Communicated on 26 June 2015

FIFTH SECTION

Application no. 72970/13 Roman Ivanovych GRYSHKO against Ukraine lodged on 12 November 2013

STATEMENT OF FACTS

The applicant, Mr Roman Ivanovych Gryshko , is a Ukrainian national, who was born in 1980 and lives in Zaporizhzhya . He is represented before the Court by Mr Y. M. Voytovych , a lawyer practising in Zaporizhzhya .

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 instituted against the applicant on suspicion of aggravated fraud and forgery allegedly committed in connection with the activities of a credit union.

On 19 January 2012 the Zaporizhzhya Ordzhonikidzevskyy District Court remanded the applicant in custody. Subsequently, on unspecified dates, the applicant ’ s detention was extended, most recently by the Higher Specialised Civil and Criminal Court until 6 December 2012. No copies of these rulings have been provided to the Court.

On an unspecified date prior to 20 November 2012 the case against the applicant was submitted with a bill of indictment to the Zaporizhzhya Leninskyy District Court (“the trial court”) for trial.

On 20 November 2012 the new Code of Criminal Procedure of 2012 (“the new Code”) entered into force .

On 19 April 2013 the trial court held a preparatory hearing. At the hearing the prosecutor stated that the period of the applicant ’ s pre-trial detention had expired on 6 December 2012. Accordingly, he asked the trial court to order the applicant ’ s detention during the trial.

At the close of the hearing the trial court ruled that the applicant had to be placed in detention because other preventive measures would not be adequate to ensure his availability for trial. By way of reasoning, the trial court stated that the charges against the applicant were serious, that there were numerous victims who had suffered pecuniary and non-pecuniary damage, that the applicant had three children who were minors, a spouse who was ill and parents who all depended on him. The court also had regard to the applicant ’ s financial situation and the fact that he had an international passport. The court noted that the above factors led the court to believe that the applicant posed a high risk of absconding. Relying on the provisions of the Code of Criminal Procedure of 1960 (“the old Code”) the court committed the applicant for trial and ordered his detention for the duration of the examination of the case by the court, without stipulating any time-limit for detention.

On 22 April 2013 the applicant appealed arguing that, in accordance with the Transitional Provisions of the new Code, the trial court, in deciding to place the applicant in detention on remand, had to apply the new Code. The applicant argued, accordingly, that pursuant to the new Code the trial court had to fix a time limit, up to sixty days, for the applicant ’ s detention, which the trial court had failed to do.

On 26 June 2013 the Zaporizhzhya Regional Court of Appeal rejected the applicant ’ s appeal holding that under the old Code no appeal was possible against this ruling under domestic law.

B. Relevant domestic law

The relevant provisions of the old Code with respect to 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.

Item 11 of the Transitional Provisions of the new Code stipulates that criminal cases which had been received by the courts with bills of indictment prior to 20 November 2012 shall be examined by the courts in accordance with the provisions of the old Code.

The relevant provisions of the new Code with respect to detention pending investigation and trial read as follows:

Article 176 General provisions on preventive measures

“1. Preventive measures are:

...

(5) detention on remand.

...

4. Preventive measures shall be applied during the investigation by the investigating judge at the request of the investigator following agreement with the prosecutor, or at the request of the prosecutor; during the trial, they shall be applied by the court at the request of the prosecutor.”

Article 196 Ruling imposing preventive measures

“...

4. In any ruling imposing detention on remand or house arrest as a preventive measure the investigative judge or the court shall stipulate the end date of the ruling ’ s validity which must be within the maximum term provided by this Code ... ”

Article 197 Term of validity of the ruling on detention or continued detention

“1. The term of validity of the ruling by the investigating judge or the court ordering an accused ’ s detention or continued dete ntion may not exceed sixty days ...”

Article 315 Resolution of issues related to preparation for trial

“...

3. During the preparatory court hearing the court shall be entitled, at the request of participants in the trial, to impose, alter or revoke measures to ensure the conduct of the criminal proceedings, including any preventive measures imposed on the accused. When considering such requests, the court shall follow the rules set forth in Chapter II of this Code [Measures to Ensure the Conduct of Criminal Proceedings]. In the absence of such a request from the parties to the trial, the measures to ensure the conduct of the criminal proceedings that were selected at the pre-trial investigation stage shall be deemed to be extended.”

Article 331 Imposing, revoking or altering a preventive measure in court

“1. During the trial the court, at the request of the prosecution or the defence , may issue a ruling altering, revoking or imposing a preventive measure against the accused.

...

3. Regardless of whether such requests have been made, the court shall be obliged to examine the reasonableness of the accused ’ s continued detention within two months from the date of receipt of the indictment by the court ... or from the date of the court ruling ordering the accused ’ s detention as a preventive measure ...”

COMPLAINTS

The applicant complains that in ordering his detention on remand on 19 April 2013 the domestic court erroneously applied the provisions of the Code of Criminal Procedure of 1960 instead of the provisions of the Code of Criminal Procedure of 2012, which he believes was applicable in this case, and failed to fix a time-limit for the applicant ’ s detention during his trial. He further complains under Article 5 § 4 of the Convention that as a result of the application of the rules of the Code of Criminal Procedure of 1960 he was deprived of an opportunity to initiate review of the lawfulness of his detention at reasonable intervals .

QUESTIONS TO THE PARTIES

1. Was the applicant ’ s detention from 19 April 2013 onwards lawful for the purposes of Article 5 § 1 of the Convention? In particular, did the domestic law applicable in the applicant ’ s case require that the trial court fix a time-limit for the applicant ’ s detention in the course of examination of his case by domestic courts?

2. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention? In particular, did the domestic law applicable in the applicant ’ s case provide for the procedure for review of the lawfulness of the applicant ’ s detention at reasonable intervals in the course of examination of his case by domestic courts ?