FIFTH SECTIONCASE OF OLEKSEYCHUK v. UKRAINE(Application no. 5765/20)    JUDGMENTThis version was rectified on 27 January 2023under Rule 81 of the Rules of Court. STRASBOURG15 December 2022This judgment is final but it may be subject to editorial revision.In the case of Olekseychuk v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Lətif Hüseynov, President, Mattias Guyomar, Mykola Gnatovskyy, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the application (no. 5765/20) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 18 January 2020 by an Ukrainian national, Mr Yevgeniy Vasylyovych Olekseychuk, born in 1963 and detained in Dnipro (“the applicant”) who was represented by Mr M.O. Sosyedko, a lawyer practising in Kyiv;the decision to give notice of the complaints under Article 5 §§ 3 and 5 of the Convention to the Ukrainian Government (“the Government”), represented by their Agent, and to declare inadmissible the remainder of the application;the parties’ observations; Having deliberated in private on 24 November 2022,Delivers the following judgment, which was adopted on that date:SUBJECT-MATTER OF THE CASE1. The case concerns the justification for and reasonableness of the applicant’s detention under Article 5 § 3 of the Convention, and the absence of an enforceable right to compensation in that regard under Article 5 § 5 of the Convention.2. On 16 September 2017 the Leninskyi District Court of Dnipropetrovsk ordered the applicant’s pre-trial detention for a period of sixty days in the context of criminal proceedings on suspicion of robbery. The relevant decision stated, without providing specific details, that he was accused of a serious crime and might otherwise escape and hinder the investigation or continue his criminal activity, and that the application of less intrusive preventive measures would not ensure the proper conduct of the proceedings.3. On 19 October 2017 the trial court examined the bill of indictment and case file and adjourned the hearing until 31 October 2017. On that day it extended the applicant’s detention for another two months, holding that the circumstances that had led to the initial decision to place him in detention pending trial had not changed. The court’s decision was not amenable to appeal.4. On 18 December 2017, 9 February, 4 April, 25 May, 13 July, 3 September, 22 October and 5 December 2018, and 23 January, 14 March, 10 May and 25 June 2019 the trial court extended the applicant’s detention for reasons identical to those in its decision of 31 October 2017. None of the above-mentioned decisions were amenable to appeal, with the exception of that of 25 June 2019, which indicated, without referring to the relevant procedure, that it could be appealed against.5. On 13 June 2019 the Constitutional Court (“the CCU”), by decision no. 4-р/2019, declared unconstitutional the provisions of Article 392 § 2 of the Code of Criminal Procedure (“the CCP”), under which there was no possibility of appealing against court decisions extending detention during trial. It held that Parliament should amend the CCP in accordance with its decision, by introducing a mechanism that would guarantee detained persons the right to liberty pending trial.6. On 24 July 2019 the trial court found the applicant guilty of robbery and sentenced him to nine years’ imprisonment with confiscation of all his property.7. On 27 May 2020 the Dnipropetrovsk Regional Court of Appeal quashed the conviction and ordered a retrial. By the same decision it extended the applicant’s detention until 15 July 2020, on the grounds that he was accused of a serious crime and that the risks established when ordering and extending his detention (see paragraphs 2 and 3 above) – namely that he might evade investigation or continue his criminal activity – still persisted. No factual basis for this assessment was cited.8. On 18 August 2020 the Dnipro Court of Appeal dismissed as unsubstantiated an appeal by the applicant against a further extension of his detention by the trial court on 3 July 2020 concerning the period from 3 July to 30 August 2020. The appellate court’s decision did not refer to the procedure used in the course of the appellate review.9. At the time the parties exchanged their observations (March 2021) the applicant was still in detention pending trial. The Court was not provided with copies of relevant courts’ decisions regarding the applicant’s detention after 30 August 2020.10. On 2 December 2020 Parliament enacted Law no. 1027-IX, which introduced amendments to the CCP with a view to establishing a procedure for appealing against trial court decisions ordering, modifying or extending the accused’s detention during trial. In particular, Article 4221 of the CCP established the procedure for reviewing such trial court decisions. The amendments entered into force on 14 January 2021.THE COURT’S ASSESSMENTSCOPE OF THE CASE11. After the communication of the present case, the applicant complained under Article 5 § 4 of the Convention about lengthy examination of his application for release submitted on 27 April 2019. Since this new complaint is not an elaboration of the original complaints on which the parties have commented, it is inappropriate to take this matter up in the context of the present case (see, mutatis