Communicated on 1 April 2016

FIFTH SECTION

Application no. 2945/16 Oleksandr Ivanovych KHLEBIK against Ukraine lodged on 18 December 2015

STATEMENT OF FACTS

The applicant, Mr Oleksandr Ivanovych Khlebik , is a Ukrainian national, who was born in 1974 and is detained in Starobilsk in the Luhansk Region ( oblast ). He is represented before the Court by Mr D.I. Mazurok and Mr M.O. Tarakhkalo , of the Ukrainian Helsinki Human Rights Union.

A. The circumstances of the case

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

On 30 April 2013 the Alchevsk Town Court of the Luhansk Region convicted the applicant and his four co-defendants of armed robbery, banditry and illegal possession of firearms. The court sentenced the applicant to eight years and nine months ’ imprisonment, to be counted from 1 May 2010, and to confiscation of his property. It ordered that the applicant remain in detention pending appeal.

On 14 May 2013 the applicant ’ s sister, acting in the capacity of his lay defender, appealed against the judgment to the Luhansk Regional Court of Appeal (“the Court of Appeal”). Other parties lodged appeals as well.

On 6 June 2014 the Court of Appeal held a hearing in the applicant ’ s case.

On 12 November 2014 the President of Ukraine issued a decree defining Sieverodonetsk in the Luhansk Region, instead of Luhansk, as the seat of the Court of Appeal.

According to documents provided by the applicant, on 17 February 2015 the Court of Appeal officially resumed its work in Sieverodonetsk .

According to the applicant, on 25 February 2015 he complained to the Court of Appeal about the delay in the examination of his appeal.

On 27 March 2015 the Court of Appeal informed the applicant that his criminal case file was in Luhansk, which was not under the Ukrainian Government ’ s control and that this prevented the court from examining his case on appeal. In order to resolve the problem, amendments would have to be made to the legislation governing criminal procedure.

In response to a letter from the applicant, on 19 May 2015 the Court of Appeal informed him that it was unable to apprise him of the state of proceedings in his case because his criminal case file was in the court archives in Luhansk, to which the court had no access.

On 21 May 2015 the Parliament of Ukraine ( Verkhovna Rada ) adopted a declaration which read, insofar as relevant, as follows:

“I. Derogation from Obligations

...

2. In view of the armed aggression of the Russian Federation against Ukraine involving both the regular Armed Forces of the Russian Federation and illegal armed groups guided, controlled and financed by the Russian Federation, since April 2014 an anti-terrorist operation has been conducted by the units of the Security Service of Ukraine, the Ministry of Internal Affairs of Ukraine and the Armed Forces of Ukraine in certain areas of the Donetsk and Luhansk regions ( oblasts ) of Ukraine. The anti-terrorist operation is part of Ukraine ’ s inalienable right to individual self-defense against aggression under Article 51 of the UN Charter. The Russian Federation, which has occupied and is exercising control over certain areas of the Donetsk and Luhansk oblasts , is fully responsible for respect for and protection of human rights in these territories under international humanitarian law and international human rights law.

3. The Russian Federation ’ s ongoing armed aggression against Ukraine, together with war crimes and crimes against humanity committed both by the regular Armed Forces of the Russian Federation and by illegal armed groups guided, controlled and financed by the Russian Federation, constitutes ‘ a public emergency threatening the life of the nation ’ in the sense of ... Article 15 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

4. In order to safeguard the vital interests of society and the State in response to the armed aggression of the Russian Federation, the Parliament ( Verkhovna Rada ) of Ukraine, the Cabinet of Ministers of Ukraine and other authorities have to adopt decisions which constitute a derogation from certain obligations on the part of Ukraine under the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms.

...

7. On 12 August 2014, the Parliament of Ukraine adopted the Law on Administration of Justice and Criminal Proceedings in connection with the Anti-terrorist Operation . Under the Law, for the duration of the anti-terrorist operation, the territorial jurisdiction was changed for cases amenable to the courts located in the anti-terrorist operation area and investigative jurisdiction over criminal offences perpetrated in that area, if it is impossible to conduct a pre-trial investigation. The application of this law makes it necessary for Ukraine to derogate from certain of its obligations under Article 14 of the International Covenant on Civil and Political Rights and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. However, the courts and pre-trial investigation bodies are not currently functioning in certain areas of the Donetsk and Luhansk oblasts because of the armed aggression of the Russian Federation and the actions of terrorist groups backed by the Russian Federation. That is why Ukraine has had to change the territorial jurisdiction of the courts and investigative jurisdiction in respect of criminal offences in conditions where the life of the nation is threatened.

