Communicated on 15 July 2015
FIFTH SECTION
Applications nos 68636/13 and 68638/13
Stanislav Yuriyovych CHYSTYAKOV against Ukraine
and Inokentiy Svyatoslavych VYROVYY against Ukraine
lodged on 22 October 2013 and 22 October 2013 respectively
STATEMENT OF FACTS
The applicant in the first case is Mr Stanislav Yuriyovych Chystyakov. The applicant in the second case is Mr Inokentiy Svyatoslavych Vyrovyy. Both applicants are Ukrainian nationals who were born in 1974 and live in Kyiv. The applicants are represented before the Court by Mr R. Mititel, a lawyer practising in Kyiv.
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 24 September 2012 an investigator of the Pecherskyy District Police Department of Kyiv instituted criminal proceedings against the applicants on suspicion of financial fraud related to their book-publishing business. The facts giving rise to criminal prosecution were that the applicants had refused to return considerable amounts of money which they had borrowed from several physical persons.
On 12 October 2012 the investigator issued search warrants in respect of the applicants.
On 7 November 2012 the applicants were arrested.
On 9 November 2012 the Pecherskyy District Court of Kyiv (“the District Court”) ordered the applicants’ detention in custody. The court stated that the applicants were charged with serious crimes and they faced serious punishments. Having regard to the circumstances of the alleged crimes, the material and family status of the applicants, their physical conditions, the court concluded that when at liberty, the applicants would be able to influence the witnesses impeding thereby the establishment of the truth in the case.
On 27 December 2012 the District Court extended the applicants’ detention in custody to two months and twelve days, stating that there were no grounds to change the preventive measure. The court specified that the applicants faced serious charges, consisting of multiple episodes, and they had been placed on the list of wanted persons; one of the applicants had been earlier prosecuted for a property crime. It considered that there were risks that the applicants could hide from the investigative authorities or reoffend. Furthermore, the investigation had not been completed and a number of investigative measures had yet to be undertaken. The court further set bail in the amount of 536 500 Ukrainian hryvnias[1] for each applicant, as alternative preventive measures. In fixing the amount of bail the court referred to the gravity of charges and the amount of the alleged pecuniary damage.
On 17 January 2013 a prosecutor of Pecherskyy District of Kyiv approved the bill of indictment and referred the case to the District Court for trial.
On 28 January 2013 the District Court held a preparatory hearing in the case and prolonged the applicants’ detention in custody for another two months, until 9 March 2013. The court stated that the applicants were charged with serious crimes having caused substantial pecuniary damage which had not been reimbursed, they had been officially unemployed and they had been placed on the list of wanted persons during the investigation; one of the applicants had been earlier prosecuted for a property crime but that case had been closed on the basis of the Amnesty Act. The court further maintained the conditions of bail as determined on 27 December 2012.
On 4 March 2013 District Court dismissed as unsubstantiated the applicants’ requests for their release under a written obligation not to abscond. It further allowed the request of the prosecutor for the extension of the applicants’ pre-trial detention until 9 May 2013. The court stated that the applicants had been charged with serious crimes causing substantial pecuniary damage which had not been reimbursed, they had been officially unemployed, they had been placed on the list of wanted persons during the investigation and one of the applicants had been earlier prosecuted for a property crime. The court concluded that the applicants’ further pre-trial detention would ensure their appropriate conduct in the proceedings.
On 26 March 2013 the applicants’ requested the District Court to release them either under a written obligation not to abscond or under personal guarantees. The applicants claimed that the charges were unfounded as the conflict with the victims was of a civil-law nature and the amount of bail fixed earlier was exorbitant. The court referred to its decision of 4 March 2013 and found that there were no grounds to change the preventive measures. It repeated that the applicants had been charged with serious crimes having caused substantial pecuniary damage which had not been reimbursed, the applicants had been officially unemployed, they had been placed on the list of wanted persons during the investigation and one of the applicants had been earlier prosecuted for a property crime. The court further specified that on 27 December 2012 it had set the conditions of bail as alternative preventive measure.
On 22 April 2013 the District Court held a hearing to determine the prosecutor’s request for extension of the applicants’ detention in custody. The hearing was attended by the prosecutor, the applicants and the victims. The applicants’ lawyer, who had been notified of the hearing, informed the court by phone that he could not be present for health reasons and would provide the documents justifying his absence in due course. The applicants requested that the hearing be adjourned given that their lawyer was absent. The court held that the merits of the case would not be heard without the lawyer. It however proceeded with the consideration of the preventive measures, finding that it had not been possible to have another hearing on that matter before 9 May 2013 and the lawyer had not justified his absence.
The court decided to extend the applicants’ pre-trial detention for another two-month period, until 9 July 2013, considering that the applicants’ further detention in custody would ensure their appropriate conduct in the proceedings. In that regard the court stated that the applicants had been charged with serious crimes having caused substantial pecuniary damage which had not been reimbursed, the applicants had been officially unemployed, they had been placed on the list of wanted persons during the investigation and one of the applicants had been earlier prosecuted for a property crime. The court further dismissed the applicants’ requests for release under a written obligation not to abscond and maintained the bail on the conditions set on 27 December 2012.
The applicants appealed.
On 14 May 2013 the Kyiv Court of Appeal dismissed their appeal for the reason that such decision was not subject to appeal.
On 31 July 2013 the Information and Analytical Department of Ministry of Interior informed the applicants that, according to the Ministry’s integrated search database, they had not been placed on the list of wanted persons in the second half of 2012.
COMPLAINTS
1. The applicants complain under Article 5 §§ 1 (c) and 3 of the Convention that the court decisions concerning their pre-trial detention were unsubstantiated and were not based on relevant and sufficient reasons.
2. The applicants complain under Article 6 § 1 of the Convention that the court hearing of 22 April 2013 was held in the absence of their lawyer.
QUESTIONS TO THE PARTIES
1. Was the applicants’ detention based on the court decisions adopted between November 2012 and April 2013 compatible with the requirements of Article 5 §§ 1 (c) and 3 of the Convention?
2. Has there been a violation of Article 5 § 4 of the Convention on account of the applicants’ complaint that their lawyer was absent from the court hearing of 22 April 2013 resulting in the extension of their detention in custody?
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