FIFTH SECTION

Application no. 42676/08 Aleksandr Vladimirovich DOBROV against Ukraine lodged on 20 August 2008

STATEMENT OF FACTS

The applicant, Mr Aleksandr Vladimir ovich Dobrov, is a Ukrainian national, who was born in 1982 and lives in Debaltsevo.

A. The circumstances of the case

On 11 March 2006 the Debaltsevo Police instituted criminal proceedings to investigate allegations that on 27 February 2006 three minors had been tortured by several individuals, forcing them to work against their will.

On an unspecified date the police identified Sh., B. and the applicant as suspects in connection with the proceedings.

In May 2006 the applicant went to Russia in search of employment. According to him, before his departure he had never been summoned for questioning or other investigative activities in connection with the above proceedings and was unaware that the above criminal proceedings had been pending.

On 25 May 2006 the Debaltsevo Court issued a warrant to arrest the applicant.

In June 2007 the applicant returned to Debaltsevo, settled with his parents and took employment with private company “A.” as an electric mechanic.

On 16 January 2008 the applicant, who learned from Sh. that B. had been arrested in connection with the events of 27 February 2006, reported to the police and confessed that he had been engaged in the events in question.

On the same day the applicant was arrested and on 17 January 2008 indicted under Article 127 paragraph 2 of the Criminal Code of Ukraine.

On an unspecified date in January 2008 the Debaltsevo Police requested the Debaltsevo Court to order the applicant ’ s detention to prevent him from absconding or interfering with the investigation.

The applicant requested to be released on bail, and his employer offered UAH 8,500 (hryvnias) [1] to secure his release.

On 22 January 2008 the Debaltsevo Court released the applicant on bail, having noted, in particular, that he had no prior criminal record, had positive character references, and that there was n o history of him absconding. On the contrary, the applicant had voluntarily reported to the police and confessed of his involvement in the investigated events. In these circumstances, there was little likelihood that the applicant would re-offend, abscond or interfere with the investigation in any way.

The prosecutors ’ office appealed. They noted, in particular, that the applicant had been suspected of a serious offence and that he had fled from justice, having left for Russia in 2006 after the criminal proceedings had been instituted against him.

On 30 January 2008 the Donetsk Regional Court of Appeal quashed the Debaltsevo Court ’ s decision and remitted the matter for a fresh consideration to the same court. It noted that the very gravity of the incriminated offence gave reasons to suspect that the applicant could abscond and that he had in fact abandoned Debaltsevo for Russia in 2006.

On 30 January 2008 the applicant was re-arrested.

His employer agreed to post 17,000 hryvnias [2] to secure his release on bail.

On 13 February 2008 the Debaltsevo Court allowed the investigation ’ s request and ordered the applicant ’ s detention. It noted, in particular, that although the applicant had positive character references, he had been indicted of a crime, which could entail up to a ten-years prison term. His detention was therefore warranted.

The applicant appealed. He submitted that, as appeared from the text of the challenged decision, the only reason for his detention was the gravity of the incriminated offence. In the meantime, the placement of a defendant in custody based on the gravity of the incriminated offence alone was unwarranted. He further noted that, insofar as the Debaltsevo Court may have been suggesting, in the light of the reasoning contained in the Court of Appeal ’ s decision of 30 January 2008, that he had gone to Russia to abscond from the criminal prosecution, this suggestion was speculative. Prior to his departure, the applicant had not been officially informed that criminal proceedings against him had been pending and had not received any summons for questioning. Likewise, he had never been placed under an obligation not to leave the place of residence and, following his departure, had not been placed on the wanted list. Upon his return to Debaltsevo in June 2007, he had settled with his parents, whose address was registered with the authorities as his place of residence, had taken employment with “A.” and had not attempted to hide. In January 2008, having found out from Sh. that B. had been arrested and subsequently released in connection with the events of 27 February 2006, the applicant had reported to the police of his own accord and had admitted to his involvement in the investigated events. The applicant finally submitted that, regard being had to his personality and conduct, he merited release on bail.

On 20 February 2008 the Donetsk Regional Court of Appeal rejected the applicant ’ s appeal. The relevant part of the decision read as follows:

“In the course of the examination of the case, the first-instance court took into account the gravity of the offence incriminated to the defendant, [and] the personality of the defendant, who has no criminal record, has permanent place of residence, is positively characterised at the place of his residence.

The appellate court considers that the first-instance court, when examining the request of the investigator, has reasonably taken into account the defendant ’ s ability to abscond from criminal liability and interfere with the establishment of the truth in the case.

Hence, an attempt to interfere with the establishment of the truth by the investigation may be considered by the accused as a way of defending his interests and a chance to abscond from criminal prosecution.

Regard being had to such circumstances, the first-instance court had sufficient grounds for considering that application of a more lenient preventive measure than a custodial one would fail to ensure proper procedural conduct of the defendant and fulfilment by him of his relevant procedural duties.

Regard being had to the above, the appellate court considers it necessary to reject the appeal lodged by the counsel and to uphold the decision of the court.”

On 20 August 2008 the applicant informed the Court that he continued to remain in custody, although the criminal investigation against him had been completed.

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 5 of the Convention that the decision to place him in custody and the domestic courts ’ refusal to release him on bail were arbitrary.

He further complains under Article 6 of the Convention that the judicial authorities ignored the main arguments adduced by him in favour of his release.

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

Finally, the applicant complains, without referring to any provision of the Convention, that his detention has been inordinately lengthy.

QUESTIONS TO THE PARTIES

1. Was the applicant ’ s placement in detention on 13 February 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 length of the applicant ’ s detention under Article 5 § 1 (c) compatible with the requirements of Article 5 § 3 of the Convention?

The parties are requested, in particular, to inform the Court about the duration of this period and to provide copies of relevant court decisions and other documents.

3. 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?

[1] For internal use: around 1,200 euros at the material time.

[2] For internal use: around 2,300 euros at the material time.