CASE OF KOVAL v. UKRAINE
(Application no. 65550/01)
19 October 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Koval v. Ukraine,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mr V. Butkevych,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 28 September 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The relevant period of the applicant's detention
B. The decision to forfeit bail and its review
1. Initial decision to forfeit bail
“... On 20 October 1998 criminal proceedings were instituted against Mr V.G. Koval on suspicion of his involvement in offences referred to in Article 165 § 2 and Article 80 § 2 of the Criminal Code and on the same date the applicant was charged with offences under Article 80 § 2, Article 165 § 1 and Article 172 of the Criminal Code and questioned as an accused on the basis of the aforementioned provisions.
On 20 October the investigator decided that Mr V.G. Koval should be held in detention.
As can be seen from the investigator's decision, the grounds for detaining V.G. Koval were that he was charged with serious offences and that the preventive measure chosen took into account the gravity of these offences, and also that while at liberty he interfered with the establishment of the truth in a criminal case and seriously breached his obligations as to appropriate conduct.
... The representative of the General Prosecution Service, in the court's view, has not provided any corroborating evidence that Mr V.G. Koval has evaded requests to appear before an investigator or has tried to interfere with the investigation in the case. There is no evidence of the aforementioned facts in the case file...
The General Prosecution Service's reference to the fact that Mr V.G. Koval encouraged the witnesses Ms L.D. Tyshchenko and Mr O.I. Bogomolov to change their witness statements in the part that related to the sale of a flat in foreign currency ... cannot be considered by the court to have had any influence on the investigation, as Mr V.G. Koval had met the aforementioned persons by chance and did not insist on their changing their statements; his recommendations that they tell the investigator in the case that the payments had been made in national currency, as can be seen from the verbatim records of the interviews of the aforementioned persons, were of a consultative nature.
The court has not obtained any other corroborating evidence that Mr V.G. Koval influenced the course of the investigation or interfered with the establishment of the truth in the case, or that he violated other obligations he had entered into with regard to appropriate conduct...
Also, the court considers that Mr V.G. Koval's state of health was not taken into account when the issue of the applicable preventive measure was being decided upon...
... on the basis of the foregoing, and in accordance with Article 236-4 of the Code of Criminal Procedure of Ukraine, the court
... to quash the detention order issued by the Deputy Prosecutor General on 30 October 1998 ...”
“... it can be seen from the witness statement by Mr O.I. Bogomolov that in the period when Mr Koval was released on bail (September 1998) Mr Koval met Mr Bogomolov and asked him to change his witness statements about the currency which he had used to pay for the flat he had acquired, a fact which could have influenced considerations as to the elements of the offence provided for in Article 80 § 2 of the Criminal Code of Ukraine.
Taking into account the foregoing, and Mr Koval's attempt to influence the course of the investigation in the case and the fact that he was charged with serious offences, on 20 October 1998 the measure applied to Mr Koval was changed to detention.
[The court accordingly] DECIDES...
To quash the decision of 27 November 1998 by the judge of the Pechersky District Court of Kyiv to declare null and void the warrant issued by the Deputy Prosecutor General for the arrest of Mr V.G. Koval.”
2. Examination of the merits of the charges against the applicant
“... when questioned as an accused Mr O.I. Bogomolov explained that he had changed his witness statement after his conversation with Mr V.G. Koval, who had recommended that, if he did not wish to be held criminally liable, he should say that the agreement had been concluded in hryvnyas and not in United States dollars.
... A witness, Ms Tyshchenko, has explained that Mr O.I. Bogomolov changed his witness statements after a meeting with Mr V.G. Koval, who said that his lawyers would seek to institute criminal proceedings against Mr O.I. Bogomolov under Article 80 § 2 of the Criminal Code.
... As can be seen from the case file, on 29 June 1998 it was decided that V.G. Koval should be released on payment of UAH 500,000 bail.
The sum mentioned above was deposited by ... Ms L.M. Koval in the account of the General Prosecution Service.
Mr V.G. Koval had been informed about his obligations and the consequences of his possible failure to comply with them, and Ms L.M. Koval as surety had been informed about the offences that Mr V.G. Koval was charged with and also that in the event of failure to comply with his obligations bail would be forfeited in favour of the State. One of the obligations of Mr V.G. Koval related to appropriate conduct.
In a decision of 20 October 1998 the preventive measure of release on bail applied to Mr V.G. Koval was amended to detention. This was because he had seriously breached his obligations relating to appropriate conduct, had coerced witness into making false statements with regard to offences committed by him, and had interfered with the establishment of the truth in the case.
