Communicated on 7 September 2015
FIFTH SECTION
Application no. 3163/11
Pavlo Oleksandrovych PANYCH
against Ukraine
lodged on 4 January 2011
STATEMENT OF FACTS
The applicant, Mr Pavlo Oleksandrovych Panych, is a Ukrainian national, who was born in 1975 and lives in Berdychiv. He is represented before the Court by Mr O.V. Levytskyy, 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 20 July 2008 the applicant was arrested on suspicion of having been involved in a car theft and subsequently remanded in custody on the order of the Shevchenkisvskiy District Court of Kyiv (“the District Court”) pending criminal proceedings.
On 6 July 2009 the District Court convicted the applicant of the incriminated offence and sentenced him to eight years’ imprisonment. It noted in the judgment that the applicant should remain in custody in pre-trial detention facility (SIZO) “pending entry of the judgment (verdict) into force”.
On 28 December 2009 the Kyiv Court of Appeal quashed the judgment of 6 July 2009 and remitted the case for a fresh examination to the District Court. It did not provide any instructions as to whether the applicant should be released or held in custody pending his new trial.
On 19 May 2010, when the new trial proceedings were opened, O.L., the applicant’s lawyer, submitted that the judgment of 6 July 2009 having been quashed, the validity of the order to hold the applicant in custody pending its entry into force contained in that judgment was automatically extinguished. There was therefore no legal basis for the applicant’s detention at the moment and, accordingly, he should be released.
On 1 December 2010 the District Court rejected this request, referring to the gravity of the incriminated offence, the applicant’s prior criminal record, and that at the moment of his arrest the applicant had neither employment, nor a permanent residence address in Kyiv. The District Court also noted that neither the applicant, nor his representative had provided convincing evidence that the applicant would not abscond, if released.
On 23 December 2010 the District Court convicted the applicant of having participated in the car theft and sentenced him to seven years’ imprisonment.
B. Relevant domestic law
Relevant provisions of the Code of Criminal Procedure of 1960 (repealed upon entry into force of the Code of Criminal Procedure of 2012), as worded at the material time, read as follows:
Chapter III. Proceedings in the court of first instance
Article 237. Matters examined by the judge in the course of preliminary consideration of a case
“...the judge shall determine with respect to each of the accused the following matters:
...
4. whether there are grounds for changing, discontinuing or applying a preventive measure;
... .”
Article 253. Matters to be determined by the judge in connection with preparing a case for trial
Having decided to accept the case for trial, the judge shall determine the following matters:
...
2. whether to modify, annul or select a preventive measure;
... .”
Article 343. Application of a preventive measure pending entry into force of a verdict
“When rendering a verdict, pursuant to which the defendant is subjected to a certain punishment, the court should decide on the issue of a preventive measure pending entry of the verdict into force and may select a preventive measure or annul, modify or uphold the one selected earlier ... .”
Chapter IV. Proceedings with a view to reviewing verdicts, rulings and decisions of the court
Article 358. Determination of issues connected to the preparation of the case for the appellate review
“During the preliminary review of the case, the court of appeal may determine the following issues connected to the preparation of the case for appellate review:
....
5. on modification, cancellation or selection of a preventive measure ... .”
The Code did not contain any specific provisions expressly obliging the court of appeal to decide on the issue of the defendant’s continuous detention or release when quashing the trial court’s verdict and remitting the case for a fresh trial.
COMPLAINTS
The applicant complains under Article 5 § 1 of the Convention that there was no legal basis for his detention between 28 December 2009 and 1 December 2010.
He also complains under Article 5 § 4 of the Convention that his request for a review of the lawfulness of his detention during the aforementioned period and his release was not examined speedily.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention during the period between 28 December 2009 and 1 December 2010? In particular, what was the legal basis for depriving him of liberty during the aforementioned period?
2. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention during the aforementioned period, as required by Article 5 § 4 of the Convention? In particular, did the length of the proceedings in the present case, by which the applicant sought to challenge the lawfulness of his detention during the period at issue, comply with the “speed” requirement of Article 5 § 4 of the Convention?
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