Communicated on 7 January 2016

FIFTH SECTION

Application no. 5943/10 Sergiy Volodymyrovych SYLEVYCH against Ukraine lodged on 22 January 2010

STATEMENT OF FACTS

The applicant, Mr Sergiy Volodymyrovych Sylevych , is a Ukrainian national, who was born in 1984 and resides in Zaporizhzhia . He is represented before the Court by Ms G.I. Byelakhovska , 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.

At about 10 p.m . on 14 November 2009 the applicant was stopped by police officers in the street near his home in Zaporizhzhia and ordered to accompany them, without receiving any clear explanation for that order. Upon arrival at the Khortitsia District Police Station in Zaporizhzhia , the applicant was detained in a police cell, without any report being drawn up as to the reason for his detention. It is unclear from the case file whether the applicant was verbally informed of the grounds for his detention at that time.

At about 8 p.m. on 15 November 2009 three officers from the Solomyanskiy District Police in Kyiv arrived in Zaporizhzhia and took the applicant under escort to Kyiv, where he was again held in a district police station detention cell.

On 16 November 2009 the applicant was questioned as a suspect in criminal proceedings concerning the murder and robbery of S., which had taken place in Kyiv in May 2004.

On 17 November 2009 the applicant was presented with an arrest report dated 16 November 2009, according to which he had been arrested by an officer of the Solomyanskiy District Police from Kyiv on the premises of the Khortytsia District Police in Zaporizhzhia . The report further stated that the arrest had been carried out at 12.30 a.m. on 16 November 2009 pursuant to Article 106 of the Code of Criminal Procedure with reference to an order issued by Judge D.S. Lub . of the Solomya nskiy District Court on 13 July 2004 to place the applicant on the wanted list in connection with his suspected involvement in the robbery of S. in May 2004 in association with two other persons, who had also killed S.

On an unspecified date between 16 and 18 November 2009 an investigator from the Solomyanskiy District Police requested that the Solomyanskiy District Court order the applicant ’ s detention for two months pending the pre-trial investigation of his case, referring to the gravity of the crime with which he had been charged and to the fact that he had been in hiding from the authorities.

On 17 November 2009 Ms Byelakhovska was appointed as the applicant ’ s lawyer. Accordin g to her, on 17 and 18 November 2009, she unsuccessfully attempted to obtain access to the applicant ’ s case file.

At about 6 p.m. on 18 November 2009 the applicant was brought before Judge P. of the Solomyanskiy District Court in Kyiv, who ordered his detention until 25 November 2009 in order to collect information concerning his character with a view to determining the possibility of keeping him in detention or of releasing him during the investigation of the charges against him.

On 19 November 2009 the applicant ’ s lawyer complained to the Solomyanskiy District Prosecutor that she had been unable to gain access to the applicant ’ s case file. It is not clear from the materials available to the Court whether there was any response to that complaint.

On 25 November 2009 the District Court held a hearing to examine the question of keeping the applicant in detention or of releasing him.

The applicant, who was represented by his lawyer and who was also present at the hearing in person, pleaded that his arrest had lacked any legal basis, was unnecessary, and that his further detention was unwarranted.

He submitted, in particular, that he h ad been arrested on 14 November 2009 and detained without a record of the arrest until 16 N ovember 2009; that the overall duration of his arrest without judicial review had exceeded the constitutionally established time-limit of seventy-two hours; and that none of the clauses of Article 106 of the Code of Criminal Procedure, which set out the grounds for arresting suspected criminals, had applied in his case. He also argued that, in addition to containing false information concerning the time and place of his arrest, the arrest report dated 16 November 2009 had referred to a judicial order of 13 July 2004 to place him on the wanted list. The applicant doubted the existence of such an order, especially as his defence lawyer had never been provided with a copy. She had, however, been provided with a copy of an order to place the applicant on the wan ted list issued on 13 July 2004 by an investigator, D.S. Lub ., whose name differed by one letter from the name of the judge who had purportedly issued the order in question. Should it be established that, in fact, there was a mistake, and that there had been no judicial order to arrest the applicant, his arrest had been devoid of any legal basis whatsoever.

