FIFTH SECTION

Application no. 21262/06 Vladimir Vitalyevich LIVADA against Ukraine lodged on 3 May 2006

STATEMENT OF FACTS

The applicant, Mr Vladimir Vitalyevich Livada, is a Ukrainian national, who was born in 1975 and lived in Balakliya. On 21 May 2007 the applicant died. His mother, Ms M. Livada, expressed the wish to pursue the application before the Court.

A. The circumstances of the case

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

On 29 August 2003 police officers of the Balakliya District Police Department carried out a search in the applicant ’ s dwelling and seized some quantities of cannabis.

On 7 October 2003 the applicant was hospitalised to undergo treatment for drug addiction.

On 11 October 2003, in the course of a police operation, an undercover police agent bought a certain amount of cannabis from the applicant when he had been in hospital. The applicant was further searched and some additional quantities of the drug were seized.

On the same day the police officers arrested the applicant under Article 263 of the Administrative Offences Code for a violation of the drug circulation rules which constituted an administrative offence laid down in Article 44 of that Code. Relying on those provisions the police decided to keep the applicant in detention for three days waiting for the results of expert examination of the seized drugs.

On 14 October 2003, upon receipt of the expert report confirming that the seized drugs were cannabis, the investigator of the Kharkiv Region Police Department decided to arrest the applicant and detain him further under Articles 106 and 115 of the Code of Criminal Procedure, considering that the applicant ’ s actions constituted crimes under Articles 307 and 309 of the Criminal Code.

On 17 October 2003 the applicant was brought before the Leninskyy District Court of Kharkiv which ordered the applicant ’ s pre-trial detention as a preventive measure. The court noted that the charges against the applicant were serious while the applicant was not working and committed a crime while being treated in a hospital. For these reasons the court concluded that the applicant might abscond from justice, obstruct the investigation, and continue his criminal activities.

On 11 February 2004 the Kominternivskyy District Court of Kharkiv (“the first-instance court”) committed the applicant for trial.

On 9 June 2004 it rejected the applicant ’ s request for release under a written obligation not to abscond. The court noted that there had been no grounds to consider that the reasons, justifying its earlier decision of 17 October 2003 on the applicant ’ s detention, had ceased to exist. The applicant ’ s reference to the illness of his mother and the death of this father were not relevant. Likewise, his acknowledgment of guilt was irrelevant and could only be taken into account for the mitigation of sentence.

On 10 March 2006 the local prosecutor ’ s office refused to open a criminal investigation in respect of the applicant ’ s allegations of his unlawful initial detention.

On 27 April 2006 the first-instance court rejected the applicant ’ s request for release as unfounded. The court noted that there had been no grounds to consider that the reasons, justifying its earlier decision of 17 October 2003 on the applicant ’ s detention, had ceased to exist; the allegations of the aggravation of the applicant ’ s health were not confirmed by the case file and the applicant ’ s contentions that he had been the only source of support for his mother were not convincing.

On 25 May 2006 the applicant and his mother, who had been admitted to the proceedings as defence counsel, lodged new release requests. The applicant ’ s mother specified that she could not work due to health reasons and the applicant was her only support.

On the same day the applicant complained to the Kharkiv Region Court of Appeal (“the Court of Appeal”) arguing that his initial detention had not been lawful.

On 7 July 2006 the applicant ’ s mother lodged with the first-instance court another request for release of the applicant. She specified that the applicant had been her only support and that his health was seriously deteriorating.

On 11 July 2006 the applicant ’ s mother lodged with the first-instance court a complaint arguing that the applicant ’ s initial detention under Article 263 of the Code of Administrative Offences, without a court order, had been unlawful.

On 19 July 2006 the Court of Appeal replied to the applicant that his complaint about the unlawfulness of his initial detention would be considered by the first-instance court in the course of the trial in his criminal case.

