FIFTH SECTION

Application no. 40902/09 Vitaliy Vasilyevich STEPANISHEN against Ukraine lodged on 27 July 2009

STATEMENT OF FACTS

The applicant, Mr Vitaliy Vasilyevich Stepanishen , is a Ukrainian national, who was born in 1983 and lives in Khmelnytskyy . He is represented before the Court by Ms T. Sivak , a lawyer practising in Khmelnytskyy .

The circumstances of the case

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

On 28 January 2009, at about 6 p.m., the applicant was taken by the police to the Khmelnytskyy City Police Department where he was questioned in respect of some incidents of fraud.

On 28 and 29 January 2009 he wrote confessions to several such offences. In particular, the applicant admitted that he had asked some persons if he could borrow their mobile phones in order to make a phone call, without having ever returned those phones.

On 30 January 2009 a criminal case was opened against the applicant on suspicion of fraud. In the evening a report on his detention was drawn up. As noted therein, he was detained as a criminal suspect on that date at 7.40 p.m. in the premises of the police station.

On the same day the applicant started to be represented by a lawyer.

On 2 February 2009 the applicant was taken to the Khmelnytskyy City Court (“the Khmelnytskyy Court ”), which held that it was necessary to make further enquiries about him and decided to extend the term of his detention to ten days.

On 7 February 2009 two other criminal cases were opened in respect of the applicant, on suspicion of theft of a mobile phone and illegal deprivation of liberty of a person.

On 9 February 2009 the Khmelnytskyy Court ordered the applicant ’ s detention as a preventive measure pending trial. It noted that he had been unemployed since 2004 and that he was suspected of having committed several criminal offences within a short period of time, which “illustrated his personality”. The court explained its choice of the preventive measure by the seriousness of the charges against the applicant, his age and personal characteristics, and the likelihood of his absconding, continuing criminal activities or impeding the establishment of the truth while at large.

The applicant ’ s lawyer appealed. She submitted that her client had been cooperating with the investigating authorities, had confessed to several episodes of fraud, had shown remorse and had reimbursed the damage to the victims. Furthermore, he had his permanent place of residence in Khmelnytskyy and, in order to ensure his proper procedural behaviour, an obligation not to leave the town would be a sufficient preventive measure. The lawyer maintained that the court ’ s presumption about the applicant ’ s possible absconding or re-offending while at liberty was devoid of any evidential basis.

On 13 February 2009 the Khmelnytskyy Regional Court of Appeal upheld the detention order. It noted that the applicant was suspected of serious offences and that there were no reasons for changing the preventive measure.

On 25 March 2009 the applicant was indicted. On an unspecified date shortly thereafter the Khmelnytskyy Court started the trial.

On 15 May 2009 the Khmelnytskyy Court rejected the applicant ’ s request for release under an obligation not to abscond. The case file, as it presently stands, does not contain a copy of this ruling.

On 24 November 2009 the Khmelnytskyy Court found the applicant guilty of illegal deprivation of liberty of Ms S. for a brief period of time (she had been chained for a few minutes) and several episodes of fraud. He was acquitted of the theft charge. The court sentenced him to a total of three years ’ imprisonment. The applicant ’ s sentence was considered to have started running on 30 January 2009.

COMPLAINTS

The applicant complains under Article 5 § 1 of the Convention about the alleged unlawfulness of his undocumented detention between 28 and 30 January 2009. He further complains under Article 5 §§ 1 and 3 that the court did not advance adequate and sufficient reasons for his pre-trial detention and did not consider less intrusive preventive measures. The applicant also complains under Article 5 § 3 that he was brought before a judge only after five days. Lastly, he makes a general complaint under Article 5 § 4 that there was no legally envisaged possibility for him to seek judicial review of the lawfulness of his detention during about three months before he had been committed for trial.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty for the period from 28 to 30 January 2009 in breach of Article 5 § 1 of the Convention?

2. Was the applicant brought promptly before a judge or other officer authorised by law to exercise judicial power, following his arrest on 28 January 2009 , as required by Article 5 § 3 of the Convention?

3. Was the applicant ’ s pre-trial detention compatible with the requirements of Article 5 §§ 1 and 3 of the Convention, regard being had to the reasonableness of the grounds given to justify it ?