FIFTH SECTION

Application no. 42617/08 Yuriy Vitalyevich SHCHERBININ against Ukraine lodged on 19 August 2008

STATEMENT OF FACTS

The applicant, Mr Yuriy Vitalyevich Shcherbinin , is a Ukrainian national who was born in 1981 and lives in Debaltsevo . His application was lodged on 19 August 2008. On the date of application the applicant was detained in Artemivsk Pre-Trial Detention Centre no. 6.

A. The circumstances of the case

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

On 11 March 2006 an investigator at the Debaltsevo Town Police Department instituted criminal proceedings against the applicant for having tortured three individuals on 27 February 2006. On 25 May 2006 the Debaltsevo Town Court (“the town court”) issued an arrest warrant in respect of the applicant. According to the applicant, he was never informed of those decisions and never summoned to the police station for any investigatory actions.

Later in 2006 he went to Moscow on several occasions to see his wife ’ s relatives. From 4 June 2007 onwards he was working at a company in Debaltsevo .

On 16 January 2008 the applicant, having found out that the police had questioned another person on account of the incident of 27 February 2006, decided to appear before the police and provide his explanation of events.

On the same date the investigator, relying on Article 115 of the Code of Criminal Procedure, arrested the applicant. He further charged the applicant with the crime of torture and applied to the town court to have the applicant remanded in custody.

On 19 January 2008 the town court prolonged the applicant ’ s preliminary detention for six days with a view to arrangements for his release on bail being put in place by the defence.

On 22 January 2008 the town court released the applicant on bail.

On 30 January 2008 the Donetsk Regional Court of Appeal (“the court of appeal”) quashed the above decision of the town court, noting that the mere gravity of the charges indicated that the applicant might flee from justice and, moreover, the facts of the case suggested that the applicant had previously attempted to flee from justice.

On the same date the police arrested the applicant again. Before the subsequent court hearing, the defence increased the amount of bail posted.

On 13 February 2008 the town court found that the applicant had no criminal record, had a minor daughter and had provided a positive character reference from his employer. However, the applicant was charged with a crime punishable by imprisonment from five to ten years. The town court therefore concluded that the investigator ’ s request was well-founded and ordered the applicant ’ s remand in custody.

The applicant appealed, claiming that the detention order had been based solely on the grounds of the gravity of the charges against him, which was contrary to the requirements of domestic law. He further contended that there had been no evidence that he had been informed of the criminal proceedings prior to January 2008 or that he had attempted or would attempt to escape from justice. On the contrary, the applicant had no criminal record; he was permanently residing in the town and had been working there since June 2007; he had provided a positive character reference from his employer; and in January 2008 he had gone to the police station of his own accord, assuming that they would require an explanation from him. No reasons for disregarding the bail arrangements had been given by the court.

On 20 February 2008 the court of appeal upheld the decision of 13 February 2008, after noting that the preventive measure chosen by the town court was appropriate in the light of the gravity of charges and all the circumstances of the case. That decision was not subject to further appeal.

On the date of application (19 August 2008) the applicant remained in pre-trial detention.

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

1. The applicant complains under Article 5 of the Convention that his continued detention starting from 30 January 2008 was unlawful. The applicant further complains that the courts at both levels of jurisdiction did not provide relevant and sufficient reasons in their decisions to place him in custody and did not examine alternative preventive measures. This resulted in his unjustified and excessively lengthy pre-trial detention.

2. The applicant complains under Articles 6 and 13 of the Convention that the courts did not reply to his arguments concerning the unlawfulness and unreasonableness of his pre-trial detention.

QUESTIONS TO THE PARTIES

1. What was the legal basis for the applicant ’ s arrest and detention between 30 January and 13 February 2008? Was the applicant ’ s arrest and detention in that period compatible with the requirements of Article 5 § 1 (c) of the Convention?

The Government are invited to provide copies of decisions and other documents justifying the applicant ’ s detention in that period.

2. Was the applicant ’ s pre-trial detention, based on the court decisions of 13 and 20 February 2008, contrary to Article 5 § 1 of the Convention?

3. Did the courts give sufficient and relevant reasons for the applicant ’ s pre-trial detention, as required by Article 5 § 3 of the Convention? Did they consider alternative measures of ensuring the applicant ’ s appearance at trial? Was the length of the applicant ’ s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?

The Government are invited to provide: ( i ) the information on further developments in the applicant ’ s case after the date of the application and (ii) the copies of all decisions by which the courts decided on the issue of applying, extending, maintaining, or changing the preventive measures in respect of the applicant.

4. 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 issues raised by the defence in the course of those proceedings?