Communicated on 16 April 2018
FOURTH SECTION
Application no. 8562/13
Bogdan Oleksandrovych ILLYASHENKO
against Ukraine
lodged on 26 January 2013
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
According to the applicant, at around 11 a.m. on 26 July 2011 officers of the State Security Service of Ukraine arrested the applicant, who was a public prosecutor at the material time, on suspicion of bribery.
At 2 p.m. on 27 July 2011 the record of the applicant’s arrest was drawn up.
On 29 July 2011 the Zarichnyi District Court of Sumy ordered the applicant’s detention; its decision indicated the 27th of July 2011 as the date of the applicant’s arrest and stated that if he were not detained he might flee and hinder the investigation or influence other participants in the proceedings, or hinder the establishment of the truth in the case. No further details regarding the above-mentioned reasons were provided by the court.
The applicant’s detention was extended by the court on 26 September and 25 October 2011 in the course of the pre-trial investigation. No specific details of the reasons for the applicant’s detention were provided in the mentioned court decisions.
On 8 November 2011 the Court of Appeal dismissed an appeal lodged by the applicant against the court’s decision of 25 October 2011 on the extension of his detention. The hearing at the Court of Appeal was held in the absence of the applicant and his lawyer, but in the presence of the public prosecutor.
On 19 December 2011 the local court admitted the criminal case against the applicant for trial. By the same decision it extended the applicant’s detention, having noted that there had been no reason to change the preventive measure imposed on the applicant.
In the course of the trial the applicant lodged an application for release on the grounds of ill health. On 11 April 2012 the trial court dismissed that application, stating that no proof of any deterioration in the applicant’s health justifying his release had been submitted. No other reasons for refusing the applicant’s request were provided in the court decision.
On 6 September 2012 the Sumy Local Court found the applicant guilty of bribery and sentenced him to five years and six months’ imprisonment. In the operative part of the judgment the trial court ordered that the term of imprisonment be counted from 26 July 2011. Following appeals by the applicant, that decision was upheld, with minor amendments, by the Sumy Regional Court of Appeal and by the Higher Specialised Court for Civil and Criminal Matters on 11 December 2012 and 28 March 2013 respectively.
COMPLAINTS
The applicant complains under Article 5 § 1 of the Convention that his detention between 26 and 27 July 2011 was not documented.
Referring to Article 5 §§ 1 and 3 of the Convention, the applicant complains that the decision of the domestic court of 29 July 2011 on his detention and its subsequent extension was arbitrary and lacked reasons.
Relying on Article 5 § 4 of the Convention, the applicant complains that the hearing at the Court of Appeal of 8 November 2011 to examine his appeal against the court’s decision of 25 October 2011 extending his detention had been held in his absence and in the absence of his lawyer, but in the presence of the public prosecutor. He further complains under the same provision that the trial court on 11 April 2012 dismissed his application for release without providing sufficient reasons.
QUESTIONs
1. With regard to the alleged events between 26 and 27 July 2011, was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention (see, for example, Osypenko v. Ukraine, no. 4634/04, § 49, 9 November 2010 and Smolik v. Ukraine, no. 11778/05, § 46, 19 January 2012)?
2. Was the applicant’s detention – ordered on 29 July 2011 and its subsequent extension ordered on 26 September, 25 October, and 19 December 2011 – free from arbitrariness and based on sufficient reasons for the purposes of Article 5 §§ 1 and 3 of the Convention (see, for example, Khayredinov v. Ukraine, no. 38717/04, § 27-31, 14 October 2010 and Taran v. Ukraine, no. 31898/06, §§ 68-71, 17 October 2013)?
3. Was the procedure by which the applicant’s detention was reviewed at the hearing before the Court of Appeal on 8 November 2011 and before the trial court on 20 February 2012 in conformity with Article 5 § 4 of the Convention (see, for example, Korneykova v. Ukraine, no. 39884/05, §§ 68‑69, 19 January 2012; Molodorych v. Ukraine, no. 2161/02, § 108, 28 October 2010 and Kharchenko v. Ukraine, no. 40107/02, § 100, 10 February 2011)?
Full & Egal Universal Law Academy