FIFTH SECTION
CASE OF TROFYMENKO v. UKRAINE
(Application no. 18444/18)
JUDGMENT
STRASBOURG
4 May 2023
This judgment is final but it may be subject to editorial revision.
In the case of Trofymenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Carlo Ranzoni, President,
Mattias Guyomar,
Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 18444/18) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 April 2018 by a Ukrainian national, Mr Volodymyr Vsevolodovych Trofymenko (“the applicant”), who was born in 1965, lives in Kyiv and was represented by Mr N. Kulchytskyy, a lawyer practising in Kyiv;
the decision to give notice of the complaints set out in paragraph 1 below to the Ukrainian Government (“the Government”), represented by their then acting Agent, Ms O. Davydchuk, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 30 March 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns the applicant’s complaint under Article 5 § 1 of the Convention that his arrest without a prior court order had been unlawful, under Article 5 § 4 that his complaints about the unlawfulness of that arrest had not been duly examined, and under Article 5 § 5 that he did not have an enforceable right to compensation in respect of the above complaints.
2. In 2016 the National Anti-Corruption Bureau of Ukraine (“the NABU”) started a criminal investigation into alleged large-scale embezzlement of public funds involving the inflation of procurement prices by the Ministry of Defence for fuel supplied by the T. company, in which the applicant was an investor (and, according to the NABU, its de facto principal owner).
3. 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.
4. On 16 October 2017 several individuals, including the applicant, held a press conference in Kyiv during which they denied the allegations of embezzlement.
5. At 1.45 p.m. on the same day a NABU detective arrested the applicant under 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 offence being investigated by the NABU may abscond.
6. The detective also served on the applicant a notification of suspicion on charges of large-scale embezzlement of public funds. This was the first occasion on which the applicant was given any formal status in the investigation.
7. On the same day the NABU detective lodged an application with the Kyiv Solomyanskyi District Court seeking to have the preventive measure of pre-trial detention imposed on the applicant. The detective argued that there was a risk that the applicant might abscond since he had four international travel passports, the locations of which were unknown, and that he had previously travelled to several specific foreign countries to which he could potentially flee. The fact that the applicant was facing a potential sentence of seven to twelve years’ imprisonment was another factor cited by the detective, as was the complexity of the criminal scheme in question and the scale of dissimulation it involved. The applicant had extensive connections in law-enforcement authorities, the Ministry of Defence and other State institutions. That indicated that, if at liberty, the applicant might interfere with the investigation by concealing evidence or influencing witnesses. Should the court be unwilling to order pre-trial detention, the NABU detective proposed that bail be set at 149,338 Ukrainian hryvnias (UAH, approximately 4,715 euros) and that a number of restrictions be imposed on the applicant.
8. On 17 October 2017 the Kyiv Solomyanskyi District Court held a hearing during which it examined the application for the imposition of preventive measures and the applicant’s written objections. It also heard the parties. The applicant’s lawyer argued, in particular, that the applicant’s arrest without a prior court order had been unlawful (see paragraph 11 below).
9. On the same day the court rejected the application for pre-trial detention and released the applicant subject to a personal undertaking not to abscond and to comply with a certain number of obligations (notably to abstain from communication with other suspects in the investigation, surrender his passports and wear an electronic tracking device). The court found that there was reasonable suspicion against the applicant and that the risks justifying the imposition of a preventive measure were proven. At the same time, the court did not consider it proven that detention was necessary to counteract those risks.
10. On 21 November 2017 the Kyiv City Court of Appeal rejected appeals lodged 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 decision had been unlawful, the court stated that the Code of Criminal Procedure provided “for a separate appeal procedure” in respect of such alleged violations. The court did not elaborate as to what that procedure comprised.
11. Separately, on 17 October 2017 the applicant had lodged a habeas corpus application with the Kyiv Shevchenkivskyi District Court under Article 206 of the Code of Criminal Procedure (see Vadym Melnyk v. Ukraine, nos. 62209/17 and 50933/18, § 57, 16 September 2022, and Kurochenko and Zolotukhin v. Ukraine [Committee], nos. 20936/16 and 53257/16, §§ 79-82, 11 February 2021),[1] in which he sought to have his detention without a court order declared unlawful. The applicant argued, notably, that there had been no risk of his absconding and therefore no legal basis for his arrest without a court order under Article 208 § 1 (3). This was evidenced, in particular, by the fact that, even though the applicant had not yet had a formal status in the investigation, he had known about its existence and had not fled, but rather had publicly defended his company against the allegations.
