FIFTH SECTION

Application no. 74297/11 Anton Vitaliyovych PODVEZKO against Ukraine lodged on 23 November 2011

STATEMENT OF FACTS

The applicant, Mr Anton Vitaliyovych Podvezko , is a Ukrainian national, who was born in 1976 and lives in Kharkiv . He is represented before the Court by Mr O. L. Polyshchuk , 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 29 December 2009 a police investigator instituted criminal proceedings against the applicant and charged him with two counts of fraudulent appropriation of property. On the same day the applicant was placed on the list of wanted persons.

On 27 April 2010 the applicant was arrested and familiarised with the charges.

On 29 April 2010 the applicant ’ s pre-trial detention was authorised by a court.

On 25 June 2010 the applicant was released under a written undertaking not to abscond.

On 28 February 2011 the case was referred to the Dzerzhynskyy District Court of Kharkiv (“the District Court”) for trial.

On 4 April 2011 the District Court held a preliminary hearing in the case and ordered, inter alia , that the preventive measure in respect of the applicant should be changed and that the applicant should be placed in pre-trial detention. In this respect the District Court considered that the applicant could influence witnesses, conceal or remove traces and evidence of the crime, especially having regard to the fact that the applicant denied his guilt. The court further noted that the applicant was charged with a serious crime and his actual place of residence did not coincide with his registered address. It therefore concluded that the applicant could behave negatively and his isolation was necessary. In its decision the District Court also noted that the applicant was of middle age, that he was not a disabled person, that he did not suffer from chronic illnesses, that he had a family and a minor son, and that he worked as director of a company.

During the trial, on 8 April, 30 June, 29 July and 19 September 2011 the applicant requested the District Court to change the preventive measure in his respect and release him.

On 5 July 2011 the District Court dismissed as unfounded one of the applicant ’ s release requests. The court noted that the applicant ’ s actual and registered addresses did not coincide, he was charged with a serious crime, and that there were grounds to believe that the applicant could behave negatively, if released. The District Court repeated that the applicant was of middle age, that he was not a disabled person, that he did not suffer from chronic illnesses, that he had a family and a minor son, and that he worked as director of a company. The court further noted that it had not been established that the applicant ’ s detention was impossible for medical reasons. Moreover, there had been no positive reference letters in respect of the applicant and he did not admit his guilt. As to the bail, there was no evidence that the funds were available for this purpose and could be transferred on the deposit account of the court.

On 19 August 2011 the District Court dismissed as unfounded another applicant ’ s release request (submitted on 29 July 2011). The court noted that the applicant ’ s actual and registered addresses did not coincide, he was charged with a serious crime, and that there had been grounds to believe that he could behave negatively, if released. The District Court repeated that the applicant was of middle age, that he was not a disabled person, that he did not suffer from chronic illnesses, that he had a family and a minor son, and that he worked as a director of a company. It further found that the medical evidence did not suggest that the preventive measure had to be changed as the applicant ’ s illnesses could be treated in the detention facility. As to the question of bail, there was no evidence that appropriate funds had been available. The bank certificate concerning the applicant ’ s lawyer ’ s account only suggested that the funds available on that account were personal property of the lawyer. The court further considered that there were no grounds to believe that the applicant would not continue his criminal activity and would not abscond, if released. The court also added that there were no positive reference letters in respect of the applicant and he did not admit his guilt.

B. Relevant domestic law

The relevant provisions of the Code of Criminal Procedure of Ukraine of 1960 can be found in the judgment in the case of Molodorych v. Ukraine , ( no. 2161/02, § §56- 5 9 , 28 October 2010 ).

COMPLAINTS

1. The applicant complains that the court decisions concerning his detention during judicial proceedings, were not compatible with Article 5 § 1 (c) of the Convention.

2. The applicant complains under Article 5 § 3 of the Convention that his continued detention during the judicial proceedings was not based on the relevant and sufficient reasons.

3. The applicant complains that his release requests were not properly dealt with by the District Court. In particular, certain requests were allegedly dismissed without consideration.

QUESTIONS TO THE PARTIES

1. Was the applciant ’ s detention starting from 4 April 2011 compatible with requirements of Article 5 § § 1 ( с ) and 3 of the Convention ?

The Government are invited to provide copies of all the court decisions dealing with the issues of the applicant ’ s detention in that period .

2. With respect to the period which commenced after the completion of the pre-trial investigation, d id 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?