Communicated on 21 April 2016

FIFTH SECTION

Application no. 58444/15 Volodymyr Yuriyovych GRUBNYK against Ukraine lodged on 13 November 2015

STATEMENT OF FACTS

The applicant, Mr Volodymyr Yuriyovych Grubnyk , is a Ukrainian national who was born in 1983 and is currently in detention in Odessa. He is represented before the Court by Mr V. Khilko , a lawyer practising in Odessa.

A. The circumstances of the case

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

On 27 September 2015 an explosive device was placed outside the offices of the Odessa Regional Directorate of the Security Service of Ukraine (“the SSU”), where it later exploded. On the same day the SSU started a criminal investigation into the incident, classified as a terrorist act.

At 10.30 a.m. on 19 October 2015 the applicant was arrested outside his main place of residence on suspicion of participation in that act.

From 11 a.m. to 8.30 p.m. on the same day, an SSU investigator conducted a search of the applicant ’ s residence. A large number of mobile phones, SIM cards, notes and other items were seized.

From 12.02 a.m. to 7 a.m. on 20 October 2015 the investigator conducted a search of the flat owned by one Mr K. and rented by the applicant. According to the report of that search, upon conclusion of the previous search at his main residence, the applicant had informed the investigator that explosives and other materiel used to make explosive devices could be found at the flat he rented from K. The report went on to state that the applicant freely gave his consent to the search. All the residents of the block of flats were evacuated. The applicant, unlocking the flat with his own key, entered the flat with an explosives specialist to make sure that there was no risk of explosion. In the course of the subsequent search, certain chemicals, radio, electric and other tools and hardware were seized. The search report was signed by the applicant, K., two attesting witnesses, the investigator and two other SSU officers.

At 9 a.m. on the same day the investigator drew up an arrest report, according to which he had arrested the applicant at 10.30 a.m. the previous day. The text of the report included a quote from the Code of Criminal Procedure concerning the grounds for arrest of a person without a court order, of which the following was underlined: “immediately after the offence, an eyewitness, including a victim, or a combination of clear signs on the body, clothing or the site of the event, indicate that this person has just committed an offence.” The report stated that the applicant was suspected of participation in the terrorist act committed on 27 September 2015, carried out as part of a conspiracy with several other named suspects. It also contained an explanation of the applicants ’ rights, including the right to challenge the legality of his arrest.

At 10.30 a.m. on 20 October 2015 the applicant was formally notified of the suspicion that he had, between July and September 2015, conspired with three other named suspects and other unidentified individuals in the planning and preparation of a terrorist act, and that he had then, on 27 September 2015, committed a terrorist act, an offence under Article 258 § 2 of the Criminal Code.

On the same day, an SSU investigator applied to the Odessa Prymorskyy District Court (“the District Court”) for the applicant to be placed in pre-trial detention. Material in support of the application ran to 240 pages, which included search and expert examination reports, transcripts of interviews with other suspects and witnesses, and photo identification reports.

On the same day the District Court held a hearing and ordered that the applicant be placed in pre-trial detention for sixty days, to be counted from 10.30 a.m. on 19 October 2015. By way of reasoning, the court described the circumstances under which the applicant was suspected of having participated in the preparation and commission of the offence. It then observed that there was a reasonable suspicion that the applicant had committed an act of terrorism, an offence punishable by imprisonment for a period of more than ten years. The court stated that it would not be possible to impose any preventive measure other than detention since there was a risk that the applicant would destroy, conceal or spoil objects or documents of essential importance for establishing the circumstances of the criminal offence; that he could exert an unlawful influence on the victim or the witnesses in the same proceedings; and that he might obstruct the criminal proceedings or commit another criminal offence. The evidence for that was that the applicant “had committed a particularly serious crime” ( доказами цього є те, що Грубник В.Ю. вчинив особливо тяжкий злочин ). The court also stated that it took into account the weighty evidence pointing to the commission of the offence by the applicant, the severity of the punishment which he faced, his age and his state of health. The court further referred to the provisions of Article 176 § 5 of the Code of Criminal Procedure which barred the use of preventive measures other than pre-trial detention against those suspected of participation in terrorist acts.

The applicant appealed to the Odessa Regional Court of Appeal (“the Court of Appeal”) arguing, in particular, that there had been a delay in drawing up his arrest report; that during that time the grounds for his arrest and his rights had not been explained to him; that there had been no grounds for arrest without a court order since he had not been arrested immediately after the offence; that evidence submitted by the investigator was insufficient to support a reasonable suspicion against him; that the District Court had not sufficiently taken into account the applicant ’ s strong ties to the community; and that it had not properly examined the possibility of using a non-custodial preventive measure. In view of those arguments, the applicant asked the Court of Appeal to quash the detention order and dismiss the investigator ’ s application. He further argued that the statement in the detention order to the effect that the applicant “had committed a particularly serious crime ” was at odds with the principle of presumption of innocence.

On 28 October 2015 the Court of Appeal upheld the detention order. In response to the applicant ’ s arguments it stated, in particular, that in the course of the hearing before the District Court it had been sufficiently proven that there was a reasonable suspicion against the applicant and that there was a risk that the applicant could abscond or obstruct the criminal proceedings. The Court of Appeal was of the opinion that the District Court had taken into account the particular gravity of the offence of which the applicant was suspected, the severity of the punishment he faced, and the danger presented to the public by the offence of which he was suspected. It decided that no other preventive measure would be adequate in view of the risks he presented.

