FIFTH SECTION
Application no. 28718/09
Andrey Pavlovich KOTIY
against Ukraine
lodged on 23 May 2009
STATEMENT OF FACTS
The applicant, Mr Andrey Pavlovich Kotiy, is a Ukrainian national, who was born in 1974 and lives in Kharkiv. He is represented before the Court by Mr A. Bushchenko, a lawyer practising in Kharkiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
In 2003 the applicant started to live in Germany on the permanent basis. His wife and two children, born in 1992 and 1999, lived with him there.
Between 2003 and 2008 the applicant occupied various managerial positions in German companies. He was also a co-owner of the limited liability company L., registered in Ukraine. The company was run by a hired director.
On 27 May 2005 the applicant asked the official representative of the Ministry of Home Affairs of Ukraine in Frankfurt am Main to inform him whether certain business activities of the hired director had been lawful.
On 8 July 2005 the applicant was informed that the Ministry of Internal Affairs had not found any wrongdoing on the part of the director.
2. Criminal proceedings against the applicant
On 14 April 2008 the Kyiv Police Department instituted criminal proceedings in connection with the financial fraud allegedly committed in April 2005 by the applicant with the assistance of the director of the limited liability company L.
On 19 April 2008 the applicant was placed on the list of wanted persons.
In November 2008 the applicant arrived in Ukraine on private matters.
On 13 November 2008, when the applicant arrived at the migration service department in Kharkiv to exchange his passport for a new one, he was arrested and escorted to Kyiv. During the night the applicant was questioned in connection with the criminal case. According to the applicant, it was the first time that he found out about the criminal proceedings against him.
On 14 November 2008 the investigator formally arrested the applicant on suspicion of the crime, drawing up the arrest report.
On 17 November 2008 the Shevchenkivskyy District Court of Kyiv (“the District Court”) extended the applicant’s preliminary detention to ten days.
On 20 November 2008 the investigator charged the applicant with another count of financial fraud.
On 24 November 2008 the District Court examined the issue of the preliminary measure in respect of the applicant. During the hearing the applicant contended that he had not been aware of the criminal proceedings before his arrest and of the fact that he had been placed on the list of wanted persons. Having deliberated, the court found that there had been no evidence suggesting that the applicant could continue any criminal activity, abscond from justice and obstruct the investigation. It therefore released the applicant.
On an unspecified date a temporary ban on leaving Ukraine was imposed on the applicant.
On 27 November 2008 the investigator seized the applicant’s old and new passports.
On 4 December 2008 the Kyiv Court of Appeal upheld the decision of 24 November 2008.
On the same day the applicant gave a written undertaking not to abscond to the investigator.
On 6 May 2009 the applicant complained to the prosecutor on account of his unlawful arrest and detention and the violation of procedural rules by the investigator. He also specified that as a result of the procedural measures undertaken by the investigator he could not see his wife and children who lived outside Ukraine and continue his professional life.
On 26 May 2009 the applicant requested a copy of his arrest report of 14 November 2008, but to no avail.
On 6 July 2009 the applicant challenged before the District Court the investigator’s decision to open criminal proceedings against him.
On 31 July 2009 the District Court allowed the applicant’s claim noting that the facts of the case could not give rise to the criminal proceedings against the applicant. The prosecutor appealed against that decision.
On 21 August 2009 the Kyiv Court of Appeal quashed the decision of 31 July 2009 and remitted case to the District Court for a fresh consideration.
On 3 November 2009 the District Court dismissed the applicant’s claim finding that the impugned decision of the investigator was lawful.
After the applicant was released from detention facility until the date of his application to the Court he was never summoned by the investigator for taking part in any investigatory measure.
B. Relevant domestic law
1. Code of Criminal Procedure of 28 December 1960 (as worded at the material time)
The relevant provisions of the Code provide as follows:
Article 98-1. Preventive restriction on a person against whom criminal proceedings have been instituted
“If a criminal case is instituted against a certain person, the prosecutor (the judge) shall be entitled to decide whether a person shall be prohibited from leaving the territory of Ukraine before the end of the pre-trial investigation or trial. He or she shall render a reasoned decision (ruling) to this effect.”
Article 151. Written undertaking not to abscond
“A written undertaking not to abscond is a written commitment by a suspect or an accused not to leave his or her place of permanent residence or temporary address without the permission of the investigator.
If the suspect or accused breaches this written undertaking not to abscond, it may be replaced by a more stringent preventive measure. The suspect or the accused shall be informed about this upon giving the written undertaking not to abscond.”
Article 234. Complaints in respect of the acts of the investigator
“The acts of the investigator may be challenged before the prosecutor...
The acts of the investigator may be challenged before the court...
The complaints in respect of the acts of the investigator shall be considered by the first-instance court in the course of the preliminary hearing of the case or in the course of its consideration on the merits, unless otherwise provided by this Code.”
Other provisions of the Code of Criminal Procedure can be found in the judgment in the case of Osypenko v. Ukraine (no. 4634/04, § 33, 9 November 2010).
2. The Law “on procedure for leaving and entering Ukraine by Ukrainian citizens” of 21 January 1994
Section 6 of the Law provides that a citizen of Ukraine may be temporarily refused to go abroad if, among other things, the criminal proceedings have been instituted against him.
COMPLAINTS
1. The applicant complains under Article 5 § 1 of the Convention that his arrest and detention between 13 and 14 November 2008 was not recorded and was not carried out in accordance with the law.
2. He complains under Article 5 §§ 1 and 3 of the Convention that throughout the whole period of his detention there was no reasonable suspicion that he might have committed a crime. The domestic authorities failed to provide sufficient and relevant reasons justifying that detention.
3. The applicant complains under Article 5 § 4 of the Convention that during the whole period of his detention he could not effectively challenge his ongoing detention.
4. The applicant complains that he could not claim compensation in respect of his unlawful arrest and detention, contrary to Article 5 § 5 of the Convention.
5. The applicant complains under Article 8 of the Convention that the restriction of his right to leave Ukraine constituted an unlawful and disproportionate interference with his private and family life.
6. The applicant complains that the restriction of his right to leave Ukraine also amounted to a violation of Article 2 of Protocol No.4.
QUESTIONS TO THE PARTIES
1. With respect to the period between 13 and 14 November 2008 (until the investigator drew up an arrest report), was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, were the applicant’s arrest and detention carried out in accordance with domestic law and recorded by the authorities? The Government are invited to provide copies of the available records.
2. Were the applicant’s arrest and detention compatible with Article 5 §§ 1 and 3 of the Convention? In particular, were the decisions to arrest and detain the applicant based on the reasonable suspicion that the applicant might have committed a crime? Did those decisions set out relevant and sufficient reasons justifying the applicant’s arrest and detention?
The Government are invited to provide a copy of the arrest report of 14 November 2008 and a copy of the court decision of 17 November 2008 issued in respect of the applicant.
3. Did the applicant have an effective and enforceable right to compensation for his detention in alleged contravention of Article 5 §§ 1 and 3, as required by Article 5 § 5 of the Convention?
4. Has there been an interference with the applicant’s right to respect for his private and family life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
The Government are invited to provide copies of the decisions and all the other documents concerning (a) the temporary restriction of the applicant’s right to leave Ukraine; (b) the seizure of the applicant’s passports; (c) the applicant’s written undertaking not to abscond.
5. Has there been a violation of the applicant’s right to liberty of movement and freedom to leave the territory of the respondent State, contrary to Article 2 of Protocol No. 4?
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