European Court of Human Rights

FIFTH SECTION

Application no. 32392/07
Leonid Andreyevich LADA
against Ukraine
lodged on 17 July 2007

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Leonid Andreyevich Lada, is a Ukrainian national who was born in 1963 and is currently detained in Dariyivska no. 10 Correctional Colony, Ukraine.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  Criminal proceedings against the applicant and his pre-trial detention

At the material time the applicant was the head of Khorly Village Council.

On 8 May 2007 he signed permission for a businessman, Ya., to install a tent with game machines in the village. This permission had no official stamp on it. According to the applicant, it was not stamped because the Council accountant was away on a work matter and had the stamp with her. However, according to the court findings in the criminal case against the applicant (see below), the applicant told Ya. that permission would be stamped upon receipt of 20,000 Ukrainian hryvnias (UAH).

On 14 May 2007 Ya. complained to the police. On the same day, Ya. was given audio and video recording equipment and marked banknotes. When he entered the applicant’s office the applicant showed him a piece of paper with something written on it, pointed to the bus stop outside his window and said: “There is a man out there”. Ya. went to the bus stop and gave money to V. who was standing there. Later the police officers, in the presence of I. and L., seized marked banknotes from V.

On the same day criminal proceedings were instituted against the applicant for requesting a bribe.

At 7 p.m. on 14 May 2007 the applicant was arrested. It was noted in the arrest record that the witnesses had identified him as a person who had committed an offence. At 9:45 p.m. an ambulance was called for him: he was diagnosed with sudden severe hypertension and astenoneurotic syndrome, and it was proposed that he be hospitalised, which was not permitted by the police officers.

On 16 May 2007 the applicant was charged with taking a bribe.

On the same date, while the applicant was apparently in pre-trial detention centre, Kalanchak Central District Hospital issued a certificate that the applicant was suffering from second-degree hypertension and was in crisis. It was also stated that the applicant should not be detained in prison.

On 17 May 2007 the Komsomolskiy District Court (“the District Court”) extended the applicant’s detention to 24 May 2007. The court held that there was no information about the applicant’s previous convictions, if any, or his family situation, state of health and so on, therefore the court “could not authorise a preventive measure, such as pre-trial detention”. This decision was not subject to appeal.

On 22 May 2007 the District Court remanded the applicant in pre-trial custody, since he was accused of committing a serious crime and might abscond, hinder the investigation or continue criminal activity.

The applicant appealed. His lawyer indicated that when requesting that the applicant be remanded in custody the prosecutor’s office had failed to comply with the court decision of 17 May 2007 and had submitted only documents referring to the absence of previous convictions and the applicant’s satisfactory state of health. The lawyer further noted that the applicant had not committed any crime, there were no indications that he would abscond or hinder the investigation, his state of health was not satisfactory and that Council members and village inhabitants had signed a petition for his release.

On 1 June 2007 the Kherson Regional Court of Appeal upheld the decision of 22 May 2007. The court noted that the case file contained materials confirming the applicant’s wish “to go to Russia to his brother”. It also noted that he might hinder the investigation by using his official position.

On 27 July 2007 the District Court released the applicant on bail.

On 16 January 2008 the District Court again remanded the applicant in pre-trial custody. The court noted that although the applicant had no criminal record, he “had committed a serious crime” and had hindered the consideration of his case by the court. The court found that unknown persons acting on behalf of the applicant had tried to prevent Ya. and a witness, I., from appearing at a court hearing on 29 December 2007.

On the same date the Head of the District Court rejected the applicant’s lawyer’s request for the withdrawal of the judge. He held that the expression “had committed a serious crime” used by the court concerned “the classification of the offence the applicant was accused of committing” and did not mean that the court was biased.

On 23 January 2008 the Kherson Regional Court of Appeal refused the applicant leave to appeal against the decision of 16 January 2008 remanding him in pre-trial custody, since that decision was not subject to appeal.

On 29 February 2008 the District Court released the applicant on bail. It found that Ya. and I. had complained on 28 December 2007 to the police that that they had been threatened by persons unknown to them. However, by 29 February 2008 no further investigation of this allegation had been done, so it was decided that the applicant was to be released.

On 16 April 2008 the District Court sentenced the applicant to five years’ imprisonment for taking a bribe. The applicant appealed noting, inter alia, that the principle of presumption of innocence was breached in his case.

On 24 June 2008 the Kherson Regional Court of Appeal upheld this decision.

On 26 February 2009 the Supreme Court of Ukraine rejected the applicant’s appeal on points of law.

2.  Conditions of the applicant’s detention

According to the applicant, in the living quarters of Dariyivska no. 10 Correctional Colony, where he is detained, there are up to ninety inmates. There is no ventilation. The washing facilities are situated in the basement, which is constantly being flooded by underground water. There are five basins and three taps for 300 detainees. There is no electricity and light at night. The food is of a very low quality and the water is undrinkable.

B.  Relevant domestic law

The relevant provisions of the Code of Criminal Procedure are summarised in the case of Molodorych v. Ukraine, (no. 2161/02, §§ 56-57, 28 October 2010).

COMPLAINTS

The applicant complains under Article 5 of the Convention that there were no reasons for his arrest and subsequent detention. In particular, information about his state of health was disregarded.

The applicant complains under Article 6 § 2 of the Convention that in its decision of 16 January 2008 the court noted that the applicant “had committed a serious crime” when in fact the criminal case against him was still pending.

The applicant complains under Article 6 § 3 (d) of the Convention that the court refused to call witnesses when considering his complaints on 23 January 2008.

The applicant also complains under Article 3 of the Convention that he was arrested on 14 May 2007 despite his health problems. His state of health deteriorated in detention. He further complains about the conditions of his detention in the Dariyivska no. 10 Colony.

The applicant lastly cites Article 13 of the Convention, stating that State officials ignored his complaints.

QUESTIONS TO THE PARTIES

1.  Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? The Government is invited to submit all documents in support of the court decisions to detain the applicant.

2.  Are the general conditions of the applicant’s detention in Dariyivska no. 10 Correctional Colony compatible with Article 3 of the Convention?

3. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case, in particular, when the decision of 16 January 2008 on the applicant’s pre-trial detention was adopted?