Published on 2 November 2021
FIFTH SECTION
Application no. 50744/15
Viktor Fedorovych YANUKOVYCH
against Ukraine
lodged on 9 October 2015
communicated on 11 October 2021
STATEMENT OF FACTS
The applicant, Mr Viktor Fedorovych Yanukovych, is a Ukrainian national who was born in 1950 and currently lives in the Russian Federation. He is represented before the Court by Mr T. Beazley of Joseph Hage Aaronson LLP, a lawyer practising in London.
The circumstances of the caseThe facts of the case, as submitted by the applicant, may be summarised as follows.
BackgroundThe applicant was elected President of Ukraine in February 2010.
In late November 2013 anti-government demonstrations commenced in Kyiv and then spread to other cities in Ukraine, reportedly in response to the decision of the Cabinet of Ministers to suspend preparations for the signing of the Ukraine‑European Union Association Agreement. By late February 2014 the demonstrations had escalated to serious clashes between protesters and law-enforcement authorities. More than seventy protesters were shot dead, and about 1,000 protesters were injured. Additionally, at least thirteen police officers were killed and about 1,000 were injured (see, inter alia, the 2015 report of the International Advisory Panel (“the IAP”), an international body constituted by the Secretary General of the Council of Europe in April 2014). Those events are the subject of the Court’s judgment in Shmorgunov and Others v. Ukraine, nos. 15367/14 and 13 others, 21 January 2021 and other judgments, as well as a number of individual applications currently pending before the Court.
The protests, commonly referred to as “Euromaidan” and/or “Maidan”, ultimately led to the 2014 Ukrainian revolution (also known as the Revolution of Dignity), which culminated in the applicant’s departure from Ukraine, followed by a series of changes in Ukraine’s political system, including the formation of a new interim government, the restoration of the previous Constitution and impromptu presidential elections. Further details can be found in the above-mentioned case of Shmorgunov and Others.
The events of 21 and 22 February 2014On 21 February 2014 the applicant signed an agreement to try to end the political crisis. After signing the agreement he travelled from Kyiv to Kharkiv by helicopter to attend a Congress of Deputies of local government, and following the Congress he was due to travel on to his residence in Crimea. Two motorcades comprised of vehicles of the Presidential Security Service (“UPSS”) left Kyiv, one destined for Kharkiv and the other for Crimea.
The applicant alleges that on 21 February 2014 unidentified persons attempted forcibly to detain vehicles forming part of the motorcade travelling towards Kharkiv. The motorcade, which passed through the Kyiv, Cherkasy, Poltava and Kharkiv regions, drove through five checkpoints. At the first three checkpoints, attempts were made to block the vehicles. At the final two checkpoints the vehicles were fired upon. Three vehicles were damaged and a soldier forming part of the escort was injured.
The applicant further claims that on the same day at a checkpoint near Uman unidentified persons opened fire on vehicles forming part of the motorcade travelling towards Crimea.
The applicant was not travelling with the motorcades during either of the alleged attacks.
Due to security concerns the applicant was not able to attend the Congress of Deputies as planned. On 22 February 2014 he flew by helicopter from Kharkiv to Donetsk. During the flight the pilot received an order from the then acting head of the Ukrainian Parliament (“OT”) to return the helicopter to Kharkiv. Despite the order, the helicopter continued to Donetsk but at Donetsk Airport the Ukraine State Border Police prevented the applicant’s flight from taking off. He travelled on by road towards Crimea with the UPSS travelling ahead of his personal motorcade. The UPSS discovered an ambush near the town of Melitopol consisting of approximately 100 armed persons which necessitated the immediate diversion of the applicant’s motorcade.
Following these incidents the applicant left Ukraine.
On 22 February 2014 the Ukrainian Parliament declared that the applicant had unconstitutionally abandoned his duties as President.
The investigationThe incidents outlined above were reported in The Kyiv Times on 23 April 2014, which had obtained statements from the applicant’s Chief of Security together with other members of his security detail.
On 10 December 2014 the applicant’s lawyer wrote to a number of State agencies (including the Security Services, the Kyiv Regional Prosecutor’s Office and the Ministry of the Interior), enclosing the article from The Kyiv Times and asking whether any criminal proceedings were being conducted into the attempts on the applicant’s life. If any such proceedings were underway, the lawyer also asked for details of the officials conducting the investigation, the status of the investigation and any decisions that had been issued.
