CASE OF ORLOVSKIY v. UKRAINE
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)
Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
5. The applicant was born in 1968 and, at the time of the most recent communication from the applicant, was detained in Odessa. 6. On an unspecified date in 2006 K. mentioned in a confession given whilst being questioned by the police that the applicant had participated in the murder of Z., a gang member, in 2002. 7. On 28 July 2006 the applicant was stopped on the motorway and arrested by police, who also seized his car. 8. According to the applicant, the reasons for his arrest were not clearly explained to him. Between 28 July and 1 August 2006 he was transferred to various police units and questioned. 9. On 30 July 2006 the police found explosives in the car which had been seized from the applicant upon his arrest. 10. On 1 August 2006 criminal proceedings were instituted against the applicant on suspicion of the illegal possession of explosives and the murder of Z., and an arrest report was drafted and countersigned by the applicant. 11. On 4 August 2006 the Kyivskiy District Court of Odessa (“the Kyivskiy Court”) remanded the applicant in custody for ten days pending collection of information concerning his person. 12. On 10 August 2006 the applicant was formally charged with possessing illegal explosives and taking part in the murder of Z., which had been committed by an organised gang in 2002. 13. On 11 August 2006 the Kyivskiy Court remanded the applicant in custody for two months, to be counted from 28 July 2006. The court noted that the gravity of the charges against the applicant constituted a sufficient basis for the fear that he would abscond or interfere with the investigation if released. 14. On the same day the court made a separate ruling drawing the attention of the Minister of the Interior to breaches of the applicant’s rights whilst effecting his arrest. It noted, in particular, that the applicant’s undocumented detention between 28 July and 1 August 2006 was unlawful. The court asked the Minister to investigate the incident. The case file does not show any follow-up. 15. The applicant, acting through his lawyer, appealed against the detention order. He submitted that he had good references from his employer, had a family including three children who were minors, and that he had been suffering from health problems. 16. On 17 August 2006 the Odessa Regional Court of Appeal (“the Odessa Court of Appeal”) rejected the applicant’s appeal. The court noted, in particular, that taking into account the gravity of the charges against the applicant, together with the fact that he resided in Crimea ‒ whereas the investigative authority was located in Odessa ‒ there was reason to fear that he might abscond or interfere with the investigation if released. 17. On 25 September 2006 the Odessa Court of Appeal extended the applicant’s detention until 28 February 2007, stating in general terms that the applicant might abscond, pressure witnesses or interfere with the investigation if released. 18. On 23 February 2007 the applicant, represented by his lawyer, lodged an objection against the investigative authority’s request to extend his detention. He reiterated that he had a permanent address, a family with three children who were minors, and that prior to his arrest he had been engaged in lawful business activity. He referred to the aggravation of his ulcers and stated that during the time he had been held in custody, no investigative action involving him had been initiated and no new evidence of his involvement in any crime had been discovered. 19. On 26 February 2007 the Odessa Court of Appeal allowed the investigative authority’s request and extended the applicant’s detention until 28 April 2007, giving the same reasons as in its decision of 25 September 2006. 20. On 20 April 2007 the applicant, represented by his lawyer, and citing the same reasons as before, again brought an objection against the investigative authority’s request to extend his detention. 21. On 24 April 2007 the Supreme Court further extended the applicant’s detention until 22 August 2007, stating that additional investigative action needed to be taken and there were no reasons to release the applicant. 22. On 9 August 2007 the applicant was charged with participation in several other offences committed in a gang, including murders, abductions, and torture. 23. On 14 August 2007 the Supreme Court granted the investigative authority’s request to extend the detention of six purported criminal gang members, including the applicant, until 17 February 2008. It noted the gravity of the charges, the fact that the investigation related to thirty different episodes of alleged crimes committed by a criminal association and that the investigative authorities needed more time to finish their work. 24. According to the Government, during the pre-trial investigation the authorities interviewed in total 17 defendants, 21 victims and 275 witnesses, conducted 30 face-to-face confrontations, 37 identification parades, 20 reconstructions and 14 seizures, obtained 66 experts’ reports and carried out a number of other investigative actions. 