In accordance with Article 154-1 of the Code of Criminal Procedure, if a suspect, accused and/or defendant breaches his or her obligations, bail shall be forfeited in favour of the State.
The fact that Mr V.G. Koval infringed his obligations with regard to appropriate conduct by coercing the witness Mr O.I. Bogomolov into making false statements is proved by the aforementioned witness statements of Mr O.I. Bogomolov and Ms L.D. Tyshchenko, as the Presidium of the Kyiv City Court found in its decision of 30 November 1998.
In such circumstances the court considers it necessary for the bail deposited by Ms L.M. Koval in the amount of UAH 500,000 to be forfeited in favour of the State.
On the basis of the foregoing, and having regard to Articles 323 and 324 of the Code of Criminal Procedure, the court
... the forfeiture in favour of the State of the sum of bail in the amount of UAH 500,000 currently being held in the deposit account of the General Prosecution Service of Ukraine.”
“... As can be seen from the case file, Mr Koval was released on bail on 29 June 1998 for a sum of UAH 500,000.
The aforementioned sum was deposited by Mr Koval's wife Ms L.M. Koval on 23 and 26 June 1998 in the account of the General Prosecution Service.
Mr Koval was informed about his bail obligations and the consequences of his failure to comply with them, and Ms L.M. Koval was informed about the offences that Mr Koval had been charged with, and about the possible forfeiture of the bail in the event of his failure to comply with these obligations. One of the obligations imposed on Mr Koval related to appropriate conduct.
In accordance with the decision of 20 October 1998 by the investigator from the General Prosecution Service, the preventive measure of bail chosen in respect of Mr Koval was changed to detention. One of the reasons for this [change] was that he had seriously breached his obligations regarding appropriate conduct, and in particular that he had coerced witness into making false statements, thus interfering with the establishment of the truth in the case.
In accordance with Article 154-1 of the Code of Criminal Procedure, if a suspect, accused or defendant infringes his obligations, bail is forfeited in favour of the State.
The fact that Mr Koval breached his bail obligations concerning appropriate conduct by coercing Mr Bogomolov into giving false evidence has been proved by the witness statements of Mr Bogomolov and Ms Tyshchenko, as the Presidium of the Kyiv City Court found in its decision of 30 November 1998.
Accordingly, the investigative bodies changed the preventive measure applied to the applicant on lawful grounds.
The submissions to the effect that that decision was unlawful and that the decision of the Presidium of the City Court was unsubstantiated are invalid as it can be seen from the case file that Mr Koval had tried to influence witnesses to give false evidence.
The reference to the investigator's decision to refuse, on the basis of paragraph 2 of Article 6 and Article 130 of the Code of Criminal Procedure, to institute criminal proceedings against Mr Koval under Article 180 of the Criminal Code of Ukraine is not substantiated as the refusal to institute criminal proceedings was based on allegations of coercing Mr Bogomolov and Ms Tyshchenko into giving false witness statements. At the same time, the decision in question mentions that Mr Koval attempted to coerce witnesses into giving false statements.
The submissions in the appeal to the effect that Ms L.M. Koval was not examined by the court as a surety, in breach of the law, is unsubstantiated, since in accordance with Article 154-1, paragraph 6, of the Code of Criminal Procedure, the non-appearance of a surety in court without good reasons does not constitute an obstacle to reviewing the issue of the forfeiture of bail ...
As can been seen from the case file, neither the defendant nor his lawyers requested Ms L.M. Koval, as surety, to produce witness statements before the court.
Under these circumstances there are no grounds for holding that there has been a violation of the law on account of the decision to confiscate bail [in favour of the State].
[The court accordingly] RULES
[that] ... Mr Koval shall be regarded as having been sentenced for the offences provided for in paragraph 6 of Article 19, Article 80 § 2, Article 165 § 1, Article 165 § 2, Article 172 § 1 and Article 172 of the Criminal Code of 12 January 1983 to five years and six months' imprisonment ... in addition, all of his personal property shall be confiscated, he shall be disqualified from occupying posts relating to managerial functions in government bodies for a period of three years and shall be stripped of the rank of Ambassador Extraordinary and Plenipotentiary, second class.”
