Communicated on 3 February 2015
FIFTH SECTION
Application no. 988/13
Igor Vasilyevich KOLESNIKOV
against Ukraine
lodged on 19 December 2012
STATEMENT OF FACTS
The applicant, Mr Igor Vasilyevich Kolesnikov, is a Ukrainian national, who was born in 1964 and lives in Kyiv. He is represented before the Court by Ms L. M. Kichuzhinets, a lawyer practising in Kyiv.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Criminal proceedings against the applicant
On 7 November 2008 a police investigator initiated criminal proceedings (“the first investigation”) on suspicion of fraud of a particularly large scale (“aggravated fraud”) in the form of a “pyramid scheme” committed against the clients of Kings Capital TOV, Kings Capital PP and certain other companies (“the Kings Capital companies”).
On 20 January 2009 investigator Sh. of the Investigative Department of the Ministry of the Interior decided to charge the applicant with aggravated fraud and to place him on the list of wanted persons. The charges were that the applicant, in conspiracy with Messrs G., B., S., L., Ye., had created in 2007 a scheme to defraud the clients of Kings Capital companies and that using this scheme from August to November 2008 they had defrauded eleven individuals named in the investigator’s decision.
On 28 January 2009 the Pechersky District Court of Kyiv (“the Pechersky Court”) granted the investigator’s request and authorised the applicant’s arrest.
On 9 April 2009 the Investigative Section of the Department of the Ministry of the Interior in Cherkasy region initiated another set of criminal proceedings against the applicant and the individuals listed in investigator Sh.’s decision of 20 January 2009 on suspicion of aggravated fraud committed against the clients of the Kings Capital companies (“the second investigation”).
According to the applicant, he had never been in hiding and on 28 May 2009 turned himself in to the police.
On 28 May 2009 the applicant was interviewed as an accused and released under an obligation not to leave the town.
On 4 June 2009 investigator Sh. lodged a request with the Pechersky Court asking that the applicant be remanded in custody on the ground that the applicant had broken the obligation not to leave the town by leaving Kyiv without authorisation and had been interfering with the investigation.
2. The applicant’s arrest and detention from 5 June 2009 to 4 August 2009
On 5 June 2009 the Perchersky Court granted the investigator’s request and ordered that the applicant be placed in pre-trial detention. The court stated that the charges against the applicant were serious and that there were grounds to believe that if at liberty he would be able to influence witnesses and so interfere with the establishment of the truth and the enforcement of procedural decisions in the case. On the same day the applicant was arrested and subsequently placed in the Kyiv Pre-Trial Detention Centre no. 13 (“the Kyiv SIZO”).
On 27 July 2009 the Pechersky Court rejected the investigator’s request in which the investigator had sought to extend the applicant’s pre-trial detention to four months. The court stated that there was no evidence that the applicant intended to evade justice and that the gravity of the charges alone could not justify his continuing detention. The court also decided to change the preventive measure imposed on the applicant from detention to an obligation not to leave the town. Based on the documents submitted by the applicant, it appears that despite this decision of the Pechersky Court the applicant was not in fact released. On 3 August 2009 the Kyiv City Court of Appeal quashed this ruling of the Pechersky Court.
On 28 July 2009 investigator Sh. initiated another set of criminal proceedings on suspicion of aggravated fraud committed against the clients of the Kings Capital companies (“the third investigation”).
On 3 August 2009 investigator Sh., acting within the framework of the third investigation, charged the applicant with aggravated fraud. The charges were that the applicant, in conspiracy with the individuals named in the charges of 20 January 2009 and Mr A., in 2007 had organised a “pyramid scheme” to defraud the clients of Kings Capital companies and from October 2006 to October 2008 had defrauded seventeen individuals named in the investigator’s decision.
On the same day investigator Sh. lodged a request with the Shevchenkivsky District Court of Kyiv (“the Shevchenkivsky Court”) asking that the applicant be placed in pre-trial detention.
3. The applicant’s detention from 5 August 2009 to 25 September 2009
On 5 August 2009 the Shevchenkivsky Court rejected investigator Sh.’s request to place the applicant in pre-trial detention.
On 6 August 2009 investigator Sh., acting within the framework of the third investigation, decided to release the applicant under the obligation not to leave the town and the applicant signed this obligation.
According to the applicant, in fact he was not released and was on the same day transported under guard from Kyiv to Cherkasy.
On the same day investigator N. of the Main Department of the Ministry of the Interior in Cherkasy region, acting within the framework of the second investigation initiated on 9 April 2009, charged the applicant with aggravated fraud. The charges were that the applicant, in conspiracy with the individuals named in the charges of 3 August 2009, had organised in 2007 a “pyramid scheme” and defrauded a large number of Kings Capital companies’ clients.
On the same day investigator N. drew up an arrest report stating that the investigator arrested the applicant at 15.50 p.m. on that day in Kyiv on suspicion of aggravated fraud in order to prevent the applicant from absconding. The following line of the standard arrest report form was underlined as the ground for arrest: “eyewitnesses, including victims, directly identify that person as the one who committed the crime.”
