FIFTH SECTION

Application no. 20317/09 Vyacheslav Fedorovych DEYNEKO against Ukraine lodged on 27 March 2009

STATEMENT OF FACTS

The applicant, Mr Vyacheslav Fedorovych Deyneko , is a Ukrainian national, who was born in 1966 and is currently serving his sentence in prison.

A. The circumstances of the case

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

On 10 March 2005 the applicant was appointed to the post of the head of Brusyliv District State Administration, Zhytomyr Region.

On 20 September 2007 he was arrested on charges of bribery.

On 21 September 2007 the Pechersk District Court of Kyiv ordered the applicant ’ s pre-trial detention for two months. The court noted that the applicant was charged with a serious crime and, if at liberty, he could try to abscond from justice, obstruct the investigation, and continue his criminal activities.

The applicant ’ s lawyers appealed against that decision claiming that it was arbitrary and that no factual circumstances existed to support the conclusions of the first-instance court.

On 28 September 2007 the Kyiv Region Court of Appeal upheld the decision of 21 September 2007 noting that the first-instance court had properly taken into account all the relevant circumstances when ordering the custodial preventive measure in respect of the applicant.

On 15 November 2007, 17 January, 19 March, 19 May, 17 June, 26 June, 29 July 2008 the courts extended the applicant ’ s pre-trial detention noting that it was necessary to take additional investigative and procedural steps while there were no grounds to change the preventive measure.

On 3 October 2008 the Malyn District Court of Zhytomyr Region (“the first-instance court”) committed the applicant for trial. The court maintained the custodial preventive measure.

On 23 November 2008 the applicant ’ s lawyer lodged a request with the first-instance court seeking that the preventive measure in respect of the applicant be changed for bail. Referring to the medical documents, the lawyer contended that the applicant ’ s state o f health was unsatisfactory. He further stated that the applicant ’ s relatives were ready to make the necessary deposit for the purpose of bail.

On 27 November 2008 the court refused the request noting that the preventive measure had been chosen correctly. The court held that there had been no conclusive medical evidence suggesting that the applicant could not be held in detention facility for health reasons.

The applicant then requested the first-instance court to order a forensic medical examination to determine, among other issues, the illnesses he was suffering from, the methods of their treatment and whether they were available in the detention facility.

On 22 December 2008 the court refused the request noting that the applicant had undergone a forensic medical examination on 16 June 2008 and during his detention he was regularly assessed at the medical units of the detention facilities.

On 12 February 2009 the first-instance court considered the requests of the applicant, his lawyers and a number of individuals, including a Member of Parliament, deputies of Zhytomyr Region Council and state officials, asking the court to release the applicant under the personal guarantees of those individuals. The court noted that the applicant was charged with a serious offence and, if at liberty, he could abscond from justice, obstruct the establishment of truth and exert influence on the witnesses. Moreover, there was no medical report to the effect that the applicant could not be held in detention due to his bad health. The court therefore rejected the requests.

On 22 April 2009 the facility detaining the applicant, issued a letter to his lawyer stating that the applicant was diagnosed with varix dilatation of the lower limbs; third degree chronic venous insufficiency of the left lower limb; second degree chronic venous insufficiency of the right lower limb; hypothalamic syndrome; carbon tolerance impairment; diffuse non-toxic goiter of the first degree; a chronic trophic ulcer on the left shin. It was specified that the recommended surgical treatment in respect of the varix dilatations was not available in the detention facility.

Relying on this letter, the applicant lodged with the first-instance court a new request for changing the preventive measure.

On 27 April 2009 the court refused the request noting the case file did not contain any medical evidence suggesting that the applicant could not be kept in custody.

7 August 2009 the applicant was dismissed from the post of the head of Brusyliv District State Administration. The applicant challenged the dismissal before the Zhytomyr Region Administrative Court which on 26 March 2010 rejected the claim without considering it on the merits. That court noted that the applicant had neither asked for the determination of the claim in his absence, nor appeared for the hearings in person.

On 12 October 2009 the detention facility issued another letter to the applicant ’ s lawyer stating that it had been recommended that the applicant undergo surgical treatment in respect of his progressing varix dilatation illness. This type of treatment could not be carried out within the detention facility and the medical staff was not in position to foresee the consequences of the refusal to provide the applicant with surgical treatment.

During the next court hearing the applicant requested the court to change the preventive measure for health reasons.

