Communicated on 8 September 2014
FIFTH SECTION
Application no. 23730/11
Nazariy Yaroslavovych POLOVYCH
against Ukraine
lodged on 6 April 2011
STATEMENT OF FACTS
The applicant, Mr Nazariy Yaroslavovych Polovych, is a Ukrainian national, who was born in 1986. His current whereabouts are unknown. He is represented before the Court by Ms Z. K. Shevchenko, 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.
1. Criminal proceedings against the applicant
On different dates in 2008 several premises in Lviv were robbed.
At the night of 21 May 2008 a number of items were stolen from Notary Office no. 4 in Lviv (“the notary office”).
On 21 May 2008 at 6 p.m. Yu. was arrested by the police in connection with the theft.
On the same date, following a phone call from police officers, the applicant, also a police officer at the time, appeared at Yu.’s place of residence where, at 9.30 p.m., he was apprehended by the police and forced to go a police station.
From 11 to 11.10 p.m. that day the applicant was informed of his right to defence and questioned as a suspect to the theft from the notary office. He refused to give testimonies in the absence of his lawyer.
The applicant’s detention at the police station was not recorded until 22 May 2008 at 11 p.m., when he was formally arrested as a crime suspect on the basis of evidence obtained from an eyewitness (see below).
On 22 May 2008 criminal proceedings were instituted in connection with the theft from the notary office. On the same date, criminal proceedings were instituted against the applicant in connection with the theft following statements of Yu. who pointed at the applicant as at his accomplice in the crime. The date and time of the applicant’s questioning as a suspect were allegedly changed by the investigator to 22 May 2008.
On unspecified dates a number of criminal proceedings were initiated in connection with other thefts committed in Lviv (see above). Subsequently, these proceedings were joined with the proceedings concerning the theft from the notary office.
On 24 May 2008 the Lychakivskiy District Court of Lviv (“District Court”) ordered the applicant’s detention on remand on the ground that if released he could flee from justice, obstruct the investigation and commit new crimes. No further reasoning was advanced. The applicant appealed, arguing, inter alia, that he had never been convicted before, cooperated with investigators, had positive references at the place of residence and at work, and never had any negative feedback as a police officer.
On 2 June 2008 the Lviv Regional Court of Appeal (“Court of Appeal”) dismissed the applicant’s appeal and upheld the preventive measure chosen, having stated that the case-file contained no evidence that the applicant was positively characterised at his place of residence and at work.
On 31 May 2008 the applicant was charged with having committed thirteen counts of theft in complicity with Yu.
On 17 July 2008 the term of pre-trial investigation was extended by the District Court.
On 22 July 2008 the District Court extended pre-trial detention of the applicant until 22 September 2008.
On 20 September 2008 the investigator dropped the charges against the applicant on ten counts of theft.
On 22 September 2008 the pre-trial investigation was completed and the case file was referred for trial. The applicant remained in detention without any decision taken in this respect.
On 19 July 2009 the District Court decided that the applicant should stay in custody, having allowed the prosecutor’s petition to carry out a forensic expertise in the case.
On a number of occasions, e.g. 14 July 2009, 8 June 2010 and 25 August 2011, the applicant requested to change the preventive measure. All his requests were dismissed.
On 29 August 2011 the District Court acquitted the applicant and ordered his immediate release. The trial court noted, inter alia, that during the trial Yu., the applicant’s co-accused, partly acknowledged his guilt and stated that he had committed the criminal offences alone, without the applicant’s involvement. He further stated that the police ill-treated him with a view to extract his confession and to force him to indicate the applicant as his accomplice. The court found that the self-incriminating statements of Yu. as well as those accusing the applicant were given in violation of Yu.’s procedural rights, including through ill-treatment, and were not sufficiently supported by evidence. Yu. was found guilty of one count of theft and sentenced to three years, three months and six days’ imprisonment starting from 22 May 2008.
On 6 December 2012, following an appeal by the prosecutor, the Lviv Regional Court of Appeal quashed this judgment and remitted the case for retrial to the first-instance court. It noted in particular that the conclusions of the first-instance court did not correspond to the facts of the case and that the examination of the case was flawed by serious procedural deficiencies. It noted, inter alia, that the court’s conclusions about Yu.’s ill-treatment were premature as the relevant investigation had not yet been completed.
According to the most recent information from the applicant (April 2012), the proceedings were still pending before the first-instance court.
From 6 November 2008 to 29 August 2011 the District Court scheduled 26 hearings out of which one was adjourned because of the absence of the applicant’s lawyer and four for reasons not depending on the applicant (electricity cut at the court’s premises, failure to ensure the accuseds’ appearance at the hearings, the prosecutor’s, victim’s or witnesses’ failure to appear, the illness of a judge).
B. Relevant domestic law
1. Constitution of Ukraine of 28 June 1996
The relevant extracts of Article 29 read as follows:
“Every person has the right to freedom and personal inviolability.
No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law.
In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately, if he or she has not been provided, within seventy-two hours from the moment of detention, with a substantiated court decision in regard to the holding in custody. ...”
2. Code of Criminal Procedure of 28 December 1960
The relevant extracts of the Code provide as follows:
Article 43-1. The suspect
“A person shall be considered a suspect if:
1) he/she has been arrested on suspicion of having committed a crime;
2) in his/her respect a preventive measure has been applied until a decision has been made to bring that person to the proceedings as an accused.
