Non-response to complaints concerning preventive measures procedures against an arrested person. Violation of Article 5 of the ECHR
JUDGMENT
Trofymenko v. Ukraine 04.05.2023 (app. no. 18444/18)
SUMMARY
Appellant’s arrest without prior court order. Appeal under Article 5 § 1 of the ECHR for his illegal arrest and that his complaints about the illegal arrest had not been properly examined and he had no enforceable right to compensation for the above complaints.
In 2016 the National Anti-Corruption Bureau of Ukraine (NABU) opened a criminal investigation into alleged large-scale embezzlement of public funds related to the inflation of supply prices by the Ministry of Defense for fuel supplied by T. company, in which the applicant was an investor.
A NABU detective arrested the applicant, pursuant to Article 208 § 1 (3) of the Code of Criminal Procedure, which allows arrest without a prior court order in cases where there are reasonable grounds to believe that a person suspected of a serious corruption offense under investigation from NABU can escape.
The court rejected the request for temporary detention and released the applicant on the condition that he does not abscond and comply with certain obligations.
The applicant was arrested under different provisions which did not entail urgent requirements, but merely permitted arrest in the context of criminal proceedings relating to allegations of serious corruption and the existence of a flight risk.
The applicant complained about the procedures for taking preventive measures against him during the pre-trial proceedings, but his arguments were not answered by the national institutions.
The ECtHR found a violation of Article 5 §§ 4 and 5 of the ECHR and awarded 650 euros for moral damage and 700 euros for costs.
PRINCIPAL FACTS
In 2016 the National Anti-Corruption Bureau of Ukraine (“NABU”) opened a criminal investigation into alleged large-scale embezzlement of public funds related to the inflation of supply prices by the Ministry of Defense for fuel supplied by the company T., to which the applicant was investor (and according to NABU, its de facto principal owner).
On 19 September 2017 the applicant’s alleged co-conspirators in the scheme, G. and M. (the latter being the managing director of T.), fled Ukraine.
On 16 October 2017 several individuals, including the applicant, held a press conference in Kyiv denying allegations of embezzlement.
At 1.45 p.m. on the same day, a NABU detective arrested the applicant, pursuant to Article 208 § 1 (3) of the Code of Criminal Procedure, which allows arrest without a prior court order in cases where there are reasonable grounds to believe that a person suspected of serious corruption offense investigated by NABU may escape.
The applicant was charged with embezzlement of public money on a large scale.
On the same day, the NABU detective filed an application with the Kyiv Solomyanskyi District Court requesting the applicant to be remanded in custody. The detective argued that the applicant was a flight risk as he had four international travel passports, the whereabouts of which were unknown, and that he had previously traveled to several foreign countries to which he could potentially flee. The fact that the appellant was facing a possible sentence of 7 to 12 years in prison was another factor raised by the detective, as was the complexity of the criminal scheme in question and the scale of the pretense involved. The applicant had extensive connections with the police, the Ministry of Defense and other government institutions. This indicated that, if free, the applicant could interfere with the investigation by withholding evidence or influencing witnesses. In case the court was not willing to order pretrial detention, the NABU detective proposed to set a bail of 149,338 Ukrainian national currencies (about 4,715 euros) and to impose certain restrictions.
On 17 October 2017, the Solomyanskyi District Court of Kyiv held a hearing during which it considered the application for the imposition of preventive measures, as well as the applicant’s written objections. He also heard the parties. The applicant’s lawyer argued, in particular, that his arrest without a prior court order was illegal.
On the same day, the court rejected the application for provisional detention and released the applicant on the restrictive condition that he not abscond and comply with certain obligations (mainly refrain from communicating with other suspects in the investigation, surrender his passports and wear electronic monitoring device). The court found that there was reasonable suspicion against him and that the risks were proven to justify the imposition of a preventive measure. At the same time, the court did not find it proven that detention was necessary to address these risks.
On November 21, 2017, the Court of Appeal of Kyiv dismissed the appeals filed by the prosecution and the applicant and upheld the first instance decision. In response to the applicant’s argument that his arrest without a prior court order was unlawful, the national court stated that the Code of Criminal Procedure provided for a separate appeal procedure for such alleged violations. The court did not specify what that process involved.
On 17 October 2017, the applicant filed a habeas corpus petition with the Shevchenkivskyi District Court of Kyiv under Article 206 of the Code of Criminal Procedure (see Vadym Melnyk v. Ukraine of 16.10.2022 and Kurochenko and Zolotukhin v. Ukraine of 11.02.2021 with case no. 20936/16 and 53257/16, §§ 79-82), with which he requested that his detention be declared illegal since it was done without a court order. The applicant argued, in particular, that there was no risk of his absconding and therefore no legal basis for his arrest without a warrant pursuant to Article 208 § 1. This was demonstrated, in particular, by the fact that the applicant was aware of the existence of the investigation and he had not fled, but instead had publicly defended his company against the charges.
On the same day, the Kyiv Regional Court rejected the application, ruling that it did not have jurisdiction to consider complaints of arrests without a warrant and that these complaints should be considered during the preliminary hearing at the start of the defendant’s criminal trial. With regard to the obligation under section 206 to bring an alleged unlawful detainee to court, the provision this could not be invoked as the applicant had been arrested specifically to be brought to court and under section 211 a person arrested without a warrant had to be brought to court automatically within 60 hours. That deadline had not passed. There was no appeal against this decision.
THE DECISION OF THE COURT…
In several judgments against Ukraine, the Court found violations of Article 5 § 1 due to arrests carried out by investigative authorities without a prior court order based on domestic legal provisions that allowed such arrests only in urgent situations (see Strogan v. Ukraine of 06.10. 2016, application no. 30198/11).
These findings did not apply to the present case. The applicant was arrested under different provisions which did not entail urgent requirements, but merely justified arrest in the context of criminal proceedings relating to allegations of serious corruption and the existence of a flight risk.
There was no indication that these conditions were not met in the present case. In particular, regarding the risk of absconding, the authorities cited various special circumstances justifying the existence of this risk (Merabishvili v. Georgia of 28.11.2017 case no. 72508/13). There was no other indication of non-compliance with the requirements of Article 5 § 1.
The ECtHR found no violation of Article 5 § 1 of the Convention.
Control of the legality of the arrest
The case of Vadym Melnyk v. Ukraine was considered under the habeas corpus procedure of Article 206 of the Code of Criminal Procedure. However, in the end no violation was found because the applicant had raised the same issue in the context of proceedings for the application of a preventive measure and the Court of Appeal, in those proceedings, ultimately ruled that his arrest without a warrant was unlawful.
On the contrary, in the present case, the applicant lodged his complaint in this regard in both of the aforementioned proceedings, but his arguments were not answered during either of them.
The ECtHR found a violation of Article 5 § 4 of the Convention. Having examined all the material before it, the Court concluded that there had also been a violation of Article 5 § 5.
Just Satisfaction (Article 41)
The ECtHR awarded the applicant the amount of 650 euros for moral damage and the amount of 700 euros for costs (edited by: echrcaselaw.com).