On 7 August 2009 the Sosnivsky District Court of Cherkasy (“the Sosnivsky Court”) decided to extend the applicant’s detention to 10 days and on 14 August 2009 to 15 days.
On 21 August 2009 the Sosnivsky Court decided to place the applicant in pre-trial detention for two months. The court stated that the applicant was charged with a very serious offence, he had caused a great amount of damage to the victims which had not been compensated. The court observed that the applicant was charged with committing an offence of a large scale and over a long period of time, which supported the conclusion that he posed certain danger and if released could abscond or interfere with the investigation. According to the applicant, on 8 September 2009 the Cherkasy Regional Court of Appeal upheld this decision.
On the same day the Pechersky Court again rejected the investigator’s request to extend the applicant’s detention to four months. On 1 September 2009 the Kyiv Court of Appeal quashed this ruling and remitted the investigator’s request to the Pechersky Court for a fresh examination.
On 22 September 2009 investigator Sh. decided to join the first, second and third investigations and to proceed with the investigation of the merged case file.
On 25 September 2009 the Pechersky Court allowed the investigator’s request and extended the applicant’s pre-trial detention to four months, to be counted from 5 June 2009. By way of reasoning the court stated that the applicant was charged with a serious offence and if at liberty could abscond, interfere with the investigation or continue his criminal activity.
4. The applicant’s detention from 29 September 2009 to 5 December 2010
On 29 September 2009 the Kyiv City Court of Appeal (“the Kyiv Court of Appeal”) allowed the investigator’s request and extended the applicant’s detention to five months. The court stated that there were no grounds to release the applicant and the investigating authorities needed more time to complete the investigation. The court also noted that in reaching its decision it had taken into account information about the applicant’s personality, the gravity of the charges against the applicant, and the need to prevent the applicant from absconding or interfering with the investigation,
On 28 October 2009 and on 5 February 2010 the Kyiv Court of Appeal extended the applicant’s detention to eight and to nine months respectively. By way of reasoning, the court stated that the applicant was charged with a particularly serious offence, that the decision to place him in pre-trial detention had been correct and that the investigative authorities needed more time to complete the investigation.
On 4 March 2010 and on 23 April 2010 the Supreme Court extended the applicant’s detention until 5 May 2010 and until 5 July 2010 respectively, stating by way of reasoning that the applicant was charged with particularly serious offences and that the authorities needed more time to complete the investigation.
On 25 June 2010 the Supreme Court extended the applicant’s detention until 5 October 2010. The court noted that the applicant was charged with a serious offence, there was a need to conduct additional investigative actions in the case, the decision to place the applicant in detention was correct and there were no grounds for changing it, given the applicant’s personal characteristics and the possibility of him absconding or interfering with the investigation.
On 27 September 2010 the Supreme Court extended the applicant’s detention until 5 December 2010. The court noted that the applicant was charged with a particularly serious offence and there were no grounds for releasing him.
5. The applicant’s detention during the trial
On 25 August 2011 a preparatory hearing was held before a judge of the Dniprovsky District Court of Kyiv (“the trial court”). The judge ruled that the case was ready for trial. The judge also rejected the applicant’s request for release without giving any reasons for this decision.
On 18 February, 18 March, 21 May, and 8 October 2013 the trial court rejected the applicant’s requests for release stating in similar terms that the applicant had been placed in pre-trial detention to prevent him from continuing his criminal activity, absconding and interfering with the investigation and that there was no indication that the circumstances had changed.
On 29 July 2014 the trial court rejected the applicant’s request for release lodged on 11 March 2014. The court held that the prosecuting authorities had received information from the Swiss authorities that those authorities had been investigating the allegations of money-laundering connected with the funds of Kings Capital companies. The court considered that this information could indicate that the applicant and his co-defendant Mr G. had been continuing their unlawful activities and for this reason this information needed further investigation.
According to the applicant, as of 6 December 2014 his trial was pending and he remained in detention.
COMPLAINTS
The applicant complains that his detention from 5 August 2009 onwards was unlawful. He refers to Article 5 § 1 of the Convention.
He further alleges that his pre-trial detention was unreasonably lengthy. He relies in this respect on Article 5 § 3 of the Convention.
The applicant also complains that, in rejecting his requests for release on 18 February, 18 March, 21 May, and 8 October 2013 the Dniprovsky District Court of Kyiv gave only formulaic and repetitive responses to his arguments. He also complained that the Dniprovsky District Court of Kyiv delayed the examination of his request for release lodged on 11 March 2014 having examined and rejected it only on 29 July 2014.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular:
(a) was the applicant’s detention from 5 August 2009 to 25 September 2009 lawful and free of arbitrariness (see Mikhaniv v. Ukraine, no. 75522/01, §§ 85-88, 6 November 2008)?
(b) was the applicant’s detention from 5 December 2010 to 25 August 2011 and from 25 August 2011 onwards lawful (see Kharchenko v. Ukraine, no. 40107/02, § 98, 10 February 2011)?
2. Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?
3. Was the procedure by which the applicant challenged the lawfulness of his detention after the completion of pre-trial investigation in his case in conformity with the requirement of Article 5 § 4 of the Convention (see Kharchenko, cited above, §§ 85 and 86)?
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