The Ministry of the Interior replied on 26 December 2014, stating that it had not received any statements or reports concerning the alleged attempts on the applicant’s life during the period 21 February 2014 to 23 February 2014 and that no details had been entered onto the Unified Register of Pre‑Trial Investigations. On 23 December 2014 Kyiv Regional Prosecutor’s Office confirmed that it had not, and was not, exercising authority over any criminal proceedings concerning the alleged attempts on the applicant’s life during the period 21 February 2014 to 23 February 2014.
On 26 January 2015 the applicant’s lawyer complained to the Prosecutor General’s Office that a criminal offence had been committed. He referred, inter alia, to the aforementioned assassination attempts, which, it was contended, amounted to offences under Articles 15, 112 and 115 of the Criminal Code of Ukraine (see section on Relevant domestic law below), and asked that a criminal investigation be launched into the matter by way of making an entry in the Unified Register of Pre‑Trial Investigations. In particular, he asked that the necessary investigative actions be performed, and that the applicant be recognised as a victim in the criminal proceedings. As the prosecutor is required to enter information about criminal offences onto the Register within twenty-four hours of receiving a report (see Article 214 of the Code of Criminal Procedure, set out below in the section on Relevant domestic law), the applicant’s lawyer wrote to the Prosecutor General’s Office the following day requesting confirmation that details of the offence had been entered onto the Register.
On 31 January 2015 the Prosecutor General’s Office replied, declining to make an entry in the Register because no reliable information had been submitted concerning the alleged attempts on the applicant’s life. In particular, it stated that the information submitted by the applicant’s lawyer had come from a newspaper article rather than from the applicant himself, who, it was noted, had not filed any complaint with law enforcement agencies.
On 6 February 2015 the applicant’s lawyer made a formal complaint to the Kyiv Pecherskyy District Court (“the Pecherskyy Court”) against the officials of the Prosecutor General’s Office on account of their failure to make an entry in the Unified Register of Pre-Trial Investigations. In particular, he argued that the Prosecutor General’s Office had been obliged to make the entry and initiate a pre‑trial investigation; it did not have a right to first verify the reasonableness of the applicant’s assertions.
On 12 February 2015 the application was returned on the ground that it had not been submitted within ten days after the impugned act or omission. It was the view of the investigating judge that time had started to run on 27 January 2015, being the day when the twenty-four hour deadline for entering details of the alleged criminal offence on the Register had elapsed.
The applicant’s lawyer appealed, arguing that the investigating judge’s decision of 12 February 2015 had been unlawful. He therefore asked that that decision be quashed and that the appeal court order the Prosecutor General’s Office to enter details of the assassination attempts onto the Unified Register of Pre-Trial Investigations. On 4 March 2015 the Kyiv City Court of Appeal held that the ten-day period for lodging an appeal had in fact been complied with. However, it dismissed the appeal against the decision not to file details of the alleged criminal offence onto the Register since the applicant’s lawyer did not personally have reliable information relating to the alleged criminal offence.
In the meantime, the applicant’s lawyer had also complained to the Pecherskyy Court about the inactivity of officials from the Prosecutor General’s Office, in particular their failure to enter details of the criminal offence onto the Register. On 17 March 2015 the Pecherskyy Court held that investigators, prosecutors and other officials were obliged to accept and register a declaration or notification of a criminal offence. They could not refuse to do so, even if the alleged offence was outside their own territorial jurisdiction or procedural competence. The court therefore ordered the competent officials of the Prosecutor General’s Office to enter details of the alleged assassination attempts onto the Unified Register of Pre-Trial Investigations.
On 23 March 2015 the applicant’s lawyer made an application to the Prosecutor General’s Office to secure the execution of the ruling of 17 March 2015. In response, he was informed that the Prosecutor General’s Office had not received the ruling. A further application for enforcement was made on 31 March 2015.
On 29 May 2015 the Prosecutor General’s Office entered details of the alleged assassination attempts onto the Unified Register of Pre-Trial Investigations and the Central Investigation Division of the Ministry of the Interior (“CID”) was instructed to carry out a pre-trial investigation.