In addition, the applicant complained that he had not been promptly informed of the reasons for his arrest and that neither he nor his lawyer had obtained full access to the case file by the date of the hearing.

Lastly, the applicant requested that he be released pending the outcome of criminal proceedings against him, as the prosecution ’ s contentions that he had been in hiding were devoid of any factual basis, while the allegations that he might abscond if released were speculative. In fact, the applicant had been openly and permanently residing in Zaporizhzhia with his wife and their child and had been unaware of the criminal proceedings pending against him. In support of this argument, he presented a number of official documents issued in his name by the State authorities between 2005 and 2009, including a marriage certificate, a child ’ s birth certificate, a record from the local military enlistment office and an award certificate from a municipal sports championship. He also presented employment certificates and positive character references from his current employer.

On the same date the Solomyanskiy District Court dismissed the applicant ’ s complaint concerning the unlawfulness of his arrest as unsubstantiated and remanded him in custody until 16 January 2010 pending completion of the investigation of his criminal case. The court noted, in particular, that the warrant for the applicant ’ s ar rest had been issued on 13 July 2004 by Judge V.V. Laz. of the Solomyanskiy District Court, in accordance with Article 165-2 of the Code of Criminal Procedure. It held that further detention of the applicant was justified by the gravity of the alleged offence and by the fact that he had been placed on the wanted list and thus there was a high risk of him absconding.

The applicant, represented by his lawyer, appealed. He repeated his previous arguments and complained that the District Court had failed to give them any serious consideration. He also argued that the defence had been unaware of the arrest warrant to which the District Court had referred and had not been given access to it until the hearing.

On 4 December 2009 the Kyiv City Court of Appeal examined the applicant ’ s appeal in the presence of his lawyer, but in the absence of the applicant himself, and dismissed it, having endorsed the District Court ’ s reasoning as relevant and sufficient.

On 28 December 2009 the applicant ’ s lawyer was provided with access to his criminal case file.

On 30 December 2009 the applicant ’ s lawyer, acting on his behalf, asked the Kyiv Court of Appeal to give her leave to appeal out of time against the arrest warrant issue d by Judge V.V. Laz. on 13 July 2004. She submitted that she had had no possibility to challenge it earlier as she had not learned of its existence until 25 November 2009 and had been unable to see a copy until 28 December 2009. The applicant ’ s lawyer further alleged that the document which was the subject of the appeal might have been forged. In this respect she asserted, in particular, that: (a) contrary to the requirements of the applicable law, the case file had contained a copy of the warrant rather than the original; the original had never been provided for her to inspect and she doubted that it existed; (b) the document in question had lacked the various details usually present in rulings drafted by judges, such as a reference to the composition of the court ’ s panel, the official details of the prosecutor who had taken part in the proceedings, the judge ’ s signature in the signature folder, and so on; (c) no “arrest warrant” had been mentioned in the report on the ap plicant’s arrest of 16 November 2009. It had referred instead to an order to place the applicant on the wanted list, allegedly issued by Judge D.S. Lub . According to the defence ’ s information, no judge with that name (which was very similar to the name of the investigator in charge of the case) had been on the staff of the Solomyanskiy District Court at the material time. Thus, it was quite possible that the arrest report had referred to the investigator ’ s decision to place the applicant on the wanted list, while the arrest warrant issued by the court had been forged post factum to cover up the applicant ’ s unwarranted arrest.

The applicant ’ s lawyer also argued that, even if the District Court had in fact issued the disputed arrest warrant, it was in any case unlawful. In particular, the case file contained no evidence whatsoever that before 13 July 2004 the police had taken any steps to locate the applicant and notify him in any meaningful manner that he was suspected of a criminal offence.

On 14 January 2010 the applicant ’ s lawyer also complained to the Kyiv City Prosecutor ’ s Office that, in her view, the warrant to arrest the applicant of 13 July 2004 had been forged.

According to the case file, neither of the aforementioned complaints led to any response from the State authorities.

On 14 January 2010 the Solomyanskiy District Court extended the applicant ’ s detention until 16 February 2010 .