3. The applicant's requests for supervisory review of the forfeiture of bail
C. The applicant's medical treatment and assistance
1. The state of the applicant's health before his detention on 30 November 1998
2. The applicant's medical examinations and treatment from 30 November 1998 to 8 June 2000
45. The Government provided no evidence of the applicant's treatment or the medical assistance provided to him from 22 November 1998 to 13 March 1999. Between 10 October 1998 and 19 July 1999 the applicant was visited ten times by doctors from the SIZO SBU. These included two visits by a dentist and a surgeon. On 5 and 12 March 1998 the applicant refused to take cognisance of an indictment and the case file because of his poor health. On 13 (twice), 15, 17 and 18 March, 5 and 22 April, 27 May, 1, 2, 4, 5, 9 and 16 June and 8, 9, 11, 13, 16 (twice) and 18 July 1999 the applicant was examined by doctors from the Ambulance Service and from the SIZO SBU.
3. Third forensic medical examination of the applicant's state of health
4. Conditions of the applicant's detention
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Criminal Code of Ukraine, 1960 (in force at the material time)
Interference with a witness
“It shall be an offence punishable by up to 4 years' imprisonment or by compulsory labour in a penitentiary for a term of up to 2 years to interfere with the appearance of a witness... before a court or the bodies responsible for the preliminary investigation or inquiry; to exert unlawful pressure on a witness in order to force him or her to refuse to testify or produce evidence, or to give false evidence under threat of murder, violence, destruction of the witness's property or that of his or her close relatives, or disclosure of information defaming the witness; to bribe a witness, ... with the same purpose; or to threaten to carry out the above-mentioned actions in revenge for evidence produced previously.”
B. The Code of Criminal Procedure of Ukraine, 1960
Purpose and grounds for the application of preventive measures
“Preventive measures shall be imposed on a suspect, accused, defendant or convicted person in order to prevent him or her from attempting to abscond from an inquiry, investigation or the court, to obstruct the establishment of the truth in a criminal case or to pursue criminal activities, and in order to ensure the enforcement of procedural decisions.
Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect, accused, defendant or convicted person will attempt to abscond from investigation and the court, or if he or she fails to comply with procedural decisions, or obstructs the establishment of the truth in the case or pursues criminal activities.
If there are insufficient grounds for the imposition of preventive measures, the suspect, accused or convicted person shall sign a written statement undertaking to appear upon notification by the inquirer, investigator, prosecutor or the court, and shall also undertake to notify them of any change in his place of residence.
If a preventive measure is applicable to a suspect, he or she shall be charged within ten days from the time of imposition of the measure. In the event that the indictment is not issued within that time, the preventive measure shall be annulled.”
“The preventive measures are as follows:
(1) a written undertaking not to abscond;
(2) a personal surety;
(3) a surety provided by a public organisation or labour collective;
(4) remand in custody;
(5) supervision by the command of a military unit.
As a temporary preventive measure, a suspect may be detained on the grounds and pursuant to the procedure provided for by Articles 106, 115 and 165-2 of this Code.”
Circumstances to be taken into account in choosing a preventive measure
“In resolving the issue of imposing a preventive measure, in addition to the circumstances specified in Article 148 of this Code, such circumstances as the gravity of the alleged offence, the person's age, state of health, family and financial status, type of employment, place of residence and any other circumstances relating to the person shall be taken into consideration.”
“Bail consists in the deposit, by the suspect, accused, defendant or any other natural or legal persons, of money or other assets with the body responsible for the preliminary investigation or with a court for the purpose of ensuring the proper conduct of the person with respect to whom the preventive measure has been applied, his or her fulfilment of the undertaking not to leave his or her place of permanent or temporary residence without the permission of the investigator or the court, and his or her appearance upon a summons before the investigative body or the court.
The amount of bail shall be determined taking into account the circumstances of the case by the body that applies the preventive measure. It cannot be less than: one thousand times the citizen's tax-exempt minimum income with regard to a person who is accused of committing a serious crime punishable by deprivation of liberty for a term of more than 10 years; 500 times the citizen's tax-exempt minimum income with regard to a person accused of committing another serious crime or a person with a previous conviction; and 50 times the citizen's tax-exempt minimum income with regard to any other persons. In all cases the amount of bail shall not be less than the amount of the civil claim, substantiated by sufficient evidence.
On the payment of bail, the suspect, accused or defendant shall be apprised of his or her obligations and the consequences of their non-fulfilment, and the person who stands surety shall be apprised of the offence of which the person in respect of whom bail is applied is suspected or accused, and informed that, in the event that this person fails to fulfil these obligations, the bail will be forfeited in favour of the State.
Before the case has been referred to the court, a preventive measure in the form of bail may be imposed on a person who is held in custody only with the permission of the prosecutor who authorised the detention and, after the case has been referred to the court, such a measure may be imposed only by the court.
