Judgment (Merits and Just Satisfaction) of Court (Fifth Section), March 05, 2015

JudgeBUSHCHENKO A.
Resolution DateMarch 05, 2015
Issuing OrganizationCourt (Fifth Section)

   FIFTH SECTION      CASE OF KOTIY v. UKRAINE (Application no. 28718/09)      JUDGMENT    STRASBOURG 5 March 2015  This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Kotiy v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:              Mark Villiger, President,
              Angelika Nußberger,
              Boštjan M. Zupančič,
              Ganna Yudkivska,
              Vincent A. De Gaetano,
              André Potocki,
              Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,Having deliberated in private on 10 February 2015,Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1.  The case originated in an application (no. 28718/09) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Andrey Pavlovich Kotiy (“the applicant”), on 23 May 2009.

  2.  The applicant was represented by Mr A. Bushchenko, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent at the time, Mr N. Kulchytskyy.

  3.  The applicant alleged, in particular, that his arrest and detention were not compatible with Article 5 § 1 of the Convention, that he did not have an enforceable right to compensation as provided by Article 5 § 5 of the Convention, and that the investigative authorities interfered with his private and family life contrary to Article 8 of the Convention and that their decisions restricted his liberty of movement which constituted a violation of of Article 2 of Protocol No 4.

  4.  On 22 October 2012 the above complaints were communicated to the Government.

    THE FACTS

    I.  THE CIRCUMSTANCES OF THE CASE

    A.  Background to the case

  5.  The applicant was born in 1974.

  6.  In 2003 the applicant, his wife and two children (born in 1992 and 1999) settled in Germany. Between 2003 and 2008 the applicant held various managerial positions in German companies. He was also a co-owner and the president of the limited liability company L., registered in Ukraine. That company was run by a director employed under contract.

  7.  On 27 May 2005 the applicant sent a request to the official representative of the Ministry of Home Affairs of Ukraine in Frankfurt am Main enquiring whether certain business activities undertaken by the director of company L. had been lawful.

  8.  By a letter dated 8 July 2005 the applicant was informed that the Ministry of Internal Affairs had not found any wrongdoing on the part of the director.

    B.  Criminal proceedings against the applicant

  9.  On 14 April 2008 the Kyiv Police Department instituted criminal proceedings against the applicant in connection with a financial fraud allegedly committed by him in April 2005. The investigator stated that the applicant, as co-owner and president of company L., had concluded an agreement for the sale of a car, had received the payment from the purchaser, but had failed to supply the car; the applicant was assisted by the director of that company who, allegedly, had not been aware of the applicant’s malicious intent. The investigator found that the fraudulent actions of the applicant had been confirmed by both victim and witness statements and also by the documents examined. Among the persons testifying as witnesses concerning the specifics of the business and managerial relationships between the applicant and company L., the investigator also questioned the applicant’s mother, who stated that the applicant had not lived in Ukraine for several years as he and his family had moved to Germany.

  10.  On 19 April 2008 the investigator decided to put the applicant on the national list of wanted persons, stating that the latter had not lived at the registered place of his residence in Ukraine and his whereabouts were unknown.

  11.  In November 2008 the applicant arrived in Ukraine on personal business.

  12.  According to the applicant, on 13 November 2008, when he arrived at the migration service department in Kharkiv to exchange his international travel passport for a new one, he was arrested and escorted to Kyiv.

  13.  At 1.30 a.m. on 14 November 2008 the applicant was questioned by the investigator in the Shevchenkivskyy District Police Department of Kyiv in connection with the charges against him. The questioning session terminated at 4.17 a.m. in the morning. During the questioning the applicant stated, among other things, that he was temporarily unemployed.

  14.  At 4.20 a.m. on 14 November 2008 the investigator, relying on Articles 106 and 115 of the Code of Criminal Procedure of 1960 (“the CCP”), decided to arrest the applicant for seventy-two hours on suspicion of having committed the crime. He drew up an arrest report citing Article 106 of the CCP concerning the grounds for arresting a person without a court order.