B. Relevant domestic law

1. Constitution of Ukraine 1996

The relevant provision of the Constitution reads as follows:

Article 29

“Every person has the right to freedom and personal inviolability.

No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law.

In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided with a reasoned court decision for their being held in custody within seventy-two hours of the time of detention.

Anyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and shall be given, from the time of detention, the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel.

Anyone who has been detained has the right to challenge his or her detention in court at any time.

The relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.”

2. Code of Criminal Procedure of 28 December 1960 (as worded at the material time)

The relevant provisions of the Code read as follows:

Article 106. Arrest of a suspect by the body of inquiry

“The body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds:

(1) if the person is discovered while, or immediately after, committing an offence;

(2) if eyewitnesses, including victims, directly identify the person as the one who committed the offence;

(3) if clear traces of the offence are found either on the suspect, in his or her clothing, with him or her, or in his or her home.

If there is other information giving grounds to suspect a person of a criminal offence, a body of inquiry may arrest such a person if the latter has attempted to flee, does not have a registered place of residence or abode, or if the identity of that person has not been established.

For every arrest of a suspect, the body of inquiry shall be required to draw up an arrest report ( протокол затримання ) outlining the grounds and motives for the arrest; the day, time, year and month, and place of arrest; any explanation by the person arrested; and a record of the time when the suspect was informed of his or her right to have a meeting with defence counsel as of the time of his or her arrest, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The arrest report shall be signed by the person who drew it up and by the arrestee.

A copy of the arrest report with a list of [the arrestee ’ s] rights and obligations shall immediately be handed to the arrestee and sent to the prosecutor. At the request of the prosecutor, the material which served as grounds for the arrest shall be sent to him or her as well. ...

Within seventy-two hours of the arrest, the body of inquiry shall:

(1) release the arrestee if the suspicion that he or she committed the crime has not been confirmed; if the term of the preliminary detention established by law has expired; or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article;

(2) release the arrestee and select a non-custodial preventive measure;

(3) bring the arrestee before a judge with a request to impose a custodial preventive measure on him or her.

If there is a complaint against the arrest to a court, it shall be immediately sent by the head of the detention facility to the court. The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure. If the complaint is received after the preventive measure has been applied, the judge shall examine it within three days of receiving it. If a complaint has not been received, or if it has been received after the term of seventy-two hours in detention has elapsed, the judge shall consider the complaint within five days of receiving it.

The complaint shall be considered in accordance w ith the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring that the arrest is lawful or allowing the complaint and finding the arrest to be unlawful.

An appeal against the ruling of the judge may be lodged, within seven days of the date of its adoption, by the prosecutor, the person concerned, or his or her defence counsel or legal representative. The lodging of such an appeal does not suspend the execution of the court ’ s ruling.

The initial detention of a suspect shall not last for more than seventy-two hours.

If, within the terms established by law, the ruling of a judge on the application of a custodial preventive measure or on the release of the arrestee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up an order to that effect, and shall inform the official or body that carried out the arrest accordingly.”

Article 165-2: Procedure for selection of a preventive measure

“At the stage of the pre-trial investigation, a non-custodial preventive measure shall be selected by the body of inquiry, the investigator, or the prosecutor.

If there are grounds for applying a custodial preventive measure, the body of inquiry or the investigator, having gained the prosecutor ’ s consent, shall lodge an application with the court. The prosecutor is entitled to lodge a similar application. In determining the issue, the prosecutor shall familiarise himself or herself with the material in the case file that could justify placing the person in custody, and ensure that the evidence was gathered in a lawful manner and is sufficient to bring charges against the person.

The request shall be considered within seventy-two hours of the arrest of the suspect or accused.

If the application concerns the detention of a person who is at liberty, the judge shall have the power to issue a warrant for the arrest of such a person and for escorting him or her to court. The initial detention in such cases shall not exceed seventy-two hours; if the person concerned is outside the locality in which the court operates, it shall not exceed forty-eight hours from the time the arrested person has been brought to the locality.

