Communicated on 6 October 2015

FIFTH SECTION

Application no. 57993/13 Sergey Andreyevich GNATENKO against Ukraine lodged on 6 September 2013

STATEMENT OF FACTS

The applicant, Mr Sergey Andreyevich Gnatenko , is a Ukrainian national, who was born in 1983 and lives in Kyiv. He is represented before the Court by Mr M. O. Tarakhkalo , 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.

On 11 January 2011 criminal proceedings were instituted against the applicant on suspicion of kidnapping committed in a group. Subsequently additional charges of attempted aggravated fraud, aggravated violent robbery, theft of important documents, and endangerment with grave consequences were brought against the applicant.

On 2 February 2011 the applicant was placed on the list of wanted persons. The applicant alleges that prior to placing him on the list the police had not attempted to find or contact him.

On 3 February 2011 the Kyiv Shevchenkivskyy District Court (“the District Court”) issued a warrant for the applicant ’ s arrest.

On 24 October 2012 the applicant was arrested.

On 2 November 2012 the District Court imposed a preventive measures on the applicant remanding him in custody until 1 December 2012. The court stated that it took into account that the applicant did not have a permanent residence in Kyiv and the region and did not live at his registered address in the Lugansk region, was accused of a serious offence and had a prior criminal record. In view of these facts the court considered that, if at liberty, the applicant could interfere with the investigation or abscond.

On 30 November 2012 the criminal case against the applicant was submitted to the District Court with an indictment.

On 6 December 2012 the District Court, at the close of a preliminary hearing, returned the indictment against the applicant to the prosecutor finding that it contained certain omissions. Given that the parties did not submit any requests to change or revoke the preventive measure, the court ruled to deem the applicant ’ s detention extended.

On an unspecified date the applicant lodged a request for release. In this and subsequent requests he argued, in particular, that he had a son who was a minor and his old mother as dependants, prior to his arrest he in fact had had a job and a place of residence in Kyiv, and that in case of release he would stay at a rented flat in Kyiv.

On 14 January 2013 the District Court again returned the indictment to the prosecutor. In the same ruling the court rejected the applicant ’ s request for release stating that the applicant had failed to prove that the risks on which the court relied in remanding him in custody ceased to exist, in particular that he had failed to provide documents proving his assertions as to his place of residence, family and dependants. The court made no other order concerning the applicant ’ s detention.

On 14 March 2013 the District Court again returned the indictment to the prosecutor. It also rejected the applicant ’ s request for release, lodged on an unknown date, in which he had argued that he had a son who was a minor and an old mother as dependants, had rented a flat in Kyiv, had not been avoiding the investigation prior to his arrest because, despite the fact that he had supposedly been on the list of wanted persons, he had been able to freely travel between Ukraine and Russia on several occasions. The court gave the same reasons for rejecting the request as in its ruling of 14 January 2013. The court also decided to extend the applicant ’ s detention until 1 May 2013.

On 30 April 2013 the District Court again returned the indictment to the prosecutor and extended the applicant ’ s detention until 31 May 2013. In the same ruling the court rejected the applicant ’ s request for release, lodged on an unknown date, stating by way of reasoning that the applicant was accused of serious crimes involving violence, had a criminal record, and prior to his arrest had been on the list of wanted persons. For the court, this meant that there was a risk that he might abscond, reoffend or interfere with the investigation.

On 30 May 2013 the District Court returned the indictment to the prosecutor, extending the applicant ’ s detention until 5 July 2013.

On 1 July 2013 the case with the indictment was again resubmitted to the District Court.

On the same day the applicant lodged a new request for release. The applicant argued that he had not been avoiding the investigation prior to his arrest, that if at liberty he would not influence witnesses or interfere with the investigation, in particular because the investigation has been completed and because he had cooperated with the investigation.

On 3 July 2013 an investigating judge of the District Court ruled to leave the applicant ’ s request for release without examination on the merits because an investigating judge had no authority to examine requests for release after the case had been sent for trial, at which stage such requests had to be examined by the trial court.

On 4 July 2013 the District Court extended the applicant ’ s and his three co-defendants ’ detention until 12 July 2013 stating that in reaching this decision it had taken into account the information about the defendants ’ personal characteristics, the gravity of the charges, the lack of guarantees and confirmed social connections which would outweigh the existing risk that they would abscond, and the lack of any information showing that their state of health was incompatible with detention.

