Communicated on 2 January 2017
FIFTH SECTION
Application no. 72185/13
Volodymyr Oleksandrovych KINDA
against Ukraine
lodged on 1 November 2013
STATEMENT OF FACTS
The applicant, Mr Volodymyr Oleksandrovych Kinda, is a Ukrainian national, who was born in 1975 and lives in Mykolayiv. He is represented before the Court by Mr M.V. Krasyuk, a lawyer practising in Mykolayiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
At the time of the events the applicant worked as the head of the Mykolyaiv railway station police department.
On 30 July 2012 criminal proceedings were instituted against him on suspicion of abuse of office and bribe-taking.
On 1 August 2012 the applicant was arrested by the police as a suspect. The charges against the applicant and the grounds for his arrest were indicated in the arrest report. The applicant signed it, having written that he disagreed with those charges.
On 3 August 2012 the Kyiv Pecherskyy District Court (“the Pecherskyy Court”) allowed the prosecutor’s application for the applicant’s pre-trial detention as a preventive measure for the initial period of two months. The court noted that there were serious grounds to suspect the applicant and that the charges against him were particularly grave. Furthermore, the court took into account the fact that the applicant held a senior post in the police and could therefore influence the investigation if at liberty. Lastly, it was observed that he did not have a registered permanent place of residence.
On 24 September 2012 the Pecherskyy Court extended the term of the applicant’s pre-trial detention to four months. It noted that the reasons, which had earlier been advanced in justification of that measure, remained valid and there were still investigative measures to be carried out.
On 19 November 2012 the Kyiv City Court of Appeal, following a hearing with the participation of the applicant’s lawyer, ordered another extension of the applicant’s detention, this time to six months. It noted that there were no reasons for changing the earlier chosen preventive measure and that there were further investigative measures to be carried out. The appellate court observed, in particular, that the investigation involved questioning of more than fifty witnesses. The above ruling was final.
On 21 November 2012 the investigator made an entry in the Unified Register of Pre-Trial Investigations in respect of the applicant. That constituted a new procedure for initiating a pre-trial investigation under the new Code of Criminal Procedure with effect from 19 November 2012.
On 16 January 2013 the notification of suspicion was announced to the applicant (that was also a new procedure). In addition to the earlier charges, the applicant was suspected of having created an organised group with a view to systematic misappropriation of diesel fuel from the railway station, at which he worked.
On 1 February 2013 the investigating judge of the Mykolayiv Tsentralnyy District Court (“the Tsentralnyy Court”) extended the applicant’s pre-trial detention to eight months at the investigator’s application. By the same ruling the applicant’s request for release on bail was rejected. The investigating judge referred to the gravity of the charges against the applicant and the considerable volume of the procedural measures to be carried out. It was noted in the ruling that the case concerned twenty-one co-suspects and that each of them had yet to study the case file consisting of forty volumes. Furthermore, the investigating judge referred to the information in the case file, according to which the applicant had stated many times during his detention that he counted to be released on bail, after which he would leave Ukraine and put pressure on the witnesses and other suspects. It was also observed that most witnesses and suspects had kept refusing from making any statements.
On 15 February 2013 the Mykolayiv Regional Court of Appeal (“the Court of Appeal”) upheld the above decision following a hearing with the applicant’s participation. The appellate court’s ruling was final.
On 15 March 2013 the case was referred to the court for trial.
On 27 March 2013 the Tsentralnyy Court, following a preparatory hearing, decided to return the bill of indictment to the prosecutor as not complying with the Code of Criminal Procedure (“the CCP”). The ruling did not refer to the issue of preventive measures.
On 1 April 2013 the applicant applied to the administration of the Mykolayiv Pre-Trial Detention Centre (“the SIZO”), in which he was detained, for his immediate release. He submitted that the eight-month period of his detention, which had been ordered on 1 February 2013, had expired.
Following the refusal of the SIZO administration to release the applicant, he complained to the investigating judge that there were no grounds for his continuous detention.
On the same day, 1 April 2013, the investigating judge of the Tsentralnyy Court rejected the above request. He noted that, as it followed from the ruling of 27 March 2013, the applicant had failed to request his release during the preparatory hearing. That being so, the judge went on to state, with reference to Article 315 § 3 of the CCP, the preventive measure in respect of the applicant was considered to have been extended. With further reference to Article 331 § 3 of the CCP, the investigating judge held that the trial court had two months (to be calculated from 15 March 2013) to decide on the applicant’s continued detention. Accordingly, there were no grounds for his release. The above decision was final and not amenable to appeal. Nonetheless, the applicant’s lawyer tried to challenge it, without success.
On 7 May 2013 the Court of Appeal quashed the ruling of 27 March 2013 and remitted the case to the Tsentralnyy Court for fresh examination.
On 16 May 2013 the Tsentralnyy Court held another preparatory hearing. This time it accepted the bill of indictment as compliant with all the requirements. The court ordered the applicant’s pre-trial detention as a preventive measure for sixty days. In taking that decision, it took into account the following: the seriousness of the charges against the applicant, the significance of the pecuniary damage caused, the complexity of the case, the applicant’s leading role in the offences committed, the absence of his registered domicile, and the lack of strong social ties.
On 15 July 2013 the Tsentralnyy Court decided to continue the applicant’s detention for another period of sixty days. In addition to the earlier reasoning, it referred to the applicant’s behaviour viewed as uncooperative. The court observed that the applicant had refused from receiving a copy of the prosecutor’s application for his continued detention and that none of his two lawyers had turned up for the hearing, although having been duly notified of it.
On 10 September 2013 the Tsentralnyy Court extended the applicant’s detention until 14 October 2013. The court noted that the risk that he might impede the investigation had diminished with the passage of time. As to the risk that the applicant might continue his criminal activities, it was not existent given that it was linked to his post in the law-enforcement authorities which he no longer held. The court examined the possibility of applying a bail or house arrest instead of the applicant’s detention, but considered that those measures were not feasible. Thus, the applicant had indicated that he would be able to pay up to 150,000 Ukrainian hryvnias (UAH) as bail, whereas the acceptable bail would be around UAH 3,000,000 (the amount of the pecuniary damage). As regards the house-arrest option, the court noted that the applicant lived in a multi-flat block far from the court.
On 14 October 2013 the Tsentralnyy Court replaced the applicant’s detention by a house arrest. It noted that the applicant had hired a flat not far from the court.
The case file as it stands does not contain any information on further developments in the criminal proceedings against the applicant.
B. Relevant domestic law
The relevant provisions of the Code of Criminal Procedure 1960 (in effect until 20 November 2012) are quoted in the case of Lutsenko v. Ukraine (no. 2) (no. 29334/11, § 100, 11 June 2015).
The relevant provisions of the Constitution of Ukraine and the Code of Criminal Procedure 2012 can be found in the Court’s judgment on the case of Chanyev v. Ukraine (no. 46193/13, §§ 17 and 18, 9 October 2014).
COMPLAINTS
The applicant complains under Article 5 § 1 of the Convention that his detention between 1 April and 16 May 2013 was not covered by any judicial decision. He further complains under Article 5 § 3 that his continued pre-trial detention had not been based on relevant and sufficient reasoning.
QUESTIONS TO THE PARTIES
1. Was the applicant’s deprivation of liberty from 1 April to 16 May 2013 lawful within the meaning of Article 5 § 1 of the Convention?
2. Was the applicant’s pre-trial detention compatible with the requirements of Article 5 § 3 of the Convention to be tried within a reasonable time or released pending trial?
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