A suspect is entitled to know what he/she is suspected of; to give evidence or refuse to give evidence and answer questions; to have defence counsel and a meeting with him before the first questioning; to challenge the lawfulness of his/her arrest before the court...
It shall be stated in the arrest order or the decision to apply a preventive measure that the suspect has had his or her rights explained.”
Article 106. Arrest of a suspect by the body of inquiry
“The body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds:
1. if the person is discovered whilst or immediately after committing an offence;
2. if eyewitnesses, including victims, directly identify this person as the one who committed the offence;
3. if clear traces of the offence are found either on the body of the suspect, or on his clothing, or with him, or in his home.
If there is other information giving ground to suspect a person of a criminal offence, a body of inquiry may arrest such a person if the latter attempted to flee, or does not have a permanent place of residence, or the identity of that person has not been established.
For each case of a suspect’s arrest, the body of inquiry shall be required to draw up an arrest order (протокол затримання) outlining the grounds, the motives, the day, time, year and month, the place of arrest, the explanations of the person detained and the time when it was recorded that the suspect had been informed of his right to have a meeting with defence counsel as from the moment of his arrest, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The arrest order shall be signed by the person who drew it up and by the detainee.
A copy of the arrest order with a list of his rights and obligations shall immediately be handed to the detainee and sent to the prosecutor. At the request of the prosecutor, the material which served as a ground for the arrest shall be sent to him as well. ...
Within seventy-two hours of the arrest, the body of inquiry shall:
(1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of the preliminary detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article;
(2) release the detainee and select a non-custodial preventive measure;
(3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her.
If the preliminary detention is appealed against to a court, the detainee’s complaint shall be immediately sent by the head of the detention facility to the court. The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure. If the complaint is received after the preventive measure was applied, the judge shall examine it within three days after receiving it. If the request has not been received or if the complaint has been received after the term of seventy-two hours of detention, the complaint shall be considered by the judge within five days after receiving it.
The complaint shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring that the preliminary detention is lawful or allowing the complaint and finding the preliminary detention to be unlawful.
The ruling of the judge may be appealed against within seven days from the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court’s ruling.
Preliminary detention of a suspect shall not last for more than seventy-two hours.
If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up the order to that effect, and shall inform the official or body that carried out the arrest accordingly.”
Article 115. Arrest of a suspect by an investigator
“An investigator may arrest and question a person suspected of having committed a crime according to procedure envisaged by Articles 106, 106-1, and 107 of the Code.”
Article 165-2. Procedure for the selection of a preventive measure
“At the stage of the pre-trial investigation, a non-custodial preventive measure shall be selected by the body of inquiry, the investigator, or the prosecutor.
If there are grounds for applying a custodial preventive measure, the body of inquiry or the investigator, following the prosecutor’s consent, shall lodge an application with the court. The prosecutor is entitled to lodge a similar application. In determining this issue, the prosecutor shall familiarise himself with all the material in the case file that would justify placing the person in custody, and verify that the evidence was received in a lawful manner and is sufficient to bring charges against the person.
The request shall be considered within seventy-two hours of the arrest of the suspect or accused.
If the application concerns the detention of a person who is at liberty, the judge shall have the power to issue a warrant for the arrest of such a person and for escorting him to the court. The preliminary detention in such cases shall not exceed seventy-two hours; and if the person concerned is outside the locality in which the court operates, it shall not exceed forty-eight hours from the time the arrested person was brought to the locality. ...”
COMPLAINTS
1. The applicant raises the following complains under Article 5 of the Convention:
- that his detention by police between 21 and 24 May 2008 and from 23 September 2008 until his release lacked a legal basis;
- that he was not duly informed of the reasons for his arrest;
- that his pre-trial detention was unreasonably lengthy;
- that no proper judicial review of the on-going pre-trial detention was provided to him.
2. The applicant finally complains under Articles 6 and 13 of the Convention about the length of the criminal proceedings in his case and the lack of an effective remedy in this respect.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention as regards the period between 9.30 p.m. on 21 May and 11 p.m. on 22 May 2008? In particular:
(a) Was the applicant’s detention in that period recorded by the authorities?
(b) Was the alleged delay between the actual arrest of the applicant and issuing the arrest order compatible with the requirements of Article 5 § 1 of the Convention?
2. Was the applicant’s detention, based on the arrest order of 22 May 2008, in breach of Article 5 § 1 of the Convention?
3. Was the applicant deprived of his liberty for the periods from 22 September 2008 and 29 August 2011 in breach of Article 5 § 1 of the Convention?
4. Was the applicant informed promptly of the reasons for his arrest and of any charge against him, as required by Article 5 § 2 of the Convention?
5. Was the applicant’s detention from 24 May 2008 to 29 August 2011 compatible with the requirements of Article 5 § 3 of the Convention to be tried within a reasonable time or released pending trial?
5. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention?
6. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
7. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 6 of the Convention?
Your Government are also invited to submit all the documents concerning:
- the applicant’s apprehension and pre-trial detention, including a copy of the relevant pages from the register of the detained persons at the police station where the applicant was held, his complaints in that respect and responses to them or decisions taken following their examination;
- the course of the criminal proceedings against the applicant in chronological order;
- the present situation of the applicant.
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