Communicated on 22 February 2015
FIFTH SECTION
Application no. 11623/13
Maksym Volodymyrovych SERDYUKOV
against Ukraine
lodged on 7 February 2013
STATEMENT OF FACTS
The applicant, Mr Maksym Volodymyrovych Serdyukov, is a Ukrainian national, who was born in 1977 and is detained in Kyiv. He is represented before the Court by Mr O. V. Lupeyko, a lawyer practising in Vyshgorod.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 30 March 2012 customs authorities initiated criminal proceedings in connection with smuggling of a large amount of psychotropic substances (“aggravated smuggling”) in a parcel delivered from China to Ukraine.
On 5 April 2012 an investigator of the Kyiv branch of the Security Service of Ukraine (“the SSU) instituted criminal proceedings against the applicant and two other individuals on suspicion of aggravated smuggling.
According to the applicant, at around 4 p.m. on 5 April 2012 he was arrested on a street in Kyiv by several SSU officers. Subsequently, the officers brought the applicant handcuffed to the school where he worked as a basic military training instructor. There the officers seized the applicant’s mobile phones and examined the school’s shooting range, which was the applicant’s workplace. According to the applicant, this was observed by the school’s other teachers and recorded on video by an SSU press officer.
On 5 April 2012 a record was drawn up according to which an on-site inspection was conducted at the school’s shooting range on that day, in which the applicant took part.
According to the applicant, following the events at the school on the same day he was brought to the Kyiv branch of the SSU where he was questioned. According to him, at 10.53 p.m. that day he called his life companion from the office telephone of one of the SSU officers and her mobile phone retained a record of this call. He alleges that he then spent the night of 5 to 6 April 2012 in detention at the SSU building and remained handcuffed throughout this period.
On 6 April 2012 an SSU investigator drew up an arrest report in respect of the applicant. According to the report, the applicant was arrested at 4 p.m. on 6 April 2012 at the building of the Kyiv branch of the SSU on the grounds that he had been discovered immediately after committing an offence and had been identified by eyewitnesses as the person who committed aggravated smuggling. The applicant signed the arrest report.
On the same day a personal search report was drawn up indicating that the investigator searched the applicant from 4.20 p.m. to 4.50 p.m. that day and seized a number of items, including five mobile phones. According to the applicant, in fact these items had been seized from him the day before, on 5 April 2012.
On 9 April 2012 the Solomyansky District Court of Kyiv (“the District Court”) allowed the investigative authority’s request and ordered that the applicant be placed in pre-trial detention.
According to the applicant, on 10 April and 16 April 2012 two national television channels broadcast the video of the events at the school on 5 April 2012 and interviews with the SSU press officer in which she stated that the SSU had discovered evidence of a drug-smuggling operation at the school.
On 18 April 2012 the applicant lodged a complaint seeking to declare unlawful his detention from 5 April to 6 April 2012 and his subsequent detention under the arrest report of 6 April 2012. He referred to several elements of evidence purportedly proving that he had in fact been detained on 5 April 2012. In particular, he noted that he had been observed on 5 April 2012 at the school by his fellow teachers and recorded on video by the SSU there and that he had called his companion from an SSU office telephone on 5 April 2012.
On 24 April 2012 the District Court rejected the applicant’s complaint stating in general terms that the applicant’s allegations concerning his arrest on 5 April 2012 were unsubstantiated.
On 26 April 2012 a panel of the Kyiv City Court of Appeal (“the Court of Appeal) upheld the detention order of 9 April 2012.
On 29 May 2012 the Court of Appeal allowed the applicant’s appeal, quashed the ruling of 24 April 2012 and remitted the case to the District Court for a fresh examination. The Court of Appeal found that the District Court had failed to examine the applicant’s allegation that he had been arrested on 5 April 2012, instead limiting its analysis to the question of whether there had been sufficient reasons to place the applicant in pre-trial detention.
On 27 July 2012 the District Court again rejected the applicant’s complaint. By way of reasoning the court stated that the arrest report indicated 6 April 2012 as the date of arrest and the applicant had signed it without raising any objections. The court also stated that it had not taken into account the video supposedly made by the SSU at the school, which according to the applicant confirmed that he had been arrested on 5 April 2012, on the ground that there was no such video in the case file and that the investigator G. had not responded to the court’s question as to whether a video recording had been made on the day in question.
On 14 August 2012 the Court of Appeal upheld the District Court’s ruling of 27 July 2012 finding that the District Court had examined the question with sufficient diligence and there were no grounds to set aside its ruling.
COMPLAINTS
The applicant complains under Article 5 of the Convention that between 4 p.m. on 5 April and 4 p.m. on 6 April 2012 his detention was not recorded by the authorities, no formal decision was adopted on this account. He also complains that the arrest report of 6 April 2012 did not identify specific reasons for his detention and was drawn up after the period of detention without a court order allowed by domestic law had already expired.
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 4 p.m. on 5 April and 4 p.m. on 6 April 2012? 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 drawing up of the arrest report compatible with the requirements of Article 5 § 1 of the Convention?
2. Was the applicant’s detention, based on the arrest report of 6 April 2012, in breach of Article 5 § 1 of the Convention?
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