Communicated on 5 January 2016

FIFTH SECTION

Application no. 56224/10 Andriy Mykhaylovych KAPSHTAN against Ukraine lodged on 13 September 2010

STATEMENT OF FACTS

The applicant, Mr Andriy Mykhaylovych Kapshtan , is a Ukrainian national who was born in 1969 and lives in Romny .

The circumstances of the case

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

On 2 September 2009 the applicant, the former director of a municipal market, was arrested on suspicion of having taken a bribe from B. for allocating him a stall in the said market.

On 4 September 2009 the applicant was released pursuant to an undertaking not to abscond. Subsequently the applicant was charged with counts of fraud and bribery and committed to stand trial before the Romny Court.

On 12 January 2010 the Romny Court convicted the applicant of both charges and sentenced him to two years ’ imprisonment. On the same date the court remanded the applicant in custody pending the entry into force of its ruling.

The applicant appealed, alleging that he was innocent of any wrongdoing and asking to be released from custody.

On 23 March 2010 the Sumy Regional Court of Appeal (“the Regional Court”) quashed the judgment of 12 January 2010 and remitted the case for retrial. In the same decision it rejected the applicant ’ s request for release from custody, without providing any reasons.

On 27 April 2010 the applicant asked the Romny Court to have him released from custody subject to an undertaking not to abscond. He noted, in particular, that his conviction having been quashed, an undertaking not to abscond would constitute a sufficient measure for ensuring the proper conduct of proceedings. In this respect he submitted that he had had no prior criminal record and that the crimes imputed to him had not been grave. In addition, he had a permanent residence and positive character references. He also needed to support a family, including a child, and was suffering from several chronic illnesses which required regular medical supervision and might deteriorate if he remained in detention. The applicant also submitted that, having been under an undertaking not to abscond throughout the first round of the proceedings, he had never attempted to abscond or obstruct the investigation and had been dutifully complying with all his procedural obligations.

On an unknown date in May 2010 the Romny Court refused the applicant ’ s request for release, having found that the crimes imputed to him were sufficiently serious as to potentially warrant a prison sentence of three years or more. It also noted, without providing any details, that there was sufficient evidence that the applicant might obstruct the proceedings if he were to be released.

On several further occasions (in particular, on 13 July, 29 September and 7 December 2010) the applicant lodged similar requests for release; the court rejected each application on the date on which it was lodged, referring to the gravity of the offences imputed to the applicant and the lack of any valid reasons justifying his release.

On 10 February 2011 the applicant again asked to be released from custody pending the proceedings against him, reiterating his previous arguments and emphasising that it was very difficult while in detention to keep to his special diet and secure the necessary medical supervision for his chronic medical conditions.

On 23 February 2011 the Romny Court allowed this request and released the applicant subject to an undertaking not to abscond. Referring to Article 5 of the Convention, the court noted that, regard being had to the applicant ’ s character (in particular, his age, health, family and social status, the absence of a prior criminal record and his positive character references), there was no reason to consider that he would abscond, obstruct the investigation or engage in criminal activity if released pending trial.

On 24 November 2011 the Romny Court convicted the applicant as charged. It further sentenced him to two years and two months ’ restriction of liberty and accepted his undertaking not to abscond as a preventive measure pending entry of the judgment into force.

On 16 February 2012 the Regional Court quashed this judgment on appeal and remitted the case to the prosecutor ’ s office for an additional investigation.

On an unspecified date, the charge of bribery having been dropped by the prosecutor ’ s office, the applicant was committed to stand trial on the charge of fraud.

On 23 November 2012 the Romny Court convicted the applicant as charged and sentenced him to a fine. It further released the applicant from liability for the crime for which he had been tried and terminated the proceedings as time-barred.

The applicant did not appeal against this ruling and it became final.

COMPLAINTS

The applicant complains under Article 5 § 1 of the Convention that the order of the Court of Appeal of 23 March 2010 to hold him in custody pending the second round of the proceedings against him was arbitrary and unreasonable.

He also complains under Article 5 § 4 of the Convention that he was denied the possibility to bring proceedings in which the lawfulness of this decision could be effectively challenged.

Finally, the applicant complains under Article 5 § 5 of the Convention that he had no enforceable right to compensation for his arbitrary detention.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty during the period from 23 March 2010 until 23 February 2011 in breach of Article 5 § 1 of the Convention, regard being had to the grounds given to justify his detention (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)?

2. Was the procedure by which the applicant sought to challenge the lawfulness of his detention in conformity with Article 5 § 4 of the Convention (see Kharchenko v. Ukraine , no. 40107/02 , §§ 85-86 and 100, 10 February 2011 )?

3. 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 )?