.

Referring to Articles 5 § 3 and 13 of the Convention the applicant complains that the judge whom he had challenged in January 2017 nevertheless had issued several detention orders in his respect from March to June 2017 and only then recognised that the applicant ’ s doubts about his impartiality were justified.

Finally, under Article 5 § 5 of the Convention the applicant complains that he has no effective and enforceable right to compensation for his detention in alleged contravention of the other provisions of Article 5.

QUESTIONS TO THE PARTIES

1. Was the applicant ’ s detention from 25 October to 13 December 2016 lawful for the purposes of Article 5 § 1 of the Convention? In particular, was it ordered in accordance with the procedure prescribed by law?

2. Was there a breach of Article 5 § 3 of the Convention? In particular, was the domestic courts ’ reliance on Article 176 § 5 of the Code of Criminal Procedure compatible with the requirements of that provision (see S.B.C. v. the United Kingdom , no. 39360/98, § 23, 19 June 2001, Boicenco v. Moldova , no. 41088/05, § 136, 11 July 2006, and Piruzyan v. Armenia , no. 33376/07, §§ 103-106, 26 June 2012)?

3. Did the applicant have at his disposal an effective procedure by which he could have challenged the lawfulness of his detention, as required by Article 5 § 4 of the Convention, on account of the composition of the court which extende d his detention on 23 March, 24 April and 19 June 2017?

4. Does the applicant have an effective and enforceable right to compensation for his detention in allege d contravention of Article 5 §§ 1, 3 and 4, as required by Article 5 § 5 of the Convention?