Communicated on 20 June 2018
FOURTH SECTION
Application no. 10749/16
Yuriy Gennadiyovych NOVIKOV against Ukraine
and 4 other applications
(see list appended)
STATEMENT OF FACTS
The applicants are Ukrainian nationals. Their personal details are set out in the Appendix.
The examination of the applicants’ criminal cases has been disrupted due to the situation prevailing in certain areas of the Donetsk and Luhansk Regions since the spring of 2014. They allege that the Ukrainian authorities have not taken appropriate steps to advance the examination of their cases under the circumstances.
Specific details of the applicants’ cases, as submitted by them, are set out in the Appendix.
COMPLAINTS
The applicants’ complaints, directed against Ukraine only, are set out in the Appendix.
QUESTIONS TO THE PARTIES
Question
Applications nos.
1. Has there been a violation of Article 5 § 1 of the Convention?
16800/16, 20936/16, 33736/16
2. Has there been a violation of Article 5 § 3 of the Convention?
10749/16, 16800/16
3. Has there been a violation of Article 5 § 4 of the Convention?
16800/16, 20936/16
4. Did the applicants have an effective and enforceable right to compensation for their detention in alleged contravention of other provisions of Article of the Convention, as required by Article 5 § 5 of the Convention?
10749/16, 16800/16
5. Has there been a violation of Article 6 § 1 of the Convention on account of the prolonged failure to examine the applicants’ cases?
20936/16, 33736/16, 53257/16
6. Has there been a restriction on the applicant’s right to liberty of movement, guaranteed by Article 2 § 1 of Protocol No. 4? If so, was that restriction in accordance with the law and necessary in terms of Article 2 § 3 of Protocol No. 4?
53257/16
7. Have the applicants been afforded the right of appeal guaranteed by Article 2 § 1 of Protocol No. 7 to the Convention, on account of the prolonged failure to examine their appeals?
20936/16, 33736/16
8. Did the applicant have at his disposal an effective domestic remedy for his communicated Convention complaints, as required by Article 13 of the Convention?
20936/16, 33736/16
Appendix
No.
Application no.
Lodged on
Applicant
Date of birth
Place of residence or detention
Represented by
Relevant facts
Communicated complaints
10749/16
16/02/2016
Yuriy Gennadiyovych NOVIKOV
08/05/1988
Petropalivka
Ganna Volodymyrivna OVDIYENKO
On 8 April 2014 the applicant was arrested on suspicion of robbery and burglary committed by a group of persons. On 11 April 2014 the Bryanka Court of Luhansk Region ordered the applicant’s detention. On 2 June 2014 the indictment was transferred to the Bryanka Court for consideration. On 2 September 2014 the High Specialised Civil and Criminal Court (HSC) reassigned jurisdiction from the Bryanka Court to the Lysychansk Court, as the former was in the territory which the Ukrainian Government no longer controlled. Only the bill of indictment but not other material was transferred to the Lysychansk Court, which repeatedly extended the applicant’s detention. The applicant was released on 8 December 2015.
Art. 5 § 3 in respect of the fact that the only reason for extending the applicant’s detention from 2 September 2014 to 8 December 2015 was, allegedly, to restore the case file even though the domestic law allegedly did not provide for such a possibility at the trial stage (Art. 524 of the Code of Criminal Procedure, CCP);
Art. 5 § 5 that the applicant did not have the right to compensation for the alleged violation of Art. 5 § 3.
16800/16
15/03/2016
Sergiy Oleksandrovych GRANKOV
28/02/1971
Kostyantynivka
Nataliya Gennadiyivna OKHOTNIKOVA
The applicant was initially remanded in custody on 1 June 2012. On 17 December 2013 the Horlivka Tsentralno-Misky District Court convicted the applicant of robbery and attempted rape committed in Horlivka and sentenced him to seven years’ and six months’ imprisonment. On 14 May 2014 the Donetsk Regional Court of Appeal quashed the judgement and remitted the case for fresh examination by the same trial court and extended the applicant’s detention without indication of any grounds for and time-limit of detention. The applicant remained in detention in Artemivsk. In September 2014 jurisdiction of the Horlivka Court was reassigned to the Slovyansk Court. However, the case-file material was not transmitted to the latter. The applicant lodged a number of applications for release with the Slovyansk Court and Artemivsk Court. The former court initially refused to examine the applicant’s requests on the ground of absence of the materials of his criminal case. On 16 September 2015 the applicant was released. On 6 July 2017 the Slovyansk Court held that it was not possible to pursue the criminal proceedings against the applicant since no case-file material was available and discontinued them.
