Communicated on 22 January 2015
FIFTH SECTION
Application no. 50705/13
Oleksandr Kyrylovych DEDESH
against Ukraine
lodged on 6 August 2013
STATEMENT OF FACTS
The applicant, Mr Oleksandr Kyrylovych Dedesh, is a Ukrainian national, who was born in 1951 and lives in Shyroke village, Kherson region. He is represented before the Court by Mr M. A. Tarakhkalo, a lawyer practising in Kyiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 21 January 2011 the Skadovsk Town Court found the applicant guilty of extortion and hooliganism with the use of arms committed in July 2010. He was sentenced to two years’ imprisonment in respect of the first charge and three years’ imprisonment in respect of the second one. The final sentence was three years’ imprisonment, with the heavier penalty having absorbed the more lenient one. The court held that the applicant was to remain under a commitment not to abscond as a preventive measure pending the entry of the judgment into force. It also specified that the term of the imprisonment was to be calculated from the beginning of the enforcement of the sentence.
The applicant did not appeal.
On 10 May 2011 he started serving his sentence.
On 24 January 2013 the Kalanchak Town Court (“the Kalanchak Court”) found the applicant guilty of a drug-related offence committed in December 2008 and sentenced him to a one-year restriction of liberty (implying no isolation). It specified that the sentence was to include the applicant’s pre-trial detention within this set of proceedings from 6 December 2008 (the judgment erroneously referred to 6 August 2008 instead) to 16 March 2010, as well as the period from 10 May 2011 to 24 January 2013, during which he had been serving his sentence in another set of proceedings (see above). The court also stated that the applicant’s sentence was to be regarded as absorbed by the heavier sentence of three years’ imprisonment under the judgment of 21 January 2011. Accordingly, the final sentence under the two judgments was three years’ imprisonment. The judgment could be appealed against within two weeks from the date of its pronouncement.
The applicant did not lodge any appeal. He considered that he had already served his sentence and expected to be released immediately after the pronouncement of the judgment. His calculation was as follows: the period from 6 December 2008 to 16 March 2010 was one year three months and eleven days and the period from 10 May 2011 to 24 January 2013 was one year eight months and twenty-five (the applicant erred here, in fact fifteen) days.
On 28 January 2013 the Kalanchak Court issued a ruling, in which it stated that the “formula” used in its judgment of 24 January 2013 as regards the determination of the final sentence and the inclusion therein of the two periods of the applicant’s earlier detention “would complicate the enforcement of the sentence”. The court therefore decided to supplement the operative part of that judgment as follows: “To remand [the applicant] in custody as a preventive measure pending the entry of the judgment into force”. It relied on Article 273 of the Code of Criminal Procedure (1960), a general provision concerning the procedure of delivery of rulings. Although on 20 November 2012 a new Code of Criminal Procedure was enacted, the old Code (1960) continued to apply to proceedings in which the trial had started under that old Code, as was in the applicant’s case.
On 1 February 2013 the same court, following a hearing with the participation of the prosecutor, but in the absence of the applicant or his lawyer, issued another ruling, in which it noted that “the operative part of the judgment of 24 January 2013 [...] would complicate the enforcement of the judgment, because the sentence was mistakenly considered to include the part of the sentence already served by [the applicant] before”. Accordingly, the court deemed it necessary to “clarify” the operative part. More specifically, it excluded the period of the applicant’s detention from 6 December 2008 to 16 March 2010 from the three-year imprisonment term under the judgment of 24 January 2013. The Kalanchak Court relied on Articles 409 and 411 of the Code of Criminal Procedure.
On 12 (or 13) February 2013 the applicant found out from the SIZO administration about the aforementioned rulings of 28 January and 1 February 2013. His requests for release remained unanswered.
On an unspecified date in July 2013 a decision was taken that the applicant was to be released on parole. In this connection, the governor of the Orikhiv Prison no. 88, in which the applicant was serving his sentence at the time, applied to the local court for the applicant’s administrative supervision for one year following his release.
On 8 July 2013 the Orikhiv Town Court granted the aforementioned application. It listed a number of restrictions to be applicable to the applicant for a one-year period. They included a curfew from 9 p.m. to 5 a.m., a prohibition to go to restaurants, hotels, markets, bars etc. where alcohol was sold, a prohibition to leave the town without permission of the officers in charge of his supervision, an obligation to report to the police four times per month, etc. It was noted in the ruling that it could be appealed within seven days.
On 16 July 2013 the applicant was released on parole.
B. Relevant domestic law and practice
1. Criminal Code 2001
Under Article 70, a final sentence in respect of several offences is established by absorption of less severe penalties by a heavier one. The same rule is applicable in case of several verdicts, where the convict is found guilty of an offence committed prior to the verdict already pronounced (in another set of proceedings).
2. Code of Criminal Procedure 1960 (repealed on 20 November 2012 with the entry into force of the new Code of Criminal Procedure of 13 April 2012, but still applicable to cases in which the trial was started under its provisions)
Pursuant to paragraph 1 of Article 409, it was the competence the court which delivered the judgment to resolve any issues concerning doubts or contradictions in respect of execution of that judgment.
Under Article 411, issues related to execution of a sentence were to be resolved by the court in a court hearing with the participation of the prosecutor. As a rule, the convict was also to be summoned, as well as his lawyer if requested.
COMPLAINTS
The applicant complains under Article 5 § 1 of the Convention that his detention from 24 January to 16 July 2013 was unlawful.
He also complains under Article 5 § 5 that he had no enforceable right to compensation in respect of his unlawful detention.
Furthermore, relying on Article 6, he complains that neither he nor his lawyer was present at the hearings of 28 January and 1 February 2013.
Lastly, the applicant complains that his administrative supervision following his release on parole was in contravention of his rights under Article 8 of the Convention and Article 2 of Protocol No. 4.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty from 24 January to 16 July 2013 in breach of Article 5 § 1 of the Convention?
2. Did the applicant have an effective and enforceable right to compensation for his detention in alleged contravention of Article 5 § 1, as required by Article 5 § 5 of the Convention?
3. Was Article 6 § 1 of the Convention under its criminal head applicable to the hearing of the Kalanchak Court of 1 February 2013?
If so, was that hearing public, as required by Article 6 § 1 of the Convention?
4. Has there been a violation of the applicant’s right to respect for his private life contrary to Article 8 of the Convention, in respect of his administrative supervision ordered on 8 July 2013?
5. Has there been a violation of the applicant’s right to freedom of movement contrary to Article 2 of Protocol No. 4, in respect of his administrative supervision ordered on 8 July 2013?
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