12. On the same day the Kyiv Shevchenkivskyi District Court rejected the application, holding that it was not competent to examine complaints about warrantless arrests and that such complaints should be examined during the preliminary hearing at the opening of the defendant’s criminal trial. As to the obligation under Article 206 to bring an allegedly unlawfully detained person to court, that provision could not be invoked since the applicant had been arrested specifically in order to bring him to court and under Article 211 a person arrested without a court order had to be brought to court automatically within sixty hours. That time-limit had not yet been exceeded. No appeal lay against that decision.
THE COURT’S ASSESSMENT
ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
13. The Government contested the complaints set out in paragraph 1 above.
14. Those complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.
Arrest without a prior court decision15. In several judgments against Ukraine the Court has found violations of Article 5 § 1 on account of arrests effected by investigation authorities without a prior court order under domestic legal provisions authorising such arrests only in situations of urgency (see Strogan v. Ukraine, no. 30198/11, §§ 88-89, 6 October 2016; Korniychuk v. Ukraine, no. 10042/11, §§ 48-52, 30 January 2018 – regarding arrests under the 1960 Code of Criminal Procedure; and Grubnyk v. Ukraine, no. 58444/15, §§ 74-85, 17 September 2020 – regarding arrest under Article 208 § 1 (1) and (2) of the 2012 Code).
16. Those findings are not applicable to the present case. The applicant was arrested under different rules which did not involve any requirements of urgency but merely required that an arrest be made in the context of criminal proceedings concerning allegations of serious corruption and that there be a risk of absconding.
17. There is no indication that those conditions were not met in the present case. In particular, as to the risk of absconding, the authorities cited several specific circumstances justifying the existence of that risk (see paragraph 7 above and Merabishvili v. Georgia [GC], no. 72508/13, §§ 190-94, 28 November 2017).
18. There is no other indication of failure to comply with the requirements of Article 5 § 1.
19. There has therefore been no violation of Article 5 § 1 of the Convention.
Review of the lawfulness of the arrest20. In Vadym Melnyk v. Ukraine (nos. 62209/17 and 50933/18, §§ 118‑26, 16 September 2022), the Court described in detail the difficulty Mr Melnyk faced in having the lawfulness of his arrest without a prior court order examined within the framework of the habeas corpus procedure under Article 206 of the Code of Criminal Procedure. However, ultimately no violation was found because the applicant had raised the same issue within the framework of a procedure for the application of a preventive measure and eventually the domestic appellate court, in that procedure, had found his warrantless arrest unlawful.
21. By contrast, in the present case the applicant raised his complaint in that respect in both of the above-mentioned procedures, but no response was provided to his arguments in the course of either of them.
22. There has accordingly been a violation of Article 5 § 4 of the Convention.
Right to compensation23. Having examined all the material before it, the Court concludes that there has been a violation of Article 5 § 5 of the Convention, in the light of its findings in Korban v. Ukraine (no. 26744/16, §§ 201 and 202, 4 July 2019, with further references).
APPLICATION OF ARTICLE 41 OF THE CONVENTION
24. The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage and EUR 4,800 in respect of costs and expenses incurred before the Court.
25. The Government contested those claims.
26. The Court awards the applicant EUR 650 in respect of non-pecuniary damage, plus any tax that may be chargeable.
27. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 700 for costs and expenses in the proceedings before it, plus any tax that may be chargeable to the applicant, to be paid directly into the bank account of his representative Mr Kulchytskyy.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the application admissible;Holds that there has been no violation of Article 5 § 1 of the Convention;Holds that there has been a violation of Article 5 § 4 of the Convention;Holds that there has been a violation of Article 5 § 5 of the Convention;Holds(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 650 (six hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 700 (seven hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly to the bank account of the applicant’s representative Mr Kulchytskyy;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicant’s claim for just satisfaction.Done in English, and notified in writing on 4 May 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Carlo Ranzoni
Deputy Registrar President
[1] The application was lodged with that particular court because the applicant was detained in a facility located in the Shevchenkivskyi District of Kyiv and Article 206 of the Code of Criminal Procedure provides that habeas corpus applications under it are to be examined by the court which has territorial jurisdiction over the place of detention.