Communicated on 14 October 2015

FIFTH SECTION

Application no. 26618/14 Oleksandr Stanyslavovych SOLOVYOV against Ukraine lodged on 18 March 2014

STATEMENT OF FACTS

The applicant, Mr Oleksandr Stanyslavovych Solovyov , is a Ukrainian national, who was born in 1982 and is detained in Kharkiv . He is represented before the Court by Mr Y.V. Borzykh , a lawyer practising in Kharkiv .

A. The circumstances of the case

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

On an unspecified date criminal proceedings were initiated in respect of the applicant on charges of aggravated robbery and aggravated murder.

According to the applicant, on 18 March 2010 he was placed in pre-trial detention.

On 21 October 2013, in the course of the pre-trial investigation, the Kharkiv Kyivskyy District Court extended the applicant ’ s detention until 22 November 2013.

On 18 November 2013 the criminal case a gainst the applicant and his co ‑ defendant was submitted with the bill of indictment to the Kharkiv Pervomayskyy District Court (“the trial court”).

On 21 November 2013 the trial court held a preliminary hearing in the applicant ’ s case, at which the prosecutor and the applicant ’ s lawyer were present. The applicant was absent. The court solicited the parties ’ opinions concerning the possibility of scheduling trial in the case. According to the text of the ruling issued at the close of the hearing, the question of extending the applicant ’ s detention was not discussed. At the close of the hearing, the court returned the indictment to the prosecutor on the grounds that the prosecutor, before submitting the case to the court, had failed to explain to the applicant and his co-defendant their right to a jury trial. The court ordered that the prosecutor duly explain the right in question to the defendants. The court also ruled to keep unchanged the preventive measure which had been imposed on the applicant and declared that his detention was to be deemed extended until 17 January 2014.

The applicant appealed, arguing that the trial court had acted unlawfully in extending his detention of its own motion, without holding a hearing, and beyond the time-limit for detention authorised during the pre-trial investigation, that is beyond 22 November 2013. He relied, in particular, on the letter of the Higher Specialised Civil and Criminal Court of 4 April 2013.

On 9 January 2014 the Kharkiv Regional Court of Appeal upheld the ruling of the trial court, stating in particular that the defendants had not specifically asked to be escorted to the court hearing on 21 November 2013 and that they would be able to participate in the new preliminary hearing after the prosecutor re-submits the bill of indictment to the trial court.

B. Relevant domestic law and practice

1. Code of Criminal Procedure, 2012

Articles 193 and 199 which are contained in Chapter II of the Code which governs application and extension of preventive measures, including pre-trial detention.

Under Article 193 of the Code any request to apply preventive measures must be examined in the presence of the prosecutor, the defendant and his lawyer. The request can be examined in the defendant ’ s absence only where the prosecutor has proven that the defendant is on the international list of wanted persons.

Under Article 199 of the Code the prosecutor or the investigator, with the prosecutor ’ s consent, may submit a request to extend pre-trial detention no later than five days prior to the expiration of the detention order. The question of extension of the detention shall be considered according to the same rules as the question of placement in detention.

According to Article 315 of the Code d uring the preparatory court hearing the court shall be entitled, at the request of the parties, to impose, alter or revoke preventive measures imposed on the defendant. When considering such requests, the court shall follow the rules set forth in Chapter II of the Code. In the absence of such a request from the parties, the preventive measure imposed at the pre-trial investigation stage “shall be deemed to be extended”.

2. Letter of the Higher Specialised Civil and Criminal Court, 4 April 2013

In Item 21 of its letter of 4 April 2013 addressed to the appellate courts, the Higher Specialised Civil and Criminal Court stated, in explaining the provisions of the Code of Criminal Procedure, that if at the preliminary hearing the parties submit no motions concerning preventive measures the preventive measure ordered during the pre-trial investigation shall be deemed to be extended, within the time-limit set by court order during the pre-trial investigation.

COMPLAINTS

The applicant complains under Articles 5 and 6 of the Convention that on 21 November 2013 the domestic court ordered an extension of his detention until 17 January 2014, while under domestic law it could only be extended until 22 November 2013. He further complains that the domestic court decided to extend his detention in the applicant ’ s absence, without giving him or his lawyer an opportunity to comment on the question and without analysing the risks the applicant supposedly posed.

QUESTIONS TO THE PARTIES

1. Was the applicant ’ s detention from 21 November 2013 onwards compatible with the requirements of Article 5 § 1 of the Convention?

2. Was the procedure, which led to the decision of the Kharkiv Pervomayskyy District Court of 21 November 2013 to extend the applicant ’ s detention, in conformity with Article 5 § 4 of the Convention?