CASE OF KHAYREDINOV v. UKRAINE
Violation of Art. 5-1;Violation of Art. 5-3;Non-pecuniary damage - award
Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
5. The applicant was born in 1984 and lives in Dachne village in Crimea. 6. On 23 March 2004 a massive fight between youngsters took place in the centre of Simferopol in which a number of persons sustained injuries varying from slight to serious. 7. On the same day the applicant was questioned by the police as a witness at the hospital where he had accompanied a friend who had been injured in the fight. 8. In March and April 2004 the applicant was summoned by and appeared before the investigator on a number of occasions. 9. On 28 April 2004 the applicant, having been questioned as a witness by the investigator, was detained on police premises on suspicion of armed hooliganism in respect of the events of 23 March 2004. 10. On 1 May 2004 the Kyivskyy District Court of Simferopol (“the Kyivskyy Court”), in allowing the investigator's application, remanded the applicant in custody and rejected a request by him to be placed instead under an undertaking not to abscond. The court gave as grounds for that decision the seriousness of the charges against the applicant, his mediocre character reference from the university where he was studying, his medical fitness for detention, and the risk that he might abscond or impede the investigation if at liberty. Although the management of the school from which he had graduated two years earlier and the authorities of the village where he had been living before his arrest gave the applicant positive character references, the court decided that they “could not provide grounds for the rejection of the [investigator's] application, as law-abiding behaviour is a requisite for life in society, and not an exception to the rule.” 11. On 5 May 2004, in the Court of Appeal of the Autonomous Republic of Crimea (“the Crimea Court of Appeal”), the applicant's lawyer challenged the detention of his client, arguing that the applicant had a permanent place of residence, positive character references, suffered from Vitiligo (a chronic disorder which causes depigmentation in patches of skin) which could worsen in detention, and that he had no criminal record. He further noted that the applicant had always appeared voluntarily before the investigator and that his parents could pay bail for his release. 12. On 18 May 2004 the Crimea Court of Appeal rejected the appeal, referring to the seriousness of the charges brought against the applicant. 13. On 15 June 2004 the Kyivskyy Court extended the term of his detention to 28 August 2004 on grounds of the necessity to complete the investigation, the seriousness of the charges and the inherent risk that the applicant would abscond, influence witnesses or reoffend. 14. On 22 June 2004 the applicant was provided access to the case file. 15. On 16 July 2004 the Crimea Court of Appeal extended his detention to 28 November 2004 following a request by the investigator, who maintained that the other co-accused needed more time to study the case file. The court rejected a request by the applicant to be released under an undertaking not to abscond, on grounds of the seriousness of the charges and the risk that he would abscond. 16. In August 2004 the investigation was completed and the applicant, together with the other co-accused, was committed for trial. 17. On 13 September 2004 the Tsentralnyy District Court of Simferopol (“the Tsentralnyy Court”) held a preparatory hearing during which the applicant again asked to be released under an undertaking not to abscond. He argued that all the evidence in the case had been collected by that time so there was no risk that he might tamper with it, that he had a permanent place of residence and well-established social networks, and that he had never hindered the investigation or attempted to abscond or reoffend. The court rejected the request with a final ruling, finding the preventive measure to be in compliance with the criminal procedural legislation. 18. In a judgment of 29 December 2004 the Tsentralnyy Court found the applicant guilty of armed hooliganism, as well as of deliberately inflicting medium and grievous bodily harm, and sentenced him to eight years' imprisonment. 19. On 22 June 2006 the Crimea Court of Appeal upheld that judgment. 20. On 17 May 2007 the Supreme Court changed it, finding the applicant guilty of hooliganism without the use of arms and of deliberately inflicting medium bodily harm, and reduced the sentence to three years and two months' imprisonment. 21. The relevant provisions of the Code of Criminal Procedure (“the CCP”), as worded at the material time, read as follows: “Pre-trial detention during pre-trial investigations shall not last more than two months. When it is impossible to complete the investigation within the period provided for in paragraph 1 of this Article and there are no grounds for discontinuing the preventive measure or substituting it with a less restrictive measure, [the pre-trial detention] may be extended: up to four months – upon a request of or approved by the prosecutor supervising the compliance with law by the bodies of inquiry and investigation, by a judge of the court which applied the respective preventive measure; ... The term of pre-trial detention shall end on the day the court receives the case file. ... After the completion of the investigation the case file shall be presented to the detained accused and his defence not later than a month before the expiry of the pre-trial detention time-limit set under paragraph 2 of this Article. ... If the accused and his defence received access to the case file [in due time as noted above], but that time appeared insufficient, the respective term may be extended by a judge of an appellate court at the request of the investigator approved by the Prosecutor General of Ukraine or his deputy, or at the request coming directly from the [aforementioned prosecutorial officials]. Where there are several co-accused held in pre-trial detention and if at least one of them finds [the term for the case file study] insufficient, a request [for its extension] may also be applicable to the other coaccused who has/have completed his/their study of the case file, if his/their pretrial detention remains necessary and there are no grounds for changing that preventive measure. ...”