5.  The applicant was born in 1964 and lives in Kyiv.
6.  The end of 2008 and the beginning of 2009 were marked by a dispute between Ukraine and Russia on the conditions for gas supplies, including the price paid by Ukraine and the transit price charged by Ukraine to Russia. It culminated in Russia cutting off supplies in early January 2009, affecting not only Ukraine but also European States dependent on Russian gas.
7.  On 18 January 2009 the Prime Ministers of Ukraine and Russia, Ms Yulia Tymoshenko and Mr Vladimir Putin, reached an agreement with a view to resolving the dispute.
8.  On 19 January 2009 the chairmen of the boards of the respective countries’ gas companies, Naftogaz Ukrainy and Gazprom of Russia, formalised the terms of the agreement by signing a 2009-2019 gas supply contract. In particular, it provided for a new approach to gas pricing and for passing to direct contractual relations (Gazprom had previously supplied gas to Ukraine through an intermediary, RosUkrEnergo AG, a Swiss-registered joint venture company, 50% of which was owned by Gazprom itself and 50% by two Ukrainian businessmen through a private company, also registered in Switzerland).
9.  On 20 January 2009 the first deputy chairman of the board of Naftogaz Ukrainy, D., and the deputy chairman of the board of Gazprom signed a further contract regarding the terms of natural gas transit through the territory of Ukraine. Under Addendum no. 1, a claim of 11 billion cubic metres of natural gas imported by way of transit to Ukraine by RosUkrEnergo AG was ceded to Naftogaz Ukrayiny.
10.  On 28 January 2009 the President of Ukraine Mr Viktor Yushchenko appointed the applicant as chief of the State Customs Service of Ukraine, upon the Prime Minister’s nomination.
11.  On 26 February 2009 D. sent a letter to the applicant, requesting customs clearance for the 11 billion cubic metres of natural gas referred to in the contract of 20 January 2009 and the annulment of nineteen customs declarations stating that the gas had been imported for transit purposes.
12.  Also on 26 February 2009 Mr Oleksandr Turchynov, the First Deputy Prime Minister of Ukraine, instructed the applicant in writing to ensure prompt customs clearance of the gas in question.
13.  On 27 February 2009 the applicant countersigned D.’s letter with the statement “To [K.] for execution taking into account the requirements of Article 88 of the Customs Code of Ukraine” (K. was chief of the Regional Customs Office for Power, and the legal provision in question set out the duties and responsibilities of customs applicants). On the same day the applicant also countersigned Mr Turchynov’s letter with the statement “To [K.] for execution”.
14.  On 7 February 2010 Mr Viktor Yanukovych was elected President of Ukraine after defeating Ms Tymoshenko in a run‑off.
15.  On 22 March 2010 the applicant resigned.
16.  On an unspecified date RosUkrEnergo AG instituted proceedings in the Arbitration Institute of the Stockholm Chamber of Commerce, alleging that the 11 billion cubic metres of gas was its property and had been unlawfully expropriated by Naftogaz Ukrayiny.
17.  On 8 June 2010 the Institute found for RosUkrEnergo AG.
18.  On 10 June 2010 the State Security Service of Ukraine (hereinafter “the Security Service”) instituted criminal proceedings against D. on suspicion of large-scale embezzlement on account of his involvement in the gas transactions of January 2009.
19.  On 22 June 2010 the police questioned Mr Sh., who had been the deputy chief of the Customs Clearance Unit of the Regional Customs Office for Power in January 2009, as a witness in the proceedings. He replied in the positive to a question about whether he was familiar with D.’s letter to the applicant of 26 February 2009 (see paragraphs 11 and 13 above).
20.  On 23 June 2010 the applicant appeared for questioning as a witness in the proceedings against D. He was accompanied by his lawyer.