...”

On 5 June 2015 the Permanent Representation of Ukraine to the Council of Europe transmitted to the Secretary General of the Council of Europe a note verbale containing the text of the above declaration and its translation.

On 15 June 2015 the applicant applied to the Lysychansk Town Court of the Luhansk Region for restoration of the lost case file ( відновлення матеріалів втраченого провадження ).

On 22 June 2015 the Lysychansk Town Court rejected the applicant ’ s request on the grounds that it had no information in its possession which would allow it to restore the case file in question.

On 3 August 2015 the Starobilsk District Court of the Luhansk Region rejected an application for release lodged by the applicant, finding that contrary to his submissions, there were sufficient legal grounds for his continuing detention since he had been convicted and his case was pending before the Court of Appeal.

B. Relevant domestic law

Law on Administration of Justice and Criminal Proceedings in connection with the Anti-Terrorist Operation of 12 August 2014

Section 1(1) authorises the President of the High Specialised Civil and Criminal Court to designate the courts which will assume jurisdiction over criminal с ases which would normally be examined by courts located in the area where the anti-terrorist operation was being conducted, but which are prevented from operating.

Section 1(3) provides that cases pending before the courts that are prevented from operating will be transferred to the courts which have jurisdiction pursuant to the Law. If the case-file material cannot be transferred, proceedings are to be conducted on the basis of the documents and material submitted by the parties, provided that such documents and material are sufficient for the court to decide on the matter.

C. Relevant international materials

In December 2015 the Special Monitoring Mission in Ukraine of the Organisation for Security and Co-operation in Europe published a thematic report entitled “Access to Justice and the Conflict in Ukraine”. The report reads, insofar as relevant, as follows:

“ 5.4. Unlawful Detention or Deprivation of Liberty

The relocation of courts and prosecution offices, and the lack of a developed and legitimate legal system in “DPR”- and “LPR”-controlled areas, has resulted in potentially illegal and arbitrary detention of people in both government- and non-government-controlled areas.

5.4.1. Government -Controlled Areas

In government-controlled areas, due to the loss of case files and difficulties caused by the relocation of judicial services, some individuals are unlawfully detained. People remaining in detention include those who were detained but not convicted of a crime, those who were convicted at a first instance court and awaiting an appeal when the case file was lost and those who have been arrested since court relocation but the court is unable to examine the necessary evidence due to lack of access to non-government-controlled areas ... The relocated Luhansk Regional Prosecution Office, on 20 April 2015, also informed the SMM of four juveniles who were convicted of serious crimes prior to the conflict, but the case files were lost during relocation. At the time of the interview, these people remained imprisoned due to the seriousness of the crimes. The SMM was informed by the Starobilsk District Court (Luhansk region) of 60 persons convicted at a first instance court of serious crimes who are imprisoned in government-controlled areas awaiting an appeal but whose case files remain in non-government-controlled areas...”

COMPLAINTS

The applicant complains that his ongoing detention is contrary to the requirements of Article 5 of the Convention and that he does not have an enforceable right to compensation in this respect. He further complains, under Article 6 of the Convention and Article 2 of Protocol No. 7 to the Convention, that he has been waiting since 14 May 2013 for the domestic courts to examine his appeal against his conviction because the domestic authorities have failed to enact legislation enabling the examination of appeals in circumstances such as his.

QUESTIONS TO THE PARTIES

1. Has there been a violation of Article 5 § 1 of the Convention on account of the applicant ’ s detention in circumstances where, according to the applicant, there are no clear prospects for the examination of his appeal?

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

3. Has there been a violation of Article 6 § 1 of the Convention on account of the prolonged failure to examine the applicant ’ s appeal, in particular owing to the alleged failure of the domestic authorities to enact and implement appropriate rules providing for such an examination in situations such as the applicant ’ s?

4. Can the applicant validly complain under Article 6 § 1 of the Convention, given that Ukraine has availed itself of the right of derogation, conferred by Article 15 § 1 of the Convention, in respect of certain localities in the Donetsk and Luhansk Regions of Ukraine?

5. Has the applicant been afforded the right of appeal guaranteed by Article 2 § 1 of Protocol No. 7 to the Convention, on account of the prolonged failure to examine his appeal, in particular owing to the alleged failure of the domestic authorities to enact and implement appropriate rules providing for such an examination in situations such as the applicant ’ s ?