FIFTH SECTION

Application no. 28253/11 Oleksandr Viktorovych TYMCHENKO against Ukraine lodged on 27 April 2011

STATEMENT OF FACTS

The applicant, Mr Oleksandr Viktorovych Tymchenko , is a Ukrainian national, who was born in 1986 and lives in Berezan .

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

A. Criminal proceedings against the applicant

On 11 August 2010 investigation was opened concerning infliction of grievous bodily harm on Mr Sh.

On 12 August 2010 criminal proceedings were instituted against the applicant for inflicting grievous bodily harm on Mr Sh.

On 16 August 2010 the applicant was arrested.

On 18 August 2010 the Berezanskiy Local Court ordered the applicant ’ s detention for two months.

On 4 October 2010 the Baryshivskiy Local Court quashed the decision of the investigator of 12 August 2010 to institute criminal proceedings against the applicant. This decision was appealed against by the prosecutor.

On 15 October 2010 the Berezanskiy Local Court examined the application of the investigator to extend the applicant ’ s pre-trial detention for two more months. The hearing was postponed due to absence of the criminal case-file.

On 16 October 2010, in absence of the applicant ’ s lawyer and of the criminal case-file, the Berezanskiy Local Court resumed the hearing of the previous day, allowed the investigator ’ s application and extended the applicant ’ s detention up to four months.

On 28 October 2010 the Kyiv Regional Court of Appeal upheld the decision of the first instance court.

On 10 December 2010 the Berezanskiy Local Court started the examination of the criminal case against the applicant.

On 23 June and 30 August 2011 the Berezanskiy Local Court rejected the applicant ’ s requests for release.

On 31 August 2011 the Berezanskiy Local Court found the applicant guilty as charged and sentenced him to six years ’ imprisonment.

On 21 December 2011 the Kyiv Regional Court of Appeal quashed the decision of 31 August 2011 and remitted the case to the first-instance court for a fresh examination. It also decided to replace the applicant ’ s detention with an obligation not to abscond and ordered his immediate release.

B. Conditions of the applicant ’ s detention and transportation

The applicant was detained in the Chernigiv SIZO. The cells were overcrowded and were not properly ventilated. The applicant did not receive appropriate treatment and diet for his chronic hepatitis. It was recommended to him to pass comprehensive medical examination in a specialised medical institution, but it was not conducted.

During the applicant ’ s transportation to and from the court, he was placed in a metal wagon, which was not ventilated and in summer time the temperature there was over 40º C.

COMPLAINTS

The applicant complains under Article 5 § 1 of the Convention that he is deprived of his liberty in violation of the procedural legislation.

Referring to Article 6 §§ 1 and 3 (c) of the Convention, he also complains that on 16 October 2010 the domestic court extended his detention unlawfully and examined the issue of such extension without his lawyer. He complains that despite the unlawfulness of the above decision, it was upheld by the court of appeal in violation of Article 13 of the Convention.

In his further submissions he also complains under Article 3 of the Convention about conditions of his detention and quality of medical treatment in the Chernigiv SIZO and about conditions of his transportation. He maintains that his pre-trial detention was unreasonably long and unsubstantiated in violation of Article 5 § 3 of the Convention.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention? In particular, were the general conditions of the applicant ’ s detention, his medical treatment and diet in Chernigiv SIZO, as well as conditions of his transportation to the court hearings, compatible with Article 3 of the Convention?

2. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention?

3. Was the length of the applicant ’ s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention? In particular, did the authorities, in extending his pre-trial detention, advance sufficient reasons for doing so?

4. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detent ion, as required by Article 5 § 4 of the Convention?