Communicated on 12 June 2018
FOURTH SECTION
Application no. 19397/10
Olga Ivanovna KATAN
against Ukraine
lodged on 16 March 2010
STATEMENT OF FACTS
The applicant, Ms Olga Ivanovna Katan, is a Ukrainian national who was born in 1954 and lives in Kyiv.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 28 January 2009 the applicant was arrested by the police on suspicion of fraud. She was suspected of forging documents to sell apartments that had been in communal ownership. Allegedly conspiring with other individuals, she had transferred the ownership rights to the apartments to third parties for remuneration.
On 31 January 2009 the Babushkinskyy Local Court of Dnipropetrovsk extended the applicant’s police custody until 5 February 2009 with a view to obtaining information on the need for her to undergo a medical examination and her involvement in the crime.
On 5 February 2009 the applicant’s detention was ordered by the same court. Her detention was extended by the domestic courts on 25 March and 27 May 2009. She lodged various requests for release on numerous occasions, but they were dismissed by the domestic courts on 25 June, 20 August, 27 October and 29 December 2009, and on 19 January, 2 February, 27 April and 20 May 2010. She also lodged requests for release with the investigating authorities, but to no avail.
The decisions ordering the applicant’s detention repeatedly stated that she had been accused of a serious crime, and could otherwise escape and hinder the investigation or continue with her criminal activity. No further details were provided in that regard.
On 10 December 2010 the Babushkinskyy Local Court of Dnipropetrovsk convicted the applicant of fraud and forgery of documents and sentenced her to five and a half years’ imprisonment, with confiscation of property.
On 20 December 2010 the applicant’s husband concluded an agreement authorising a lawyer, O.S., to provide legal assistance to her in proceedings before the appellate court (similar agreements had been concluded with the same lawyer at the pre-trial stage and for the proceedings before the first-instance court). Following an appeal lodged by O.S. on behalf of the applicant, on 15 June 2011 the Dnipropetrovsk Regional Court of Appeal upheld her conviction.
On 11 August 2011 the applicant’s husband concluded an agreement, authorising O.S. to provide legal assistance to her in proceedings before the higher court. On 12 September 2011 O.S., acting as the applicant’s lawyer, applied for leave to appeal in cassation on the applicant’s behalf. On 26 October 2011 the Higher Specialised Civil and Criminal Court refused to grant leave to appeal in cassation on the grounds that O.S. did not have authority to sign an appeal in cassation on her behalf.
COMPLAINTS
The applicant complains under Article 5 of the Convention that the courts’ decisions extending her police custody on 31 January 2009, ordering her detention on 5 February 2009 and further extending her detention were arbitrary and lacked reasoning. The applicant further complains that her pre‑trial detention was unreasonably long. She also states that the domestic courts ignored her numerous requests for release in the course of the pre‑trial investigation without sufficient reasoning in this regard.
Lastly, the applicant complains under Article 6 of the Convention of the fact that she was not given access to the Higher Specialised Civil and Criminal Court in her criminal case.
QUESTIONS TO THE PARTIES
1. Were the court’s decisions extending the applicant’s police custody on 31 January 2009 and ordering her detention on 5 February 2009 free from arbitrariness and based on sufficient reasons for the purposes of Article 5 § 1 (c) of the Convention (see Kharchenko v. Ukraine, no. 40107/02, § 75, 10 February 2011, Khayredinov v. Ukraine, no. 38717/04, §§ 27-31, 14 October 2010, Bolech v. Switzerland, no. 30138/12, § 47, 29 October 2013, Agit Demir v. Turkey, no. 36475/10, §§ 38-45, 27 February 2018)?
2. Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention (Kharchenko v. Ukraine, no. 40107/02, §§ 77-81, 10 February 2011, Pastukhov and Yelagin v. Russia, no. 55299/07, §§ 41-51, 19 December 2013)?
3. Did the applicant have at her disposal an effective procedure by which she could challenge the lawfulness of her pre-trial detention, as required by Article 5 § 4 of the Convention (see Kharchenko v. Ukraine, no. 40107/02, § 85, 10 February 2011 and, mutatis mutandis, Revtyuk v. Russia, no. 31796/10, §§ 21-29, 9 January 2018)?
4. Did the decision of the Higher Specialised Civil and Criminal Court not to grant the applicant leave to appeal in cassation in her criminal case amount to a violation of her right of access to a court as guaranteed by Article 6 § 1 of the Convention? In particular, did the restriction on this right pursue a legitimate aim and was it proportionate to that aim (see, mutatis mutandis, Walchli v. France, no. 35787/03, § 29, 26 July 2007, Peretyaka and Sheremetyev v. Ukraine, nos. 17160/06 and 35548/06, § 40, 21 December 2010)?
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