On 5 June 2015 the applicant’s lawyer made an application for him to be recognised as a victim in the criminal proceedings. He also filed a motion with the Prosecutor General’s Office seeking information about the persons assigned to the investigation. A further motion was lodged asking the Prosecutor General’s Office to carry out investigative and other procedural actions aimed at identifying the vehicles that were in the motorcades from 21-23 February 2014 and establishing their location, condition and any repairs that were carried out on them; identifying and interrogating the persons who had piloted and were otherwise on the helicopter which took the applicant from Kharkiv to Donetsk; identifying and interrogating the dispatchers who communicated with the crew of that helicopter; and interrogating OT regarding the orders he gave on 22 February 2014. The Prosecutor General’s Office referred the request to the CID, and on 17 July 2015 the CID informed the applicant’s lawyer that there was no basis upon which the applicant could be recognised as a victim, as the investigation did not establish that any harm had been caused to him. While he was entitled to submit evidence in support of his motion, and obtain information regarding the termination of the pre-trial investigation, domestic legislation did not permit him to file motions asking that investigative and procedural actions be carried out.
On 22 June 2015 the applicant’s lawyer wrote to the CID, again seeking information about the pre-trial investigation and copies of any procedural decisions, and asking that the above-mentioned investigations be carried out. He also filed a motion to obtain copies of the records in the criminal proceedings, together with copies of any procedural decisions. However, both requests were refused on 26 June 2015 pursuant to Article 221 of the Code of Criminal Procedure as the applicant had not been recognised as a victim.
On 1 July 2015 the applicant’s lawyer lodged a complaint with the Pechersk Court in which he complained about the inactivity of the officials of the CID and asked that they be ordered to carry out the necessary investigations and procedural actions. He asked that the court declare unlawful the inactivity of the officers of the CID and order them to perform the investigatory and procedural actions requested. He filed a further motion on 4 August 2015 asking that statements from members of the applicant’s security detail be attached to the criminal proceedings.
The application of 1 July 2015 was refused on 25 September 2015 as the applicant was not a victim in the criminal proceedings. This decision was not subject to appeal.
The criminal proceedingsThe applicant contends that between 22 February 2014 and 10 October 2014 the following eight criminal cases were brought against him, all of which remain at the pre-trial investigation stage; no charges have been brought or prosecutions commenced.
(a) The “Maidan case”
The case was opened on 22 February 2014 and amended on 2 March 2014.
On 13 and 29 July 2015, respectively the applicant’s lawyers were served with an official notice of suspicions which had been issued on 25 February 2014, pursuant to Article 276 of the Code of Criminal Procedure. In particular, the notices indicated that the applicant was suspected, while President of Ukraine, of having exceeded his powers of office; enacted laws contrary to citizens’ civil and constitutional rights; and, during the period from November 2013 to February 2014, unlawfully and forcefully dispersed peaceful protesters who had gathered on Maidan Nezalezhnosti in Kyiv, resulting in the killing of seventy four protestors and the wounding of over five hundred others.
From 7 to 21 March 2014 the Pecherskyy Court made four attachment orders in relation to property owned by the applicant (including a residential house, a flat, a vessel, and bank accounts).
According to the applicant, he only learned of the orders on 1 July 2014. His appeals were dismissed by Kyiv Court of Appeal on 21 July 2014.
The pre-judicial investigation was then suspended on 13 October 2014 because the applicant’s whereabouts were unknown and all possible procedural and investigatory actions had been taken.
On 8 December 2014 the Prosecutor General’s Office notified the applicant that the case had been separated into two cases and that an investigation had also been suspended in the second Maidan case.
A subpoena was subsequently served on the applicant’s lawyers requiring him to attend the office of the investigator for interrogation as a suspect on 13 July 2015. In response, the applicant sought permission to give statements at his place of residence in the Russian Federation, if necessary by way of videoconference, on the basis that there would be a danger to his life and health were he to return to Ukraine. In a response dated 13 July 2015 the Prosecutor General’s Office informed the applicant that he would be provided with security if he were to return to Ukraine for interrogation. He was further informed that Article 232 of the Code of Criminal Procedure provided for interrogation or questioning by videoconferencing. However, it was noted that he had not provided his current address. He was therefore invited to report to the Ukrainian Embassy in the county of his residence so that his identity could be verified and he could be questioned securely. Although he did not do so, he did subsequently provide the Prosecutor General’s Office with his address. On 8 September 2015 the Prosecutor General’s Office replied that the applicant’s address was going to be verified.