  15.  On 17 November 2008 the Shevchenkivskyy District Court of Kyiv (“the District Court”) considered the investigator’s request to place the applicant in pre-trial detention. Relying on Article 165-2 of the Code of Criminal Procedure, the District Court found that before taking its decision concerning the application of a preventive measure, it needed to examine in more detail the personality of the applicant, his place of employment and residence, his family status and the risk of his absconding. The court therefore extended the applicant’s preliminary detention to ten days.

  16.  On 20 November 2008 the investigator instituted another set of criminal proceedings against the applicant and the director of company L. on the grounds that they had obtained a loan from a bank on the basis of forged documents and had later misappropriated these funds.

  17.  On 24 November 2008 the District Court again examined the investigator’s request to detain the applicant in custody. During the hearing the applicant contended that before his arrest he had not been aware of the criminal proceedings or of the fact that he had been placed on the national list of wanted persons. He argued that the investigator had not served him with a summons. Having deliberated, the court found that there had been no evidence suggesting that the applicant might abscond from justice, obstruct the investigation or continue any criminal activity. It therefore released the applicant. The prosecutor appealed.

  18.  On the same day, the investigator ‒ relying on Article 151 of the CCP ‒ obtained from the applicant a written undertaking not to abscond from his registered place of residence in Kharkiv, Ukraine.

  19.  On 27 November 2008 the investigator, relying on Article 178 of the CCP, seized the applicant’s old and new international travel passports.

  20.  On 4 December 2008 the Kyiv Court of Appeal dismissed the prosecutor’s appeal and upheld the decision of 24 November 2008, noting that no evidence had been presented concerning attempts by the applicant to abscond from justice and that the gravity of charges alone did not provide sufficient grounds for detaining the applicant in custody.

  21.  On 6 May 2009 the applicant complained to the prosecutor on account of his unlawful arrest and detention and the violation of procedural rules by the investigator. He also stated that as a result of the procedural measures undertaken by the investigator he had not been able to see his wife and children, who lived outside Ukraine, nor to pursue his professional life. The applicant did not receive any reply to his complaint.

  22.  On 6 July 2009 the applicant challenged before the District Court the investigator’s decisions to initiate criminal proceedings against him.

  23.  On 31 July 2009 the District Court allowed the applicant’s claim, finding that the available evidential material was not sufficient to give rise to criminal proceedings against the applicant. The prosecutor appealed against that decision.

  24.  On 21 August 2009 the Kyiv Court of Appeal quashed the decision of 31 July 2009 and remitted the case to the District Court for fresh consideration.

  25.  On 3 November 2009 the District Court dismissed the applicant’s claim, finding that the impugned decisions issued by the investigator were lawful. The applicant appealed.

  26.  On 4 December 2009 the Kyiv Court of Appeal upheld the decision of 3 November 2009.

  27.  On 8 December 2011 the investigator closed both sets of criminal proceedings, finding that the charges against the applicant had not been proved and that there had been no corpus delicti. The preventive measure (a written undertaking not to abscond) was lifted.

  28.  On 9 December 2011 the investigator returned the seized international travel passports to the applicant.

    II.  RELEVANT DOMESTIC LAW

    A.  Constitution of 28 June 1996

  29.  The relevant part of Article 29 of the Constitution reads:“... In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if, within seventy-two hours of the moment of detention, he or she has not been provided with a reasoned court decision in respect of the detention. ...Everyone who has been detained has the right to challenge his or her detention in court at any time. ...”

    B.  Code of Criminal Procedure (“the CCP”) of 28 December 1960 (in force at the relevant time)

  30.  Relevant provisions of this Code provided:Article 106. Arrest of a suspect by the body of inquiry“The body of inquiry shall only be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed on one of the following grounds:(1) if the person is discovered whilst or immediately after committing an offence;(2) if eyewitnesses, including victims, directly identify this person as the one who...

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