Communicated on 5 January 2018
FOURTH SECTION
Application no. 71818/17
Eduard Volodymyrovych AVRAIMOV
against Ukraine
lodged on 4 October 2017
STATEMENT OF FACTS
The applicant, Mr Eduard Volodymyrovych Avraimov, is a Ukrainian national who was born in 1970 and is detained in Kyiv. He is represented before the Court by Mr K.K. Doroshenko, a lawyer practising in Kyiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background
Prior to 2014 the applicant had been residing in Donetsk, where he ran a currency exchange business. That year he moved to Kyiv. He has the status of an internally displaced person.
On 26 January 2016 the security service instituted proceedings on suspicion that a number of individuals and legal entities, including Ukrainian financial institutions, were operating a scheme aimed at financing the so-called “Donetsk People’s Republic”, a self-proclaimed entity de facto controlling a part of the Donetsk Region of Ukraine, including Donetsk, and considered by the Ukrainian authorities to be a terrorist organisation (see Relevant domestic law below).
2. The applicant’s arrest and detention
At around 2 p.m. on 24 April 2017 security service officers surprised the applicant in the process of receiving 100,000 United States dollars (USD) in cash from a certain Mr D. in the street in front of the block of flats where the applicant lived. He alleges that the officers restrained and handcuffed him and took him back to his flat.
From 2.20 to 6.15 p.m. the applicant’s flat was searched. A number of items, including considerable amounts of cash and some documents, were seized. The search record signed by the applicant and the attesting witnesses indicated that the search had been conducted in connection with an investigation into terrorism financing. According to the record, the applicant was shown a court warrant of 5 April 2017 authorising the search.
Mr D. was questioned from 4.27 to 6.26 p.m. and from 8.35 to 10.20 p.m. He stated that he was the intermediary between a certain Mr P., who resided in the territory controlled by the “DPR”, and the applicant, and had passed the money to the applicant at the request of Mr P., who resided in the territory controlled by the “DPR”. He stated that he regularly transported cash for Mr P. and remarked that some packages bore the label of the “DPR” “central bank”.
At 12.10 a.m. on 25 April 2017 an arrest report was drawn up, stating that the applicant had been arrested at the security service building at 7.30 p.m. the previous day and that the applicant’s relatives had been informed of his arrest at the same hour. The applicant had been served with a formal “notice of suspicion” informing him that he was suspected of financing terrorism because his currency exchange business in Donetsk paid “taxes” to the “DPR”. A modified notice subsequently served on the applicant on 9 October 2017 specified that the currency exchange business had stopped operating in May 2014 but that in early 2015 the applicant had taken steps to relaunch it under the “DPR” rules and had thus paid that entity USD 34,000.
On the same day the security service investigator lodged an application with the Kyiv Pechersky District Court (“the District Court”) seeking the applicant’s placement in pre-trial detention. In support of the application, the investigator submitted sixty-five pages of case-law material.
On 27 April 2017 the District Court ordered the applicant’s remand in custody until 22 June 2017. The court concluded, based on the examination of the submitted material, that there was sufficient evidence to support a reasonable suspicion against the applicant. The court also stated that the charges against the applicant were serious and that a non-custodial preventive measure would not be sufficient to prevent the risk of his fleeing. The court stated that it also took into account the applicant’s stable family situation and residence. Lastly, the court referred to Article 176 § 5 of the Code of Criminal Procedure, which provided that pre-trial detention was the only possible preventive measure for individuals suspected of terrorism financing.
Subsequently, the applicant’s detention was extended by court orders of 19 June 2017, 15 August 2017 and 5 October 2017. The District Court reiterated that national law barred the use of non-custodial preventive measures for the offence in question. Overruling the applicant’s objections to the extension of his detention, the court stated that it had not been shown that the circumstances established by the court when it had originally decided to remand the applicant in custody had changed.
The detention orders were upheld by the Kyiv City Court of Appeal.
3. Conditions of detention
The applicant is detained at the Kyiv Remand Prison (“SIZO”). He alleges that until 13 August 2017 he was held, for the most part, in cell no. 14, which had fifteen sleeping places but held thirty individuals.
B. Relevant domestic materials
1. Code of Criminal Procedure 2012
Article 176 of the Code, as amended by Law no. 1689-VII of 7 October 2014, reads:
Article 176. General provisions on preventive measures
“1. The preventive measures are as follows:
(1) a personal undertaking;
(2) a personal warranty;
(3) bail;
(4) house arrest; and
(5) pre-trial detention.
...
5. The preventive measures of a personal undertaking, a personal warranty, bail and house arrest may not be imposed on people who are suspected of or charged with offences under Articles ... 258-5 ... of the Criminal Code of Ukraine.”
2. Criminal Code 2001
Under Article 258-5 of the Code terrorism financing is punishable by imprisonment for a term of five to eight years, combined with a prohibition on occupying certain positions or engaging in certain activities for up to two years and with confiscation of assets. Under paragraph 2 of the same Article the punishment is increased to imprisonment for a term of eight to ten years, combined with a prohibition on occupying certain positions or engaging in certain activities for up to three years and with confiscation, where the same offence was committed (i) for the second time; or (ii) for a venal motive; or (iii) in a group; or (iii) if it involves an amount exceeding a certain ceiling set by law (currently the equivalent of about 3,165 euros); or (iv) if it has caused serious damage.
3. “DPR” as a terrorist organisation
In a number of documents, including its declaration of 4 February 2015 concerning recognition of the jurisdiction of the International Criminal Court, the Parliament of Ukraine labelled the “DPR” a terrorist organisation.
COMPLAINTS
The applicant complains under Article 3 of the Convention that the physical conditions of his detention were in breach of that provision.
The applicant further complains under Article 5 § 3 of the Convention that Article 176 § 5 of the Code of Criminal Procedure bars the use of any preventive measures other than pre-trial detention in his case, thus instituting a system of mandatory detention and that the domestic courts failed to give adequate reasons for his detention. Under Article 5 § 4 he further complains that the domestic courts have failed to conduct a meaningful review of the lawfulness of his detention. Lastly, under Article 5 § 5 of the Convention the applicant complains that he has no effective and enforceable right to compensation for his detention in alleged contravention of the other provisions of Article 5.
QUESTIONS TO THE PARTIES
1. Did the physical conditions of the applicant’s detention in the Kyiv SIZO in the period prior to 13 August 2017 comply with the requirements of Article 3 of the Convention?
2. Was there a breach of Article 5 § 3 of the Convention? In particular, was the domestic courts’ reliance on Article 176 § 5 of the Code of Criminal Procedure compatible with the requirements of that provision (see S.B.C. v. the United Kingdom, no. 39360/98, § 23, 19 June 2001, Boicenco v. Moldova, no. 41088/05, § 136, 11 July 2006, and Piruzyan v. Armenia, no. 33376/07, §§ 103-106, 26 June 2012)?
3. Did the applicant have at his disposal an effective procedure by which he could have challenged the lawfulness of his detention, as required by Article 5 § 4 of the Convention?
4. Does the applicant have an effective and enforceable right to compensation for his detention in alleged contravention of Article 5 §§ 3 and 4, as required by Article 5 § 5 of the Convention?
Full & Egal Universal Law Academy