Communicated on 26 June 2015

FIFTH SECTION

Application no. 12260/15 Leonid Valentynovych SHOLOMYTSKYY against Ukraine lodged on 3 March 2015

STATEMENT OF FACTS

The applicant, Mr Leonid Valentynovych Sholomytskyy , is a Ukrainian national, who was born in 1957 and is currently detained in the Kyiv pre-trial detention centre. He is represented before the Court by Mr D.O. Morgun , 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 16 May 2014 the applicant was appointed to the post of the First Deputy Director of State Company ‘ Kyiv Armoured Tank Enterprise ’ ( “ the State C ompany ” ). On the same day he assumed the responsibilities of the Director of the State Company who was on leave at that time.

On 10 July 2014 the Military Prosecutor ’ s Office of Tsentralny Region opened an investigation into the abus e of powers by officials of the State Company causing serious losses. The prosecutor ’ s office received information that on 24 June 2014 the officials of the State Company groundlessly transferred UAH 12 millions to another legal entity for merchandise which had not been delivered.

Between 27 June and 16 July 2014 the applicant was undergoing medical examinations and treatment in hospital. He was diagnosed with saccular aneurism of medium cerebral artery and was recommended surgery (to clip the aneurism and prevent possible cerebral haemorrhage). The applicant was also diagnosed with numerous conditions: hypertension of medium risk, stenocardia , cardiosclerosis , cerebral atherosclerosis, encephalopathy , peptic ulcer in the stage of unstable remission, diathesis, prostate hyperplasia, minor kidney cyst, diffusive pulmonary fibrosis and pulmonary emphysema.

In the evening of 16 July 2014 the investig ator of the Military Prosecutor ’ s Office of Tsentralny Region arrested the applicant on suspicion of abuse of powers. As regards the grounds for the arrest, the arrest report cited Article 208 § 1 of the Code of Criminal Procedure (“the CCP”).

Following the applicant ’ s arrest, the investigator applied to the Pecherskyy District Court of Kyiv (“the first-instance court”) requesting to place the applicant in custody.

On 17 July 2014 the first-instance court allowed the investigator ’ s request and ordered the applicant ’ s pre-trial detention. The court found that the applicant had been reasonably suspected of a serious crime and that the material presented to it suggested that he could abscond or impede the establishment of truth by way of influencing witnesses. As alternative preventive measure, the court set a bail, fixing it in the amount of UAH 12 180 000 and noting that such amount was determined on the basis of the seriousness of the charges, the circumstances of the case, the family situation and financial status of the applicant.

The applicant appealed, arguing that his arrest by the investigator under Article 208 of the CCP had been groundless, the risks necessitating the applicant ’ s further detention had not been established, the applicant needed serious medical care and the amount of bail was exorbitant.

On 6 August 2014 the Kyiv Court of Appeal upheld the decision of 17 July 2014, considering that pre-trial detention was ordered lawfully and the amount of bail was appropriate.

On 1 September 2014 the Chief Military Prosecutor found that the investigation of the criminal case was conducted ineffectively since the role of the other officials of the State Company had not been examined and the ultimate destinations of the funds transferred by officials from the State Company had not been established. He therefore allocated the case to the investigative department of the Chief Military Prosecutor ’ s Office for further investigation.

On 5 September 2014 the first-instance court rejected as unsubstantiated the applicant ’ s request for changing the preventive measure, stating that the reasons for keeping the applicant in custody had been set out in its decision of 17 July 2014.

On 11 September 2014 the first-instance court considered the investigator ’ s request for extension of the applicant ’ s pre-trial detention and decided that the applicant should be held in custody until 9 November 2014. The court considered that that preventive measure had the aim of ensuring the applicant ’ s compliance with his procedural obligations and preventing him from absconding or influencing witnesses; those risks had been examined earlier and the relevant circumstances had not changed; the applicant ’ s state of health did not exclude the possibility of holding him in custody. As alternative preventive measure, the court set a bail fixing it in the same amount as previously.

On 30 September 2014 the Kyiv Court of Appeal dismissed the applicant ’ s appeal as unsubstantiated and upheld the decision of 11 September 2014.

On the same day the investigator informed the applicant that he was additionally suspected of misappropriation of funds, assisting in forging official documents and using them.

On 7 November 2014 the first-instance court allowed the prosecutor ’ s request and extended the applicant ’ s pre-trial detention until 9 December 2014. The court, taking into account the gravity of the charges and the circumstances of the alleged offences, concluded that there existed the risks that the applicant could abscond, that he could destroy and damage documents or physical evidence and that he could influence witnesses. Furthermore, the investigation of the case was not completed and the applicant ’ s positive characteristics were not sufficient to mitigate the preventive measure. At the same time, the court maintained the bail as alternative preventive measure, fixing it in the same amount as previously.

On 28 November 2014 the prosecutor approved the bill of indictment in the applicant ’ s case.

On 2 December 2014 the Kyiv Court of Appeal dismissed the applicant ’ s appeal against the decision of 7 November 2014 as unfounded stating that there had been appropriate reasons for the extension of the applicant ’ s pre-trial detention and the amount of bail had been determined properly.

B. Relevant domestic law

1. Constitution of 28 June 1996

The relevant part of Article 29 of the Constitution reads:

“... In the event of an urgent necess ity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if, within seventy-two hours of the moment of detention, he or she has not been provided with a reasoned court decision in respect of the detention. ...

Everyone who has been detained has the right to challenge his or her detention in court at any time. ... ”

2. Code of Criminal Procedure of 13 April 2012

Article 188 § 1 of the Code provides that a prosecutor or an investigator (upon prosecutor ’ s approval) may apply to a court seeking an arrest warrant against a suspect or accused. Article 189 §§ 2 and 3 of the Code provides that the request for arrest warrant should be considered immediately in a closed hearing with the participation of a prosecutor.

Article 208 § 1 of the Code provides that a competent official has the right to arrest an individual without decision of the investigating judge or the court if that individual is suspected of crime punishable by imprisonment and:

(1) if that individual was caught when committing a crime or when attempting to commit it; or

(2) if immediately after the commission of a crime an eye-witness, including a victim, or the totality of obvious signs on the body, on the clothes or at the scene of the event indicate that that individual has just committed a crime.

COMPLAINTS

1. The applicant complains under Article 5 § 1 (c) of the Convention that the investigator arrested him unlawfully .

2. The applicant complains under Article 5 §§ 1 and 3 of the Convention the court decisions concerning his pre-trial detention were arbitrary and unsubstantiated.

QUESTIONS TO THE PARTIES

1. Was the applicant ’ s arrest and detention between 16 and 17 July 2014 on the basis of the investigator ’ s decision compatible with Article 5 § 1 (c) of the Convention?

2. Was the applicant ’ s detention based on the court decisions adopted between July and December 2014 compatible with the requirements of Article 5 § 1 (c) and 3 of the Convention?