FIFTH SECTION

Application no . 52892/08 Dmitriy Nikolayevich BONDARENKO against Ukraine lodged on 15 October 2008

STATEMENT OF FACTS

THE FACTS

The applicant, M r Dmitriy Nikolayevich Bondarenko , is a Ukrainian national, who was born in 19 82 and lives in Debaltseve .

A. The circumstances of the case

In March 2006 three minors complained to the police that on 27 February 2006 they had been ill-treated by three men, who forced them to do some work.

On 11 March 2006 the Debaltseve Police instituted criminal proceedings and identified Sh., D. and the applicant as suspects of having ill-treated the minors.

According to the applicant, between March and May 2006 he was not summoned to any questionings or otherwise officially informed that he was a suspect in the pending criminal proceedings.

By the beginning of May 2006 the applicant quit his employment for private company “A.” and went to Russia , purportedly in search of other employment.

On 17 May 2006 the applicant was placed on the wanted list.

On 25 May 2006 the Debaltseve Court issued a warrant for the applicant ’ s arrest.

In August 2006 the applicant returned to Debaltseve and complained to the Debaltseve Hospital doctors about ill-health (loss of fifteen kilograms between January and August 2006; thirst, numbness in legs, fatigue and other symptoms).

Between 25 August and 15 September 2006 the applicant, who was diagnosed with pancreatic diabetes, underwent in-patient treatment in the Debaltseve and Donetsk Hospitals . Following the treatment, he was prescribed insulin for daily intravenous injections on a permanent basis, recommended regular supervision by endocrinologist, ophthalmologist, neurologist and surgeon, and was referred to a specialised invalidity board ( MCEK ) for deciding on his invalidity status.

In December 2006 the applicant underwent examination by the invalidity board, which found that he qualified for the ‘ third degree ’ (mildest) invalidity status and pension.

According to the applicant, between August 2006 and January 2008, he permanently resided in Debaltseve with his wife and infant daughter and was under regular supervision of the Debaltseve doctors.

On 4 January 2008 the Debaltseve police arrested the applicant in connection with the criminal proceedings initiated in 2006 and requested the Debaltseve Court to remand him in custody to ensure that he did not abscond or interfere with the investigation.

On 6 January 2008 the Debaltseve Court remanded the applicant in custody for ten days to collect more information concerning his person.

On 14 January 2008 the Debaltseve Court ordered the applicant ’ s release under an undertaking not to abscond. The court noted, in particular, that the applicant ’ s detention was not warranted, as he had no history of absconding or interfering with the investigation. Furthermore, he was in need of regular intake of medicines and medical supervision in view of his disability, had presented positive character references, had no prior criminal record, and had a permanent place of residence with his wife and infant daughter.

On 15 January 2008 the applicant was re-employed by “A.,” his former employer.

On 22 January 2008 the Donetsk Regional Court of Appeal quashed the decision of 14 January 2008 and remitted the case for a fresh consideration. It instructed the first-instance court to pay more attention to the fact that the applicant was suspected of having committed a grave offence against the minors. It further questioned the first-instance court ’ s findings concerning the applicant ’ s positive character and social integration, having noted that the applicant had already left Debaltseve for a considerable time notwithstanding his family ties and ill-health, that he had been unemployed for an extended period and that if at liberty, he would have an opportunity to influence witnesses.

On 31 January 2008 the applicant was admitted to the Debaltseve Hospital with aggravation of his diabetes. He complained, in particular, about convulsions in his legs, numb toes, vertigo, constant fatigue, mouth dryness and thirst and further loss of weight.

In February 2008 the applicant was released from the hospital and “A.”, his employer, posted 8,500 hryvnias (UAH) in bail to avoid the applicant ’ s placement in detention.

On 6 March 2008 the Debaltseve Court accepted the bail offer and rejected the prosecutors ’ office ’ s request to remand the applicant in custody. The court expressed doubts that the applicant remained unaware of the pending criminal proceedings before his departure to Russia . In particular, in March 2006 A. K., one of the victims, had reported to the police that the applicant and his co-defendants had approached her requesting her to withdraw her criminal complaint. On the other hand, the court found that there was nothing in either this or any other documents, suggesting that the applicant had attempted to threaten or force the victims to testify in a certain way. Furthermore, there was no evidence that the applicant was in fact duly summoned for the questioning before his departure. In addition to this, although the charges against the applicant were serious, the victims had no longer demanded his prosecution. The applicant ’ s situation had changed significantly between the day of his departure to Russia and the moment of his arrest. He had long since returned to Debaltseve , settled with his family; was well integrated in the community and had not attempted to abscond, interfere with the investigation or commit another crime. The applicant ’ s health had significantly deteriorated since 2006 and he was in need of regular medical supervision and medicine intake. Regard being had to the applicant ’ s personality, health status and conduct, he could be released on bail.