(b) The “state buildings’ case”
The applicant was notified of three criminal matters, including two concerning the appropriation of state property amounting to over UAH 1 billion (EUR 39,107,900,000), on 6 March 2014, 28 April 2014 and 8 May 2014.
The status of these proceedings remains unknown to the applicant and his lawyers.
(c) The “criminal organisation case”
On 6 February 2015 the Prosecutor General’s Office notified the applicant that he was suspected of creating, managing and taking part in a criminal organisation for the purpose of committing serious crimes whilst in office as the President of Ukraine.
On 6 February 2015 the applicant’s lawyers were served with a formal notice of suspicion pursuant to article 276 of the Code of Criminal Procedure.
The status of these proceedings remains unknown to the applicant and his lawyers.
(d) The “Ukrtelecom case”
The case was opened against the applicant on 25 March 2014, for alleged misappropriation of State funds totalling UAH 220 million (EUR 8,603,730).
On 20 October 2014 four attachment orders were issued against the applicant’s property in Kyiv. The applicant appealed against all these order but the Kyiv Court of Appeal rejected his appeals on 8, 9 and 10 December 2014.
On 15 January 2015 Parliament adopted Act no. 199-VI which amended Article 297-1 of the Code of Criminal Procedure allowing a criminal trial in absentia to be brought when a person was put on an intergovernmental and/or international wanted list.
On 19 January 2015 the Pechersk Court issued an order to put the applicant in custody as a preventive measure. According to the applicant, the order was adopted in his absence at a hearing held in camera. The order indicated that on 8 October 2014 the applicant had been declared wanted, that on 12 January 2015 Interpol published a “Red Notice” against him and that under Article 193 § 6 of the Code of Criminal Procedure arrest motions could be considered in a suspect’s absence provided that he or she was on an international wanted list.
However, the High Specialised Court Civil and Criminal Cases (hereinafter “the High Specialised Court”) cancelled the arrest order following an appeal by the applicant. The Kyiv Court of Appeal issued a new arrest order on 28 July 2015 and on 28 September 2015 the High Specialised Court rejected the applicant’s appeal against the new order.
In the meantime, on 18 June 2015, the General Prosecutor’s Office, relying on the Interpol Red Notice, sought permission from the Pechersk Court for a special pre-trial investigation against the applicant in absentia under the newly amended Article 297 §§ 1-4 of the Code of Criminal Procedure. This would have enabled the pre-trial investigation to have been completed and an indictment to have been submitted in the applicant’s absence. The applicant’s lawyers challenged the motion, submitting a statement by the applicant dated 27 June 2015 in which he explained that while he wished to cooperate with the investigation authorities, it was not safe for him to return to Ukraine because of the previous assassination attempts and the ongoing threat to his life.
On 16 July 2015 Interpol suspended the Red Notice in respect of the applicant.
On 27 July 2015 the Pechersk Court granted the General Prosecutor’s Office’s motion without addressing whether Article 297-1 continued to be satisfied following suspension of the Red Notice.
On the same day the court rejected the applicant’s request to suspend the case until measures were taken to enable him to participate in the proceedings by video link.
On 11 August 2015 the Kyiv Court of Appeal dismissed the applicant’s appeals against the two decisions of 27 July 2015 on the grounds that Article 309 of the Code of Criminal Procedure did not provide for the right to appeal against a decision of an investigating judge to allow a special pre‑trial investigation in absentia. The court did not address the issue concerning the video link.
On 27 August 2015 the High Specialised Court upheld this decision.
In the meantime, on 29 July 2015, the General Prosecutor’s Office had sent a letter to the applicant’s lawyers in which it had suggested that the applicant could be interrogated at an embassy abroad. Following further correspondence, the lawyers provided the applicant’s address in Russia for the purposes of his interrogation. It appears, however, that no interrogation has taken place so far.
According to the applicant, the pre-trial investigation was suspended.
(e) The “voting case”
On 28 April 2014 the “voting case” was opened against the applicant for having allegedly organised illegal voting among deputies in the Parliament.
