Communicated on 9 December 2015

FIFTH SECTION

Application no. 45050/10 Oleg Nikolayevich SAMOYLENKO against Ukraine lodged on 2 August 2010

STATEMENT OF FACTS

The applicant, Mr Oleg Nikolayevich Samoylenko , is a Ukrainian national, who was born in 1962 and lives in Kryviy Rig. He is represented before the Court by Ms Y.A. Krechetnikova , a lawyer practising in Dnipropetrovsk.

On 8 February 2010 the Dnipropetrovsk regional prosecutor ’ s office arrested the applicant on suspicion of having engaged in sham business activities (that is to say, he was accused of having created two fictitious companies with a view to using them to convert non-cash assets of other companies into cash).

On 11 February 2010 the Zhovtneviy District Court in Dnipropetrovsk (“the Zhovtneviy Court”) ordered the applicant ’ s detention for ten days pending collection of further information concerning his character, state of health and other personal circumstances pertinent to deciding whether the applicant should be formally remanded in custody pending the investigation of the case.

On 18 February 2010 the applicant was officially indicted for carrying on sham business activities.

On the same day the Zhovtneviy Court examined a request by the prosecutor office for ordering the applicant ’ s detention on remand pending investigation of the case and allowed it by extending the applicant ’ s detention until 8 April 2010. The court noted, in particular, that the applicant was unemployed, had poor character references from his place of residence and could potentially influence witnesses.

The applicant, represented by a lawyer, appealed, noting, in particular, that he had no prior criminal record, that he had a permanent place of residence and a family to support, including a pregnant wife and ailing elderly parents, and that he was suffering from various health conditions which could deteriorate in detention.

On 24 February 2010 the Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal”) heard the applicant ’ s appeal in his absence but in the presence of his lawyer and of the prosecutor and upheld the Zhovtneviy Court ’ s decison . It noted, in particular, that there was no evidence that the applicant ’ s state of health was incompatible with detention, and that the offence he was accused of was quite serious, as it was punishable by a prison term of up to five years.

On 2 April 2010 the prosecutor ’ s office asked the court to extend the applicant ’ s detention referring to the need to carry out further actions with a view to finalising the investigation and stating that there were no grounds for the applicant ’ s release.

On 6 April 2010 the District Court allowed this request and extended the applicant ’ s detention until 8 June 2010, having examined the matter in the presence of the prosecutor but without the applicant or his lawyer being present; according to the applicant, they had not been summoned.

On an unspecified date the Court of Appeal upheld this decision in the presence of the prosecutor; the applicant and his lawyer had not been summoned.

On 7 June 2010 the Court of Appeal, acting as a first-instance court, further extended the applicant ’ s detention until 8 July 2010 at the prosecutor ’ s office ’ s request, having found that there were no grounds for releasing the applicant after having examined the matter in the presence of the prosecutor. According to the applicant, he and his lawyer were not summoned for the hearing.

On 8 July 2010 the applicant was committed for trial before the Dzerzhinskiy District Court in Kryviy Rig (“the Dzerzhinskiy Court”) on charges of having engaged in sham business activities and other related non-violent offences.

On 16 August 2010 the Dzerzhinskiy Court held a preliminary hearing and found no grounds for releasing the applicant pending trial.

On 6 September and 28 October 2010 the applicant requested that he be released pending trial. According to him, these requests were rejected by the court as unfounded.

COMPLAINTS

The applicant complains that the decision of 18 February 2010 to place him in custody and the further decisions extending his detention were formalistic and not based on relevant and sufficient reasons. He invokes Article 5 § 3 of the Convention in respect of this complaint.

He also complains, under Article 5 § 4 of the Convention, that the decisions to extend his detention in April and June 2010 were taken in breach of the fairness requirements as neither he nor his lawyer had been summoned or were present in the courtroom. In addition, following the transfer of his case to the court for trial, there was no effective procedure available to him to challenge the lawfulness and necessity of his continued detention.

QUESTIONS TO THE PARTIES

1. Was the applicant ’ s detention 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) ?

The Parties are requested to provide copies of the relevant documents, including copies of the applicant ’ s appeals against the decisions concerning his detention and a copy of the decision of the Court of Appeal taken following examination of the applicant ’ s appeal against the decision of 6 April 2010.

2. W as the procedure by which the applicant ’ s detention was reviewed in April and June 2010 in conformity with Article 5 § 4 of the Convention in the light of his allegations that neither he, nor his lawyer, had been summoned to the court hearings (see, for example, Mamedova v. Russia , no. 7064/05, §§ 91-92, 1 June 2006 and Korneykova v. Ukraine , no. 39884/05 , §§ 68-69, 19 January 2012 )?

3. Did the applicant have at his disposal, after 8 July 2004, an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention (see Kharchenko v. Ukraine , no. 40107/02 , §§ 85-86 and 100, 10 February 2011) ?