FIFTH SECTION

Application no. 1467/07 Denys Leonidovych TSYPIN against Ukraine lodged on 23 December 2006

STATEMENT OF FACTS

The applicant, Mr Denys Leonidovych Tsypin, is a Ukrainian national, who was born in 1972 and lives in Kyiv.

A. The circumstances of the case

On 18 February 2005 the applicant, a private lawyer, was arrested on suspicion of having extorted money from a private construction company and a private bank financing its construction project for de-blocking the construction site from protesters, who claimed the project was unlawful.

During the questioning on the same day the applicant pleaded that he was innocent of any wrongdoing. He acknowledged that he had received payment from the officials of the above companies for assisting them to de-block the site from protesters, but denied that he had extorted it. The applicant submitted that instead he had promised to explain the protesters that the construction was lawful and encourage them to call off their action.

On 21 February 2005 the Pecherskyy District Court of Kyiv (“the Pecherskyy Court ”) ordered that the applicant be remanded in custody for ten days to collect further information concerning his person and the likelihood that he would abscond, interfere with the investigation or commit other unlawful acts if released pending the investigation against him.

On 28 February 2005 the Pecherskyy Court extended the applicant ’ s detention for two months, the relevant part of the decision reading as follows:

“... [the applicant] is accused of having committed a grave offence which, according to the law, may entail a punishment in the form of imprisonment for more than three years; therefore, remaining at liberty he may abscond ..., interfere with the establishment of the truth; additionally, his person, age, health status, family and financial status, type of activity, etc. are also taken into account.”

On 14 April 2005 the applicant was committed to stand trial in the Pecherskyy Court on charges of extortion.

On 28 April 2005 the Pecherskyy Court held a preparatory hearing and found that there were no reasons to release the applicant from custody.

On 17 March 2006 the applicant requested to remit the case for additional investigation and release him from custody pending further investigative actions.

On 24 March 2006 the Pecherskyy Court remitted the case for additional investigation and extended the applicant ’ s detention for another two months ’ term.

The prosecution appealed, alleging that the trial should proceed. The applicant also appealed, seeking to be released from custody. He referred to Article 5 § 3 of the Convention and submitted that his further detention was unwarranted and disproportionate. In particular, his previous procedural conduct was beyond reproach; he was well-integrated in the community, had a permanent place of residence and employment, as well as four minor children in his care.

On 22 June 2006 the Kyiv City Court of Appeal (“Court of Appeal”) allowed the appeal by the prosecution and remitted the case back to the Pecherskyy Court for trial. The Court further rejected the applicant ’ s appeal, considering that regard being had to the renewal of the trial, he should be considered as detained pursuant the decision of 28 April 2005, which was not subject to appeal.

On 6 July 2006 the applicant again requested the Pecherskyy Court to release him pending trial, referring to his previous arguments and absence of prior criminal record and complaining that in detention he could not obtain qualified medical supervision for his heart problems. He also noted that he had already been detained for fifteen months and, since the investigation had been completed, his interference with the collection of evidence was improbable.

According to the applicant, this request was never examined by the court.

On 17 August 2006 the applicant lodged a new request for release, based on his earlier arguments.

On the same day the Pecherskyy Court examined and rejected it, referring to the gravity of the charges against the applicant. The relevant part of the decision reads as follows:

“... [the applicant] is accused of having committed a crime, which belongs to the category of particularly grave offences and entails punishment, which may exceed ten years ’ imprisonment. [The applicant ’ s] allegations that he is innocent ... and other circumstances are irrelevant, since the judicial investigation in the case has not commenced, the factual circumstances of the case and evidence of [the applicant ’ s] guilt or innocence, as well as the case-file materials, which characterise the person of [the applicant] have not been examined by the court.”

On 5 September 2006 the Pecherskyy Court refused to examine the applicant ’ s new request for release.

On 9 October 2006 the Pecherskyy Court examined and rejected the applicant ’ s further request for release lodged on that day referring to essentially the same arguments.