The status of these proceedings remains unknown to the applicant and his lawyers.
(f) The “Lesnika case”
This case was brought against the applicant and a group of officials attached to the Dom Lesnika LLC. on 8 May 2014. The subject of this case is the alleged misappropriation of land worth more than UAH 100 million (EUR 9,910,790).
The status of these proceedings remains unknown to the applicant and his lawyers.
(g) The “Nadra Ukrainy case”
On 18 June 2014 Ukrainian authorities opened plicant the “Nadra Ukrainy case” concerning the applicant’s alleged misappropriation of State property as part of a conspiracy with the chairman of the Nadra Ukrainy National JSC.
The status of these proceedings remains unknown to the applicant and his lawyers.
(h) The “second Maidan case”
Finally, on 10 October 2014 the “second Maidan case” was brought against the applicant.
On 13 October 2014 the investigation was suspended.
Public statements made about the applicantPyotr Poroshenko, who served as President of Ukraine from 2014 to 2019, was said to have made the following comments in May 2014 while he was a candidate for the Presidency:
“[w]e have created an International Investigatory Commission with the participation of the Council of Europe, which will investigate crimes committed by Yanukovych during dispersement of the Maidan using arms and killing innocent people. ... The trial of Yanukovych will not take place behind the scenes, not in secret, but in the largest stadium of the capital, because there are so many people wanting to attend his trial. The whole word ought to see what that criminal has done, who solicited the annexation of the Crimea and ordered the killing of hundreds of people.”
On 14 January 2015 the first deputy General Prosecutor was reported to have informed the Parliamentary Anti-Corruption Committee that the principal economic crime committed by the applicant was embezzlement during the privatisation of Ukrtelecom. He further indicated that the applicant headed a criminal organisation to usurp powers, gain considerable profits, lobby and misappropriate businesses from others.
On 15 January 2015 the Minister of Justice told the Session Hall of the Verkhovna Rada (the unicameral parliament):
“Dear colleagues, this draft bill is aimed at improving the implementation of the criminal procedure in absentia in respect of those persons who have, as a matter of fact, plundered the Ukrainian budget and are hiding in the temporarily occupied territories. We are talking about the former President Yanukovych, his entourage, the so-called ‘family’. ... For us to complete the process of the investigation of these cases, to ensure that these funds are appropriated into the Ukrainian budget and channelled to the Ukrainian people, it is necessary to make these technical amendments to the existing legislation.”
On 23 January 2015 the General Prosecutor stated on air that the General Prosecutor’s Office was investigating nearly 900 cases concerning the applicant. According to him, the applicant’s crimes began in 2010 and during his reign a total of about 50 billion UAH were stolen from the State budget.
A new General Prosecutor was appointed on 10 February 2015. In an interview, when asked who gave the command to fire on the Maidan, he was reported as having answered “ Yanukovych! To whom is it not clear?”. He also described the applicant and his retinue as a “criminal organisation ... that is guilty of murder and other offences.” On 27 August 2015 the new General Prosecutor told journalists that the investigation into the Maidan case would not be stopped until the applicant was in prison. He further indicated that the applicant “will be found guilty not only by our court but maybe by the court in Russia.”
In August 2015 The General Prosecutor’s Office prepared a Draft Law which would have created a special legal framework for the confiscation of the assets of the applicant and former members of his government. The special legal framework would have been applicable regardless of whether the person concerned had been convicted in criminal proceedings.
Relevant domestic lawThe Criminal Code of UkraineArticle 15 sets out the crime of criminal attempt, that is, an act or omission aimed directly at the commission of a criminal offence under the Code, even if the criminal offence has not been completed for reasons beyond that person’s control.
Pursuant to Article 112, trespass against the life of the President of Ukraine is a criminal offence punishable by imprisonment for a term of ten to fifteen years or life imprisonment.
Article 115 concerns the crime of murder, that is, the wilful unlawful causing of the death of another person, which is punishable by imprisonment for a term of seven to fifteen years.
The Code of Criminal Procedure of UkraineArticle 214 requires that the investigator or public prosecutor immediately, but in any case no later than twenty-four hours after submission of a report of a criminal offence, enter the information in the report on the Unified Register of Pre-Trial Investigations, and initiate an investigation. The investigator and public prosecutor are required to accept and register a report of a criminal offence. Once the information has been entered onto the Register, the prosecutor is required immediately, but in any case not later than the next day, to transfer materials in his possession to the agency conducting the pre-trial investigation.
