CASE OF MIKHANIV v. UKRAINE
Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
7. The applicant was born in 1966 and lives in Kyiv. 8. The applicant is a former vice-president of the Khlib Ukrainy Company (ДАК Хліб України), a State-owned company trading in grain. 9. On 11 January 2000 the General Prosecutor’s Office (the “GPO”) opened a criminal investigation in respect of the applicant and another employee of Khlib Ukrainy on charges of aggravated embezzlement of public funds by means of fraudulent transactions for the amount of approximately 44,000 euros (EUR) via the private company Ukrzovnishtorg (“the Ukrzovnishtorg case”). The applicant was also accused of producing a copy of a forged university degree certificate when applying in 1996 for a position in the civil service. 10. The applicant was arrested on 17 January 2000. 11. On 19 January 2000 the investigator appointed to deal with his case formally charged the applicant with aggravated embezzlement of public funds and forgery. 12. On 20 January 2000 the Deputy Prosecutor General ordered the applicant’s detention on remand for two months on the grounds that the charges were serious and that the applicant might abscond and pervert the course of justice. The applicant appealed against his detention to the Pechersky District Court of Kyiv (“the Pechersky Court”). 13. On 14 March 2000 the GPO extended the applicant’s detention to five months. 14. On 15 March 2000 the GPO opened two more criminal cases against the applicant for aggravated embezzlement of public funds by means of fraudulent transactions via the Internova Trading Company and the Anmikh-Rossiya Company (respectively “the Internova case” and “the Anmikh case”). These cases were joined to the Ukrzovnishtorg case. 15. On 27 March 2000 the Pechersky Court, on the applicant’s appeal, revoked the detention order of 20 January 2000. The court found that there was no evidence that the applicant would abscond or pervert the course of justice if released. In particular, the applicant had his permanent residence in Ukraine and financially supported his wife and a child living in Kyiv. He had never failed to respond to a summons or attempted to obstruct the investigation. Moreover, the court found that, when ordering the applicant’s detention, the prosecution had not taken into account the fact that the applicant suffered from a number of serious illnesses. 16. On the same day, without releasing him from the Kyiv SIZO, the investigator placed him under arrest again, this time on suspicion of involvement in the Internova case. The Deputy General Prosecutor, on that same date, ordered the applicant’s detention on remand for a period of two months on the ground that he was suspected of a serious offence and that he might abscond or pervert the course of justice. 17. On 28 March 2000 the applicant was officially charged with embezzlement of public funds in the Internova case. 18. On 30 March 2000 the Deputy Prosecutor General lodged a request for supervisory review (protest) with the Kyiv City Court against the Pechersky Court’s decision of 27 March 2000. 19. On 10 April 2000 the Presidium of the Kyiv City Court quashed the Pechersky Court’s decision of 27 March 2000 and upheld the detention order of 20 January 2000. It found that the applicant’s wife and two children lived in Estonia. In Ukraine the applicant lived with his partner and their son in Kyiv whilst being registered in Dnipropetrovs’k. He had two registered addresses (in Ukraine and Estonia), three international passports (one Russian and two Ukrainian: ordinary and official) and had an account with an Estonian bank, and was therefore likely to abscond if released. Moreover, the Kyiv City Court held that the first-instance court had overlooked the fact that the applicant in his appeal had requested the “replacement of the preventive measure” rather than the “annulment of the detention order” and, therefore, this appeal fell outside the scope of judicial review at the investigation stage. 20. On 29 May and 29 August 2000 the GPO prolonged the applicant’s pre-trial detention respectively to eight months and eleven months. 21. On 27 October 2000 the investigator, with a view to preventing any communication between the applicant and his co-accused, ordered the applicant’s transfer from the Kyiv SIZO to the Zhytomyr Regional Pre-trial Detention Centre no. 8 (Житомирський обласний слідчий ізолятор № 8“the Zhytomyr SIZO”) for the period from 30 October to 30 November 2000. 22. The applicant was transferred to the Zhytomyr SIZO on 1 November 2000. 23. On 27 November 2000 the GPO prolonged the applicant’s detention to twelve months. 24. On 14 December 2000 the investigator ordered the applicant’s transfer back to the Kyiv SIZO. 25. Meanwhile, on an undetermined date in December 2000, the applicant’s lawyer appealed against the prosecutor’s detention orders of 20 January 2000 and 27 March 2000. 26. On 27 December 2000 the appeal was examined by the Pechersky Court in the presence of the prosecutor and the applicant’s lawyer. The court held that, although the domestic law allowed the detention of a defendant charged with aggravated embezzlement of public funds on the sole basis of the gravity of the charges, the other grounds provided for by the law should also be taken into account. The Pechersky Court found, in particular, that there was no compelling evidence that if released the applicant would abscond or pervert the course of justice. The applicant had permanent residence in Ukraine and could not lawfully leave it since his international passport had expired. The applicant lived with his wife and two children in Ukraine. He also financially supported his father and mother-in-law, who lived in Ukraine. Moreover, the applicant suffered from serious health problems. The Pechersky Court considered the medical experts’ report produced by the prosecution, to the effect that the applicant was fit for detention in the remand facilities, unreliable in the light of the fact that during his detention in the Zhytomyr SIZO the applicant had not been administered any of the drugs prescribed for him. On the basis of the above findings the Pechersky Court quashed the detention orders of 20 January 2000 and 27 March 2000. On the same day the Deputy Prosecutor General lodged a request for supervisory review against this decision. 27. On 28 December 2000 the applicant, while still detained in the Kyiv SIZO, was arrested by the investigator on suspicion of involvement in the Anmikh case. On the same day the applicant was officially charged with the said offence. 28. On 5 January 2001 the GPO extended the applicant’s pre-trial detention to fifteen months. 29. On 15 January 2001 the Presidium of the Kyiv City Court, following the prosecution’s request for supervisory review, quashed the Pechersky Court’s decision of 27 December 2000, citing essentially the same arguments as in its decision of 10 April 2000. The court also stated that there was no reason why the applicant could not be detained on the sole basis of the gravity of the charges, as provided for by Article 155 of the CCP. 30. On 5 April 2001 the GPO extended the applicant’s detention up to eighteen months. 31. On 31 May 2001 the GPO instituted another criminal case against the applicant and Mr L. respectively for giving and taking bribes. This case was joined to the criminal case against the applicant. 32. On 18 June 2001 the applicant and his lawyer were granted access to the 120-volume case file. The applicant, however, refused to study the case file, alleging that the relevant formalities had not been completed. On the same day the investigator rejected this complaint as unsubstantiated. 33. On 16 July 2001 the prosecution lodged the bill of indictment with the Kyiv City Court of Appeal (the former Kyiv City Court). 34. On an unknown date the applicant requested and was granted access to the case file, a right which he and his lawyer exercised from 20 July to 26 September 2001. 35. On an unknown date in September 2001 the Kyiv City Court of Appeal referred the applicant’s case file to the Radyansky District Court of Kyiv for examination. 36. On 11 October 2001 the Deputy Prosecutor General decided that only the Ukrzovnishtorg case was ready for trial and withdrew the remainder of the charges because they required further pre-trial investigation. 37. On 12 October 2001 an amended bill of indictment was lodged with the Svyatoshynsky District Court (“the Svyatoshynsky Court”). 38. On 1 November 2001 a preparatory hearing was held before a judge of the Svyatoshynsky Court. The judge considered that the case was ready for trial and decided that the applicant was to remain in detention on remand. The applicant’s request for release was rejected on the ground that, although he had already spent a total of 21 months in detention, the period of his detention during the investigation had not exceeded 18 months and thus was in compliance with Article 156 of the CCP. The judge considered that the applicant’s transfer to the Zhytomyr SIZO was necessary for the proper conduct of the investigation and that there was no indication of ill-treatment. He concluded that there were no medical or other special circumstances warranting the applicant’s release. 39. The proceedings before the trial court started on 26 November 2001. 40. At a hearing on 18 January 2002 the Svyatoshynsky Court dismissed the applicant’s request for release, stating that there were no new circumstances warranting a re-evaluation of the preventive measure imposed. The court also granted the prosecution’s motion to adjourn the hearing until 1 February 2002 to allow the new prosecutor to familiarise himself with the case file. 41. On 1 February 2002 the Svyatoshynsky Court of its own motion decided that further pre-trial investigation was necessary. The court also ordered the applicant’s release on an undertaking not to abscond. 42. On 2 February 2002 the applicant tried to leave Ukraine for Russia by train but was stopped on the border and sent back to Kyiv. 43. On an unspecified date the prosecution appealed against the remittal of the case for further investigation, considering that it was ready for examination on the merits. The applicant also challenged the remittal, stating that it was motivated by the court’s reluctance to acquit him. On 18 April 2002 the Kyiv City Court of Appeal granted the appeals, quashed the decision of 1 February 2002 and ordered that the trial proceedings in the applicant’s case be resumed. 44. The hearings before the Svyatoshynsky Court resumed on 30 April 2002. On 14 August 2002 the trial court ordered that by 19 September 2002 the GPO was to carry out additional enquiries in order to collect further evidence. However, it was not until 24 December 2002 that the authorities produced the requested evidence in court and the trial could resume. 45. On 11 February 2003 the Svyatoshynsky Court acquitted the applicant of the charges brought against him. The prosecution appealed. On 28 June 2003 the Kyiv City Court of Appeal upheld the applicant’s acquittal. 46. On 13 July 2004 the Supreme Court, following the appeal of the GPO, reversed the decisions of the lower courts and remitted the case for further investigation. 47. The case file was received by the GPO on an unknown date in October 2004. On 28 October 2004 the investigator amended the applicant’s charges in accordance with the new 2001 Criminal Code. On the same day the applicant was summoned to give evidence but failed to appear. Since then, according to the Government’s submissions, the GPO has carried out a number of forensic examinations, questioned witnesses and seized documentary evidence. Further documents have been requested and received from Swiss authorities. 48. On an unknown date the applicant made use of the recent amendments to the CCP by challenging the initial decision of the GPO of 11 January 2000 to institute criminal proceedings against him. On 24 November 2005 the Pechersky Court allowed this application and revoked the impugned decision. The prosecution appealed. 49. On 2 February 2006 the Kyiv City Court of Appeal reversed the Pechersky Court’s decision and rejected the applicant’s application. 50. On 29 March and 22 June 2007 the applicant requested the investigator for termination of the criminal proceedings as time-barred. In reply the investigator informed the applicant that his requests would be examined and the decision would be adopted in accordance with the relevant law. 51. On 13 May 2008 the applicant was charged with abuse of power and forgery and ordered not to leave his place of residence. 52. The investigation in the applicant’s case is still pending. 53. On 18 July 2001 the applicant’s lawyer, referring to Article 29 § 1 of the Constitution, filed an administrative complaint about the inactivity of the administration of the Kyiv SIZO, namely for their failure to release the applicant after 17 July 2001, when the overall term of his detention had reached eighteen months. On 20 August 2001 the Shevchenkivsky District Court of Kyiv refused to entertain this complaint on the ground that the lawyer’s authority to act issued by the applicant was limited to the criminal proceedings before the Kyiv Court of Appeal. This decision was not appealed against by the applicant. 54. The applicant’s similar administrative complaint against the GPO was declared inadmissible on 26 October 2001 by the Pechersky Court on the ground that such complaints fell to be examined in the criminal proceedings which at that time were pending before the Radyansky Court. 55. After the applicant’s arrest in January 2000 his health started to deteriorate. According to the Pechersky Court’s decision of 27 March 2000 the applicant started to receive medical treatment in the Kyiv SIZO for his illnesses as early as March 2000. 56. On 15 June 2000, in response to the applicant’s numerous requests, the investigator dealing with his case ordered that a forensic medical report on the applicant’s state of health be obtained. In its report no. 83 of 16 June 2000, a commission of the Kyiv City Bureau of Forensic Medical Examinations (Київське міське бюро судово-медичних експертиз) stated that the applicant suffered from a post-traumatic encephalopathy, duodenal ulcer with reflux and heart pathology. The applicant was prescribed a diet and heart drugs. In conclusion the experts suggested that the applicant’s encephalopathy be examined in a specialised neurological institution. 57. On 29 August 2000 an expert commission of the Kyiv City Centre of Forensic Psychiatric Examinations (Київський центр судово-психіатричних експертиз), with the participation of a neuropathologist from the district hospital, drew up a forensic report (no. 957) at the request of the investigator. The commission found that the applicant suffered from post-traumatic encephalopathy (after a head injury suffered at the age of fifteen). According to the applicant this disease caused him severe headaches and hand tremor. The applicant was prescribed the relevant drugs. He was found fit for detention on remand subject to the prescribed treatment. 58. On 1 November 2000 the applicant was transferred to the Zhytomyr SIZO. 59. On 20 December 2000 the applicant’s lawyer asked the Governor of the Zhytomyr SIZO whether they had provided the applicant with the medicines prescribed for him. 60. On 25 December 2000 the Governor of the Zhytomyr SIZO issued a letter, stating that on his admission the applicant had been examined by the prison doctors, who had diagnosed him as suffering from encephalopathy. Subsequently he had been examined by the cardiologist who confirmed the above heart pathology diagnosis of the Kyiv experts. The Governor stated that, although the content of the above medical experts’ reports had been made known to the prison authorities, the drugs prescribed in those reports were not in the possession of the Zhytomyr SIZO and thus could not be administered to the applicant. 61. On 11 January 2001, after the applicant’s transfer from the Kyiv ITU, he was examined by a doctor from the medical department of the Kyiv SIZO, who found that he suffered from headaches, heart and stomach pains. The applicant was prescribed fifteen drugs, including those specified in the experts’ reports. 62. The relevant domestic law is summarised in the judgment of Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 53-56, ECHR 2005II).