European Court of Human Rights

Information Note on the Court’s case-law No. 183

March 2015

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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