According to Article 55, a victim in criminal proceedings is, inter alia, a person who has sustained moral, physical or material damage as a result of a criminal offence.
Article 56 sets out the rights of victims in the criminal proceedings. During the pre-trial stage, these include the right to have his application that a criminal offence has been committed against him and his application to be recognized as victim accepted and registered promptly; to obtain from the competent body a document confirming the filing and registering of the application; to produce evidence to support his application; to take part in investigatory and other procedural actions by asking questions, submitting comments and objections, and reviewing the records of the investigatory and other procedural actions conducted with his participation; and, after the completion of the pre-trial investigation, to obtain copies of materials which directly relate to criminal offence which has been committed against him.
Pursuant to Article 220 the investigator or public prosecutor is required to consider, within a period of no more than three days after filing, a motion by the defence or the victim requesting the conduct of procedural actions; and to comply with the request if adequate grounds exist.
Pursuant to Article 221 of the Code of Criminal Procedure, the victim of a criminal offence may bring a motion requiring the investigator and/or the prosecutor to release non-classified records from the pre-trial investigation for review. When such a motion is brought, the investigator and/or the prosecutor cannot deny access to otherwise disclosable documents in the pre-trial investigation files.
Pursuant to Article 60 the applicant, being the person that filed an application or report on the criminal offence, also has certain rights at the pre-trial stage, even if he is not the victim of the offence. In particular, he has the right to obtain a document from the agency with which he filed the application confirming that it has been filed and registered; to produce objects and documents which support his application; and to obtain information about the completion of the pre-trial investigation.
Article 219 requires that a pre-trial investigation be completed within two months of the date on which the person concerned is notified that he or she is suspected of committing a crime. Although this time limit may be extended, for grave crimes the total duration of the pre-trial investigation should not exceed twelve months from the date of notification of suspicion.
Article 232 expressly permits the interrogation of persons during the pre‑trial investigation by way of videoconferencing if the person is not able to participate directly for health or other valid reasons; if it is necessary to ensure their safety; or if such measures are necessary to ensure a speedy pre-trial investigation.
The Ukrainian judiciaryDetails of recent legal developments impacting on the Ukrainian judiciary can be found in Polyakh and Others v. Ukraine, nos. 58812/15 and 4 others, §§ 71-114, 17 October 2019.
COMPLAINTS
The applicant complains under Article 2 of the Convention that the Ukrainian authorities failed to conduct an effective investigation into the assassination attempts which were reported in The Kyiv Times and which were notified to the Prosecutor General’s Office by his lawyer on 26 January 2015.
He complains under Article 6 § 1 of the Convention of the length of the criminal proceedings that have been brought against him.
He further complains under Article 6 § 1 of the Convention that the Ukrainian courts are neither independent nor impartial and that the proceedings to date, which have been conducted in his absence, have not been fair; and, under Article 6 § 2 of the Convention, that condemnatory statements made by public officials have undermined the presumption of innocence.
QUESTIONS TO THE PARTIES
1. Having regard to the facts of the present case, did the State have a duty under Article 2 of the Convention to conduct an official investigation into the applicant’s allegations that there were a series of attempts on his life on 21-22 February 2014?
2. If so, did the investigation carried out by the authorities comply with the requirements of Article 2 of the Convention?
3. With regard to the criminal proceedings brought against the applicant – all of which remain at the pre-trial investigation stage some six to seven years after the cases were opened – has there been a breach of the “reasonable time” requirement of in Article 6 § 1 of the Convention? For each of the criminal cases brought against the applicant, what was the starting date, if any, for calculating the length of the proceedings? And what, if any, was the end date?
4. Given that the criminal proceedings against the applicant are all at the pre-trial stage, are the applicant’s complaints about the fairness of those proceedings and about the independence and impartiality of the judiciary, under Article 6 § 1 of the Convention, and about the operation of the presumption of innocence, under Article 6 § 2 of the Convention, premature? If not, has there been a violation either of Article 6 § 1 or of Article 6 § 2 in this respect?