25. On 18 December 2007 the applicant was presented with the final bill of indictment. In addition to previous charges, the applicant was also indicted for participation in an armed gang (banditry). 26. On 24 December 2007 the investigation was completed and the applicant and his co-defendants were given time to study the case file. 27. On 24 January 2008 the Kyiv City Court of Appeal (“the Kyiv Court of Appeal”) extended the applicant’s detention until 20 August 2008, noting the gravity of the charges, confirming that the decision to place him in detention was correct, and referring to the need to complete the study of the case file. 28. On 14 August 2008 the applicant lodged an objection against the investigative authority’s request to extend his detention. He argued, in particular, that the reason that familiarisation with the case file materials was taking so long was poor procedural organisation. 29. On 15 August 2008 the Kyiv Court of Appeal extended the applicant’s detention until 20 October 2008, citing the same reasons as in its decision of 24 January 2008. 30. On 9 October 2008 the applicant notified the prosecutor’s office that although there was some case file material he had not yet seen, he waived his right to further study and asked to be released pending trial. 31. On 12 October 2008 the General Prosecutor’s Office promised to send the applicant the relevant procedural forms but stated that there were no grounds for his release. 32. On 14 October 2008 the applicant again objected, in similar terms, to the prosecution’s request for extension of his detention. 33. On 15 October 2008 the Kyiv Court of Appeal allowed the prosecution’s request, extending the applicant’s detention until 20 December 2008, and stating, in addition to reasons given previously, that the defendants needed time to complete the study of the case file. 34. On 16 December 2008 the Kyiv Court of Appeal further extended the applicant’s detention until 19 February 2009, citing the same reasons. 35. Between 19 February and 18 March 2009 the applicant remained in detention. 36. On 18 March 2009 the Odessa Court of Appeal, acting as the trial court, held a preparatory hearing in the applicant’s and his co-defendants’ case. It rejected the applicant’s request for release, lodged on the same day, stating that there was no basis for granting it. 37. On 15 June 2011 the applicant, represented by his lawyer, asked to be released pending trial, arguing that his health was deteriorating, that there was insufficient evidence against him, that because all the witnesses and victims had already testified at trial the applicant would not be able to pressure them, and lastly that he had good references, two dependent children who were minors, and a permanent address. 38. On 15 June 2011 the Odessa Court of Appeal rejected the applicant’s request, noting the gravity of the charges against him and stating that the trial was not complete and that there was no reason to release him. 39. According to the Government, a total of 151 hearings were held in the case by the Odessa Court of Appeal, a number of which were adjourned, some due to the failure of one of the defendants ‒ who was at liberty ‒ to attend. 40. On 18 October 2011 the Odessa Court of Appeal found the applicant guilty of murder, kidnapping, and banditry and sentenced him to fourteen years’ imprisonment with confiscation of his property. 41. According to the applicant, on 30 July 2013 the Higher Civil and Criminal Court, on appeal from him and his lawyer, upheld his conviction and amended the judgment of the trial court, rectifying the domestic legal classification of one of the offences. 42. On 16 October 2006 the General Prosecutor’s Office rejected the request for a meeting with the applicant lodged by I.O., the applicant’s wife. The General Prosecutor’s Office noted there was “no indication that a meeting between the relatives and [the applicant] was necessary” at the time. 43. According to the applicant, he was denied the possibility of meeting or corresponding with his family for the entire period of his pre-trial detention. 44. On 25 May 2009 the applicant lodged a request with the Odessa Court of Appeal for permission for a visit from his family, namely his mother, wife and children. He stated that throughout the period of his pre-trial detention the investigative authorities had rejected his requests for family visits without sufficient justification. 45. According to the Government, the applicant’s request of 25 May 2009 was granted but the applicant’s relatives did not avail themselves of it and did not visit the applicant.