CASE OF GAL 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 5-3 - Brought promptly before judge or other officer);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano
4. The applicant was born in 1961 and lives in Poltava. 5. The applicant is a private entrepreneur in the food supply sector. 6. Since November 2009 the Poltava Regional Police Department has been investigating a number of apparent offences related to forgery of food quality certificates and supply of overpriced foodstuffs for school catering in the city of Poltava. As part of this investigation the police ran checks on the applicant’s business and questioned his associates and family members. 7. On 3 November 2010 the police instituted criminal proceedings against the applicant in the context of an investigation of unlawful food supply price increases. 8. On 5 November 2010 the applicant was arrested by the police on suspicion of a financial offence. A record of his arrest was drawn up between 2.45 and 3.30 p.m. on that day. 9. On 8 November 2010 the applicant was taken to the Poltava Oktyabrsky District Court (hereinafter “the District Court”), which remanded him in custody for up to ten days under Article 165-2 of the Code of Criminal Procedure (see paragraph 19 below) without giving any specific reasons for this decision. According to the applicant, the hearing started at 2.55 p.m. and the decision was taken only at 4 p.m., when the maximum period of detention without a court decision (seventy-two hours) permitted under domestic law had expired. The applicant’s lawyer lodged a formal complaint with the judge about unlawful arrest and detention. That complaint was not examined that day. 10. On the same day the police instituted two more sets of proceedings against the applicant on suspicion of other counts of the same crime. 11. On 9 November 2010 the applicant’s lawyer submitted to the court a further complaint about unlawful detention, in addition to the one he had submitted on the date of the hearing (see paragraph 9 above). 12. On 15 November 2010 the District Court remanded the applicant in custody with no maximum duration and on the basis of standard reasoning, referring to gravity of charges, risk of interference with investigation, and personal characteristics without any further explanation. In a separate ruling it rejected the applicant’s lawyer’s complaint (see paragraph 9 above) that from 2.45 p.m. onwards on 8 November 2010 his detention had been unlawful. It noted “Documents [attached] to the application [for a warrant for the applicant’s arrest] refute the allegations regarding the detention of [Mr] Gal O.A. in terms that are not provided by law.” 13. On 23 November 2010 the Poltava Regional Court of Appeal upheld the decision of the first-instance court. In reply to the lawyer’s complaint about the failure to release the applicant after seventy-two hours of initial detention without a court order, the appellate court noted that on 8 November 2010 the applicant’s detention had been extended for up to ten days. 14. On 29 December 2010 the District Court extended the applicant’s detention for up to three months, i.e. until 5 February 2011, on the grounds that the applicant might avoid justice, obstruct the investigation and continue his criminal activities, and that it was necessary to ensure the implementation of procedural decisions. 15. On 18 January 2011 the Poltava Regional Court of Appeal upheld the decision of the first-instance court. 16. On 3 February 2011 the criminal case against the applicant was referred to the court and was received by that court on 4 February 2011. Twenty days later the prosecution authorities called the case back to correct certain shortcomings. On 25 February 2011 the court returned the case to the prosecutor, who sent the case back to the court on the same day. 17. On 25 March 2011 the Poltava Leninskiy District Court examined the application for release lodged by the applicant’s lawyer and allowed it. The applicant’s pre-trial detention was replaced by an obligation not to abscond. 18. The relevant provision of the Constitution reads as follows: “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a reasoned court decision, and only on grounds and in accordance with a procedure established by law. In the event of an urgent need to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be established by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the time of detention, with a reasoned court decision in respect of the holding in custody. Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the time of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel. Everyone who has been detained has the right to challenge his or her detention in court at any time. Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.” 19. The relevant provisions of the Code read as follows: “An investigating body shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds: 1. if the person is discovered whilst or immediately after committing an offence; 2. if eyewitnesses, including victims, directly identify this person as having committed the offence; 3. if clear traces of the offence are found on the body of the suspect or on the clothing he is wearing or which is kept at his home. For each case of detention of a criminal suspect, the investigating body shall be required to draw up a record mentioning the grounds, the motives, the day, time, year and month, the place of detention, the explanation given by the person detained and the time when it was recorded that the suspect was informed of his right to consult defence counsel in person before he is questioned, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The record of detention shall be signed by the person who drew it up and by the detainee. A copy of the record with a list of his rights and obligations shall be immediately handed to the detainee and shall be sent to the prosecutor. At the request of the prosecutor, the material which served as a ground for detention shall be sent to him as well ... Within seventy-two hours of the arrest the investigating body shall: (1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of detention established by law has expired, or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article; (2) release the detainee and select a non-custodial preventive measure; (3) bring the detainee before a judge with a request for a custodial preventive measure to be imposed on him or her. If the detention is appealed against to a court, the detainee’s appeal shall be immediately sent by the head of the detention facility to the court. The judge shall consider the appeal together with any request by the investigating body for the preventive measure. If the appeal is received after the preventive measure has been applied, the judge shall examine it within three days of receiving it. If the request has not been received, or if the appeal has been received after the term of seventy-two hours of detention, the appeal shall be considered by the judge within five days of receiving it. The appeal shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring the detention lawful or allowing the appeal and finding the detention to be unlawful. The judge’s ruling may be appealed against within seven days of the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court’s ruling. Detention of a criminal suspect shall not last for more than seventy-two hours. If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up a record to that effect, and shall inform the official or body that carried out the arrest accordingly.” “... In the event that the investigating 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 establish that the evidence was obtained 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 ... Upon receiving the application, the judge shall examine the material in the criminal case file submitted by the investigating bodies, the investigator, or the prosecutor and shall question the suspect or accused and, if necessary, hear evidence from the person who is the subject of the proceedings, obtain the opinion of the previous prosecutor or defence counsel, if the latter appeared before the court, and issue an order: (1) refusing to select a custodial preventive measure if there are no grounds for doing so; (2) selecting a custodial preventive measure. The court shall be entitled to select a non-custodial preventive measure for the suspect or accused if the investigator or prosecutor refuses to apply a custodial preventive measure. 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 of the date on which it was made. The lodging of an appeal shall not suspend the execution of the judge’s order. If the selection of the preventive measure for the detained person requires further examination of information about that person, or if other circumstances relevant to the decision on this matter need to be established, the judge may issue a decision to continue the detention for up to ten days, and, at the request of the suspect or accused, for up to fifteen days. Where such a need arises in respect of a person who has not been apprehended, the judge may postpone the hearing for up to ten days and take measures which would ensure that person’s cooperation or issue a decision to detain a suspect or an accused for that period of time.”