FIFTH SECTION

Application no . 6472/07 Oleksandr Yevgenovych SOBKO against Ukraine lodged on 24 January 2007

STATEMENT OF FACTS

The applicant, Mr Olek sandr Yevgenovych Sobko, is a Ukrainian national, who was born in 1956 and lives in Kyi v.

A. The circumstances of the case

In October 2000 criminal proceedings were instituted against the applicant on suspicion of large scale appropriation of collective property (Article 86-1 of the Criminal Code of Ukraine of 1960 in force at the material time). As the police could not establish the applicant ’ s whereabouts, he was placed on the wanted list and the proceedings were suspended.

In 2003 at least ten other sets of criminal proceedings were instituted, directly or indirectly implicating the applicant in various crimes, including forgery, fraudulent appropriation of property and unlicensed possession of firearms.

At about 11 p.m. on 16 September 2003 the Bila Tserkva Police instituted criminal proceedings into fraudulent appropriation of fuel by the applicant using forged identity documents issued in P. ’ s name.

On the same date the applicant was arrested in Bila Tserkva in connection with the above criminal proceedings and on 18 September 2003 questioned in the presence of his advocates.

On 19 September 2003 the applicant was escorted to the Boryspilsk y y District Police Department, where he was re-arrested in connection with the criminal proceedings instituted in 2000.

According to the applicant, on the same day the Bila Tserkva authorities issued an order for his release in connection with the proceedings laying the basis for his initial arrest, which decision was never communicated to him and the relevant proceedings were eventually discontinued for want of evidence of his involvement in the crime at issue.

On the same day the applicant was further brought before a judge of the Boryspilskyy District Court (“ Boryspilskyy Court ”), who examined the case in absence of the applicant ’ s lawyers, who had not been informed about his re-arrest and ordered his remand in custody until 16 November 2003. The court noted, in particular, that the applicant was suspected of grave offences and had been on the wanted list. The applicant did not appeal against this decision.

On 7 November 2003 an investigator with the Kyiv Regional Police terminated the criminal proceedings in the above case, noting that regard being had to the entry into force of the new Criminal Code of 2001, the accusations under Article 86-1 of the old Code should be considered null and void.

On the same day the investigator instituted new criminal proceedings against the applicant with respect to the same facts qualified as fraud and forgery within the meaning of Articles 190 and 358 of the new Criminal Code of Ukraine.

On 14 November 2003 the Boryspilskyy Court extended the applicant ’ s detention, ordered within the framework of the proceedings formally terminated on 7 November 2003, until 16 January 2004. According to the case-file materials, the applicant did not appeal against this decision.

On 13 January 2004 the Kyiv Regional Court of Appeal (“the Court of Appeal”) further extended the applicant ’ s detention until 16 April 2004. This decision was not subject to appeal.

In 2004 a number of new sets of criminal proceedings were instituted against the applicant, concerning multiple episodes of forgery, fraud, office abuse and financial fraud.

On 13 April 2004 the Court of Appeal further extended the applicant ’ s previously ordered detention until 16 June 2004.

On 4 June 2004 the applicant was informed that the investigation in his case was completed and the case was ready for trial.

On 15 June 2004 the Court of Appeal extended the applicant ’ s detention until 16 August 2004, referring to the need to prepare the case for trial, in particular, to provide the applicant with an opportunity to study the case-file, which at the material time comprised nineteen volumes.

It is not clear what the legal basis for the applicant ’ s detention was between 16 August and 3 September 2004.

On 3 September 2004 the Boryspilskyy Court held a preparatory hearing in the applicant ’ s case and remitted it for additional investigation, referring to numerous breaches of various procedural rules, which were not remediable within the framework of judicial proceedings. In particular, the court noted that the decision of 7 November 2003 to institute criminal proceedings against the applicant concerning the events referred to on 19 September 2003 was unlawful, as at the material time there existed a valid decision to discontinue the criminal proceedings against him arising from the same facts. The court also found that in breach of applicable procedures the indictment referred to a number of episodes of criminal activity, which had not been mentioned in the decisions to institute criminal proceedings. The court finally decided, without giving the grounds for its decision, that the applicant should remain in custody. Based on the case-file materials, this decision was not appealed against and became final.

On 15 December 2004 the General Prosecutors ’ Office quashed the investigative authority ’ s decision of 7 November 2003 to discontinue the criminal proceedings against the applicant, as erroneous in its form. It noted that by taking this decision, the investigation intended to reclassify the charges against the applicant within the framework of the previous proceedings, rather than to drop them.

On an unspecified date the case was referred back to the Boryspilskyy Court for trial.

