Communicated on 15 September 2017

FOURTH SECTION

Application no. 60022/11 Ruslan Valentynovych MAKSYMCHUK against Ukraine lodged on 16 September 2011

STATEMENT OF FACTS

The applicant, Mr Ruslan Valentynovych Maksymchuk , is a Ukrainian national who was born in 1976 and lives in Shatsk . He is represented before the Court by Mr O.V. Levytskyy , 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 21 December 2009 the Military Court of the Kyiv Garrison convicted the applicant of a crime (corruption-related offences) and sentenced him to restraint of liberty for a term of two years, a two-year ban on occupying managerial posts in law-enforcement authorities, and a fine of 17,000 Ukrainian hryvnyas ( UAH ) . The applicant was bound by an obligation not to leave his place of residence.

On 2 March 2010 the Military Court of Appeal of the Central Region upheld the above judgment. The applicant lodged an appeal on points of law.

On 16 March 2010 the Supreme Court of Ukraine suspended the execution of the sentence in the applicant ’ s case for the duration of the examination of his appeal. According to the applicant, he did not know about the decision delivered by the Supreme Court.

On 8 July 2010, on the basis of a warrant issued by the criminal executive officers, the applicant was sent to a correction centre for execution of his sentence, notwithstanding the above-mentioned suspension thereof.

On 22 March 2011 – in the absence of a final decision by the higher court in the applicant ’ s case – the Menskyy Local Court of Chernigiv Region held that the unserved part of the sentence (14 months and 29 days of restraint of liberty) should be converted into corrective works, with a 20% contribution from the applicant ’ s monthly salary payable to the State.

On 30 March 2011 the applicant was released from detention and started his sentence of corrective works instead.

On 15 August 2011 the Shatskyy Local Court of the Volyn Region granted an amnesty to the applicant on the basis of the Amnesty Act of 2011.

On 13 March 2012 the Higher Specialised Civil and Criminal Court examined an appeal on points of law lodged by the applicant, quashed the judgments of 21 December 2009 and 2 March 2010 and remitted the applicant ’ s case to the first-instance court for fresh examination.

On 20 August 2012 the Shatskyy Local Court of the Volyn Region once again convicted the applicant of the crime and re-sentenced him to restraint of liberty for a term of two years, a two-year ban on occupying managerial posts in law-enforcement authorities and the fine of UAH 12,750. The court took into account the periods of the applicant ’ s previous pre-trial detention (between 24 January 2009 and 28 January 2009), the periods of restraint of liberty from 8 July 2010 to 30 March 2011, and the corrective works from 1 April 2011 to 15 August 2011. By the same judgment the applicant was granted an amnesty on the basis of the Amnesty Act of 2011.

B. Relevant domestic law

The relevant provisions of the Criminal Procedure Code of 28 December 1960 read as follows:

Article 388. Progress of the case at the cassation instance

“... for compelling reasons the judge can suspend the execution of a judgment pending examination of a cassation appeal in the court, with the exception of the decisions mentioned in part 1 of Article 383 of this Code.”

Article 401. Entry into legal force of a court judgment and execution thereof

“A judgment of a local court shall enter into legal force after expiry of the time-limit for lodging an appeal complaint, and a judgment of a court of appeal after expiry of the time-limit for lodging a cassation complaint, if such a complaint has not been lodged.

If an appeal complaint or a cassation complaint has been lodged, the court judgment, if not reversed, shall enter into legal force after the court of appeal or cassation instance has examined the case, unless this Code provides otherwise.

...

A judgment entailing a conviction shall be executed after it has entered into legal force ...”

Article 404. Enforcement of a court judgment

“A court judgment which has entered into legal force shall be directed for enforcement by the court which delivered the judgment within a period of three days following its entry into legal force or after the case has been returned from the court of appeal or cassation...”

COMPLAINTS

1. Referring to Article 5 § 1 of the Convention the applicant complains that his deprivation of liberty between 8 July 2010 and 30 March 2011 was unlawful, as during that period the execution of his sentence had been suspended by the Supreme Court.

2. The applicant further complains under Article 13 of the Convention that he did not have an effective remedy before a national authority in respect of his allegation under Article 5 that the above restraint of his liberty was unlawful.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, having regard to the fact that on 16 March 2010 the Supreme Court suspended the execution of the sentence, did his deprivation of liberty between 8 July 2010 and 30 March 2011 violate paragraph 1 (a) of this provision?

2. Did the applicant have an access to the proceedings allowing the control of the lawfulness of his detention between 8 July 2010 and 30 March 2011 in conformity with Articles 5 § 4 and/or Article 13 of the Convention combined with Article 5 § 1 (a)?