Published on 6 February 2023

FIFTH SECTION

Application no. 55737/16 Bogdan Grygorovych SHEVCHUK against Ukraine lodged on 3 September 2016 communicated on 17 January 2023

SUBJECT MATTER OF THE CASE

The application concerns the complaints under Article 5 §§ 1 and 4 and Article 6 § 1 of the Convention concerning the lawfulness of the applicant’s detention and the availability of an effective procedure to challenge the lawfulness of that detention. On 30 June 2016, in the course of the examination of the criminal proceedings against the applicant on charges of abuse of power, the Kyivskyi District Court of Odesa (“the Kyivskyi District Court”) extended the applicant’s detention until 28 August 2016. On 17 August 2016 the Odesa Regional Court of Appeal (“the Court of Appeal”) ruled to transfer the above case to the Bilgorod-Dnistrovskyi Court of Odesa Region for examination, appointing the latter court as the one competent to conduct the criminal proceedings against the applicant. On 22 August 2016 the judge of the Kyivskyi District Court, by a decision which was not amenable to appeal, extended the applicant’s detention until 20 October 2016. The judge dismissed the argument of the applicant’s defense lawyer that the Kyivskyi District Court was no longer competent to deal with the criminal case against the applicant as she needed to clarify the decision of the Court of Appeal of 17 August 2016. In a letter of 6 September 2016 the Court of Appeal reminded the judge of the Kyivskyi District Court of the importance to comply with the decisions of higher courts and domestic law. On an unspecified date the criminal case against the applicant was transferred to the Bilgorod-Dnistrovskyi Court of Odesa Region which on 18 October 2016 extended the applicant’s detention for another term until 16 December 2016.

In August – September 2016 the applicant lodged numerous complaints with the courts regarding the unlawfulness of his continued detention seeking his release, but to no avail.

Referring to Articles 5 § 1 and 6 § 1 of the Convention, the applicant complains that his detention from 28 August to 18 October 2016 was unlawful as it was authorised by a court which was not competent. Invoking Article 5 § 4 of the Convention, the applicant complains that he did not have an effective procedure to review the lawfulness of his detention during the above period.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty from 28 August to 18 October 2016 in breach of Article 5 § 1 of the Convention (see Mooren v. Germany [GC], no. 11364/03, §§ 72-81, 9 July 2009)? In particular, in view of the decision of the Odesa Regional Court of Appeal of 17 August 2016, was the Kyivskyi District Court of Odesa competent to decide on the extension of the applicant’s detention on 22 August 2016?

2. 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 (see Vadym Melnyk v. Ukraine , nos. 62209/17 and 50933/18, §§ 120-22, 16 September 2022)?