The person who stands surety may refuse to perform the obligations entered into prior to the emergence of the circumstances requiring the forfeiture of the bail in favour of the State. In this case he or she shall ensure the appearance of the suspect, accused or defendant before the investigative body or the court with a view to having the preventive measure imposed on him or her replaced by a different one. Bail shall be returned only after a new preventive measure has been chosen.
In the event that a suspect, accused or defendant breaches his or her obligations, bail shall be forfeited in favour of the State. The issue of forfeiture of bail to the State shall be determined by the court at a hearing during the consideration of the case or in separate proceedings. The surety shall be summoned to the court in order to give explanations. Failure of that person to appear before the court for a hearing without good reason shall not obstruct the examination of the issue of the forfeiture of bail in favour of the State.
The issue of returning the bail to the surety shall be resolved by the court during the trial of the case. Bail deposited by the suspect, accused or defendant may be withheld by the court for the purpose of executing the judgment in the form of compensation for damage.” (As amended by Article 154-1, in accordance with the Law of 20 November 1996, р. N 530/96-ВР)
Order (ruling) on the application, annulment or
a preventive measure
“With regard to the application, annulment or modification of a preventive measure, the investigative body, investigator, prosecutor or judge shall make an order, and the court shall give a ruling.”
Procedure for the selection of a preventive measure
“At the stage of the pre-trial investigation, a non-custodial preventive measure shall be selected by the investigative body, investigator or prosecutor.
In the event that the investigative body or investigator considers that there are grounds for selecting a custodial preventive measure, with the prosecutor's consent he shall lodge an application with the court. The prosecutor is entitled to lodge an application to the same effect. In determining this issue, the prosecutor shall be obliged to familiarise himself with all the material evidence in the case that would justify placing the person in custody, and to verify that the evidence was received in a lawful manner and is sufficient for charging the person.
The application shall be considered within seventy-two hours of the time at which the suspect or accused is detained.
In the event that the application concerns the detention of a person who is currently not deprived of his liberty, the judge shall be entitled, by means of an order, to give permission for the suspect to be detained and brought before the court under guard. Detention in such cases may not exceed seventy-two hours; and in the event that the person is outside the locality where the court is situated, it may not exceed forty-eight hours from the moment at which the detainee is brought within the locality.
Upon receiving the application, the judge shall examine the material in the criminal case file submitted by the investigative bodies or investigator. A prosecutor shall question the suspect or accused and, if necessary, shall hear evidence from the person who is the subject of the proceedings, shall obtain the opinion of the previous prosecutor or defence counsel, if the latter appeared before the court, and shall make an order:
(1) refusing to select the preventive measure if there are no grounds for doing so;
(2) selecting a preventive measure in the form of taking of a suspect or accused into custody.
The court shall be entitled to select for the suspect or accused a non-custodial preventive measure if the investigator or prosecutor refuses to select a custodial preventive measure for him or her.
The judge's order may be appealed against to the court of appeal by the prosecutor, suspect, accused or his or her defence counsel or legal representative, within three days from the date on which it was made. The lodging of an appeal shall not suspend the execution of the judge's order.”
C. Resolution No. 6 of the Plenary Supreme Court of 26 March 1999 “on the practice of applying bail as a preventive measure”
“... 2. Judging from the content of Article 154-1 of the Code of Criminal Procedure, a decision concerning bail, or a refusal to apply such a measure, falls entirely within the jurisdiction of the person or body responsible for the proceedings in the case at the relevant time. The court shall consider the application for bail, taking into consideration the relevant reasoning [of the parties] in each individual case, and taking into account the nature and the gravity of the crime committed, information about the accused person and the other circumstances of the case; it [the court] can apply bail instead of detention only if there are reasonable grounds for considering that bail would ensure the appropriate conduct of the person concerned and his or her compliance with procedural obligations, as well as the enforcement of a judgment...
9. ...In determining the amount of bail, the courts shall take into account the specific circumstances of the case and the personality of the accused/suspect (in particular, his or her family and financial status).
12. In accordance with paragraph 6 of Article 154-1 of the Code of Criminal Procedure, a breach by the suspect, accused or convicted person of his or her bail obligations shall lead to the forfeiture of the bail. [Forfeiture] shall be decided upon at the trial stage of the proceedings (substantiated by the judgment, and, before its delivery, by an order or ruling of the court), or in the course of separate judicial proceedings.”
D. International law reports on the conditions of detention in pre-trial detention facilities in Ukraine
62. The relevant extracts from the reports are cited in the judgment of Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 60-61 and 66, ECHR 2005 II).
