FIFTH SECTION
DECISION
Application no. 14628/20
Yuriy Mykolayovych GRYMCHAK
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 28 September 2023 as a Committee composed of:
Carlo Ranzoni, President,
Lado Chanturia,
María Elósegui, judges
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having regard to the above application lodged on 11 March 2020,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Mr Yuriy Mykolayovych Grymchak, is a Ukrainian national, who was born in 1965 and lives in the city of Kyiv, Ukraine. He was represented by Mr G.V. Tokarev, a lawyer practising in Kharkiv, Ukraine.
The Ukrainian Government (“the Government”) were represented by their Agent, most recently, Ms M. Sokorenko of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
Since 10 March 2017 the applicant had been holding the post of a Deputy Minister of the Ministry of Temporarily Occupied Territories and Internally Displaced Persons (hereinafter “the Ministry”).
On 19 July 2019, within criminal proceedings initiated in 2014 on account of an attempted murder, investigative bodies entered, to the Registry of the pre-trial investigations, another episode of a crime – extortion of funds by state officials aimed at obtaining money by fraud.
According to the investigating authorities, the applicant and his alleged co‑conspirator O. had agreed to accept substantial sums of money from individuals in exchange for the official’s assistance in resolving certain matters, without any intention of taking any action. Several meetings were held with these individuals during which the applicant and O. discussed the amounts and methods for distributing money which were to be transferred to them.
On 14 August 2019, at around 8:30 p.m., O. received the final sum and was subsequently arrested. The money was seized during a search of O.’s car.
On the same day around 8:45 p.m., the applicant was apprehended in a supermarket. The apprehension report cited Article 208 § 1 of the Code of Criminal Procedure (arrest of a person if the person has been caught whilst committing a crime or attempting to commit one). Notification of suspicion was served on the applicant on account of extortion of funds.
On 16 August 2019 the first-instance court allowed the investigator’s request and ordered the applicant’s pre-trial detention. As an alternative preventive measure, the court set a bail in the amount of UAH 6,000,000. The applicant challenged that decision stating, inter alia, that it concerned another person and therefore he was unlawfully kept in detention. On17 August 2019 the local court amended the decision by indicating the correct patronymic name of the defendant (Mykolayovych instead of Mykhaylovych) and the correct surname of the applicant’s lawyer, and by changing one digit in the case number; the court noted that those mistakes were misprints.
On 6 September 2019 a court of appeal upheld the decisions of the lower courts, having found that the applicant had been reasonably suspected of a serious crime and that the case-file materials suggested that he could abscond using his social ties or impede the establishment of the truth through witness tampering and destruction of evidence.
Under the decisions of the first-instance court of 8 October, 13 November, and 24 December 2019, upheld on appeal, the applicant’s pre-trial detention was extended. While prolonging the applicant’s detention, the courts gave extensive and substantiative assessment of continuing existence of the risks.
On 19 December 2019 the court decreased the amount of bail to UAH 1,999,761.
On 30 January 2020 under the applicant’s request the court changed his preventive measure to house arrest.
Relevant domestic lawArticle 208 of the Code of Criminal Procedure authorises arrests without a court order in the following circumstances and subjects them to the following requirements:
“1. [In the absence of a court order a] competent official shall be entitled to arrest a person suspected of having committed a crime for which imprisonment may be imposed only in the following cases:
(1) if the person has been caught whilst committing a crime or attempting to commit one; or
(2) if immediately after a criminal offence the statements of an eyewitness, including the victim, or [a combination] of clear signs on the body, clothes or at the scene of the event indicate that the person has just committed an offence...”
THE LAW
Complaint under Article 5 § 1 of the ConventionThe applicant complained of his arrest in breach of Article 5 § 1 of the Convention.
The Court notes that any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f) of Article 5 § 1, be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of that law (see Denis and Irvine v. Belgium [GC], nos. 62819/17 and 63921/17, § 125, 1 June 2021).
In its judgment in Grubnyk v. Ukraine (no. 58444/15, 17 September 2020) the Court found violations of Article 5 § 1 in respect of arrest effected under provision of Article 208 of the Code of Criminal Procedure, where considerable time, namely about three weeks, elapsed between the alleged offence, a terrorist act, and the arrest.
The Court notes that in the present case the applicant was arrested fifteen minutes after his alleged co-conspirator had received the last part of the extorted money. In this context, the Court cannot conclude that the applicant was arrested beyond the situation of either “whilst committing a crime” or “immediately after a criminal offence” as provided for by Article 208 § 1 of the Code of Criminal Procedure. The Court thus finds that the applicant’s arrest could not be considered unlawful within the meaning of Article 5 § 1 of the Convention. In view of the above, this part of the application is manifestly ill‑founded and should be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
Complaint under Article 5 § 3 of the ConventionThe applicant also complained under Article 5 § 3 of the Convention that he had been held in pre-trial detention on formal and ill-founded grounds.
The Court has previously held that the persistence of a reasonable suspicion that the detainee has committed an offence is a sine qua non for the validity of his or her continued detention. But when the national judicial authorities first examine, “promptly” after the arrest, whether to place the arrestee in pre-trial detention, that suspicion no longer suffices, and the authorities must also give other relevant and sufficient grounds to justify the detention. Those other grounds may be a risk of flight, a risk of pressure being brought to bear on witnesses or of evidence being tampered with, a risk of collusion, a risk of reoffending, or a risk of public disorder and the related need to protect the detainee (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 87-88 and 101-102, 5 July 2016, with further references). Those risks must be duly substantiated, and the authorities’ reasoning on those points cannot be abstract, general or stereotyped (see Merabishvili v. Georgia [GC], no. 72508/13, § 222, 28 November 2017, with further references).
The Court observes that there were sufficient grounds for the applicant’s initial detention on 16 August 2019, as well as for its subsequent prolongations, that lasted for five months and fifteen days in total, in view of the existence of a reasonable suspicion that he had committed serious offences, as well as due to the risks of his absconding and witness tampering given his personal situation and the specific circumstances of the case. The courts also ordered bail as an alternative preventive measure. In the circumstances of the present case, the Court finds that the applicant’s detention was based on relevant and sufficient grounds. Accordingly, this complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 19 October 2023.
Viktoriya Maradudina Carlo Ranzoni
Acting Deputy Registrar President