On 10 August 2006 the first-instance court found the applicant guilty of the crimes provided by Articles 307 § 2 and 309 § 2 of the Criminal Code and sentenced him to five years ’ imprisonment combined with confiscation of property. The court further found that the applicant ’ s contentions that his initial detention had been unlawful were unsubstantiated because there had been sufficient grounds to detain the applicant under Article 263 of the Administrative Offences Code. In particular, his detention for the first three days was justified as the police had been waiting for the expert report confirming that the seized drugs were cannabis.

The applicant appealed against that judgment claiming that it was unlawful. The applicant also maintained that his initial detention had been unlawful.

On 10 April 2007 the Court of Appeal upheld the findings of the first-instance court. However, it reduced the sentence to three and a half years ’ imprisonment.

On 21 May 2007 the applicant died due to tuberculosis. According to the applicant ’ s mother, he was operated on his lungs in a hospital following which his health badly deteriorated and this resulted in his death.

B. Relevant domestic law

1. Constitution of 28 June 1996

The relevant part of Article 29 of the Constitution reads as follows:

“... In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of the holding in custody. ...

Everyone who has been detained has the right to challenge his or her detention in court at any time. ...”

2. Criminal Code of 5 April 2001 as worded at the relevant time

Article 307 of the Code provides:

“1. Unlawful production, fabrication, purchase, storage, transport, or dispatch of narcotic drug with the purpose of trafficking and unlawful trafficking of drugs, psychotropic substances or their analogues – shall be punishable by imprisonment for the period from three to eight years.

2. The same actions, if committed repeatedly ... or by a person who has committed one of the crimes prohibited by Articles 308 – 310 ... of this Code ..., or if the trafficking of drugs ... was committed in ... public places ..., or if these actions concerned especially dangerous drug... – shall be punishable by imprisonment for the period from five to ten years combined with confiscation of property. ...”

Article 309 of the Code provides:

“1. Unlawful production, fabrication, purchase, storage, transport, or dispatch of narcotic drug, psychotropic substances or their analogues without the purpose of trafficking – shall be punishable by restriction of liberty for up to three years.

2. The same actions, if committed repeatedly ... or by a person who has committed one of the crimes prohibited by Articles 307, 308, 310, 317 of this Code ... – shall be punishable by imprisonment for the period from two to five years. ...”

3. Code of Criminal Procedure of 28 December 1960

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).

4. Code of Administrative Offences of 7 December 1984

Article 44 of the AOC prohibits the fabrication, purchase, storage, transport, or dispatch of narcotic drug or psychotropic substances in small quantities without the purpose of trafficking. A breach of this provision is punishable by a fine of up to forty-three tax-free monthly incomes or by administrative detention up to fifteen days.

Other relevant provisions of the Code can be found in the judgment in the case of Nikolay Kucherenko v. Ukraine (no. 16447/04, §§ 19-21, 19 February 2009).

COMPLAINTS

1. The applicant complained that his pre-trial detention had been in breach of Article 5 § 3 of the Convention. He complained that his initial detention without a court order had been unlawful.

2. The applicant complained under Article 5 § 4 of the Convention that his requests for release from custody had not been properly examined.

3. He also complained under Article 6 § 1 of the Convention that the length of the proceedings in his case had been excessive.

4. The applicant further complained of violation of his rights under Article 6 §§ 1, 2, and 3 and Article 13 of the Convention in the course of the criminal proceedings against him.

5. The applicant complained under Article 8 of the Convention that the search of his dwelling had been unlawful.

QUESTIONS TO THE PARTIES

1. Was the applicant ’ s detention between 11 and 17 October 2003 in conformity with Article 5 § 1 of the Convention? Was the Code of Administrative Offences applicable in the present case?

The Government are invited to provide copies of the decisions providing the basis for the applicant ’ s arrest and detention in that period.

2 . Was the applicant ’ s pre-trial detention in breach of the requirements of Article 5 § 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? Did they consider alternative measures of ensuring the applicant ’ s appearance at the trial?

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

3 . Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention?

The Government are invited to provide copies of the decisions taken by the courts in reply to the applicant ’ s release requests.