FIFTH SECTION
Application no. 12222/09
Sergey Vladimirovich ORLOVSKIY
against Ukraine
lodged on 5 May 2009
STATEMENT OF FACTS
The applicant, Mr Sergey Vladimirovich Orlovskiy, is a Ukrainian national, who was born in 1968 and lives in Golubinka, the Autonomous Republic of Crimea.
A. The circumstances of the case
On an unspecified date in 2006 K., arrested by the police on suspicion of his involvement in a criminal gang, mentioned in his confessions that the applicant had participated in the murder of Z., one of the gang members, in 2002. Z.’s body was never found and he was considered missing.
On 28 July 2006 the applicant was stopped on a motorway by the road police accompanied by the regular police forces and arrested, his car having been taken in police custody.
According to the applicant, the reasons for his arrest were not clearly explained to him. Between 28 July and 1 August 2006 he was transferred to various police units in Sevastopil, Odessa and Balaklava and questioned about his involvement in criminal activities. The questioning sessions lasted for many hours in a row, including at night; and the police officers threatened him in various ways, seeking to extract self-incriminating statements. During this period the applicant was not provided with an opportunity to contact a lawyer. Likewise, his family was not informed about his whereabouts, although I. O., the applicant’s wife, contacted the police and the prosecutors’ office on numerous occasions, trying to find the applicant.
On 30 July 2006 the police found explosives in the applicant’s car, which had been seized from him upon his arrest.
On 1 August 2006 criminal proceedings were instituted against the applicant on suspicion of illegal possession of explosives and murder of Z. and the arrest report was drafted and countersigned by the applicant.
On the same day I. O., who requested the Odessa Prosecutor to institute criminal proceedings into her husband’s abduction and hijacking of his car, was informed of the applicant’s placement in Odessa pre-trial detention centre (SIZO). Her criminal complaint appears to have been left without response.
On 3 August 2006 the applicant obtained a lawyer.
On 4 August 2006 the Kyivskiy District Court of Odessa (“Kyivskiy Court”) remanded the applicant in custody for ten days pending collection of information concerning his person.
On 10 August 2006 the applicant was indicted of possessing illegal explosives and taking part in the murder of Z. committed by an organised gang in 2002.
On 11 August 2006 the Kyivskiy Court remanded the applicant in custody for two months, starting from 28 July 2006, pending the investigation against him. In its decision, the court noted that the gravity of the charges against the applicant constituted sufficient basis for fearing that he would abscond or interfere with the investigation, if released.
On the same day the court also took a separate ruling drawing the attention of the Minister of Internal Affairs to the breaches of the applicant’s rights in effecting his arrest. It noted, in particular, that the applicant’s undocumented detention between 28 July and 1 August 2006, which lasted 108 hours, was unlawful. The court also requested the Minister to investigate the incident, identify those responsible and inform the court within one month about the measures taken. The case-file materials do not show any follow-up.
The applicant appealed against the order to place him in custody. He submitted that he had a permanent place of residence and employment, a family with three minor children and a mother of advanced age in need of his care, and that he was suffering from health problems. He also noted that K.’s testimonies were not supported by any objective evidence and that the explosives had not been discovered in his car until two days after it had been seized by the police, which meant that they had been planted.
On 17 August 2006 the Odessa Regional Court of Appeal (“Odessa Court of Appeal”) rejected the applicant’s appeal. The court noted, in particular, that regard being had to the gravity of the charges against the applicant and the fact that he resided in the Crimea, while the investigative authority was located in Odessa, other preventive measures, not connected with detention, were insufficient to ensure the applicant’s proper procedural conduct.
On 22 August 2006 the prosecution refused to admit Y.D., an advocate, hired by the applicant’s mother, into the proceedings, referring to the fact that the applicant, who already had a lawyer, had not lodged any request in this respect. Based on the case-file materials, it appears that subsequently Y.D. represented the applicant at some stages of the proceedings.
On 25 September 2006 the Odessa Regional Court of Appeal extended the applicant’s detention until 28 February 2007, having found that there were no reasons for releasing him.
On 16 October 2006 the General Prosecutors’ Office rejected I.O.’s request for a meeting with the applicant, having noted that at the material time there was “no appearance that a meeting of the relatives and [the applicant] was necessary”.
On 15 February 2007 the applicant requested the Odessa Court of Appeal to release him, referring to an aggravation of his health problems and complaining that the investigation in his respect was not advancing.
In February 2007 the investigative authority requested the Odessa Court of Appeal to extend the applicant’s detention, since the investigation of the case had not been finalised.
On 23 February 2007 the applicant, represented by a lawyer, objected against the further extension of his detention. He noted, in particular, that he had not received a copy of the request for extension and was not aware of the grounds on which it was based. In any event, he insisted on his release, referring to the arguments advanced earlier, as well as the aggravation of his ulcers and the fact that during the seven months he had been held in custody, no investigative actions in his respect had taken place and no further evidence of his involvement in any criminal activity was discovered.
On 26 February 2007 the Court of Appeal allowed the request by the investigative authority and extended the applicant’s detention until 28 April 2007 referring to the gravity of the charges and finding it practical to keep the applicant in detention to ensure an efficient investigation.
On 24 April 2007 the Supreme Court further extended the applicant’s detention until 22 August 2007.
On 9 August 2007 the applicant was indicted of participating in several other crimes committed jointly by several individuals, including murders, abductions, and torturing.
On 14 August 2007 the Supreme Court allowed the investigative authority’s request to extend the detention of five purported criminal gang members, including the applicant, until 17 February 2008. It noted that the investigation related to thirty different episodes of criminal activity, including murders, abductions, explosions, etc. committed by a criminal association and that the investigative authorities needed much more time to finish their work.
