Kotiy
v. Ukraine - 28718/09
Judgment 5.3.2015 [Section V] See: [2015] ECHR 253
Article 8
Article 8-1
Respect for family life
Respect for private life
Detention
and preventive measures outside the country where the applicant worked and
lived with his family: violation
Article 5
Article 5-1
Lawful arrest or detention
Detention
and preventive measures in the absence of reasonable suspicion of an offence: violation
Facts - In April 2008 the Kyiv Police Department
instituted criminal proceedings against the applicant in connection with
financial fraud and listed him as a wanted person on the grounds that he did
not live at his registered place of residence in Ukraine and his whereabouts
were unknown. The applicant had in fact by then been working and living with
his family in Germany for several years. In November 2008, while attending the
migration service department in Kharkiv to renew his international travel
passport, he was arrested and escorted to the district police department in
Kyiv, where he was arrested after questioning. The applicant was released after
ten days after signing a written undertaking not to leave his registered place
of residence in Ukraine and surrendering his passports. The applicant lodged
complaints with the District Court against his unlawful arrest and detention,
the alleged violation of procedural rules by the investigator and an
interference with his family and professional life. In December 2011 the
preventive measures were lifted and the passports returned.
Law
Article 5 § 1: The Court had to identify whether the
applicant’s detention had been arbitrary and incompatible with the purpose of
Article 5 § 1. When questioned at the police department in November 2008
he had not been free to leave. Given the existence of a coercive element, the
Court found that he had been deprived of his liberty within the meaning of
Article 5 § 1. His arrest had not been formalised through an arrest report
until several hours later and the report had merely repeated general grounds
for the arrest without demonstrating reasonable suspicion of the commission of
a criminal offence. Nor did the report justify the applicant’s preliminary
detention during questioning for the specific purposes laid down in the
domestic law for applying such measures. The Court did not accept a
justification based on the applicant’s listing as a wanted person since he
could not be considered as having been in hiding while living in Germany. It
therefore found the applicant’s detention between 14 and 24 November 2008
incompatible with Article 5 § 1.
Conclusion: violation (unanimously).
Article 8: As a result of his undertaking not to abscond
and the surrender of his passports, the applicant had been unable to travel to
Germany where his family lived and where he pursued his professional
activities. As to the justification for that interference, pursuant to
Article 234 of the Code of Criminal Procedure, the applicant could have challenged
the investigator’s decisions before the prosecutor or the court. However, the
Court did not consider that the possibility of challenging the decision before
the prosecutor afforded adequate safeguards ensuring a proper review while a
challenge before a court would only have been possible at the stage of the
preliminary hearing of the criminal case or its consideration on the merits and
could not be considered a timely remedy. During the investigation period of
three years and seven months, no other judicial remedy had been available to
the applicant. As a result, the domestic law did not meet the requirements of
the quality of law for the purpose of the Convention.
In addition, although the interference pursued the
legitimate aim of preventing crime, it had been extensive. The fact that the
applicant was unemployed at the material time did not mitigate the fact that he
had been temporarily prevented from returning to Germany to resume his family
and private life. Furthermore, the domestic authorities had not considered
other non-custodial preventive measures available under domestic law and no
effective remedies had been available. Since signing the written undertaking
not to abscond, the applicant had not been asked to take part in any
investigatory procedure. In sum, his right to respect for his private and
family life had not been balanced with the public interest in ensuring the
effective investigation of a criminal case.
Conclusion: violation (unanimously).
The Court also found a violation of Article 5 § 5 of
the Convention.
Article 41: EUR 6,000 in respect of non-pecuniary damage.
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