On 16 October 2009 the court considered the request. It noted that the prosecutor had submitted a written statement of 13 October 2009, made by the governor of the detention facility, that the applicant ’ s health was satisfactory, he was not suffering from any life-threatening illnesses, and that he could be held in custody. Having assessed the available material, the court rejected the request.

On 26 November 2009 the court refused another similar request by the applicant noting that the court had not been provided with the evidence suggesting that the applicant needed any immediate surgical treatment.

On 22 January, 22 February 2010 and the court refused two more requests by the applicant for changing the preventive measure for health reasons. The court found that the applicant was being provided with the requisite medical treatment by the staff of the detention facility and there had been no grounds to order his release.

On 12 March 2010 the court refused another release request noting that there had been nothing to suggest that the applicant ’ s health had deteriorated so much that he could no longer be kept in custody.

On 9 April 2010 the court considered another request for changing the preventive measure. It noted that according to the letter of 8 April 2010 of the governor of the detention facility the applicant ’ s state of health was satisfactory; all the doctors ’ recommendations, with two exceptions, could be complied with provided that the detention facility was furnished with the relevant medicaments. Having assessed the available medical evidence, the court refused the applicant ’ s request.

During the next court hearing the applicant requested the court to order a forensic medical examination in order to determine a number of questions including the following: what were the illnesses that the applicant was suffering from at the time of his examination? Could the applicant be held in custody without receiving the requisite medical treatment?

On 14 May 2010 the court refused the request noting that the case file contained sufficient material in respect of the applicant ’ s health.

On 16 July 2010 the court found the applicant guilty of bribery and sentenced him to nine years ’ imprisonment combined with the confiscation of a half of the applicant ’ s property and a three-year prohibition on occupy ing posts in the bodies of the State executive power and the local self-governance. The applicant and the prosecutor appealed.

On 1 December 2010 the Zhytomyr Region Court of Appeal considered the case and aggravated the sentence by ordering the confiscation of all applicant ’ s property and by depriving him of the special rank of State official. The applicant appealed in cassation.

On 19 May 2011 the Higher Specialised Civil and Criminal Court of Ukraine upheld the judgment of 1 December 2010 after amending its reasoning part.

B. Relevant domestic law

Article 150 of the Code of Criminal Procedure provides that when deciding the issue of preventive measure in a criminal case, the courts shall take into account, inter alia , the health of the accused.

Other relevant provisions of the Code can be found in the judgment in the case of Osypenko v. Ukraine (no. 4634/04 , § 33, 9 November 2010).

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that he was not provided with appropriate medical treatment during his detention.

2. The applicant complains under Article 5 § 1 of the Convention that the court decision of 21 September 2007, ordering his pre-trial detention, was arbitrary.

3. The applicant complained under Article 5 § 3 of the Convention that his pre-trial detention was excessive and that the authorities failed to give relevant and sufficient reasons to justify it.

4. The applicant complains that his requests for changing the preventive measure were refused arbitrarily.

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

6. He complains under Article 6 §§ 1 and 3 (d) of the Convention that the courts failed to properly examine the evidence in his criminal case, call all the witnesses and conduct a fair trial.

7. The applicant alleges under Article 6 § 1 of the Convention that he was not provided with a fair trial when challenging his dismissal.

QUESTIONS TO THE PARTIES

1. Has there been a breach of Article 3 of the Convention on account of lack of adequate medical treatment and assistance during the applicant ’ s detention?

The Government are invited to provide relevant medical documents in support of their submissions.

2. Was the applicant ’ s pre-trial detention, based on court decision of 21 September 2007, contrary to Article 5 § 1 of the Convention?

3. Was the applicant ’ s pre-trial detention in breach of the requirements of Article 5 §§ 1 (c) and 3 of the Convention? In particular, was the overall length of the applicant ’ s pre-trial detention in breach of the “reasonable time” requirement? Did the courts give sufficient and relevant reasons for the applicant ’ s pre-trial detention and ensure that it be free from arbitrariness? Did they consider alternative measures of ensuring the applicant ’ s appearance at trial?

The Government are invited to provide copies of the missing decisions by which the domestic authorities applied, extended or maintained the applicant ’ s detention in custody.

4. Was the procedure by which the applicant sought to challenge the lawfulness of his detention in conformity with Article 5 § 4 of the Convention? Did the court adequately examine the applicant ’ s arguments and the evidence submitted in their support? Was the burden of proof in those proceedings distributed properly by the court?

5. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3, as required by Article 13 of the Convention?