I. PRELIMINARY CONSIDERATIONS
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties' submissions as to the conditions of detention
1. The applicant's submissions
2. The Government's submissions
B. The parties' submissions as to the lack of medical treatment and assistance
1. The applicant's submissions
2. The Government's submissions
C. The Court's assessment
1. Applicable case-law
2. Complaints about the conditions of the applicant's detention
3. Complaints about the lack of medical treatment and assistance
4. Conclusions of the Court
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. The parties' submissions
1. The Government's submissions
2. The applicant's submissions
B. The Court's assessment
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”
A. The Government's preliminary objections
B. The parties' submissions as to the merits
1. The Government's submissions
2. The applicant's submissions
C. The Court's assessment
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Alleged pecuniary damage in relation to the alleged violation of Article 6 § 1 of the Convention (in respect of the forfeiture of bail)
B. Damage sustained as a result of violations of Articles 3 and 13 of the Convention
1. Pecuniary damage
(a) a total sum of USD 2,269 (EUR 1,857.10) in respect of expenses incurred in supplying him with additional food, as his wife had allegedly supplied him with 32 food parcels;
(b) UAH 1,750 (EUR 1,432.31) for the additional sums of money given to him by his wife to buy additional food and personal-hygiene items, which were not available at the penitentiary for free;
(c) USD 1,482 (EUR 1,212.96) for the costs incurred by his wife in acquiring the necessary medicines;
(d) an approximate amount of USD 16,200 (EUR 13,259.10) in loss of earnings, as he was now unable to carry out work requiring concentration or entailing nervous tension. The applicant alleged that he could have earned between UAH 2,500 and UAH 5,000 (about EUR 500 to EUR 1,000) a month, having regard to his experience and education.
2. Non-pecuniary damage
C. Costs and expenses
(a) sums of USD 6,672 (EUR 5,460.80) and USD 20,000 (EUR 16,369.30) for fees accumulated by Mr Portyanik during 16 months of acting on behalf of the applicant (from 30 November 1998 to 8 June 2000), substantiated by a “record of services rendered” of 30 April 2001;
(b) a sum of USD 1,100 (EUR 900.31) for the fees charged by Mr Yatsyuk during a period of 11 months from 30 November 1998 to June 1999, substantiated by five bills issued on behalf of the Presidium of the Kyiv City Council of Advocates on 5 March, 6 and 9 September and 7 and 30 October 1999 for a total amount of UAH 2,500 (EUR 523.33);
(c) a sum of USD 900 (EUR 736.62) for the fees charged by Mr Grytsyak, who had acted on behalf of the applicant for a period of nine months, substantiated by an agreement between the applicant's wife and Mr Grytsyak on the applicant's legal representation and a certificate signed by Mr Grytsyak, stating that he had received USD 2,000 (EUR 1,636.93) in fees from the applicant in the period from 9 September 1999 to April 2001;
(d) a sum of EUR 18,000 for the fees of Mr Dunikowski, a French lawyer who had represented the applicant in the proceedings before the Court (this fee included EUR 15,000 payable after the Court's final judgment in the case);
(e) a sum of GBP 13,000 (EUR 19,502.00) allegedly charged by Ms Vakulenko, who had provided advice to the applicant since February 2003 (this fee was payable in full after the Court's final judgment in the case), substantiated by an agreement signed by the applicant with Ms Vakulenko;
(f) a sum of USD 528 (EUR 432.15) in translation expenses allegedly paid by the applicant to Mr Shevchenko, substantiated by an agreement of 3 April 2004 and a certificate of 20 May 2004.
D. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the national currency at the rate applicable at the date of settlement:
(i) EUR 1,000 (one thousand euros) in respect of pecuniary damage;
(ii) EUR 4,000 (four thousand euros) in respect of non-pecuniary damage;
(iii) EUR 1,000 (one thousand euros) in respect of costs and expenses;
(iv) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 19 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Nielsen Christos Rozakis
11. The applicant claimed that at the time of the deposit, UAH 500,000 amounted to approximately 250,000 United States dollars (USD – about 196,900 euros (EUR)).
11. The new Criminal Code of Ukraine of 5 April 2001 entered into force on 1 September 2001.
22. The applicant claimed that UAH 500,000 amounted to USD 250,000.
11. About EUR 2.
22. About EUR 0.15.
33. About EUR 0.06.
44. About EUR 0.01.
11. About EUR 2.
22. About EUR 0.15.
33. About EUR 0.06.
44. About EUR 0.01.