Communicated on 1 December 2014
FIFTH SECTION
Application no. 8040/11
Oleg Mykolayovych OMELCHENKO
against Ukraine
lodged on 24 January 2011
STATEMENT OF FACTS
The applicant, Mr Oleg Mykolayovych Omelchenko, is a Ukrainian national, who was born in 1981 and lives in Balakliya. He is represented before the Court by Mr O.O. Matveyev, a lawyer practising in Kyiv.
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s detention
On 19 November 2010 a tax police investigator initiated criminal proceedings against several persons, including the applicant, on suspicion of tax evasion.
On 26 November 2010 the applicant was arrested as a suspect.
On 29 November 2010 the applicant’s wife signed an agreement with Mr O.O. Matveyev, engaging him to represent the applicant in connection with his criminal case before all courts and authorities, including the European Court of Human Rights.
On 29 November 2010 the investigator lodged a request with the Novozavodsky District Court of Chernigiv (“the Novozavodsky Court”) seeking an order to place the applicant in custody pending investigation. The request cited extensive evidence against the applicant, including witness testimony, documentary evidence, telephone intercepts, and search results. It was argued that the applicant needed to be placed in custody pending investigation since he stood accused of a serious offence, that he did not live at his registered place of residence in Cherkasy region, instead living in rented accommodation in Kyiv and Kyiv region, that if at liberty he could evade investigation, interfere with it, and continue criminal activity.
On the same day the Novozavodsky Court held a hearing to consider the investigator’s request. At the hearing the court granted the applicant’s request admitting Mr Matveyev as his lawyer. At the hearing the lawyer objected to the investigator’s request arguing in particular that there was no sufficient evidence against the applicant, that the applicant had good references, was married and had two minor children.
On the same day the Novozavodsky Court granted the investigator’s request and ordered that the applicant be placed in custody. In taking that decision, the court took into account that the applicant was accused of a serious offence, that he did not live at his registered place of residence in Cherkasy region instead living in rented accommodation in Kyiv region, that if at liberty he could evade investigation, interfere with it, and continue criminal activity.
On 1 December 2010 the applicant’s lawyer appealed arguing, in particular, that the applicant had no intention to evade investigation and the investigator did not show that the applicant had such an intention, that the applicant had a family with two minor children and had no prior convictions.
On 9 December 2010 the Chernigiv Regional Court of Appeal upheld the decision of 29 November 2010. It held that the Novozavodsky Court’s decision was lawful, that it took into account the arguments about the applicant’s personal characteristics referred to by his lawyer and that he was accused of a serious offence, could evade investigation and justice, could interfere with the investigation and that his detention was necessary to ensure proper procedural conduct of the applicant.
On 10 January 2012 the Shevchenkivsky District Court of Kyiv released the applicant on an undertaking not to abscond, finding that the applicant had no prior convictions, had a permanent address, wife and two minor children, that there was no information that he had evaded investigation, and that the gravity of the charge alone could not justify his detention.
2. The application to the Court and the lawyer’s contact with the applicant in this connection
On 30 December 2010 the Novozavodsky Court dismissed Mr Matveyev from representing the applicant in his criminal case on the ground that he simultaneously represented one of the applicant’s co-defendants.
On 24 January 2011 Mr Matveyev lodged this application with the Court on the applicant’s behalf.
On 10 March 2011 the Court asked Mr Matveyev to provide an authority form signed by the applicant and a number of other documents, including a copy of the investigator’s request to place the applicant in custody.
On 28 March 2011 Mr Matveyev requested that the investigator provide him with the documents requested by the Court, referring explicitly to the Court’s request.
On 4 April 2011 the investigator refused the request on the grounds that domestic law did not envisage the possibility for the investigator to provide copies from the case-file and that the lawyer, being dismissed by the Novozavodsky Court, could not represent the applicant in his criminal case.
On 6 April 2011 Mr Matveyev notified the Court that he had been unable to obtain the authority form signed by the applicant. He also provided the Court with a copy of the investigator’s request to place the applicant in custody, which according to him he photocopied from the case-file in court.
On 30 May 2011 the Court received an authority form signed by the applicant’s wife, Mrs L.O., and authorising Mr Matveyev to represent the applicant.
On 18 December 2013 the Court requested the applicant to provide an authority form signed by him.
On 24 January 2014 the Court received an authority form signed by the applicant.
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention that domestic judicial decisions did not identify sufficient reasons for his detention and that domestic courts disregarded his arguments against detention.
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QUESTIONS TO THE PARTIES
1. Was the applicant’s pre-trial detention between 26 November 2010 and 10 January 2012 in breach of Article 5 § 1 of the Convention, regard being had in particular to the grounds given to justify his detention?
2. Was the applicant’s pre-trial detention in breach of the requirements of Article 5 § 3 of the Convention? In particular, did the courts give sufficient and relevant reasons for the applicant’s pre-trial detention? Did they consider alternative measures of ensuring the applicant’s appearance at trial?
3. Has there been any hindrance by the State in the present case with the effective exercise of the applicant’s right of petition, as guaranteed by Article 34 of the Convention, in connection with refusal of the investigative authority to provide to the applicant’s lawyer the documents requested by the Court?
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