21.  The questioning concerned the two letters sent to the applicant on 26 February 2009 and his actions thereupon.
22.  After the end of the applicant’s questioning at 3.43 p.m., the investigator informed him about the imminent institution of criminal proceedings against him. The applicant remained at the Security Service, without any immediate procedural steps being taken against him. According to him, he was not allowed to leave. The Government stated that it was the applicant’s own decision to wait until the decision on criminal proceedings was ready.
23.  The proceedings were instituted later that day on suspicion of neglect of his official duties entailing grave consequences under Article 367 § 2 of the Criminal Code (“the CC”, see paragraph 52 below). The charge was related to his countersigning the letters for customs clearance for the gas imported by way of transit without verifying the lawfulness of those demands and so causing substantial damage to the prestige of the State and to RosUkrEnergo AG’s interests. The criminal case was joined to that against D. (see paragraph 18 above).
24.  At 6.42 p.m. on 23 June 2010 the applicant signed the decision on the institution of criminal proceedings against him with a statement that he had de facto been under arrest from 3.43 p.m. that day.
25.  According to the Government, the applicant and his lawyer studied the decision from 4.15 p.m. to 6.45 p.m.
26.  At 7.02 p.m. the investigator drew up a report on the applicant’s arrest with a general reference to Articles 106 § 2 and 115 of the Code of Criminal Procedure (“the CCP”, see paragraph 50 below). As noted in the report, the investigation had established that the applicant had had no legitimate grounds to endorse the First Deputy Prime Minister’s request of 26 February 2009 (see paragraph 12 above). The investigator further stated that the applicant’s rights as a suspect had been explained to him at 6.30 p.m. The applicant wrote on the report that the arrest period had actually started at 3.43 p.m.
27.  At 8.05 p.m. on 23 June 2010 the applicant was questioned as a suspect. He emphasised that he was willing to cooperate with the investigation and that his behaviour in the proceedings had been flawless. He also stated that there were no grounds for his arrest and that he was prepared to pay bail as a preventive measure in accordance with the CCP.
28.  On 24 June 2010 the Kyiv Pecherskyy District Court (“the Pecherskyy Court”) remanded the applicant in custody for two months. By way of reasoning, the court noted that the applicant was suspected of a serious offence potentially entailing imprisonment; that he could interfere with investigative activities, either by absconding or tampering with evidence; and that he was capable of influencing witnesses, regard being had, in particular, to his connections with former colleagues, his prominent social status and his wealth. Moreover, the applicant had no employment or young children under his charge. The court therefore rejected an application by fifty Members of Parliament to release him on their personal surety.
29.  The applicant appealed, contending in particular that his arrest had been arbitrary and not based on a reasonable suspicion that he had committed a crime. Moreover, the court’s findings as to the probability of his interfering with the investigative activities were arbitrary. He had been a civil servant with an impeccable reputation, no prior criminal record, strong family ties and a permanent residence in Kyiv. Moreover, his conduct in relation to the criminal proceedings concerning the gas dealings had been beyond reproach. Between the date of the initiation of the related proceedings against D. on 10 June and the applicant’s arrest on 23 June 2010, he had twice been abroad and had returned to Ukraine of his own free will; he had duly reported for questioning as a witness as soon as he had been summoned; and he was willing to continue his cooperation with the authorities in good faith. Lastly, he referred to the surety offered by the Members of Parliament to ensure his proper conduct in the proceedings.
30.  On 2 July 2010 the Kyiv City Court of Appeal (hereinafter “the Court of Appeal”) dismissed the applicant’s appeal against the custodial measure. The court noted, in particular:
“... the particularly large amount of damage caused to RosUkrEnergo AG and the existence of serious consequences, manifested in the prestige of the State being undermined, indicate a high degree of danger to society from the crime, a primary ground for imposing on A. V. Makarenko a preventive measure entailing his being remanded in custody.”
31.  The appellate court also concurred with the first-instance court’s finding that the applicant might take advantage of his social connections and wealth to influence the investigation if he remained at liberty.
