CASE OF SERGEY VOLOSYUK v. UKRAINE
Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Violations of Art. 8;Non-pecuniary damage - award
Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk
5. The applicant was born in 1976 and is currently imprisoned. 6. On 31 December 1999 the applicant, Mr D. and Mr G. were arrested by the police on suspicion of having committed a murder. 7. On 3 January 2000, given the gravity of the offence of which the applicant was suspected, the investigator of the Druzhkivka District Prosecutor’s Office decided that the applicant should be remanded in custody for up to two months. The same day the Druzhkivka District Prosecutor issued the arrest warrant, authorising thereby the investigator’s decision. 8. On 20 February 2000 the Druzhkivka District Prosecutor extended the term of the applicant’s detention until 31 March 2000. 9. On 23 March 2000 the applicant, Mr D. and Mr G. were charged with murder. 10. On 24 March 2000 the investigator completed the investigation and gave the applicant and the co-accused access to the case file. However, on 11 April 2000 the investigator reopened the investigation and additionally charged the applicant with aggravated robbery. On 12 April 2000 the investigation was completed and the applicant and the co-accused continued studying the case-file until 27 April 2000. 11. On 6 May 2000 the supervising prosecutor approved the bill of indictment and transferred the case file to the Donetsk Regional Court of Appeal (hereafter “the Court of Appeal”) for trial proceedings. 12. On 17 May 2000 the Court of Appeal committed the applicant and the co-accused for trial and held that the preventive measure in their respect was to remain unchanged. The hearing took place in the presence of the prosecutor, but the applicant and his lawyer were absent. 13. On 2 October 2001 the Court of Appeal held a hearing in the applicant’s case, where it considered several applications submitted by the co-accused and adjourned consideration of the case until the requisite technical facilities could be installed for the proceedings. According to the applicant, the Court of Appeal also adjourned consideration of his release request, lodged before the hearing. 14. According to the applicant, in the period between 2 October 2001 and 6 October 2003 he lodged about twenty requests for his release with the Court of Appeal, referring to his health problems and relying on his right to a trial within a reasonable time or release pending trial as guaranteed by Article 5 § 3 of the Convention. Those requests remained unanswered however. 15. On 6, 7, 8, 9 and 10 October 2003 the Court of Appeal held hearings in the case during which it examined the evidence and questioned the defendants and witnesses. 16. Further court hearings took place on 26 and 27 January, 9, 10, 11, 15, 23, and 24 March, and 26 and 28 April 2004, during which the Court of Appeal continued examining the evidence and questioning witnesses. Within that period the hearings were adjourned three times because one of the defendants was feeling ill and twice because the counsel of the other defendant failed to appear before the court. 17. In a letter of 4 March 2004 the Deputy President of the Court of Appeal informed the applicant that his latest complaint about the excessive length of the proceedings had been rejected on the same basis as the previous ones, namely that there were compelling and valid reasons for the delays in the proceedings. However, the nature of those reasons was not specified in the letter. 18. On 6 May 2004 the Court of Appeal considered the applicant’s release requests and rejected them, holding that he was charged with a grave offence and, if at large, might influence the proceedings. The Court of Appeal further adjourned the case in order to question additional witnesses. 19. On 14 May 2004 the Court of Appeal found, inter alia, that the applicant was guilty of having committed a murder and aggravated robbery. It sentenced him to fourteen years’ imprisonment, minus the time spent in pre-trial detention, and ordered the confiscation of his property. On 16 December 2004 the Supreme Court upheld that judgment. 20. During his detention on remand the applicant wrote letters in which he complained about his conditions of detention to various officials, including a public prosecutor supervising penitentiary establishments, the Ombudsman, the Prisons Department and Members of Parliament. In accordance with the prescribed procedure, these letters were sent through officials at the detention centre, who dispatched them to the addressees. The applicant’s letters were subject to automatic monitoring and censorship except for those addressed to the prosecutors and, in the later stages of his detention, to the Ombudsman. 21. According to the applicant, in February 2003, while being held in the detention centre, he wrote a complaint to the Donetsk Directorate of the Prisons Department, describing the ill-treatment and arbitrary punishment inflicted on him by officials at the detention centre. He sent the complaint without going through the officials at the detention centre, in violation of the domestic legislation. Shortly after the complaint had reached the addressee, the governor of the detention centre punished the applicant with ten days’ confinement in a disciplinary cell for breaching the procedure for sending letters. 22. Article 236-3 of the Code provides that the detainee or his defence counsel or legal representative may appeal against the prosecutor’s arrest warrant to the relevant district (city) court. The appeal may be lodged directly with the court or through the officials at the pre-trial detention centre, who must send the appeal to the relevant court within twenty-four hours of receiving it. 23. On 21 June 2001 amendments were introduced to the Code, providing that within seventy-two hours the arrested criminal suspect was to face the court for deciding on his further detention. 24. Article 273 of the Code provides, inter alia, for the court to set out interim decisions on preventive measures in the form of a separate document. 25. According to Article 274 of the Code the court, if appropriate, may order, change, or discontinue a preventive measure in respect of the defendant. 26. Section 13 of the Act provides, inter alia, for persons detained on remand to be able to correspond with relatives, other persons and legal entities upon written consent by the authority in charge of the criminal case against the detainee concerned. The officials of the detention centre must review all the letters of the detainees except for those which are addressed to the prosecutor. Since 6 February 2003 this exception has been extended to cover letters addressed to the Ombudsman. If the letter is related to the criminal case against the detainee concerned it has to be handed over within three days to the authority in charge of the detainee’s criminal case for consideration. Letters containing information which can obstruct justice must not be dispatched to the addressee but must be handed over to the authority in charge of the detainee’s criminal case. The detainee and the prosecutor must be informed of the interception made. If a letter is not related to the detainee’s criminal case, it must be answered by the officials at the detention centre or sent to the addressee. 27. The same section of the Act requires any appeal against the prosecutor’s arrest warrant authorising pre-trial detention as a preventive measure to be sent by the detention centre to the relevant court within twenty-four hours. The prosecutor must be notified at the same time. 28. Under section 15 of the Act detention centre officials may impose on detainees who violate detention regime rules such penalties as warnings or reprimands, additional cleaning of the cell or a one-month ban on buying food and receiving parcels. If a detainee intentionally violates detention regime rules, he may be placed in a disciplinary cell for up to ten days, following a reasoned order issued by the governor of the detention centre. The section further stipulates that the penalties imposed on detainees should be proportionate to the gravity and nature of the infringement. 29. Paragraph 1 of the Resolution provides that in accordance with Article 236-3 of the Code of Criminal Procedure, the subject of appeal shall only be the arrest warrant issued by the prosecutor for the detention of the suspect or accused, and not the decision of the investigator or the investigating body concerning the applicable custodial preventive measure or the decision of the court (judge) to detain the defendant.