FIFTH SECTION

Application no. 46193/13 Yuriy Vasylyovych CHANYEV against Ukraine lodged on 9 July 2013

STATEMENT OF FACTS

The applicant, Mr Yuriy Vasylyovych Chanyev , is a Ukrainian national, who was born in 1983 and lives in Izmayil .

A. The circumstances of the case

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

On 29 November 2012 the applicant was served with a notice that he was suspected of having murdered Mr S. on 28 November 2012.

On 30 November 2012 the investigating judge of the Reny Local Court of Odessa Region ordered the applicant ’ s pre-trial detention up to 27 January 2013.

On 25 January 2013 the investigating judge extended the applicant ’ s pre-trial detention until 27 February 2013.

On 27 February 2013 the indictment and the criminal case file were forwarded by the prosecutor to the court.

On 28 February 2013 the applicant ’ s lawyer requested the Head of the Izmail SIZO to release the applicant immediately given that the period of his detention ordered by court had expired on 27 February. By letter of the same day, the Head of the Izmail SIZO replied to the applicant ’ s lawyer that under the Code of Criminal Procedure, after referral of the criminal case-file to the trial court, it was for that court to decide on the applicant ’ s further detention.

The same day the lawyer further complained to the prosecutor about the failure of the prison authorities to release the applicant. In reply to the applicant ’ s letter, the Odessa Regional Prosecutor ’ s Office informed the applicant ’ s lawyer that the applicant ’ s pre-trial detention had been extended in January 2013 up to 27 February 2013 and that on the latter date the criminal case-file against the applicant had been referred to the trial court, therefore the applicant ’ s rights and interests had not been violated.

On 12 March 2013 the lawyer also submitted a request to the investigating judge for the applicant ’ s release. He noted that the applicant ’ s pre-trial detention ordered by the judge had expired on 27 February 2013 and no decision on the applicant ’ s further detention had been taken.

On 14 March 2013 the investigating judge rejected the above request. With reference to part 3 of Article 331 of the Code of Criminal Procedure, the judge noted that on the last date of the applicant ’ s pre-trial detention, that is 27 February 2013, his criminal case had been referred to the trial court, which had two months to decide on the applicant ’ s further detention. The judge concluded that there had been no grounds for the applicant ’ s release on 28 February 2013.

On 25 March 2013 the Odessa Regional Court of Appeal upheld the decision of 14 March 2013.

On 15 April 2013 the Izmail Local Court of Odessa Region examined the applicant ’ s case, remitted it for further investigation and ordered the applicant ’ s further detention until 25 May 2013.

B. Relevant domestic law

1. Constitution

Article 29

“Every person has the right to freedom and personal inviolability.

No one shall be arrested or held in custody other than pursuant to a reasoned court decision and [then] only on the grounds and in accordance with the procedure established by law.

...

Everyone arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel.

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

Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.”

2. Code of Criminal Procedure, 2012

Article 315

Resolution of issues related to preparation for trial

“... 3. During the preparatory court hearing, the court shall be entitled, upon motions of participants to the trial, to select, change or cancel measures of ensuring criminal proceedings, including the preventive measure which had been selected in respect of the accused. When considering such motions, the court shall follow the rules set for in Chapter II of this Code [Means of Ensuring Criminal Proceedings]. In absence of the above motions from the parties to the trial, the application of measures of ensuring criminal proceedings, which were selected at the pre-trial investigation stage, shall be deemed extended.”

Article 331

Imposing, revoking, or changing a preventive measure in court

“ 1. During the trial the court , upon the motion of the prosecution or the defen c e , ma y by its ruling change, cancel or select a preventive measure against the accused.

...

3. Regardless of whether such motions were made, the court shall be obliged to examine the reasonableness of continuing detention of the accused before the expiry of two months from the date of receipt of the indictment by the court , ... or from the date of application by a court of the preventive measure of detention to the accused ...”

COMPLAINT

The applicant complains under Article 5 § 1 of the Convention that he was detained without any court order between 28 March and 15 April 2013 and that the penitentiary authorities failed to release him and the prosecuting and judicial authorities did not react to that fact of his unlawful detention .

QUESTION TO THE PARTIES

Was the applicant ’ s detention without a court order between 28 February and 15 April 2013 compatible with requirements of Article 5 § 1 of the Convention ( Kharchenko v. Ukraine , no. 40107/02 , § 98 , 10 February 2011 ) ?