FIFTH SECTION      CASE OF KOTIY v. UKRAINE (Application no. 28718/09)      JUDGMENT    STRASBOURG 5 March 2015 FINAL 05/06/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kotiy v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President, Angelika Nußberger, Boštjan M. Zupančič, Ganna Yudkivska, Vincent A. De Gaetano, André Potocki, Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 10 February 2015,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 28718/09) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Andrey Pavlovich Kotiy (“the applicant”), on 23 May 2009.2. The applicant was represented by Mr A. Bushchenko, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent at the time, Mr N. Kulchytskyy.3. The applicant alleged, in particular, that his arrest and detention were not compatible with Article 5 § 1 of the Convention, that he did not have an enforceable right to compensation as provided by Article 5 § 5 of the Convention, and that the investigative authorities interfered with his private and family life contrary to Article 8 of the Convention and that their decisions restricted his liberty of movement which constituted a violation of of Article 2 of Protocol No 4.4. On 22 October 2012 the above complaints were communicated to the Government.THE FACTSI. THE CIRCUMSTANCES OF THE CASEA. Background to the case5. The applicant was born in 1974.6. In 2003 the applicant, his wife and two children (born in 1992 and 1999) settled in Germany. Between 2003 and 2008 the applicant held various managerial positions in German companies. He was also a co-owner and the president of the limited liability company L., registered in Ukraine. That company was run by a director employed under contract.7. On 27 May 2005 the applicant sent a request to the official representative of the Ministry of Home Affairs of Ukraine in Frankfurt am Main enquiring whether certain business activities undertaken by the director of company L. had been lawful.8. By a letter dated 8 July 2005 the applicant was informed that the Ministry of Internal Affairs had not found any wrongdoing on the part of the director.B. Criminal proceedings against the applicant9. On 14 April 2008 the Kyiv Police Department instituted criminal proceedings against the applicant in connection with a financial fraud allegedly committed by him in April 2005. The investigator stated that the applicant, as co-owner and president of company L., had concluded an agreement for the sale of a car, had received the payment from the purchaser, but had failed to supply the car; the applicant was assisted by the director of that company who, allegedly, had not been aware of the applicant’s malicious intent. The investigator found that the fraudulent actions of the applicant had been confirmed by both victim and witness statements and also by the documents examined. Among the persons testifying as witnesses concerning the specifics of the business and managerial relationships between the applicant and company L., the investigator also questioned the applicant’s mother, who stated that the applicant had not lived in Ukraine for several years as he and his family had moved to Germany.10. On 19 April 2008 the investigator decided to put the applicant on the national list of wanted persons, stating that the latter had not lived at the registered place of his residence in Ukraine and his whereabouts were unknown.11. In November 2008 the applicant arrived in Ukraine on personal business.12. According to the applicant, on 13 November 2008, when he arrived at the migration service department in Kharkiv to exchange his international travel passport for a new one, he was arrested and escorted to Kyiv.13. At 1.30 a.m. on 14 November 2008 the applicant was questioned by the investigator in the Shevchenkivskyy District Police Department of Kyiv in connection with the charges against him. The questioning session terminated at 4.17 a.m. in the morning. During the questioning the applicant stated, among other things, that he was temporarily unemployed.14. At 4.20 a.m. on 14 November 2008 the investigator, relying on Articles 106 and 115 of the Code of Criminal Procedure of 1960 (“the CCP”), decided to arrest the applicant for seventy-two hours on suspicion of having committed the crime. He drew up an arrest report citing Article 106 of the CCP concerning the grounds for arresting a person without a court order.15. On 17 November 2008 the Shevchenkivskyy District Court of Kyiv (“the District Court”) considered the investigator’s request to place the applicant in pre-trial detention. Relying on Article 165-2 of the Code of Criminal Procedure, the District Court found that before taking its decision concerning the application of a preventive measure, it needed to examine in more detail the personality of the applicant, his place of employment and residence, his family status and the risk of his absconding. The court therefore extended the applicant’s preliminary detention to ten days.16. On 20 November 2008 the investigator instituted another set of criminal proceedings against the applicant and the director of company L. on the grounds that they had obtained a loan from a bank on the basis of forged documents and had later misappropriated these funds.17. On 24 November 2008 the District Court again examined the investigator’s request to detain the applicant in custody. During the hearing the applicant contended that before his arrest he had not been aware of the criminal proceedings or of the fact that he had been placed on the national list of wanted persons. He argued that the investigator had not served him with a summons. Having deliberated, the court found that there had been no evidence suggesting that the applicant might abscond from justice, obstruct the investigation or continue any criminal activity. It therefore released the applicant. The prosecutor appealed.18. On the same day, the investigator ‒ relying on Article 151 of the CCP ‒ obtained from the applicant a written undertaking not to abscond from his registered place of residence in