Communicated on 7 September 2015
FIFTH SECTION
Application no. 13911/14
Aleksandr Eduardovich MOLCHANOV against Ukraine
lodged on 5 February 2014
STATEMENT OF FACTS
The applicant, Mr Aleksandr Eduardovich Molchanov, is a Ukrainian national, who was born in 1992 and lives in Chubynske. He is represented before the Court by Mr M. O. 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 13 June 2013 the applicant was charged with having defrauded a minor by obtaining from him a mobile phone under false pretences.
On 16 July 2013 the applicant was subjected to the preventive measure in the form of a personal undertaking that he would comply with his procedural duties as a defendant.
On 12 August 2013 the Solomyanskyy District Court of Kyiv, the trial court, held a preparatory hearing in the applicant’s case. The court heard the applicant’s and the prosecutor’s submissions as to whether the applicant should be committed for trial. According to the applicant, neither the applicant nor the prosecutor made any motions concerning the changing of the preventive measure imposed on the applicant, the trial court did not ask for their opinion as to such possibility and did not announce that it was considering it.
At the close of the preparatory hearing the trial court issued its ruling. By this ruling the court committed the applicant for trial and changed the preventive measure imposed on him from the personal undertaking to detention on remand. By way of reasoning of the latter decision the court stated that even though the offence of which the applicant was accused was not particularly serious and did not carry the punishment of imprisonment, the applicant had no registered permanent place of residence and the court had doubts as to whether the applicant would continue to attend the hearings. The court went on to state that the applicant might commit another offence or interfere with the criminal proceedings.
On 30 September 2013 the trial court convicted the applicant of fraud sentencing him to restriction of liberty for one year and six months, suspended for three years with probation. The judgment referred to the applicant’s personal details, including registered permanent place of residence in Kyiv. The applicant was released from detention in the courtroom.
B. Relevant domestic law
The relevant provisions of the Code of Criminal Procedure of 2012 read as follows:
Article 176
General provisions on preventive measures
“1. Preventive measures are:
(1) personal undertaking;
...
(5) detention on remand.
...
4. Preventive measures shall be applied during the investigation by the investigating judge at the request of the investigator following agreement with the prosecutor, or at the request of the prosecutor; during the trial, they shall be applied by the court at the request of the prosecutor.”
Article 315
Resolution of issues related to preparation for trial
“...
3. During the preparatory court hearing the court shall be entitled, at the request of participants in the trial, to impose, alter or revoke measures to ensure the conduct of the criminal proceedings, including any preventive measures imposed on the accused... In the absence of such a request from the parties to the trial, the measures to ensure the conduct of the criminal proceedings that were selected at the pre-trial investigation stage shall be deemed to be extended.”
COMPLAINTS
The applicant complains under Article 5 of the Convention that the decision to place him in detention on 12 August 2013 was unlawful because the domestic court took this decision of its own motion without the prosecutor’s request. He also complains under Article 5 § 3 that the decision to detain him was not justified since the existence of risks relied upon by the domestic court as reasons for detention was not proven and the domestic court gave only formulaic reasons for the decision. Under Article 5 § 5 the applicant complains that he did not receive compensation for his allegedly unlawful detention.
QUESTIONS TO THE PARTIES
1. Was the applicant’s detention from 12 August to 30 September 2013 lawful for the purposes of Article 5 § 1 of the Convention? In particular, was it ordered in accordance with the procedure prescribed by law?
2. Has there been a violation of Article 5 § 3 of the Convention? In particular, were the reasons relied upon by the domestic court in its decision to remand the applicant in custody relevant and sufficient for the purposes of Article 5 § 3 of the Convention?
3. Does the applicant have an effective and enforceable right to compensation for his detention in alleged contravention of Article 5 §§ 1 and 3, as required by Article 5 § 5 of the Convention?
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