CEDH · CASELAW;COMMUNICATEDCASES;ENG — 25 janvier 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sE8EB5753 { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt }   Communicated on 25 January 2019   FOURTH SECTION Application no. 66753/11 Valeriy Stanislavovich MELNIKOV against Ukraine lodged on 12 October 2011 STATEMENT OF FACTS The applicant, Mr Valeriy Stanislavovich Melnikov, is a Ukrainian national, who was born in 1967 and is currently serving a sentence of life imprisonment. A.     The circumstances of the case The facts of the case, as submitted by the applicant and as shown by the case-file materials provided by him, may be summarised as follows. On an unspecified date, apparently in 2002, criminal proceedings were instituted in respect of numerous counts of murder, kidnapping, robbery and other criminal activities committed during the 1990s by a gang consisting, in particular, of active and former law-enforcement officials. On 26   June 2002 the applicant, who had been a police officer in the past, was arrested. According to him, he was suspected of a number of “serious criminal offences”, without further details. According to the information note on the progress of the case issued by Kyiv City Court of Appeal on 20 September 2011 at the applicant’s request, on 10 July 2002 criminal proceedings were instituted in respect of him and some other persons (no further details are available as regards the charges against the applicant at that stage). On 25   October 2002 the applicant was placed in the Kyiv Pre-Trial Detention Centre (SIZO), where he was detained “for about nine years”, allegedly in poor conditions. According to the applicant, there was a severe lack of personal space (about 2,5 sq.m) and poor ventilation. In October 2003 certain materials were severed into a separate set of proceedings. On 19 October 2006 the Prosecutor General’s Office sent the case to the court for trial. As indicated in the information note on the progress of the case (see above), on 21 November 2006 the Kyiv City Court of Appeal, sitting as a court of first instance, conducted a preparatory hearing. The case file before the Court, as it presently stands, does not contain a copy of the respective ruling. On 21 May 2010 the Kyiv City Court of Appeal found the applicant guilty of double murder for profit, kidnapping, several counts of robbery assault and illegal arms’ possession. Five other persons were convicted (one for abetting the murder and the others mainly on the robbery charges). The court set the final sentence in respect of the applicant – fifteen years’ imprisonment with the confiscation of all his personal property – by way of absorption by the most severe penalty (for aggravated murder under paragraphs (a) and (d) of Article 93 of the 1960 Criminal Code) of the other, more lenient, penalties. It was stated in the judgment that the term of the applicant’s sentence was to be calculated starting from 21   May 2010. The trial court also ruled to remand the applicant in custody as a preventive measure pending the entry into force of the judgment. The applicant lodged a cassation appeal. The case file before the Court as it presently stands does not contain its copy. On 19 April 2011 the Supreme Court upheld the above judgment in general. It noted that the applicant had complained in his cassation appeal that unlawful investigation methods had been applied to him, but that his allegation had been found unsubstantiated. Furthermore, the Supreme Court took note of the applicant’s complaint that his right to legal defence had been restricted on account of the rejections of his refusals from the appointed lawyer. It was noted in the ruling that, while the trial court had indeed rejected the applicant’s refusals from his lawyer given that the former’s legal representation was mandatory under law, it had been explained to him that he could choose an additional lawyer and that the court would provide him with all the assistance in that respect. However, the applicant had not made any motions to that effect. Lastly, the Supreme Court stated as follows: “[The applicant’s] argument that the [first-instance] court failed to deduce the duration of his pre-trial detention from the term of his sentence does not merit consideration owing to the fact that no custodial preventive measure was applied to him within these criminal proceedings.” On 25   January 2012 the applicant informed the Court that he had been sentenced to life imprisonment by a verdict of the Kyiv City Court of Appeal of 25   January 2012 upheld by the Higher Specialised Court for Civil and Criminal Matters on 23 April 2013 (apparently, in the proceedings severed in October 2003 – see above). The applicant did not provide any further details or documents. B.     Relevant domestic law 1.     Criminal Code 1960 (repealed with effect from 1   September 2001) Article 47 provided that the duration of pre-trial detention was to be deduced from the term of imprisonment sentence on the basis of the “one day for one day” rule. Pursuant to paragraphs (a) and (d) of Article 93 (as worded before 22   February 2000), murder of two or more persons and/or committed for profit was punishable by imprisonment of eight to fifteen years, or by death penalty. By the amendments of 22 February 2000, the death penalty was replaced by life sentence. 2.     Code of Criminal Procedure 1960 (repealed with effect from 20   November 2012) In accordance with paragraph 3 of Article 156, the term of pre-trial detention started running from the moment of a person’s remand in custody or arrest. If a person was repeatedly remanded in custody within the same proceedings, or within the proceedings joined to or severed from those already existing, the duration of the earlier detention was to be included in the overall term of pre-trial detention. Article 237 obliged the judge of a trial court dealing with the case to consider in the preparatory hearing, inter alia , whether there were grounds for changing, lifting or applying a preventive measure. Article 338 read as follows in the relevant part: “If the convict was not detained prior to the verdict pronouncement, his or her sentence shall start running with the beginning of its enforcement. If the convict was detained within the proceedings in question (в цій справі) prior to verdict pronouncement, the duration of that detention shall count towards his or her sentence...” COMPLAINTS The applicant complains that the refusal of the domestic courts to deduce the duration of his pre-trial detention (since 26 June 2002 onwards) from the term of the fifteen-year imprisonment sentence, which was imposed on him by the judgment of the Kyiv City Court of Appeal on 21 May 2010 and was upheld by the Supreme Court on 19 April 2011, amounted to a violation of his rights under Article 7 of the Convention. Furthermore, the applicant complains under Article 3 of the Convention about the material conditions of his detention in the Kyiv SIZO. Lastly, he complains under Article 6 § 1 of the Convention that the criminal proceedings against him, which were completed by the final ruling of the Supreme Court of 19 April 2011, did not comply with the “reasonable time” requirement. QUESTION TO THE PARTIES Was there a violation of Article 7 of the Convention on account of the refusal of the domestic courts to deduce the duration of the applicant’s pre ‑ trial detention (since 26 June 2002 onwards) from the term of the fifteen-year imprisonment sentence, which was imposed on him by the judgment of the Kyiv City Court of Appeal on 21 May 2010 and was upheld by the Supreme Court on 19 April 2011? Your Government are requested to provide copies of all the relevant documents, including: all the documents regarding the preventive measures applied to the applicant, the preparatory hearing ruling, as well as the applicant’s cassation appeal. Furthermore, your Government are free to submit observations in respect of the applicant’s complaints concerning the length of the criminal proceedings against him (the set of proceedings completed on 19 April 2011) and the material conditions of his detention in the Kyiv SIZO from 25   October 2002 onwards.