On 11 February 2005 the Boryspilskyy Court held a new preparatory hearing and remitted the case back for additional investigation, referring to the investigative authorities ’ failure to redress some of the procedural breaches mentioned in its earlier decision. In particular, the court instructed the investigative authority to have criminal proceedings formally instituted in respect of some of the episodes of criminal activity, which laid basis for the applicant ’ s final indictment. The court also found no reasons to release the applicant.

On 13 April 2005 the Court of Appeal quashed the above decision and remitted the case back to the Boryspilskyy Court .

On 6 June 2005 the Boryspilskyy Court took a fresh decision to remit the case back to the investigative authorities for various procedural breaches to be rectified. The court also decided that the applicant should remain in custody, as there were no reasons for his release. Based on the case-file materials, this decision was not appealed against and became final.

On 28 September 2005 the Kyiv police took decisions to institute several sets of criminal proceedings in respect of some episodes, which had been found by the court to have been incriminated to the applicant without formal institution thereof.

On an unspecified date the case was referred back to the Boryspilskyy Court for trial.

On 8 November 2005 the Kyiv Regional Court of Appeal extended the applicant ’ s detention until 6 December 2005, having noted that the applicant needed time to study the case-file, which by then consisted of twenty-four volumes and as other procedural formalities had to be completed. In addition, it noted that the applicant was charged with a number of particularly grave offences, had a prior criminal record, had been in hiding for some time and had been accused of having used forged identity documents.

On 5 December 2005 the Kyiv Regional Court of Appeal further extended the applicant ’ s detention until 26 January 2006 based on similar reasons.

It is not clear on what basis the applicant remained in detention between 26 January and 4 April 2006.

On 4 April, 20 July and 18 October 2006 the Boryspilskyy Court took fresh decisions to remit the case for additional investigation following preparatory hearings, instructing the investigative authorities to address a number of various irregularities in preparation of procedural documents. Each time the court upheld the applicant ’ s detention.

On 31 May and 6 September 2006 and 21 February 2007 respectively the Court of Appeal quashed the above decisions, having found that the breaches referred to did not constitute obstacles for trying the applicant ’ s case and could be addressed within the framework of the judicial proceedings.

On 2 April 2007 the Boryspilskyy Court held a new preparatory hearing and admitted the case for trial. It confirmed that the applicant should remain in detention.

B. Relevant domestic law

The relevant provisions of the Constitution of Ukraine and the Code of Criminal Procedure of Ukraine of 1960 have been summarised in the Court ’ s judgment in the case of Molodorych v. Ukraine ( no. 2161/02 , §§ 54 ‑ 60, 2 8 October 2010) .

COMPLAINTS

The applicant complains that his arrest on 16 September 2003 and further detention were unlawful and that his detention pending investigation and trial has been inordinately lengthy. He refers to Article 5 of the Convention in respect of the above complaints.

The applicant also complains under Article 6 of the Convention that his procedural rights have been breached on many occasions within the framework of the criminal proceedings against him and that these proceedings have lasted for an unreasonably long period of time.

Finally, he complains under Article 7 of the Convention that his lengthy detention without conviction has in fact amounted to his unlawful punishment.

QUESTIONS TO THE PARTIES

1. Was the applicant ’ s detention after 7 November 2003 lawful within the meaning of Article 5 § 1 (c) of the Convention?

The Parties are requested to provide copies of all the court decisions extending the applicant ’ s detention, which have not been enclosed in the original application, and copies of the applicant ’ s relevant appeals.

The Parties are also invited to comment, in particular, on the following matters:

(a). Was the applicant ’ s detention from 7 November 2003 until 16 August 2004 in compliance with applicable domestic law, regard being had that the criminal proceedings, within the framework of which his original detention was ordered on 19 September 2003, were terminated?

(b). What was the legal basis for the applicant ’ s detention during the following periods: from 16 August until 3 September 2004, from 13 April until 6 June 2005, from 26 January until 4 April 2006, from 31 May until 20 July 2006, from 6 September until 18 October 2006 and from 21 February until 2 April 2007?

(c). Was the applicant ’ s detention between 8 November 2005 and 26 January 2006 necessary for the purposes of Article 5 § 1 (c) of the Convention (see e.g. Khayredinov v. Ukraine , no. 38717/04 , §§ 26-31, 14 October 2010 and Korneykova v. Ukraine , no. 39884/05 , §§ 38 and 43, 19 January 2012)?

2 . Was the length of the applicant ’ s detention under Article 5 § 1 (c) compatible with the requirements of Article 5 § 3 of the Convention?

The Parties are requested, in particular, to inform the Court about the duration of this period.

3. Was the length of the criminal proceedings against the applicant in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

The Parties are requested, in particular, to inform the Court about the duration of this period.