On 18 December 2007 the applicant was presented with the final bill of indictment, according to which he was charged of having been a member of a large criminal association, consisting of several smaller gangs and involving more than one hundred members total. The association’s primary business was extortion of money from entrepreneurs for their purported protection from other gangs. As a member of this association, the applicant personally was indicted of participating in several murders and other crimes. He was also charged of possessing illegal explosives.
On 24 December 2007 the investigation was completed and the applicant and several of his co-defendants were given time to study the case-file.
On 24 January 2008 the Kyiv City Court of Appeal (“Kyiv Court of Appeal”) extended the applicant’s detention until 20 August 2008, referring to the need to carry out various preparatory steps before the trial, including the applicant’s familiarisation with the case-file materials.
In August 2008 the prosecution filed a further request for extending the applicant’s detention, referring to the impossibility to finalise the preparatory work before his term of detention was up.
On 13 August 2008 the applicant lodged an objection against this request. He noted, in particular, that the reason why familiarisation with the case-file materials took so long was the poor organisation of the procedure.
On 15 August 2008 the Court of Appeal extended the applicant’s detention until 20 October 2008, referring, in particular, to the need to ensure that the applicant and his co-defendants study the case-file.
On 7 October 2008 the applicant notified the prosecutors’ office that he had still not been provided with six volumes of the case-file materials. He also requested to be released, noting that since the investigation had been completed, it was not probable for him to interfere with it. It was also unlikely that he would abscond from trial, in particular, since, according to the prosecution’s version of events, his personal role in the episodes of gang activity was very insignificant.
On 9 October 2008 the applicant notified the prosecutors’ office that although he had not been presented with some of the case-file materials, he waived his right for further familiarisation with them and requested to be released from custody pending trial.
On 12 October 2008 the General Prosecutors’ Office acknowledged receipt of the applicant’s submissions and promised to send the relevant procedural forms to him in the shortest delay. It further informed the applicant that there were no grounds for his release.
In October 2008 the prosecution filed a further request to extend the applicant’s detention, against which he objected advancing the same arguments as before.
On 15 October 2008 the Kyiv Court of Appeal allowed the prosecution’s request, extending the applicant’s detention until 20 December 2008 based on the same grounds as in its previous decision.
On 15 December 2008 the Kyiv Court of Appeal further extended the applicant’s detention until 19 February 2009.
Between 19 February and 18 March 2009 the applicant continued to be detained in the Odessa SIZO.
On 18 March 2009 the Odessa Court of Appeal, acting as a first-instance court, held a preparatory hearing in the applicant’s and his co-defendants’ case, and rejected the applicant’s request for release pending trial, having found that there was no basis for selecting a milder preventive measure in his respect.
As of February 2011 the applicant’s trial was still pending and he remained in detention in the Odessa SIZO.
According to him, during the entire period of his detention, he was denied a possibility to correspond with or meet his family, notwithstanding their numerous requests.
B. Relevant domestic law
The relevant extracts of the Code of Criminal Procedure of Ukraine with respect to detention pending investigation and trial can be found in the Court’s judgment in the case of Osypenko v. Ukraine (no. 4634/04, § 33, 9 November 2010).
The relevant provisions of the Code of Criminal Procedure of Ukraine concerning the family visits can be found in the Court’s judgment in the case of Shalimov v. Ukraine, no. 20808/02, § 44, 4 March 2010.
COMPLAINTS
The applicant complains under Article 3 of the Convention that the manner, in which he was questioned by the law-enforcement authorities, was inhuman and degrading and that there was no effective investigation into his ill-treatment.
The applicant next complains under Article 5 § 1 of the Convention that his arrest and detention between 28 July and 1 August 2006 and his detention between 19 February and 18 March 2009 were devoid of any legal basis. He also complains under the same provision that the decision to remand him in custody was manifestly unreasonable.
The applicant also complains under Article 5 § 2 of the Convention that at the time of his arrest he was not apprised of the grounds for it.
The applicant next complains under Article 5 § 3 of the Convention that his detention pending investigation and trial was unreasonably long.
He also complains that he was not brought before a judge until 4 August 2006 (seven days after his arrest). The applicant invokes Article 5 § 4 of the Convention in this respect.
The applicant also complains under Article 6 § 2 of the Convention that various procedural acts by the prosecutorial and judicial authorities taken in his respect referred to him as a person, who had committed criminal offences.
The applicant also complains under Article 6 § 3 of the Convention that accusations against him were not sufficiently detailed and concrete; that he lacked time and facilities for preparation of his defence; that he had no access to a lawyer between 28 July and 3 August 2006 and that in August 2006 Y.D. was not admitted in the proceedings as his advocate.
The applicant additionally complains under Article 8 of the Convention about impossibility to meet his family and correspond with them during the entire period of his detention.
Finally, the applicant complains under Article 13 of the Convention that he had no effective remedies for his Convention complaints.
QUESTIONS TO THE PARTIES
1. Was the applicant’s arrest and detention between 28 July and 1 August 2006 and between 19 February and 18 March 2009 lawful for the purposes of Article 5 § 1 of the Convention?
2. Was the length of the applicant’s detention pending investigation and trial against him in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?
3. Was the procedure by which the applicant challenged the lawfulness of his detention in conformity with the requirement of Article 5 § 4 of the Convention to address the arguments raised by the defence (see e.g. Kharchenko v. Ukraine, no. 40107/02, §§ 85-86 and 100, 10 February 2011)?
4. Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention, because of the refusal by the State authorities to grant him family visits and to allow him to correspond with his family while he was in detention during the investigation and judicial proceedings?
5. Did the applicant have at his disposal an effective domestic remedy for his complaints about the denial of family visits and correspondence, as required by Article 13 of the Convention?
Full & Egal Universal Law Academy