32.  On 28 July 2010 the Supreme Court rejected an application by the applicant for leave to appeal in cassation against the decisions as not envisaged by law.
33.  On 30 July 2010 the applicant challenged the lawfulness of his arrest of 23 June 2010 before the Kyiv Shevchenkivskyy District Court (“the Shevchenkivskyy Court”). He alleged, firstly, that his arrest had not fallen within the ambit of Article 106 § 2 of the CCP and so had been arbitrary and unforeseeable. Furthermore, before his official arrest at 7.02 p.m., he had already been held at the Security Service for more than three hours without any legal grounds. On 27 September and 12 October 2010 the Shevchenkivskyy Court and the Court of Appeal, respectively, rejected the applicant’s complaint, finding that the investigator had acted in accordance with the law.
34.  On 20 August 2010 the Pecherskyy Court extended the term of the applicant’s pre-trial detention until 10 October 2010. The court noted that a number of investigative measures were still necessary and there were no reasons justifying lifting the custodial measure.
35.  On 27 August 2010 the Court of Appeal dismissed an appeal by the appeal against that decision.
36.  On 25 October 2010 the Supreme Court rejected a request for leave to appeal in cassation as not envisaged by law.
37.  On 30 September 2010 the Security Service re-classified the applicant’s actions as intentional abuse of office under Article 364 § 3 of the CC rather than neglect of his official duties under Article 367 § 2 (see paragraphs 51-52 below).
38.  On 6 October 2010 the Pecherskyy Court extended the applicant’s detention until 23 October 2010, referring to essentially the same arguments as before.
39.  On 12 October 2010 the Court of Appeal upheld the first-instance court’s decision.
40.  On 13 October 2010 the applicant was notified of the completion of the pre-trial investigation and given access to the case file.
41.  On 22 October and 9 December 2010 and on 5 January, 7 February and 9 March 2011 the Court of Appeal extended the applicant’s detention by one month (the last extension was until 10 April 2011), given that further time was required for the applicant and his lawyers to study the case file, which consisted of forty-eight volumes. In all those rulings the appellate court noted that it had had regard to “the circumstances of the case, information as a whole about the character of the accused, the gravity of the offence ... and the absence of any grounds for changing the preventive measure [in his respect] to a more lenient one”.
42.  On 1 April 2011 the applicant applied to be released under an undertaking not to abscond. He noted that his health had seriously deteriorated in detention and that he required a specialist medical examination and assistance on account of several heart conditions but that there was no cardiologist in the detention facility.
43.  On 13 April 2011 the applicant’s lawyer complained to the Prosecutor General’s Office that the term of his client’s detention ordered by the court had expired on 10 April 2011. He therefore requested the applicant’s immediate release. There was no follow up to that complaint.
44.  On 14 April 2011 the Pecherskyy Court held a preparatory hearing for the applicant’s trial. It decided to keep him in pre-trial detention as it found no grounds to change the measure. The applicant re-submitted his request for release as formulated on 1 April 2011 (see paragraph 42 above), however, the court ruling did not contain any reference to it.
45.  On 26 April 2011 the Pecherskyy Court remitted the case to the Prosecutor General’s Office for further investigation given that meanwhile, on 11 April 2011, the latter had instituted criminal proceedings against former Prime Minister Tymoshenko on suspicion of abuse of authority for signing the gas contracts in January 2009 (see paragraph 7 above). The court held that the factual circumstances in those proceedings were the same as in the applicant’s case.
46.  On 5 July 2011 the Court of Appeal released the applicant under an undertaking not to abscond.
47.  On 20 July 2012 the Pecherskyy Court found him guilty as charged and gave him a suspended sentence of four years’ imprisonment.
48.  The parties did not inform the Court of any further developments in the criminal proceedings against the applicant. Publicly available material shows that on 3 March 2014 the Pecherskyy Court absolved him from criminal liability and found him not to have had any criminal record.