FIFTH SECTION

Application no. 24037/08 Dmytro Volodymyrovych LELYUK against Ukraine lodged on 9 May 2008

STATEMENT OF FACTS

The applicant, Mr Dmytro Volodymyrovych Lelyuk , is a Ukrainian national who was born in 1979 and lives in Donetsk , Ukraine .

A. The circumstances of the case

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

1. Criminal proceedings against the applicant

On 29 May 1997 the Kirovskiy District Court sentenced the applicant to three years ’ imprisonment for robbery, a serious offence under national law.

On 18 July 1997 the Donetsk Regional Court of Appeal amnestied the applicant.

On 10 September 1997 the same court, following an objection lodged by its president, quashed the decision of 18 July 1997.

On 26 September 1997 the Donetsk Regional Court of Appeal upheld the decision of 29 May 1997. On the same date this decision became final. The applicant states that he was not informed a bout the decisions of 10 and 26 September 1997.

2. Service of sentence and proceedings on the lawfulness of the applicant ’ s arrest and detention

On 6 December 1997 the applicant was placed on a wanted list by the police: however, on 16 December 1997 he was removed from this list, since “he had been amnestied”.

On 12 February 2003 the applicant was arrested by police officers and transferred to Dzerzhynsk Correctional Colony No. 2 to serve his sentence.

On 4 April 2003 the Kirovsky District Court decided to discharge the applicant from serving the sentence, “under the President ’ s Decree of 27 June 1996 “On amnesty” or under Article 80 of the Criminal Code of Ukraine, since the limitation period for enforcement of the sentence had expired”.

On 25 July 2003 the Donetsk Regional Court of Appeal quashed this decision upon the prosecutor ’ s appeal and remitted the case for fresh consideration.

After several rounds of proceedings, on 23 March 2006 the Kirovsky District Court found the actions of the police officers unlawful. The court found that there was no evidence in the case-file materials that the applicant had been informed about the court hearing and the decision of 26 September 1997. He had been arrested more than five years after the final decision of 26 September 1997 and therefore his arrest and subsequent placement in detention were unlawful.

In the meantime, on 27 April 2005 the Dzerzhynskiy Local Court , following the request of the Correctional Colony administration, decided to release the applicant on parole.

3. Compensation proceedings

In 2006 the applicant lodged a civil claim against the Ministry of the Internal Affairs of Ukraine for damages on account of his unlawful arrest and detention.

On 3 April 2007 the Kirovskiy District Court rejected the applicant ’ s claims, stating that there were no grounds to conclude that he had been arrested and detained unlawfully.

On 26 June 2007 the Donetsk Regional Court of Appeal upheld this decision.

On 22 August 2007 the applicant ’ s representative, G., appealed on points of law.

On 6 September 2007 the Supreme Court of Ukraine gave the applicant a deadline of 16 October 2007 to submit the power of attorney.

On 12 October 2007 the applicant ’ s representative submitted the power of attorney. In particular, his letter of 12 October 2007 mentions that the power of attorney was enclosed. This letter arrived at the Supreme Court on 17 October 2007.

On 30 October 2007 the Supreme Court of Ukraine returned the applicant ’ s appeal “for failure to comply with its decision of 6 September 2007.” With an accompanying letter of 6 November 2007, this decision was posted to G. on 9 November 2007.

On 3 December 2007 G. requested the Supreme Court of Ukraine to give reasons for the rejection of the applicant ’ s appeal, since the decision of 6 September 2007 had been complied with. No answer to this request was allegedly received.

B. Relevant domestic law

1. Criminal Code 2001

Article 80. Discharge from serving a sentence due to expiry of limitation periods for enforcement of a judgment

1. A person shall be discharged from serving his or her sentence if it has not been enforced within the following periods of time, starting from the date on which the judgment came into force:

(3) five years for a sentence of imprisonment imposed for a medium-level offence and also for a prison term of up to five years imposed for a serious offence;

...

3. Limitation periods shall be suspended if a convicted person avoids serving his or her sentence. In such cases, limitation periods shall resume on the date the convicted person appears to continue to serve his or her sentence or on the day of his or her arrest. In this case, the limitation periods provided for in subparagraphs (1) to (3) of paragraph 1 of this Article shall be doubled ... ”

2. Code of Civil Procedure 2004

Article 70. Expiry of procedural terms

6. The deadline shall not be considered to have been missed if the claim, complaint, other documents or materials, or money have been submitted to the post office or transferred by other means of communication before its expiry.”

COMPLAINTS

The applicant complains under Article 5 § 5 of the Convention that he was not awarded compensation for unlawful arrest and detention.

He also complains under Article 6 § 1 of the Convention about the length of proceedings (second set), unlawfulness of his arrest and detention, and about the failure of the Supreme Court of Ukraine to consider his appeal on points of law.

The applicant cites Articles 5 §§ 1, 2 and 4, 13 and 17 of the Convention and Article 1 of Protocol No. 1.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention?

2. If so, did the applicant have an effective and enforceable right to compensation for his unlawful detention, as required by Article 5 § 5 of the Convention?

3. Did the decision of 30 October 2007 rejecting the applicant ’ s request for leave to appeal on points of law interfere with the applicant ’ s right of access to court under Article 6 § 1 of the Convention?