FIFTH SECTION

Application no. 5425/11 Ruslan Anatoliyovych YAKOVENKO against Ukraine lodged on 17 January 2011

STATEMENT OF FACTS

The applicant, Mr Ruslan Anatoliyovych Yakovenko , is a Ukrainian national, who was born in 1979 and lives in Korolivka , Kyiv region. He is represented before the Court by Mr O.V. Levytskyy , a lawyer practising in Kyiv.

A. The circumstances of the case

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

On 12 July 2010 the Bila Tserkva Town Court (“the Bila Tserkva Court ”) found the applicant guilty of a criminal offence and sentenced him to four years and seven months ’ imprisonment. It also decided that the applicant, who then was in pre-trial detention, was to remain detained as a preventive measure pending the entry of the verdict into force.

On 15 July 2010 the term of the applicant ’ s sentence expired.

On the same date the administration of the Pre-Trial Detention Centre (SIZO), where he was detained, applied to the Bila Tserkva Court for permission to release him under an obligation not to abscond, given that he had in fact served the prison sentence in full. No reply followed.

On 27 July 2010 the fifteen-day time-limit for lodging appeals against the verdict of 12 July 2010 expired, and it became final.

On 29 July 2010, when the SIZO received the court ’ s order to execute the final judgment, the applicant was released.

On 5 August 2010 the State Prisons Department wrote to the applicant ’ s lawyer, in reply to his complaints about the delayed release of the applicant, that there had been no violations of the Code of Criminal Procedure.

B. Relevant domestic law and practice

According to Article 401 of the Code of Criminal Procedure 1960 (as worded at the material time), a verdict shall become final after the expiry of the term for its appeal (fifteen days – Article 439). An acquittal verdict, or a verdict lifting the punishment, is to be enforced immediately, whereas a guilty verdict must be enforced once it becomes final. Under Article 404 of the Code, the court, which delivered the verdict, shall send the case for enforcement no later than within three days after its entry into force.

COMPLAINTS

The applicant complains under Article 5 § 1 of the Convention that his detention from 15 to 29 July 2010 was unlawful.

He also complains under Article 2 of Protocol No. 7 that was in fact deprived of the right to challenge on appeal the verdict, by which he was convicted, being forced to choose between the realisation of this right and his freedom. Thus, in the applicant ’ s view, had he decided to appeal, this would have considerably delayed his release.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty from 15 to 29 July 2010 in breach of Article 5 § 1 of the Convention? What was the legal basis for his detention during this period? Did it comply with the “quality of law” requirement in order to be considered “lawful” in the meaning of Article 5 § 1 of the Convention?

2. Given the applicant ’ s detention pending his conviction becoming final, was he effectively afforded the right of appeal against the judgment of 12 July 2010, as envisaged by Article 2 § 1 of Protocol No. 7? Would his appeal, had he decided to lodge it, have delayed his release?