B. Relevant domestic law

1. Code of Criminal Procedure 2012

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.

2. Arrest of a person [without a court order] ( затримання ) is a provisional preventive measure which can be used on the grounds and under the procedure defined by this Code.

3. The investigating judge or the court shall reject an application for a preventive measure if the investigator or the prosecutor does not prove the existence of sufficient grounds to believe that none of the more lenient preventive measures would be sufficient for the prevention of the established risk or risks. The most lenient preventive measure is a personal undertaking and the most severe one is pre-trial detention.

4. Preventive measures shall be applied: during the investigation – by the investigating judge at the request of a prosecutor, or at the request of an investigator, approved by a prosecutor; and during the trial – by the court at the request of a prosecutor.

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

Article 177. Purpose and grounds for the application of preventive measures

“1. The purpose of a preventive measure is to ensure the compliance of a suspect or an accused with procedural obligations, as well as to prevent attempts to:

(1) abscond from the pre-trial investigation authorities and/or the court;

(2) destroy , conceal or spoil any of the objects or documents that are of essential importance for establishing the circumstances of the criminal offence;

(3) exert an unlawful influence on the victim, the witnesses, or on other suspects, accused, the expert or specialist...;

(4) obstruct the criminal proceedings in any other way;

(5) commit another criminal offence or continue the criminal offence of which he/she is suspected or accused.

2. A preventive measure shall be applied on the ground of a reasonable suspicion that the person has committed a criminal offence and provided there are risks giving sufficient grounds for the investigating judge or the court to believe that the suspect, the accused or the convicted person could commit actions specified in paragraph one of this Article...”

Article 208. Arrest by a competent official [without a court order]

“ 1. [In the absence of a court order a] competent official shall be entitled to arrest ( затримати ) a person suspected of having committed a crime for which imprisonment may be imposed, only in the following cases:

(1) if the person has been caught whilst committing a crime or attempting to commit one; or

(2) if immediately after a criminal offence the statements of an eye-witness, including the victim, or the totality of obvious signs on the body, clothes or at the scene of the event indicate that this person has just committed an offence...

4. A competent official, who has carried out the arrest, shall immediately inform the arrested person, in a language which he understands, of the grounds for the arrest and of what crime he/she is suspected. The official shall also explain to the arrested person his/her rights: to be legally represented; to be provided with medical assistance; to make statements or to remain silent; to inform [third] persons [...] of his arrest and whereabouts; to challenge the grounds for the arrest; as well as the other procedural rights set out in this Code.

5. A report shall be drawn up in respect of an individual ’ s arrest containing, [in particular,] the following information: the place, the date and the exact time (the hour and minute) of the arrest..; the grounds for the arrest; results of the search of the person; requests, statements or complaints of the arrested person, if any; and a comprehensive list of his/her procedural rights and duties. The arrest report shall be signed by the official who drew it up, and by the arrested person. A copy shall immediately be served on the arrested person after obtaining his/her signature...”

Article 276 of the Code provides that when a person has been arrested, a formal notification of suspicion must be served on him or her. From that moment, the person acquires the procedural status of a suspect. The official serving the notification is required to explain the suspect ’ s procedural rights, including the right to remain silent and have legal assistance.

Article 278 of the Code provides that a person who has been arrested without a court order must be released unless a formal notification of suspicion is served on him or her within twenty-four hours of arrest.

2. Criminal Code 2001

Article 258 § 2 of the Criminal Code provides for imprisonment for between seven and twelve years for a terrorist act committed as part of a conspiracy or for a terrorist act which has caused substantial pecuniary damage or other grave consequences. The sentence can also be accompanied by confiscation of the convicted person ’ s personal property.

COMPLAINTS

The applicant complains under Article 5 § 1 of the Convention that his arrest had remained unrecorded from 10.30 a.m. on 19 October 2015 under the arrest report was drawn up on 20 October 2015, and that his arrest under the arrest report of 20 October 2015 was unlawful because there were no grounds under domestic law to arrest him. Under Article 5 § 2 of the Convention the applicant also complains that he was not informed promptly of the reasons for his arrest because of the delay in drawing up the arrest report, The applicant further complains under Article 5 § 3 of the Convention that Article 176 § 5 of the Code of Criminal Procedure barred the use of any preventive measures other than pre-trial detention in his case. Referring to Article 5 § 3 of the Convention, th e applicant complains of a breach of the principle of presumption of innocence on account of the wording of the District Court ’ s pre-trial detention order of 20 October 2015.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention in the period between 10.30 a.m. on 19 October and 9 a.m . on 20 October 2015? In particular:

(a) Was the applicant ’ s detention in that period recorded by the authorities?

(b) Was the alleged delay between the actual arrest of the applicant and the drawing up of the arrest report or creation of other records of his arrest compatible with the requirements of Article 5 § 1 of the Convention?

2. Was the applicant ’ s detention, based on the arrest report of 20 October 2015, in breach of Article 5 § 1 of the Convention?

3. Was the applicant informed promptly of the reasons for his arrest, as required by Article 5 § 2 of the Convention?

4. 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 in the applicant ’ s case compatible with the requirements of Article 5 § 3 of the Convention (see S.B.C. v. the United Kingdom , no. 39360/98, § 23, 19 June 2001, and Boicenco v. Moldova , no. 41088/05, § 136, 11 July 2006)?

5. Having regard to the wording of the Odessa Prymorskyy District Court ’ s detention order of 20 October 2010, was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case?