On 12 July 2013 the District Court rejected the applicant ’ s request for release, lodged the previous day and based mainly on the arguments previously presented by the applicant, and extended the applicant ’ s detention until 3 September 2013. The court gave the same reasons as those in its ruling of 30 April 2013.

On 22 August 2013 the applicant lodged a request for release arguing, in particular, that the period of his detention ordered on 2 November 2012 had expired on 1 December 2012. Therefore, it could not subsequently be extended and subsequent detention had been unlawful. He also argued that due to his strong social ties continued detention was not warranted.

On the same day the District Court rejected the applicant ’ s request stating that his detention was based on the ruling of 12 July 2013.

On 3 September 2013 the District Court rejected the applicant ’ s request for release, lodged on the same day, and extended the applicant ’ s detention until 30 December 2013. The court relied on the same reasons as those in its ruling of 30 April 2013.

On 9 December 2013 the prosecutor withdrew the charges of attempted aggravated fraud, aggravated violent robbery, theft of important documents, and endangerment with grave consequences previously lodged against the applicant. The charge of kidnapping remained.

On 24 December 2013 the District Court rejected the applicant ’ s request for release, lodged the day before, on the same grounds as in its ruling of 30 April 2013, and extended his detention until 21 February 2014.

On 28 January and 17 February 2014 the District Court rejected two other requests for release, giving the same reasons as in its ruling of 30 April 2013. On 17 February 2014 the court also extended the applicant ’ s detention until 17 April 2014.

On 16 March 2014 the District Court extended the applicant ’ s detention until 16 June 2014, citing the same reasons as in its ruling of 11 March 2014.

On 13 June, 19 June, 18 August and 15 October 2014 the District Court extended the applicant ’ s detention until 19 June, 19 August, 18 October and 15 December 2014 respectively, citing the same reasons as in its ruling of 30 April 2013.

On 8 December 2014 the District Court convicted the applicant sentencing him to seven years ’ imprisonment.

B. Relevant domestic law

On 20 November 2012 the new Code of Criminal Procedure of 2012 (“the new Code”) entered into force. However, the Code of Criminal Procedure of 1960 (“the old Code”) continued to apply under certain circumstances.

The relevant provisions of the old Code concerning detention pending investigation and trial can be found in the Court ’ s judgment in the case of Molodorych v. Ukraine (no. 2161/02, §§ 56-58, 28 October 2010).

According to item 9 of the Transitional Provisions of the new Code, preventive measures, including detention on remand, imposed pursuant to the rules of the old Code prior to 20 November 2012 shall remain in effect until such time as they are altered, revoked or discontinued in accordance with the provisions of the old Code.

The other relevant provisions of the new Code concerning detention pending investigation and trial can be found in the Court ’ s judgment in the case of Chanyev v. Ukraine ( no. 46193/13 , § 18, 9 October 2014 ).

COMPLAINTS

The applicant complains under Article 5 § 1 of the Convention that, due to the lack of adequate rules in the domestic legislation, from 1 December 2012 to 14 March 2013 court decisions concerning his detention failed to specify reasons for his detention or set a time-limit for it. Under Article 5 § 3 the applicant complains that the domestic court gave formulaic reasons for extending his detention which did not evolve over time, that the domestic court did not examine the applicant ’ s specific arguments for release and did not consider alternatives to detention. Under Article 5 § 4 he further complains that the domestic court did not conduct a meaningful review of the lawfulness of his detention during the period from 6 December 2012 to 3 September 2013. Referring to Article 5 § 5 the applicant complains that domestic law provided him no opportunity to seek compensation for his detention.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention during the period between 1 December 2012 and 14 March 2013 (see Kharchenko v. Ukraine , no. 40107/02 , §§ 74-76, 10 February 2011, and Chanyev v. Ukraine, no. 46193/13 , §§ 29-31, 34, 9 October 2014 )?

2. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention during the period between 31 May 2013 and 4 July 2013 (see Stašaitis v. Lithuania , no. 47679/99, § 67, 21 March 2002)?

3. Was the applicant ’ s pre-trial detention in breach of the requirements of Article 5 § 3 of the Convention? In particular, did the courts give sufficient and relevant reasons for the applicant ’ s pre-trial detention? Did they consider alternative measures of ensuring the applicant ’ s appearance at trial?

4. Did the applicant have at his disposal, during the period from 6 December 2012 to 3 September 2013, 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, 10 February 2011 ) ?

5. Does the applicant have an effective and enforceable right to compensation for his detention in alleged contravention of Article 5 §§ 1 and 3, as required by Article 5 § 5 of the Convention?