Upon receiving the application, the judge shall examine the material in the case file submitted by the body of inquiry, investigator, or prosecutor. The judge shall question the suspect or the accused and, if necessary, hear evidence from the person who is in charge of the criminal case, obtain the opinion of the prosecutor and defence counsel, if the latter has appeared before the court, and make an order:

(1) refusing to apply the [custodial] preventive measure if there are no grounds for doing so;

(2) applying the custodial preventive measure.

If the court has refused to apply a custodial preventive measure, it shall have the power to apply a non-custodial preventive measure in respect of the suspect or the accused.

An appeal against the judge ’ s order may be lodged with a court of appeal by the prosecutor, the suspect or accused, or his or her defence counsel or legal representative, within three days of its delivery. The lodging of an appeal shall not suspend the execution of the judge ’ s order.

If it is necessary to examine additional material concerning the character of the detained person or to clarify other circumstances that are important for the adoption of a decision on selecting a preventive measure in respect of a detained person, the judge may extend the applicant ’ s initial detention by up to ten days or, if requested by the suspect or the accused, by up to fifteen days. If it is necessary to examine additional material concerning a person who has not been arrested, the judge may postpone consideration of the issue for up to ten days and take measures to ensure the proper conduct of the person, or make an order that the person be arrested and detained for the same period.”

COMPLAINTS

1. The applicant complains that he was arbitrarily arrested, unlawfully detained without judicial review for a period exceeding ninety hours and subsequently remanded in custody without sufficient reasons. He refers to Article 5 §§ 1 and 3 of the Convention in respect of these complaints.

2. He also complains under Article 5 § 2 of the Convention that he was not informed promptly of the reasons for his arrest.

3. The applicant additionally complains that the procedure by which he sought to challenge the lawfulness of his arrest and detention during the period from 14 November 2009 to 16 January 2010 was not in conformity with Article 5 § 4 of the Convention. In particular, neither he nor his lawyer were provided with sufficient time and facilities to prepare a defence and were not given full access to the case file. In addition, the applicant was not afforded the possibility to participate in person at the appeal hearing of 4 December 2009.

QUESTIONS TO THE PARTIES

1. Was the applicant ’ s deprivation of lib erty between 14 and 18 November 2009 in breach of Article 5 § 1 of the Convention? In particular, was it in conformity with national law and free from arbitrariness (see, for example, Belousov v. Ukraine , no. 4494/07 , §§ 83-88, 7 November 2013 )?

2. Was the court order of 25 November 2009 to remand the applicant in custody free from arbitrariness and based on sufficient reasons for the purposes of Article 5 §§ 1 and 3 of the Convention (see, for example, Khayredinov v. Ukraine , no. 38717/04 , §§ 27-31, 14 October 2010, and Korneykova v. Ukraine , no. 39884/05 , §§ 38, 43 and 47-48, 19 January 2012) ?

3. Was the applicant informed promptly of the reasons for his arrest and of any charge against him, as required by Article 5 § 2 of the Convention? ( see , mutatis mutandis , Nechiporuk and Yonkalo v. Ukraine , no. 42310/04 , §§ 208-11, 21 April 2011, and Lutsenko v. Ukraine, no. 6492/11 , §§ 77-79, 3 July 2012)?

4. Was the applicant brought promptly before a judge or other officer authorised by law to exercise judicial power, as required by Article 5 § 3 of the Convention (see, for example, Belousov , cited above, §§ 94-96) ?

5. W as the procedure by which the applicant sought to challenge the lawfulness of his arrest and detention dur ing the period from 14 November 2009 to 16 January 2010 in conformity with Article 5 § 4 of the Convention in the light of his allegations that he was not allowed to attend t he appeal hearing of 4 December 2009 and that both himself and his advocate lacked access to the case file (see, for example, Korneykova , cited above, §§ 68-73 and Lutsenko , cited above, §§ 95-99 )?

6. Did the applicant have an effective and enforceable right to compensation for his alleged detention in contravention of Article 5 §§ 1, 3 and 4, as required by Article 5 § 5 of the Convention (see, for example, Korneykova , cited above, §§ 79-82, and Taran v. Ukraine , no. 31898/06 , §§ 87-90, 17 October 2013 )?