On 19 March 2008 the Donetsk Regional Court of Appeal quashed this decision on appeal by the prosecutors ’ office and remitted the matter for a fresh consideration. It found that the amount of bail posted was too small. It further noted that the first-instance court ’ s conclusions regarding feasibility of releasing the applicant on bail were unconvincing, regard being had to its own findings that the applicant had left for Russia having been apprised of the criminal proceedings and that he had attempted to induce the victims to drop their accusations.

On 2 April 2008 the Debaltseve Court ordered that the applicant be remanded in custody. It noted that the charges against the applicant were grave; he had a prior criminal record, had breached an undertaking not to abscond by departing from Debaltseve for an extended period of time and had threatened the witnesses seeking to avoid criminal liability.

On the same date the applicant was arrested.

On 4 April 2006 the Artemivsk pre-trial detention centre (SIZO) no. 6. refused to admit the applicant referring to lack of facilities for his proper medical supervision.

On an unspecified date the applicant was admitted to the SIZO and subsequently placed in its medical unit.

In April 2006 the applicant appealed against the decision of 2 April 2006. He noted, in particular, that the first-instance court had taken a formalistic approach in applying the law and relied in fact on the gravity of the incriminated offence only. As regards the applicant ’ s character assessment, the court had erred in establishing the facts. In particular, the applicant had no prior criminal record; had not been under an undertaking not to abscond before his departure to Russia and there was no evidence that he had attempted to influence any witnesses.

On 18 April 2008 the Donetsk Regional Court of Appeal upheld the decision of 2 April 2008, having repeated the arguments advanced by the first-instance court. It also noted that, while the applicant suffered from an active illness, there was no evidence that his condition was incompatible with detention.

Following his arrest, the applicant and his wife lodged numerous petitions for his release on medical grounds.

On 11 June 2008 the Debaltseve Court requested the Artemivsk SIZO to provide information concerning the applicant ’ s state of health and his fitness for detention.

On 12 June 2008 the Chief of the Medical Unit of the Artemivsk SIZO requested the court to accelerate examination of the criminal case against the applicant, regard being had to insufficient facilities in the SIZO for his medical supervision. He further informed the Debaltseve Court that since his placement in detention, the applicant had been accommodated in the medical unit and supervised on account of pancreatic diabetes, diabetic angiosis of legs and eye retina and Basedow ’ s disease. In spite of regular insulin treatment, content of glucose in his blood was two-three times higher in excess of the norm. The applicant was in need of permanent supervision by an endocrinologist and in-patient treatment, the facilities for which were unavailable in the SIZO.

On 2 July 2008 the applicant was released on bail of 17,000 UAH paid by his employer.

B. Relevant domestic law

1. Criminal Code of Ukraine

Article 127 of the Criminal Code of Ukraine, which is the relevant provision, reads as follows:

Article 127. Torturing

“1. Torturing, that is intentional causation of intense physical pain or physical or moral suffering by way of inflicting injuries, tormenting, or other forceful acts in order to induce the victim or another person to perform acts, which are against their will, - shall be punishable by deprivation of liberty for the term from three to five years.

2. The same actions, performed... upon preliminary agreement by a group of persons, - shall be punishable by deprivation of liberty for the term from five to ten years.”

2. Code of Criminal Procedure of Ukraine

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 s 5 and 6 of the Convention that the decision to place him in custody was arbitrary and unfair, and that the judicial authorities twisted the facts in their reasoning.

The applicant also complains under Article 13 of the Convention that he had no effective remedies for his aforementioned Convention complaints.

QUESTIONS

1. Was the applicant ’ s placement in detention on 2 April 2008 compatible with the requirements of Article 5 § 1 (c) and Article 5 § 3 of the Convention to adduce relevant and sufficient reasons for a decision to deprive an individual of liberty? (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 procedure by which the applicant challenged the lawfulness of his detention in conformity with Article 5 § 4 of the Convention?

In particular, did the courts duly address the arguments raised by the defence in the course of those proceedings?