mutandis, Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION12. The applicant complained under Article 5 § 3 of the Convention that his detention from 19 October 2017 onwards had been unjustified and lengthy.13. The Government referred to the provisions of Article 392 of the CCP and the Constitutional Court’s judgment of 13 June 2019 (see paragraph 5 above), arguing that the applicant had had a right to appeal against the trial court’s decisions delivered after the adoption of that judgment but had failed to do so and had therefore not complied with the requirements of Article 35 of the Convention. The applicant disagreed.14. The Court notes that the Government’s non-exhaustion objection may only be relevant with regard to the applicant’s alleged failure to appeal against the trial court’s decision of 25 June 2019, since from 24 July 2019 to 27 May 2020 he was detained after conviction for the purposes of Article 5 § 1 (a) of the Convention, and the last available trial court’s decision of 3 July 2020 was appealed against by the applicant.15. The relevant principles of the Court’s case-law concerning the rule of exhaustion of domestic remedies are set out in Mocanu and Others v. Romania ([GC], nos. 10865/09 and 2 others, §§ 220-26, ECHR 2014 (extracts)).16. In this connection the Court notes that the CCU’s decision relied upon by the Government obliged the authorities to amend the CCP by introducing a mechanism that would guarantee detained persons the right to liberty pending trial. Although the provision of the CCP limiting the right to appeal was declared unconstitutional on 13 June 2019, the relevant appeal procedure did not exist in law until 14 January 2021 when the Parliament made relevant legislative amendments.17. Despite the fact that the Government did not provide any further substantiation and evidence in support of their non-exhaustion plea, the Court cannot lose sight of the relevant domestic case-law. It notes the Supreme Court’s judgment of 7 October 2020, in case no. 404/1248/19, in which it allowed the accused person’s appeal on points of law against the lower courts’ refusal to hear an appeal against extension of detention pending trial. The Supreme Court held that the legislature’s failure to amend the CCP in accordance with the CCU’s decision of 13 June 2019 could not deprive the defendant of the right to appeal.18. The Court observes that neither the above-mentioned Supreme Court’s decision nor the Government’s observations indicate which procedure of examination of the accused person’s appeal was to be followed at the appellate review. In this connection it is impossible to assess the effectiveness of the above appellate review and its compatibility with the Convention requirements regarding the exhaustion of domestic remedies.19. The Court therefore finds that for the purposes of examination of the applicant’s case, the decision of the Supreme Court of 7 October 2020 is not sufficient to find it established that there existed with certainty, between June 2019 and January 2021, a remedy that was available and effective to satisfy the requirements of Article 35 of the Convention.20. In view of the foregoing, the Court dismisses the Government’s non‑exhaustion objection.21. In examination of the merits of the applicant’s complaint, the Court, referring to its applicable general principles concerning the justification for and reasonableness of a person’s detention (see Grubnyk v. Ukraine, no. 58444/15, §§ 110-15, 17 September 2020), notes that the period of deprivation of liberty to be taken into consideration in the present case, as indicated by the applicant and not contested by the Government, started on 19 October 2017, the date the trial began (see paragraph 3 above), and apparently is still ongoing. His detention shall therefore be regarded as a continuing situation (see Svipsta v. Latvia, no. 66820/01, § 116, ECHR 2006‑III (extracts); and Popovych v. Ukraine, no. 44704/11, § 33, 22 April 2021). It further notes that it has only been provided with the relevant courts decisions authorising the applicant’s detention until 30 August 2020. Deducting the period from 24 July 2019 to 27 May 2020, when he was detained after conviction for the purposes of Article 5 § 1 (a) of the Convention, the overall period of detention to be assessed for compliance with Article 5 § 3 is therefore approximately two years.22. The Court observes that in extending the applicant’s detention the domestic courts mainly referred to the reasoning for his initial placement in detention, without any updated details. The decisions on detention were couched in general terms and contained repetitive phrases and did not suggest that the courts made an appropriate assessment of the facts relevant to the question of whether such a preventive measure was necessary in the circumstances.23. The Court next observes that the reasoning given in justification of the applicant’s pre-trial detention did not evolve with the passage of time and that no consideration to apply any alternative preventive measures was made. By referring essentially to the seriousness of the charge and the hypothetical risk that the applicant might abscond, the authorities maintained his detention on grounds which cannot be regarded as sufficient.24.

Article of the Convention at issue: Article 5
Outcome: violation