Art. 5 § 1 no time-limit was set by the domestic court for the applicant’s detention (see Kharchenko v. Ukraine, no. 40107/02, §§ 73-76, 10 February 2011);
Art. 5 § 3 in respect of the unreasonable length of detention since the only reason for extending the applicant’s detention from 14 May 2014 until 16 September 2015 was allegedly to restore the case file as well as due the use of allegedly formulaic and repetitive reasoning;
Art. 5 § 4 in respect of failure to examine the applicant’s applications for release (see Molodorych v. Ukraine, no. 2161/02, § 108, 28 October 2010);
Art. 5 § 5 that the applicant did not have the right to compensation for the other alleged violations of that provision.
20936/16
07/04/2016
Volodymyr Volodymyrovych KUROCHENKO
12/12/1982
Starobilsk
Anastasiya Romanivna MARTYNOVSKA
On 23 September 2013 the Alchevsk Court sentenced the applicant to fourteen years’ and six months’ imprisonment for murder, theft and carjacking committed in Perevalsk of Luhansk Region (outside of the Ukrainian Government’s control), to be counted from the date of his arrest on 19 September 2010. The court ordered that the applicant remain in custody pending examination of the case on appeal. On 11 October 2013 the applicant appealed. The case is blocked in Alchevsk, outside of the Government’s control. On 11 March 2015 the Lysychansk Court, which took over jurisdiction from the no longer functioning Alchevsk Court, refused to examine the question of the applicant’s continuing detention as it had no case file. On 9 April 2015 the Luhansk Regional Court of Appeal held that the Starobilsk Court was competent to examine the matter. On 23 December 2015 the Starobilsk Court, having examined the case under the rules of the new CCP, refused the application for release.
Art. 5 § 1, in particular because after 23 September 2013 there was no order setting the length of the applicant’s detention;
Art. 5 § 4, Art. 6 § 1, Art. 2 of Protocol No. 7 and Art. 13 (taken in conjunction with Art. 6 and Art. 2 of Protocol No. 7) on account of the failure to examine the applicant’s appeal.
33736/16
31/05/2016
Dmytro Mykhaylovych SAGURA
02/11/1983
Starobilsk
Ganna Volodymyrivna OVDIYENKO
On 11 March 2014 the Luhansk Kamyanobridsky District Court convicted the applicant of murder committed in Luhansk and sentenced him to twelve years’ imprisonment, to be counted from 3 November 2012. It ordered that the applicant remain in detention pending appeal. On 28 April 2014 the Luhansk Regional Court of Appeal opened the appeal proceedings in the applicant’s case. The seat of the Court of Appeal was changed to Sieverodonetsk. It appears that on 1 July 2015 the prosecutor’s office restored certain material from the case file but on 24 November 2015 the Starobilsk Court discontinued the proceedings for restoration finding that the available material was insufficient for examination of the case. On 14 December 2015 the Starobilsk Court rejected the applicant’s application for release. In March 2016 the Court of Appeal informed the applicant that it was not in a position to examine his appeal and review his pre-trial detention due to the fact that his criminal case file had been lost.
Ar. 5 § 1 on account of the applicant’s prolonged detention in circumstances where, according to him, there are no clear prospects for the examination of his appeal;
Article 6 § 1 and Article 2 of Protocol No. 7 in relation to the prolonged failure to examine the applicant’s appeal;
Article 13 taken in conjunction with Article 6 § 1 and Article 2 of Protocol No. 7 on account of the alleged lack of an effective remedy.
53257/16
09/08/2016
Vladyslav Viktorovych ZOLOTUKHIN
03/03/1972
Sofiyivska Borshchagivka
On 15 July 2013 the police instituted criminal proceedings against the applicant on suspicion of unlawful exploitation of mineral resources in the Antratsyt District (currently not under the Government’s control). On 16 July 2013 the investigative judge of the Luhansk Leninsky District Court set bail of UAH 22,940.00 and imposed on the applicant an obligation not to leave his place of registered residence without permission. On 25 January 2014 the bill of indictment was sent to the Antratsyt Court. Following the loss of control over the Antratsyt District the applicant filed the application with the Starobilk Court to which the jurisdiction over that district had been reassigned, requesting that court to restore the case file and discontinue the proceedings. On 15 January 2016 the Starobilsk Court rejected his application since there were not enough documents to restore the file and because there was no judgment in the case while the CCP explicitly provided for the restoration procedure only in cases which have ended in a judgment. According to the applicant, the criminal proceedings are pending and he is still under the obligation not to abscond whereas the above bail was not returned.
Art. 6 § 1 in respect of the length of criminal proceedings and Article 2 of Protocol No. 4 in respect of the allegedly disproportionate restriction of the liberty of movement as the result of imposition of the undertaking not to abscond.
Full & Egal Universal Law Academy