On 15 November 2006 the Pecherskyy Court decided to transfer the case for further examination to the Shevchenkivsk y y District Court of Kyiv (“the Shevchenkivsk y y Court ”). It ordered that the applicant remain in custody subject to the further discretion of the Shevchenkivsk y y Court .

The applicant appealed against this decision requesting the Court of Appeal to release him from custody. Subsequently (on 7 December 2006) the Pechersk y y Court set aside this appeal without consideration, having found that the applicant had no procedural standing to lodge one. The court, however, accepted the appeal by the injured party and transferred the case for review by the Court of Appeal.

On 16 November 2006 the applicant requested the Shevchenkivskyy Court to release him from custody.

On 30 November 2006 this request was returned without consideration, as the case had not arrived at the Shevchenkivskyy Court .

In December 2006 the applicant requested the Governor of the pre-trial detention facility to release him on the ground that there was no longer any valid decision to hold him in custody. His request having been rejected, the applicant instituted administrative proceedings against the Governor. Subsequently (on 4 March 2008) the Higher Administrative Court discontinued these proceedings referring to lack of jurisdiction.

On 22 March 2007 the Kyiv Court of Ap peal quashed the decision of 15 November 2006 and remitted the case back to the Pecherskyy Court for examination on the merits.

On 31 May 2007 the Pecherskyy Court started the trial and rejected the applicant ’ s further request for release, referring to the fact that the applicant was pleading innocent, to the gravity of the charges against him, and finding that there was no evidence that a milder preventive measure would guarantee his proper procedural conduct.

On 12 and 18 June 2007 the Pecherskyy Court rejected two further requests by the applicant on essentially the same grounds.

On 15 August 2007 the Pecherskyy Court found that there was no evidence that the applicant had extorted money from the injured parties. On the other hand, he had fraudulently convinced them that it was in his power to have the protesters call off or continue their action. Having re-qualified charges against the applicant in law as fraud, the Pecherskyy Court sentenced him to three years ’ imprisonment and ordered that his personal property be confiscated.

On 8 February 2008 the Court of Appeal upheld this judgment.

The applicant did not lodge a further cassation appeal, purportedly to avoid extension of his detention for a longer period.

On 18 February 2008 the applicant was released from detention, as having been detained for three years by that time, he was considered to have served his sentence.

B. Relevant domestic law

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

COMPLAINTS

The applicant complains under Article 5 § 1 of the Convention that his detention after 24 March 2006 was arbitrary.

He further complains under Article 5 § 3 of the Convention that starting from the above date his detention was not based on relevant and sufficient reasons and its length was unreasonable.

The applicant also complains under Article 5 § 4 of the Convention that he had no meaningful opportunity to bring proceedings by way of which the lawfulness of his detention after 24 March 2006 would be decided speedily.

The applicant next complains under Article 6 § 1 of the Convention that the criminal proceedings against him and the administrative proceedings against the Governor of the detention facility were unfair and lengthy.

Finally, the applicant complains under Article 13 of the Convention that he had no effective remedies for his complaints concerning ar bitrary deprivation of liberty.

QUESTIONS TO THE PARTIES

1. Was the applicant ’ s detention between 24 March 2006 and 15 August 2007 lawful within the meaning of Article 5 § 1 (c) of the Convention (see e.g. Khayredinov v. Ukraine , no. 38717/04 , §§ 26-31, 14 October 2010 and Korneykova v. Ukraine , no. 39884/05 , §§ 38 and 43, 19 January 2012 ) ?

2. Was the applicant ’ s detention during the above period in breach of his right under Article 5 § 3 of the Convention to have a trial within a reasonable time or to be released pending trial?

In particular, did the courts adduce relevant and sufficient reasons for the applicant ’ s continuing detention?

3. Was the procedure by which the applicant challenged the lawfulness of his detention in conformity with Article 5 § 4 of the Convention to examine his requests speedily and to address the arguments raised by the defence (see e.g. Kharchenko v. Ukraine , no. 40107/02 , §§ 85-86 and 100, 10 February 2011) ?