Communicated on 27 August 2015

FIFTH SECTION

Application no. 42322/13 Mykola Stepanovych MARCHENKO against Ukraine lodged on 19 June 2013

STATEMENT OF FACTS

The applicant, Mr Mykola Stepanovych Marchenko , is a Ukrainian national, who was born in 1945 and lives in Kyiv . He is represented before the Court by Mr O.S. Lytovchenko , a lawyer practising in Kyiv .

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

From 5 March 1998 until an unspecified date prior to 9 February 2009 the applicant was the chief executive officer of commercial bank K.

Due to financial difficulties encountered by the bank on 9 February 2009 the National Bank of Ukraine decided to put bank K. under temporary St a te administration. The bank has remained under State administration ever since.

According to the applicant, on 29 June 2010 the Security Service of Ukraine initiated criminal proceedings in connection with embezzlement on a particularly large scale committed by the management of K. bank.

On 14 December 2011 criminal proceedings were instituted against the applicant on suspicion of large-scale embezzlement committed in an organised group in his capacity as the bank ’ s CEO , namely siphoning off the bank ’ s funds th r ough unsecured loans.

On the same day the applicant was arrested. According to the arrest report he was arrested on suspicion of embezzlement committed through abuse of his position in a conspiracy with others. The report indicated that the purpose of arrest was to prevent the applicant from evading the investigation or interfering with it and from continuing his criminal activities as well as the need to ensure enforcement of procedural decisions in the case.

On 16 December 2011 the Shevchenkivskyy District Court of Kyiv (“the District Court”) remanded the applicant in custody, stating that he was accused of a particularly serious offence and that if at liberty he might abscond or interfere with the investigation.

The applicant appealed arguing that the first-instance court did not sufficiently t a k e into account the applicant ’ s person al characteristics , relied primarily on the gravity of the charges, and did not take into account that the applicant had not worked at the bank for three years and therefore could not interfere with the investigation. He also argued that the investigators did not have direct evidence of the applicant ’ s guilt.

On 26 December 2011 the Kyiv City Court of Appeal (“the Court of Appeal”) upheld the ruling of 1 December 2011 sta t ing that the decision of the District Court to place the applicant in custody was correct taking into account the applicant ’ s person, the gravity of the offence of which he was suspected and there were no grounds for choosing a non-custodial preventive measure for the applicant.

On 9 February 2011 the District Court extended the applicant ’ s detention to four months, that is to 14 April 2012. By way of reasoning the court stated that the investigative authority needed time to obtain conclusions of expert examinations, needed to resolve the question of whether to initiate criminal proceedings in connection with additional loan transactions, present final charges to the applicant, provide the case-file to the applicant for study, and conduct a number of other investigative actions. The court also stated that the applicant could abscond or interfere with the investigation if released.

The applicant appealed, arguing that, being retired, he had no more connections with the former colleagues at the bank and therefore could not interfere with the investigation, posed no threat to the society, was married and had strong social links with his family, had a dependent son who was a minor, that his wife needed surgery and that the applicant ’ s state of health was incompatible with detention. He further argued that the District Court ’ s ruling failed to comply with the case-law of the European Court of Human Rights because the court failed to justify the existence of the risks the court referred to.

On 14 February 2012 the Court of Appeal rejected the applicant ’ s appeal. The Court of Appeal stated that contrary to the arguments of the applicant the District Court did take into account the applicant ’ s person. The Court of Appeal found n o support for the applicant ’ s argument that his state of health was incompatible with his detention. It went on to note that the District Court had held a hearing and heard the parties ’ arguments and rightly took into account the need to conduct additional investigative actions, his person, the gravity of the offence with which he had been charged as well as the absence of grounds for release.

On 12 April 2012 the Court of Appeal extended the applicant ’ s detention to six months. By way of reasoning the court noted that the applicant had been remanded in custody lawfully and that the investigative authority needed time to complete the investigation. The court went on to state that in taking this decision it took into account the applicant ’ s person, the gravity of the charges, the lack of grounds for release, that there continued to exist the risk that the applicant may interfere with the investigation, abscond, cont in ue his criminal activities or fail to comply with decisions of the investigative authority.

On 11 June 2012 the Court of Appeal extended the applicant ’ s detention to nine months, stating that the decision to remand the applicant in custody had been correct, that he was charged with a serious off ence, the investigative authority need ed time to conduct a substantial number of investigative actions, and that the risks that the applicant may abscond or interfere with the investigation continued to persist.

On 3 September 2012 the Higher Specialised Civil and Criminal Court extended the applicant ’ s detention to eleven months, that is to 14 November 2012. The court stated that the applicant was charged with a serious offence, the investigative authority needed more time to complete the investigation and present final charges, considering that the case was complex, concerned numerous episodes of illegal activities, and r a n to 160 volumes, and there were no grounds to order the applicant ’ s release. The court went on to note that the extension would comply with the “reasonable time” requirements of Article s 5 and 6 of the Convention.

On 13 November 2012 the Court of Appeal extended the applicant ’ s detention to thirteen months. The court stated that one of the co-defendants was still studying the case file. Moreover, it noted that in deciding to extend the applicant ’ s detention it took into account the ci r cumstances of the case, the applicant ’ s person, his age, family situation and state of his health, the gravity of the offences he was charged with, that there were no grounds for releasing the applicant . The court stated that the applicant ’ s continued detention was needed in order to prevent him from absconding and to ensure compliance with procedural decisions taken in the case. It further stated that the investigative authority needed time to provide the case file, which ran to 198 volumes, to the applicant, other defendants and their lawyers for study . In the court ’ s opinion, the extension would comply with the “reasonable time” requirements of Article s 5 and 6 of the Convention.

On 14 January 2013 the Pecher skyy District Court of Kyiv ordered the applicant ’ s release from custody and replaced it with house arrest .

COMPLAINTS

The applicant complains under Article 5 §§ 1 and 3 of the Convention that there were no sufficient grounds for his arrest and detention for the period of thirteen months and the domestic courts did not grant his requests for release . The applicant also complains under Article 5 § 5 of the Convention that he could not claim compensation in respect of his lengthy unjustified detention .

QUESTIONS TO THE PARTIES

1. Was the applicant ’ s arrest and detention from 1 4 December 2011 to 14 January 2013 compatible with the requirements of Article 5 §§ 1 and 3 of the Convention (see Grinenko v. Ukraine , no. 33627/06, §§ 83 and 84, 15 November 2012 , and Taran v. Ukraine , no. 31898/06, § § 70 -72 , 17 October 2013 )?

2. 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?