Published on 31 January 2022
FIFTH SECTION
Application no. 41028/20
Vadym Oleksandrovych ALPERIN
against Ukraine
lodged on 29 August 2020
communicated on 14 January 2022
SUBJECT MATTER OF THE CASE
The application concerns the complaints of the applicant, a Ukrainian and Israeli national who is a businessman in the field of maritime transport, concerning the lawfulness his arrest and detention within the context of the criminal proceedings against him, the unjustifiably high amount of money fixed as bail by the courts, the subsequent forfeiture of part of that bail money, and the statements made by State officials (which allegedly undermined the applicant’s presumption of innocence and damaged his reputation).
Since 2017 the authorities have been investigating a case concerning large-scale smuggling, corruption and abuse of power with the involvement of number of customs officials. In 2018 the Kyiv City Court of Appeal fixed bail in respect of the applicant at 140,960 hryvnias (UAH – 4,600 euros (EUR)) concerning a corruption-related offence that was being investigated within the context of the wider criminal investigation. Within the framework of that large-scale investigation, another set of proceedings was instituted, and the investigator planned to serve, on 26 November 2019, a notification of suspicion (повідомлення про підозру) on the applicant, who was at liberty; however, the latter was not at home on that date.
On 27 November 2019 the applicant appeared voluntarily before the investigator, who arrested him without a prior court order. The relevant report stated that the applicant had been arrested on the grounds that he might evade investigation. On 29 November 2019 a judge of the Higher Anti-corruption Court (“the HAC”) ordered the applicant’s detention, referring to the gravity of the charges against him and the possibility that he might evade the investigation in view of his Israeli citizenship. The judge furthermore fixed bail at UAH 70,001,240 (EUR 2,330,000), which the applicant paid on 2 December 2019; he was released later that day. By the same decision the applicant was instructed to comply with several obligations in respect of the payment of bail, including the obligation to hand over all documents that would enable him to cross the State border. On 12 December 2019 the appeal chamber of the HAC upheld the decision of 29 November 2019.
In February 2020 the investigator lodged an application with the HAC seeking the forfeiture of the bail deposited by the applicant, as the latter had not handed over his Israeli foreign passport and had therefore breached the obligations imposed on him by the decision of the HAC of 29 November 2019. On 18 March 2020 the judge of the HAC dismissed that application as unsubstantiated. On 16 April 2020 the appeal chamber of the HAC partly allowed an appeal lodged by the investigator and ruled that the applicant – in view of his breach of the above-mentioned obligation – should forfeit half of the bail deposited by him. By the same decision the amount of bail was increased to UAH 76,598,362 (EUR 2,550,000).
The applicant did not inform whether he had paid the increased amount of bail. It appears that the pre-trial investigation is ongoing, and the applicant remains at liberty.
On 26 November 2019, a day before the applicant’s arrest, the President of Ukraine posted a statement on his official Facebook page; the statement read that the applicant, “who was considered to be one of sponsors of smuggling (якого вважають одним із хрещених батьків контрабанди)”, was in hiding. In his statement the President of Ukraine called on the public to help the law-enforcement bodies to find the applicant. The President promised a reward for the person who would assist in bringing about the “long-awaited meeting of the smuggler with the law (допоможе довгоочікуваній зустрічі контрабандиста із законом)”. The President’s Facebook post was widely disseminated by the media.
Referring to Article 5 § 1 of the Convention, the applicant complains that his arrest of 27 November 2019 was in breach of the requirements of domestic law. He furthermore complains under Article 5 §§ 3 and 4 of the Convention that the HAC, when ordering the applicant’s detention on 29 November 2019, did not provide sufficient reasoning for that detention and, in particular, fixed bail in an amount that was excessive and disproportionate to his financial situation. He also complains under the same provision that the increase in the amount of his bail on 16 April 2020 was not justified. Invoking Article 5 § 5 of the Convention, the applicant complains that he did not have an effective and enforceable right to compensation for the alleged violation of Articles 5 §§ 1, 3 and 4.
Relying on Articles 6 § 2 and 8 of the Convention, the applicant complains that public statements by the President of Ukraine and further comment in the media infringed the presumption of his innocence and damaged his reputation. Invoking Article 13, he alleges that he did not have effective domestic remedies for his complaints under Articles 6 § 2 and 8.
Relying on Article 1 of Protocol No. 1 to the Convention, the applicant complains that the forfeiture of part of his bail under the decision of the Appeal Chamber of the HAC of 16 April 2020 was unlawful and disproportionate.
Lastly, relying on Article 18, the applicant complains that his Convention rights under Articles 5, 6, 8 and Article 1 of Protocol No. 1 were restricted for purposes other than those prescribed in the Convention.
QUESTIONS TO THE PARTIES
1. Was the applicant’s arrest, on the basis of the report of 27 November 2019, in breach of Article 5 § 1 of the Convention (see Strogan v. Ukraine, no. 30198/11, §§ 85-89, 6 October 2016)?
2. Was the applicant’s pre-trial detention free from arbitrariness and based on sufficient reasons for the purposes of Article 5 § 3 of the Convention (see, for instance, Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 84 et seq., ECHR 2016 (extracts), and Ignatov v. Ukraine, no. 40583/15, §§ 34‑37, 15 December 2016)? In particular, having regard to the courts’ decisions of 29 November 2019 and 16 April 2020, was the amount of bail fixed in accordance with the above provision (see Mangouras v. Spain [GC], no. 12050/04, §§ 78-81, ECHR 2010)?
3. Did the applicant have an effective and enforceable right to compensation for the alleged violation of Article 5 §§ 1 and 3, as required by Article 5 § 5 of the Convention (see, for example, Taran v. Ukraine, no. 31898/06, §§ 87-90, 17 October 2013, and Lelyuk v. Ukraine, no. 24037/08, §§ 50-59, 17 November 2016)?
4. Did the applicant have at his disposal an effective domestic remedy for his Convention complaints under Articles 6 § 2 and 8, as required by Article 13 of the Convention?
5. In respect of his complaint under Article 8 of the Convention, has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? If so, has there been a violation of the applicant’s right to respect for his private life, contrary to Article 8 of the Convention?
6. In respect of his complaint under Article 6 § 2 of the Convention, has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? If so, was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case, given the public statements of high-ranking State officials in respect of the criminal proceedings against the applicant and subsequent media coverage (see, for example, Korban v. Ukraine, no. 26744/16, §§ 230-32, 4 July 2019)?
7. Having regard to the decision of the appeal chamber of the Higher Anti-corruption Court of 16 April 2020 ordering the forfeiture of half of the bail deposited by the applicant, has there been an interference with his peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, was that decision in accordance with the conditions provided by law, did it pursue a legitimate aim in the public interest, and did it impose a disproportionate and excessive burden on the applicant?
8. Were the restrictions imposed by the State in the present case, purportedly pursuant to Article 5 §§ 1, 3, and 5, Articles 6 § 2 and 8 and Article 1 of Protocol No. 1 to the Convention, applied for a purpose other than those envisaged by those provisions, contrary to Article 18 of the Convention?