Communicated on 23 August 2016
FIFTH SECTION
Application no. 15360/10
Oleksiy Oleksandrovych NECHAY
against Ukraine
lodged on 1 March 2010
STATEMENT OF FACTS
The applicant, Mr Oleksiy Oleksandrovych Nechay, is a Ukrainian national, who was born in 1978 and lives in Kyiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 26 February 2004 the applicant’s father was found dead in the applicant’s apartment. He had numerous injuries.
On 27 February 2004 the applicant was arrested on suspicion of murder.
On 28 February 2004 criminal proceedings against the applicant were initiated.
On 3 March 2004 the Kyiv Dniprovskyy District Court (“the District Court”) ordered the applicant’s detention.
During the investigation a psychiatric expert examination established that the applicant had been aware of and able to control his actions at the time his father had been killed, but at the time of the examination he was suffering from a temporary mental disorder requiring compulsory psychiatric treatment. As a result, on 21 June 2004 the District Court ordered that the applicant be placed in a high security psychiatric hospital for compulsory treatment until his recovery. The decision of the court contained no indication of the suspension or closure of the criminal case against the applicant.
On 4 April 2005 the District Court revoked its order of 21 June 2004 on the basis of the medical opinion and an official request of 14 February 2004 by a psychiatrist from the hospital in which the applicant had been treated. The case was referred to the Kyiv Dniprovskyy district prosecutor’s office for further investigation. The decision of the court contained no indication of the resumption or reopening of the criminal case against the applicant. The applicant remained in the psychiatric hospital until 17 June 2005, when he was transferred to the Kyiv SIZO.
On 26 December 2006 the District Court found the applicant guilty of murder and sentenced him to eight years’ imprisonment.
On 14 February 2008 the Kyiv City Court of Appeal (“the Court of Appeal”) quashed the judgment of the first-instance court and referred the case for further investigation.
On 15 June 2009 the District Court found the applicant guilty of grievous bodily harm causing death, and sentenced him to seven years’ imprisonment. That judgment was quashed by the Court of Appeal on 26 October 2009. The case was referred for further investigation.
Following his transfer to the Kyiv SIZO on 17 June 2005 the applicant remained in custody until 5 September 2011 when the District Court replaced his detention with an obligation not to abscond.
On 2 November 2011 the District Court found the applicant guilty of grievous bodily harm causing death, and sentenced him to seven and a half years’ imprisonment. The court took into account the period of the applicant’s detention from 27 February 2004 until 5 September 2011, and thus concluded that he had served already his sentence.
On 12 March 2012 the Court of Appeal upheld the judgment of the first‑instance court.
On 1 November 2012 the Higher Specialised Court for Civil and Criminal Matters quashed the decision of the Court of Appeal and remitted the case to that court.
On 17 June 2013 the Court of Appeal examined the applicant’s case and upheld the judgment of the District Court of 2 November 2011.
On 25 March 2015 the Higher Specialised Court for Civil and Criminal Matters quashed the decision of the Court of Appeal and remitted the case to that court.
The proceedings against the applicant are currently pending before the Court of Appeal.
B. Relevant domestic law
Code of Criminal Procedure of 1961 (replaced by a new Code in 2012)
Under the Code of Criminal Procedure in force at the material time, the court, having decided that the suspect requires compulsory medical treatment, should close the criminal case (Article 421). Once compulsory medical treatment was no longer necessary, the court revoked its order on such a treatment, reopened the criminal case and referred it to the investigation or to the trial (Article 423). The period of stay in the medical institution, if the person concerned was convicted, was included in the term of imprisonment (ibid.)
COMPLAINTS
The applicant complains under Article 5 § 3 of the Convention that his detention was unreasonably long. He further complains under Article 6 § 1 of the Convention that the criminal proceedings against him have been going on for more than ten years already, and he has no effective remedy in this respect as required by Article 13 of the Convention.
QUESTIONS TO THE PARTIES
1. Was the length of the applicant’s pre-trial detention in breach of Article 5 § 3 of the Convention (see Kharchenko v. Ukraine, no. 40107/02, §§ 80 and 99, 10 February 2011)? Does the period of detention in the psychiatric hospital between 21 June 2004 and 16 June 2005 fall within the ambit of Article 5 § 3, and should it be included when assessing the total duration of the applicant’s pre-trial detention?
2. Is the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention? Should the period of detention in the psychiatric hospital between 21 June 2004 and 16 June 2005 be included when assessing the total duration of the criminal proceedings against the applicant?
3. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 6 § 1, as required by Article 13 of the Convention?
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