Kharkiv, Ukraine.19. On 27 November 2008 the investigator, relying on Article 178 of the CCP, seized the applicant’s old and new international travel passports.20. On 4 December 2008 the Kyiv Court of Appeal dismissed the prosecutor’s appeal and upheld the decision of 24 November 2008, noting that no evidence had been presented concerning attempts by the applicant to abscond from justice and that the gravity of charges alone did not provide sufficient grounds for detaining the applicant in custody.21. On 6 May 2009 the applicant complained to the prosecutor on account of his unlawful arrest and detention and the violation of procedural rules by the investigator. He also stated that as a result of the procedural measures undertaken by the investigator he had not been able to see his wife and children, who lived outside Ukraine, nor to pursue his professional life. The applicant did not receive any reply to his complaint.22. On 6 July 2009 the applicant challenged before the District Court the investigator’s decisions to initiate criminal proceedings against him.23. On 31 July 2009 the District Court allowed the applicant’s claim, finding that the available evidential material was not sufficient to give rise to criminal proceedings against the applicant. The prosecutor appealed against that decision.24. On 21 August 2009 the Kyiv Court of Appeal quashed the decision of 31 July 2009 and remitted the case to the District Court for fresh consideration.25. On 3 November 2009 the District Court dismissed the applicant’s claim, finding that the impugned decisions issued by the investigator were lawful. The applicant appealed.26. On 4 December 2009 the Kyiv Court of Appeal upheld the decision of 3 November 2009.27. On 8 December 2011 the investigator closed both sets of criminal proceedings, finding that the charges against the applicant had not been proved and that there had been no corpus delicti. The preventive measure (a written undertaking not to abscond) was lifted.28. On 9 December 2011 the investigator returned the seized international travel passports to the applicant.II. RELEVANT DOMESTIC LAWA. Constitution of 28 June 199629. The relevant part of Article 29 of the Constitution reads:“... In the event of an urgent necessity 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 verified by a court within seventy-two hours. The detained person shall be released immediately if, within seventy-two hours of the moment of detention, he or she has not been provided with a reasoned court decision in respect of the detention. ...Everyone who has been detained has the right to challenge his or her detention in court at any time. ...”B. Code of Criminal Procedure (“the CCP”) of 28 December 1960 (in force at the relevant time)30. Relevant provisions of this Code provided:Article 106. Arrest of a suspect by the body of inquiry“The body of inquiry shall only 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 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 the one who committed the offence;(3) if clear traces of the offence are found either on the body of the suspect, or on his clothing, or with him, or in his home.If there is other information giving rise to grounds for suspecting a person of a criminal offence, a body of inquiry may arrest that person if the latter attempts to flee, or does not have a permanent place of residence, or if the identity of that person has not been established.For each case of arrest of a suspect, the body of inquiry shall be required to draw up an arrest report (протокол затримання) stating the grounds, the motives, the day, time, year and month, the place of arrest, the explanations of the person detained and the time of recording that the suspect had been informed of his right to have a meeting with defence counsel as from the moment of his arrest, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The arrest report shall be signed by the person who drew it up and by the detainee.A copy of the arrest report with a list of his rights and obligations shall immediately be handed to the detainee and sent to the prosecutor. At the request of the prosecutor, the material which served as grounds for the arrest shall be sent to him as well. ...Within seventy-two hours of the arrest, the body of inquiry shall:(1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of the preliminary 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 to impose a custodial preventive measure on him or her.If the arrest is appealed against to a court, the detainee’s complaint shall immediately be sent by the head of the detention facility to the court. The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure. If the complaint 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 complaint is received after expiry of the term of seventy-two hours of detention, the complaint shall be considered by the judge within five days after receiving it.The complaint 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 arrest to be lawful or allowing the complaint and finding the arrest to be unlawful. ...The ruling of the judge may be appealed against within seven days from 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.Preliminary detention of a suspect shall not last for more than seventy-two hours. ...”Article 115. Arrest of a suspect by an investigator“An investigator may arrest and question a person suspected of having committed a crime in accordance with the procedure provided for in Articles 106, 106-1, and 107 of the Code. ...”Article 148. Purpose of and grounds for the application of preventive measures“Preventive measures shall be imposed on a suspect, accused, defendant, or convicted person in order to prevent him from attempting to abscond from an inquiry, investigation or the court, or obstructing the establishment of the truth in a criminal case, or to pursue criminal activities, and in order to ensure the execution of procedural decisions.Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect, accused, defendant or convicted person will attempt to abscond from an investigation and from the court, or if he fails to comply with procedural decisions, or obstructs the establishment of the truth in the case or pursues criminal activities. ...”Article 149. Preventive measures“The preventive measures are as follows:(1)  a written undertaking not to abscond;(2)  a personal guarantee;(3)  the guarantee of a public organisation or labour collective;(3-1)  bail;(4)  detention in custody;(5)  supervision by the command of a military unit.As a temporary preventive measure, a suspect may be detained on the grounds and pursuant to the procedure provided for by Articles 106, 115 and 165-2 of this Code.”Article 151. Written undertaking not to abscond“A written undertaking not to abscond is a written commitment by a suspect or an accused not to leave his or her place of permanent residence or temporary address without the permission of the investigator.If the suspect or accused breaches this written undertaking not to abscond, it may be replaced by a more stringent preventive measure. The suspect or the accused shall be informed about this upon giving the written undertaking not to abscond.”Article 165-2. Procedure for selection of a preventive measure“At the stage of the pre-trial investigation, a non-custodial preventive measure shall be selected by the body of inquiry, or investigator, or prosecutor.If there are grounds for applying a custodial preventive measure, the body of inquiry or the investigator, following the prosecutor’s consent, shall lodge a request with the court. ...The request shall be considered within seventy-two hours of the arrest of the suspect or accused.If the request concerns the detention of a person who is at liberty, the judge shall have the power to issue a warrant for the arrest of such a person and for escorting him to the court. In such cases the preliminary detention shall not exceed seventy-two hours; and if the person concerned is outside the locality in which the court operates, it shall not exceed forty-eight hours from the time the arrested person was brought to the locality.Upon receiving the request, the judge shall examine the material in the case file submitted by the body of inquiry, or investigator, or prosecutor. A judge shall question the suspect or the accused and, if necessary, hear evidence from the person who is in charge of the criminal case, obtain the opinion of the prosecutor, the defence counsel, if the latter appeared before the court, and take a decision:(1) refusing to apply the [custodial] preventive measure if there are no grounds for doing so;(2) applying the custodial preventive measure.Having refused to apply the custodial preventive measure, the court shall have the power to apply a non-custodial preventive measure in respect of the suspect or the accused.The judge’s decision may be appealed against to the court of appeal by the prosecutor, the suspect, the accused or his or her defence counsel or the legal representative, within three days of its delivery. The introduction of an appeal shall not suspend the execution of the judge’s decision.If in order to select a preventive measure in respect of a detained person it is necessary to examine additional material concerning the personality of the detained person or to clarify the other circumstances that are important for the adoption of the decision on this matter, the judge may extend the applicant’s preliminary detention up to ten days or, if so requested by the suspect or the accused, up to fifteen days. If it is necessary to examine additional material concerning the person who has not been arrested, the judge may adjourn the consideration of this issue for up to ten days and take measures for ensuring the proper conduct of that person or issue an order for the arrest and detention of that person for the same period.”Article 178. Grounds for conducting a seizure“A seizure shall be carried out in cases where the investigator has accurate information that the items or documents of relevance are with a certain person or at a certain location.A seizure shall be based on the investigator’s ruling. ...”Article 234. Complaints in respect of the acts of the investigator“The acts of the investigator may be challenged before the prosecutor ...The acts of the investigator may be challenged before the court ...Complaints in respect of the acts of the investigator shall be considered by the first-instance court in the course of the preliminary hearing of the case or in the course of its consideration on the merits, unless otherwise provided by this Code.(On 30 January 2003 the Constitutional Court declared the provisions of Article 236 unconstitutional to the extent that they prevented the courts from considering complaints against the investigator or prosecutor at the stage of the pre-trial investigation concerning the basis, grounds and the procedure for the initiation of criminal proceedings against a particular person.)”C. The Act “On the procedure for compensation for damage caused to citizens by the unlawful acts of bodies of enquiries, pre-trial investigation authorities, prosecutor’s offices and courts” of 1 December 1994 (“the Compensation Act”)31. The relevant provisions of the Compensation Act can be found in the judgment of Taran v. Ukraine, no. 31898/06, §§ 42 and 43, 17 October 2013.D. The Act “On the procedure for departure from Ukraine and entry into Ukraine by Ukrainian Citizens” of 21 January 1994 (as worded at the relevant time)32. According to Section 6 of the Act, the international travel passport could be seized in the event if, among other things, the criminal proceedings had been initiated against the holder of the passport. The seizure could be conducted, among other authorities, by the courts, prosecutor’s offices, the bodies of internal affairs, the bodies of state security service.THE LAWI. