Judgment (Merits and Just Satisfaction) of Court (Fifth Section), April 16, 2015 (case CASE OF GAL v. UKRAINE)

JudgeKHRAPACH O.V.
DefenseUKRAINE
Resolution DateApril 16, 2015
Issuing OrganizationCourt (Fifth Section)

FIFTH SECTION

CASE OF GAL v. UKRAINE

(Application no. 6759/11)

JUDGMENT

This version was rectified on 12 June 2015

under Rule 81 of the Rules of Court.

STRASBOURG

16 Avril 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 Gal 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 24 March 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in an application (no. 6759/11) 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 Oleksandr Arkadiyovych Gal (“the applicant”), on 19 January 2011.

  2. The applicant was represented by Mr O.V. Khrapach, a lawyer practising in Poltava. The Ukrainian Government (“the Government”) were represented by their then Agent, Mr N. Kulchytskyy, from the Ministry of Justice.

  3. On 3 July 2012 the application was declared partly inadmissible and the complaints concerning the lawfulness of the applicant’s detention and the promptness and effectiveness of the scrutiny of such lawfulness were communicated to the Government.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  4. The applicant was born in 1961 and lives in Poltava.

  5. The applicant is a private entrepreneur in the food supply sector.

  6. Since November 2009 the Poltava Regional Police Department has been investigating a number of apparent offences related to forgery of food quality certificates and supply of overpriced foodstuffs for school catering in the city of Poltava. As part of this investigation the police ran checks on the applicant’s business and questioned his associates and family members.

  7. On 3 November 2010 the police instituted criminal proceedings against the applicant in the context of an investigation of unlawful food supply price increases.

  8. On 5 November 2010 the applicant was arrested by the police on suspicion of a financial offence. A record of his arrest was drawn up between 2.45 and 3.30 p.m. on that day.

  9. On 8 November 2010 the applicant was taken to the Poltava Oktyabrsky District Court (hereinafter “the District Court”), which remanded him in custody for up to ten days under Article 165-2 of the Code of Criminal Procedure (see paragraph 19 below) without giving any specific reasons for this decision. According to the applicant, the hearing started at 2.55 p.m. and the decision was taken only at 4 p.m., when the maximum period of detention without a court decision (seventy-two hours) permitted under domestic law had expired. The applicant’s lawyer lodged a formal complaint with the judge about unlawful arrest and detention. That complaint was not examined that day.

  10. On the same day the police instituted two more sets of proceedings against the applicant on suspicion of other counts of the same crime.

  11. On 9 November 2010 the applicant’s lawyer submitted to the court a further complaint about unlawful detention, in addition to the one he had submitted on the date of the hearing (see paragraph 9 above).

  12. On 15 November 2010 the District Court remanded the applicant in custody with no maximum duration and on the basis of standard reasoning, referring to gravity of charges, risk of interference with investigation, and personal characteristics without any further explanation. In a separate ruling it rejected the applicant’s lawyer’s complaint (see paragraph 9 above) that from 2.45 p.m. onwards on 8 November 2010 his detention had been unlawful. It noted “Documents [attached] to the application [for a warrant for the applicant’s arrest] refute the allegations regarding the detention of [Mr] Gal O.A. in terms that are not provided by law.”

  13. On 23 November 2010 the Poltava Regional Court of Appeal upheld the decision of the first-instance court. In reply to the lawyer’s complaint about the failure to release the applicant after seventy-two hours of initial detention without a court order, the appellate court noted that on 8 November 2010 the applicant’s detention had been extended for up to ten days.

  14. On 29 December 2010 the District Court extended the applicant’s detention for up to three months, i.e. until 5 February 2011, on the grounds that the applicant might avoid justice, obstruct the investigation and continue his criminal activities, and that it was necessary to ensure the implementation of procedural decisions.

  15. On 18 January 2011 the Poltava Regional Court of Appeal upheld the decision of the first-instance court.

  16. On 3 February 2011 the criminal case against the applicant was referred to the court and was received by that court on 4 February 2011. Twenty days later the prosecution authorities called the case back to correct certain shortcomings. On 25 February 2011 the court returned the case to the prosecutor, who sent the case back to the court on the same day.

  17. On 25 March 2011 the Poltava Leninskiy District Court examined the application for release lodged by the applicant’s lawyer and allowed it. The applicant’s pre-trial detention was replaced by an obligation not to abscond.

    1. RELEVANT DOMESTIC LAW

    1. Constitution of Ukraine 1996

  18. The relevant provision of the Constitution reads as follows:

    Article 29

    “Every person has the right to freedom and personal inviolability.

    No one shall be arrested or held in custody other than pursuant to a reasoned court decision, and only on grounds and in accordance with a procedure established by law.

    In the event of an urgent need 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 established by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the time of detention, with a reasoned court decision in respect of the holding in custody.

    Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the time of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel.

    Everyone who has been detained has the right to challenge his or her detention in court at any time.

    Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.”

    1. Code of Criminal Procedure 1960 (with amendments)

  19. The relevant provisions of the Code read as follows:

    Article 106Detention of a criminal suspect by an investigating body

    “An investigating body shall 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 only on one of the following grounds:

  20. if the person is discovered whilst or immediately after committing an offence;

  21. if eyewitnesses, including victims, directly identify this person as having committed the offence;

  22. if clear traces of the offence are found on the body of the suspect or on the clothing he is wearing or which is kept at his home.

    For each case of detention of a criminal suspect, the investigating body shall be required to draw up a record mentioning the grounds, the motives, the day, time, year and month, the place of detention, the explanation given by the person detained and the time when it was recorded that the suspect was informed of his right to consult defence counsel in person before he is questioned, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The record of detention shall be signed by the person who drew it up and by the detainee.

    A copy of the record with a list of his rights and obligations shall be immediately handed to the detainee and shall be sent to the prosecutor. At the request of the prosecutor, the material which served as a ground for detention shall be sent to him as well ...

    Within seventy-two hours of the arrest the investigating body shall:

    (1) release the detainee if the suspicion that he committed the...

To continue reading

Request your trial