FIFTH SECTION

Application no. 51199/08 O.R. against Ukraine lodged on 17 October 2008

STATEMENT OF FACTS

The applicant is a Ukrainian national, who was born in 1972 and lives in Kyiv. The President granted the applicant ’ s request for his identity not to be disclosed to the public (Rule 47 § 3).

A. The circumstances of the case

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

On 4 July 2003 criminal proceedings were instituted against the applicant for financial frauds committed against private persons.

On 18 November 2003 the investigator arrested the applicant.

On 21 November 2003 the Shevchenkivskyy District Court of Kyiv (“the District Court”) ordered the applicant ’ s pre-trial detention. The applicant was placed in the Kyiv Pre-Trial Detention Centre no. 13 (“the Kyiv SIZO”) which was an ordinary pre-trial detention facility provided with a standard medical unit.

On 26 December 2003 the District Court committed the applicant for trial.

On 30 January 2004, following a request by the applicant ’ s lawyer, the District Court ordered a forensic psychiatric examination of the applicant to determine whether the latter suffered from a mental disorder at the time of the alleged crime and later on.

On 27 May 2004 a board of forensic psychiatric experts concluded that at the time of the alleged crime the applicant suffered from a mental disorder (schizophrenia) and therefore he could neither understand his actions, nor control them. At the time of the examination the applicant still suffered from that disorder. The experts further concluded that the applicant required compulsory inpatient psychiatric treatment under ordinary supervision in a mental health facility.

On 31 August 2004 the District Court decided that the applicant could not be tried due to his mental disorder and ordered that he should undergo compulsory psychiatric treatment under ordinary supervision in a mental health facility.

On 15 September 2004 the applicant was transferred from the Kyiv SIZO to the Kyiv Neuropsychiatric Hospital no. 3 (“the Psychiatric Hospital”).

On 3 November 2004 the applicant was returned to the Kyiv SIZO since the decision of 31 August 2004 was appealed against and it was not considered final.

On 1 December 2004 the Kyiv Court of Appeal quashed the decision of 31 August 2004 as unlawful noting that it was taken in breach of the rights of the aggrieved parties. It remitted the case to the District Court for a fresh consideration. It also held that the applicant should be further detained in the Kyiv SIZO.

On 11 March 2005 the applicant ’ s lawyer complained to the District Court that the length of the proceedings was excessive. The lawyer claimed that the applicant was not provided with adequate treatment in the Kyiv SIZO.

On 28 March 2005 the District Court decided that the case should be remitted for additional investigation since there was no sufficient information necessary for considering the case on the merits.

On 25 May 2005 the Kyiv Court of Appeal quashed that decision and ordered that the District Court conduct the trial.

On 13 October 2005 the District Court allowed the requests by the prosecutor and the aggrieved parties and ordered another forensic psychiatric examination of the applicant.

On 2 February 2006 a board of forensic psychiatric experts issued a report stating that at the time of the alleged crime the applicant suffered from a personality disorder but could understand his actions and control them; at the time of the examination the applicant still suffered from that disorder which did not deprive him of the mental capacity to understand and control his actions.

On 20 July 2006 the District Court convicted the applicant of financial frauds and sentenced him to six years ’ imprisonment. The court also ordered confiscation of his property. The applicant ’ s lawyer appealed.

On 20 September 2006 the Kyiv Court of Appeal ordered another forensic psychiatric examination of the applicant noting that the case file contained contradictory evidence regarding the applicant ’ s mental health.

Between 29 March and 19 April 2007 the applicant was being examined in the Kyv City Centre for Forensic Psychiatric Examinations. Following that examination the experts concluded that at the time of the crime the applicant suffered from a personality disorder but could understand his actions and control them; however, at the time of examination the applicant suffered from schizophrenia which did deprive him of the mental capacity to understand and control his actions.

On 11 July 2007 the Kyiv Court of Appeal ordered an additional forensic psychiatric examination of the applicant to clarify whether at the time of the trial between 2005 and 2006, including the date of the applicant ’ s conviction, the applicant suffered from a mental disorder. The examination was entrusted to experts from two different forensic psychiatric institutions. Following the examination the experts concluded that during the period specified the applicant could neither understand his actions, nor control them.

In the light of this finding, on 11 January 2008 the Kyiv Court of Appeal quashed the judgment of 20 July 2006 and remitted the case to the District Court for a new consideration. It also ordered that the applicant should be further kept in custody in the Kyiv SIZO.

On 3 June 2008 the District Court found that the applicant ’ s involvement in the financial frauds was confirmed by the evidence in the file. However, the applicant could not be held responsible due to his mental disorder. It therefore held that the applicant should undergo compulsory psychiatric treatment under strict supervision in a mental health facility. The parties did not appeal against that decision.

On 27 June 2008 the applicant was transferred to the Psychiatric Hospital for treatment.

On 20 March 2009 the Vasylkiv District Court terminated the compulsory treatment of the applicant and released him from the Psychiatric Hospital on the ground that he had recovered from the mental disease.

COMPLAINTS

1. The applicant complains that that he was not provided with requisite psychiatric treatment during his prolonged detention in the Kyiv SIZO.

2. The applicant complains under Article 6 § 1 of the Convention that the length of the criminal proceedings against him was excessive.

3. The applicant complains under Article 6 of the Convention that the criminal proceedings against him were unfair as he was not given access to a lawyer in due time and the courts failed to properly apply the law and establish the relevant facts.

QUESTIONS TO THE PARTIES

1. Has there been a breach of Article 3 of the Convention on account of the conditions of the applicant ’ s detention? Did the Kyiv SIZO have requisite medical staff, medicaments and equipment to ensure an appropriate medical treatment of the applicant?

2. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

The Government are invited to provide a chronological list of the investigative and judicial measures taken in the applicant ’ s case.