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION33. The applicant complained under Article 5 § 1 of the Convention that his arrest and detention between 13 and 14 November 2008 had been unrecorded and arbitrary. He furthermore complained under Article 5 §§ 1 and 3 of the Convention that his arrest by the investigator on 14 November 2008 and further detention had been unlawful, arbitrary and not based on reasonable suspicion and that the domestic authorities had failed to provide sufficient and relevant reasons justifying that period of detention.34. The Court finds it appropriate to examine this part of the application solely under Article 5 § 1 of the Convention which reads, in so far as relevant:Article 5“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:...(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ”A. Admissibility35. The Government contended that these complaints were inadmissible for non-exhaustion of domestic remedies. They argued that on 8 December 2011 the criminal proceedings against the applicant had been closed on exonerative grounds (for lack of corpus delicti) and he had thus been entitled to lodge a civil claim for damages under the Compensation Act.36. The applicant disagreed and argued that the remedy indicated by the Government could not address the substance of his complaint.37. The Court notes that the scope of review of the applicant’s compliance with the rule on exhaustion of domestic remedies is limited by the Government’s objections (see Yordanov v. Bulgaria, no. 56856/00, § 76, 10 August 2006, with further references).38. In the present case the Government did not contend that the applicant had not exhausted remedies which might have been available to him before the introduction of his application before the Court (23 May 2009). However, they contended that later ‒ as of 8 December 2011 ‒ the applicant could have lodged a civil claim for damages on the grounds that the criminal proceedings against him had been closed for lack of corpus delicti. In that regard the Court reiterates that the question of whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged with the Court (see Baumann v. France, no. 33592/96, § 47, ECHR 2001‑V (extracts)). The rule is subject to exceptions which may be justified by compelling reasons deriving from the specific circumstances and the context in which the remedy becomes available to the applicant, such as the context of new remedies in length-of-proceedings cases, for example (see Brusco v. Italy, (dec.), no. 69789/01, ECHR 2001-IX, Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002‑VIII and Charzyński v. Poland (dec.), no. 15212/03, § 35, ECHR 2005‑V). In the present case the Court does not find compelling reasons justifying such an exception. It considers that the applicant could have exhausted the remedy which became available to him more than two and a half years after the introduction of the application but had not been obliged to do so. Furthermore, it has not been shown that that remedy would have been capable of addressing all the elements of the applicant’s complaint under Article 5 of the Convention. The Court therefore dismisses the Government’s objection.39. The Court further notes that this part of application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits1. The parties’ submissions40. As to the applicant’s allegations concerning deprivation of liberty prior to the investigator’s decision on 14 November 2008, the Government contended that they were not supported by any evidential material and were therefore unsubstantiated. As to the applicant’s detention between 14 and 24 November 2008 pursuant to the decisions of the investigator and the District Court, they argued that such detention had been based on a reasonable suspicion that the applicant had committed a criminal offence. Furthermore, on 17 November 2008 the District Court had provided additional reasons for extending the applicant’s detention. The Government considered that the applicant’s detention had been in conformity with Article 5 § 1 of the Convention.41. The applicant maintained that he had been detained on 13 November 2008 in Kharkiv, had been escorted to Kyiv and then questioned. He argued that his further detention between 14 and 24 November 2008 pursuant to the decisions of the investigator and court was not based on reasonable suspicion; it was unlawful, arbitrary and contrary to Article 5 § 1 of the Convention.2. The Court’s assessment42. The Court reiterates that any deprivation of liberty should be lawful (see, among many other references, Benham v. the United Kingdom, 10 June 1996, § 41, Reports 1996-III, and Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004-II). The “lawfulness” of detention under domestic law is the primary, but not always the decisive element. The Court must also be satisfied that during the period under consideration the detention was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary manner (see Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, § 84, 24 June 2010). In order for deprivation of liberty to be considered free from arbitrariness, it does not suffice that this measure is executed in conformity with national law: it must also be necessary in the circumstances (see Nešťák v. Slovakia, no. 65559/01, § 74, 27 February 2007; Khayredinov v. Ukraine, no. 38717/04, § 27, 14 October 2010; and Korneykova v. Ukraine, no. 39884/05, § 34, 19 January 2012). Furthermore, under Article 5 § 1 (c), a “reasonable suspicion” that a criminal offence has been committed presupposes the existence of facts or information that would satisfy an objective observer that the person concerned might have committed an offence (see Włoch v. Poland, no. 27785/95, § 108, ECHR 2000‑XI).43. The applicant argued that his detention had started on 13 November 2008 ‒ after his arrest in Kharkiv whilst trying to exchange his international travel passport for a new one ‒ and that after his arrest he had been escorted to Kyiv. However, these allegations are not supported by any evidential material. The Court is therefore unable to establish whether the alleged facts took place or to determine, in particular, whether there had been deprivation of liberty within the meaning of Article 5 § 1 of the Convention (see, by contrast, Grinenko v. