CASE OF KORNIYCHUK v. UKRAINE
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)
Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani
5. The applicant was born in 1966 and lives in Kyiv. 6. Prior to the events in question, he had been actively involved in Ukrainian politics. From 25 May 2006 to 15 June 2007 and from 23 November 2007 to 23 May 2008 he was a Member of Parliament and from 26 December 2007 to 24 March 2010 he was First Deputy Minister of Justice. His father-in-law was President of the Supreme Court of Ukraine from 2006 to 2011. 7. Between November 2005 and June 2006 and then between June and March 2008 the applicant was one of the equity partners of the law firm Magisters & Partners Ltd (subsequently renamed Magisters Ltd). 8. In December 2008 the State-owned joint-stock company Naftogaz Ukrayiny (hereinafter referred to as “Naftogaz”), which was involved in several serious disputes before the Arbitration Institute of the Stockholm Chamber of Commerce, decided to extend the legal services agreement which it had concluded with Magisters Ltd in 2002 and which was about to expire. 9. On 23 February 2009 the applicant, acting in his capacity as First Deputy Minister of Justice, sent a letter to Naftogaz, at the latter’s request, informing it of the existence of exceptional conditions, as provided under domestic law, for purchasing legal services from Magisters Ltd without inviting bids from other law firms. It was noted that Magisters Ltd had been providing Naftogaz with legal services for a long time, including in the proceedings before the Stockholm Chamber of Commerce. Accordingly, changing the legal services’ provider would be costly and unjustified. 10. The applicant’s letter, which was subsequently submitted to the Economy Ministry, provided the basis for Naftogaz to contract further legal services from Magisters Ltd without pursuing a bidding procedure. 11. On 24 June 2009 the Prosecutor General’s Office (“the PGO”) opened a criminal case under Article 366 § 2 of the Criminal Code (“the CC”; see paragraph 40 below) in respect of alleged forgery of the letter of 23 February 2009 by unspecified officials at the Ministry of Justice. On 14 September 2009 the Kyiv Pecherskyy District Court (“the Pecherskyy Court”) quashed the above ruling after a complaint by the applicant. On 21 October 2009 and 15 July 2010 the Kyiv City Court of Appeal (“the Court of Appeal”) and the Supreme Court, respectively, upheld the first-instance court’s decision. 12. On 1 July 2009 the PGO opened another criminal case in respect of the same facts, this time under Article 364 § 2 of the CC (see paragraph 38 below) on suspicion of abuse of office with grave consequences by unspecified Ministry of Justice officials. On 28 December 2009 the Pecherskyy Court quashed that ruling. Its decision was upheld by the appellate court on 10 February 2010. It appears that it was not challenged on points of law. 13. On 5 August 2010 the PGO faxed the applicant “an invitation” to go to its offices at 10 a.m. the following day for questioning about “possible abuse of office and forgery by officials of the Ministry of Justice”. 14. On 6 August 2010 the PGO re-sent the “invitation” to the applicant. This time his questioning was expected at 9.30 a.m. on 9 August 2010. However, he did not appear before the prosecutor. 15. On 20 December 2010 the PGO instructed the Kyiv city police to establish the applicant’s whereabouts and to hand him a summons for questioning at 10 a.m. on 22 December 2010. The letter noted that the applicant had not been present at his address as established by the investigation. 16. Also on 20 December 2010 the PGO enquired with the State Border Service regarding the applicant’s trips abroad in 2009 and 2010. According to the information it received on 21 December 2010, the applicant had left Ukraine more than thirty times during the period in question. 17. On 21 December 2010 an official of the Kyiv city police wrote to the PGO that its information about the applicant’s address was outdated (he had sold the flat in 2003 and had not lived there since). 18. On 22 December 2010 the PGO enquired with the Kyiv city and regional address bureau about the applicant’s registered address and received a reply on 23 December 2010 that he lived in Yagotyn in the Kyiv region. 19. On 22 December 2010 the PGO instituted criminal proceedings against the applicant under Article 365 § 3 of the CC (exceeding of powers by an official leading to grave consequences – see paragraph 39 below). In describing the applicant’s actus reus, the prosecutor found that he had bypassed the registry of the Ministry of Justice when accepting the request from Naftogaz and issuing his letter in reply; that his conclusion about the existence of exceptional conditions for Naftogaz not to pursue a bidding procedure had been in contradiction with the applicable legal provisions; and that he had had no right to put that conclusion on official Ministry of Justice paper. The subsequent extension by Naftogaz of its contract with Magisters Ltd had caused considerable losses to the State budget. 20. Later that day the investigator called the applicant by telephone to summon him for questioning. At the time, he was in hospital with his wife, who was giving birth to their third child. 21. In the afternoon of 22 December 2010, the applicant appeared before the investigator and after being questioned was arrested at 4.50 p.m. under Articles 106 and 115 of the Code of Criminal Procedure (“the CCP”; see paragraph 41 below). According to the official report, the applicant had been arrested on the grounds that “eyewitnesses, including victims, directly identified [him] as the one who had committed the offence”. His arrest was justified by the necessity to prevent him evading justice or from obstructing the establishment of the truth, and to ensure the execution of an eventual court judgment. The arrest report had the following description of the facts giving rise to the prosecution: “... during the period from 5 to 27 February 2009 [the applicant], exceeding his official powers, issued an expert conclusion with knowingly false information, as a result of which considerable damage, amounting to 1,697,600 [Ukrainian] hryvnias [equal to about 152,000 euros at the time] was caused to [Naftogaz]. In other words, he is suspected of committing a criminal offence under Article 365 § 3 of the [CC].” 22. The procedural rights of arrestees were also listed. The applicant signed it with a remark that he considered his arrest as unlawful given that he had complied with the investigator’s summons in accordance with the CCP and that there was no risk of him hindering the establishment of the truth as he was no longer a civil servant. 23. On 23 December 2010 the applicant was officially charged under Article 365 § 3 of the CC. 24. On 24 December 2010 the applicant challenged his arrest before a court. He claimed that the investigator had failed to refer to any factual circumstances to justify his arrest under Articles 106 and 115 of the CCP. The applicant contended that he had appeared before the investigator upon the latter’s first summons, despite the fact that on that day his wife had been in hospital giving birth. That indicated, in his opinion, that he had had no intention of absconding or hindering the investigation. 25. Also on 24 December 2010 the investigator applied to the court for the applicant to be held in pre-trial detention. The necessity of that preventive measure was explained as follows: “Having regard to [the applicant’s] role in the commission of the offence and his causing serious damage to State interests, his age, state of health, family and financial situation, and other circumstances characterising him, the investigation has grounds to believe that [the applicant] will try to influence the witnesses in this case given his extensive networks in law-enforcement bodies and among judicial authorities. Furthermore, the case file contains sufficient evidence showing that [the applicant] avoided appearing before the investigation authorities, that he travels abroad regularly and that he is absent from his registered address. That being so, if at liberty, he will abscond or hinder the investigation and the implementation of procedural decisions. Therefore, the application of any other preventive measure in respect of the accused ... will not be able to ensure his proper procedural conduct and the fulfilment of procedural decisions...” 26. On the same day the Pecherskyy Court found that the case file did not contain sufficient information about the applicant in order to take a decision on the investigator’s application. In particular, the file did not contain sufficient information about the applicant’s health, family and financial situation or his occupation. The court therefore extended the applicant’s preliminary detention to ten days as a temporary preventive measure. The decision was not subject to appeal. 27. On 30 December 2010 the Pecherskyy Court allowed the investigator’s application (see paragraph 25 above) as well-founded and ordered the applicant’s pre-trial detention. The court further held that that finding rendered it unnecessary to examine alternative preventive measures. It rejected the applicant’s complaint about his arrest as unsubstantiated. 28. On 2 January 2011 the applicant appealed. He reiterated his earlier arguments on the alleged unlawfulness of his arrest by the investigator (see paragraph 24 above). Furthermore, he complained that the Pecherskyy Court had failed to justify the application of what was the most intrusive preventive measure available in his case. He argued that the court had not taken into account the fact that he was the sole breadwinner for his three children and his wife and that their newborn child was still in hospital. Positive character references and his requests for a non-custodial preventive measure had also been disregarded. 29. On 4 January 2011 the President of the Ukrainian Bar Association applied to the Court of Appeal, offering his personal surety for the applicant’s release. In the alternative, he indicated that he was ready to pay bail for the applicant. 30. On 13 January 2011 the Court of Appeal rejected the applicant’s appeal and upheld the findings and reasoning of the Pecherskyy Court’s decision of 30 December 2010. There was no reference in the ruling to the application by the Bar Association President. 31. On 31 January 2011 the applicant was additionally charged with forging an official document under Article 366 § 2 of the CC (see paragraph 40 below). 32. On the same day the pre-trial investigation was declared completed and the applicant was given access to the case file. 33. On 10 February 2011 the Pecherskyy Court extended the applicant’s pre-trial detention to three months, finding that there were no grounds to change the preliminary measure to a more lenient one. 34. On 15 February 2011 the investigator released the applicant under an undertaking not to abscond. The change of preventive measure was explained by the fact that the applicant could no longer influence witnesses or impede the investigation. The investigator also made a general reference to the applicant’s age, state of health, family and financial situation, as well as the fact that he had children to care for, permanent employment and positive character references. 35. As known from public available material, some media outlets linked the applicant’s release to a private meeting between his father-in-law as the President of the Supreme Court and the President of Ukraine a day earlier, on 14 February 2011. The applicant publicly denied those rumours. 36. The parties did not inform the Court of any further developments in the criminal proceedings against the applicant. Publicly available material shows that he was amnestied in December 2011.