CASE OF LELYUK 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 5-5 - Compensation)
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary
5. The applicant was born in 1979 and lives in Donetsk. 6. On 29 May 1997 the Donetsk Kirovskyy District Court (“the Kirovskyy Court”) found the applicant guilty of robbery and sentenced him to three years’ imprisonment. 7. On 18 July 1997 the Donetsk Regional Court of Appeal (“the Regional Court”) granted amnesty to the applicant. 8. On 26 September 1997 the same court, following an objection (протест) by its president, quashed the decision of 18 July 1997 and upheld the judgment of 29 May 1997 by a final decision. The applicant became aware of the Regional Court’s decision of 26 September 1997 only after his arrest in February 2003 (see paragraph 10 below). 9. In October 1997 the Kirovskyy Court sent its judgment to the local police with a view to ensuring its enforcement. As submitted by the applicant and eventually established by the domestic courts (see paragraph 12 below), he continued living at his permanent address. Although he was placed on a wanted list for a brief period in December 1997, neither during that period nor thereafter did the police try to contact him. 10. On 12 February 2003 the Kirovskyy police arrested the applicant at his home and brought him to Dzerzhynsk prison no. 2 to serve his sentence. 11. Following numerous unsuccessful complaints to the prosecution authorities, in March 2003 the applicant lodged a complaint with the Kirovskyy Court, stating that his arrest and detention had been unlawful and requesting to be released. 12. After several rounds of proceedings, on 23 March 2006 the Kirovskyy Court allowed the applicant’s claim and found the impugned actions of the police officers unlawful. The court found no evidence in the case file that the applicant had been informed of the court hearing and the final decision of 26 September 1997. He had been arrested more than five years later. By that time his sentence had become time-barred, a fact which the police had been obliged, but had failed, to check. As regards the applicant’s request for release, the Kirovskyy Court stated that the issue was no longer of relevance (see paragraph 14 below). 13. On 23 June 2006 the Regional Court upheld the above decision. 14. In the meantime, on 27 April 2005, the Dzerzhynskyy Local Court ordered the applicant’s release on parole. The applicant was released on 4 May 2005 once all the formalities had been completed. 15. In 2006 the applicant lodged a claim for damages against the Ministry of the Interior on account of his unlawful arrest and detention. He relied on the Compensation Act, under which a person could claim such compensation if the unlawfulness of his or her arrest and detention had been established by a judicial decision (see paragraph 26 below). The applicant referred in that connection to the court’s decision of 23 March 2006, in which his deprivation of liberty had been found to be unlawful (see paragraph 12 above). 16. On 3 April 2007 the Kirovskyy Court rejected his claim as unfounded. It noted the existence of the judicial decision referred to by the applicant without, however, commenting on it. The court observed that the applicant had appealed against neither the judgment of 29 May 1997 nor the ruling of 26 September 1997 (see paragraphs 6 and 8 above). It also observed that he had been released without any conclusion about his guilt. Having relied on the above considerations, the Kirovskyy Court concluded that the applicant had failed to prove that he had been deprived of his liberty unlawfully. 17. On 26 June 2007 the Regional Court upheld that decision. 18. On 22 August 2007 the applicant’s representative, G., appealed on points of law. 19. On 6 September 2007 the Supreme Court gave the applicant a deadline of 16 October 2007 to submit the power of attorney. Its ruling referred to the applicant’s case number as registered by the Supreme Court. 20. As confirmed by a postal acknowledgement of receipt, on 17 October 2007 the Supreme Court received a registered letter from the applicant’s representative, which had been dispatched on 12 October 2007 and which concerned the case under the number indicated in the ruling of 6 September 2007. According to the applicant, his representative had sent the requested authority form by the above-mentioned registered letter. According to the Government, the content of that letter and the documents enclosed, if any, could not be established in the absence of their detailed description on the acknowledgment of receipt. 21. On 30 October 2007 the Supreme Court returned the applicant’s appeal on points of law without examination. It held that, contrary to its instructions of 6 September 2007, he had failed to submit the power of attorney “within the set time-limit and before the delivery of the present ruling”. 22. On 9 November 2007 the Supreme Court sent its ruling to the applicant’s representative. According to the applicant, his representative received it on 24 November 2007. 23. On 3 December 2007 G. requested that the Supreme Court give reasons for the dismissal of the applicant’s appeal on points of law, since the ruling of 6 September 2007 had been complied with. There was no reply to that request.