FIFTH SECTION

Application no. 37198/10 Volodymir Georgiyoviych MALYK against Ukraine lodged on 22 June 2010

STATEMENT OF FACTS

The applicant, Mr Volodymir Georgiyoviych Malyk , is a Ukrainian national, who was born in 1972 and lives in Zhytomyr .

A. The circumstances of the case

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

1. Background to the case

The applicant was director of a limited liability company. In April 2009 the company, having debts under loan agreements, changed the composition of shareholders and the managing staff. Those changes were allegedly made on the basis of forged documents.

Subsequently, the bank requests to pay the debts were refused by the company and the applicant. The latter claimed that he was no longer working at the company. Apparently, the banks applied to the law-enforcement authorities complaining about the embezzlement of funds and forgery of documents.

2. The applicant ’ s arrest and the ensuing proceedings

In the morning of 27 November 2009 police officers entered the applicant ’ s flat, produced a search warrant issued by a court, and carried out a search. They seized the applicant ’ s computer, mobile phone and certain other items they found in the flat. The police officers then asked the applicant to accompany them to the police station for questioning.

The applicant allegedly spent the whole day in the police station either being questioned or waiting for further instructions from police officers. The applicant was questioned as a witness in a criminal case.

At 10.15 p.m. the investigator of the Zhytomyr Prosecutor ’ s Office informed the applicant that he was arrested for seventy-two hours on suspicion of having committed a crime. The investigator drew up an arrest report specifying that the applicant was arrested in accordance with Articles 106 and 115 of the Code of Criminal Procedure on the ground that “eyewitnesses directly identified him as the person who had committed the crime ”. The report did not specify the nature of the crime of which the applicant was suspected.

On 28 November 2009 the applicant challenged his arrest before the Bohunskyy District Court of Zhytomyr (“the District Court”). The investigator applied to the District Court to order the applicant ’ s further pre-trial detention.

On 30 November 2009 judge B. of the District Court decided to extend the applicant ’ s preliminary detention to ten days. It noted that the applicant had been suspected of embezzlement of financial funds and forgery of documents. The court ordered that the investigator produce more information concerning the personality of the applicant, his family status and his lifestyle.

On 7 December 2009 the investigator released the applicant under a written obligation not to abscond.

On 29 January 2010 the District Court found that the applicant ’ s arrest was unlawful because there was nothing in the criminal case file to suggest that there had been any eyewitness who had pointed at the applicant as the person who had committed the crime. The prosecutor appealed against that decision.

On 23 February 2010 the Zhytomyr Region Court of Appeal quashed the decision as unfounded noting that the District Court had not properly examined the witnesses ’ statements available in the criminal case file. The case was remitted to the District Court for fresh consideration.

On 15 March 2010 judge B. of the District Court dismissed the applicant ’ s complaint after enumerating seven witnesses whose statements suggested that they had identified the applicant as the person who had committed the crime. The applicant appealed against that decision.

On 7 April 2010 the Court of Appeal upheld the decision of 15 March 2010 noting that the case file did contain the witnesses ’ statements which justified the investigator ’ s decision to arrest the applicant.

On 11 May 2010, the Supreme Court rejected the applicant ’ s cassation appeal as inadmissible noting that the decisions of 15 March 2010 and 7 April 2010 had not been subject to review by the Supreme Court.

B. Relevant domestic law

Code of Criminal Procedure of 28 December 1960

Articles 106 and 115 of the Code read as follows:

Article 106. Arrest of a suspect by the body of inquiry

“The body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds:

1. if the person is discovered whilst or immediately after committing an offence;

2. if eyewitnesses, including victims, directly identify this person as the one who committed the offence;

3. if clear traces of the offence are found either on the body of the suspect, or on his clothing, or with him, or in his home.

If there is other information giving ground to suspect a person of a criminal offence, a body of inquiry may arrest such a person if the latter attempted to flee, or does not have a permanent place of residence, or the identity of that person has not been established.

For each case of a suspect ’ s arrest, the body of inquiry shall be required to draw up an arrest report ( протокол затримання ) outlining the grounds, the motives, the day, time, year and month, the place of arrest, the explanations of the person detained and the time when it was recorded that the suspect had been informed of his right to have a meeting with defence counsel as from the moment of his arrest, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The arrest report shall be signed by the person who drew it up and by the detainee.

A copy of the arrest report with a list of his rights and obligations shall immediately be handed to the detainee and sent to the prosecutor. At the request of the prosecutor, the material which served as a ground for the arrest shall be sent to him as well. ...

Within seventy-two hours of the arrest, the body of inquiry shall:

(1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of the preliminary detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article;

(2) release the detainee and select a non-custodial preventive measure;

(3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her.

If the arrest is appealed against to a court, the detainee ’ s complaint shall be immediately sent by the head of the detention facility to the court. The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure. If the complaint is received after the preventive measure was applied, the judge shall examine it within three days after receiving it. If the request has not been received or if the complaint has been received after the term of seventy-two hours of detention, the complaint shall be considered by the judge within five days after receiving it.

The complaint shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring that the arrest is lawful or allowing the complaint and finding the arrest to be unlawful.

The ruling of the judge may be appealed against within seven days from the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court ’ s ruling.

Preliminary detention of a suspect shall not last for more than seventy-two hours.

If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up the order to that effect, and shall inform the official or body that carried out the arrest accordingly.”

Article 115. Arrest of a suspect by an investigator

“An investigator may arrest and question a person suspected of having committed a crime according to procedure envisaged by Articles 106, 106-1, and 107 of the Code.”

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 5 § 1 (c) of the Convention that his arrest and detention, based on the investigator ’ s decision of 27 November 2009, was arbitrary.

2. The applicant alleges that the courts failed to properly consider his complaint concerning the unlawfulness of his arrest. In particular, the applicant alleges that judge B. was biased.

QUESTIONS TO THE PARTIES

1. Was the applicant ’ s arrest and detention, based on the investigator ’ s decision of 27 November 2009, contrary to Article 5 § 1 of the Convention?

2. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his arrest and detention, as required by Article 5 § 4 of the Convention? Did the length of the proceedings in the present case, by which the applicant sought to challenge the lawfulness of his arrest and detention, comply with the “speed” requirement of Article 5 § 4 of the Convention?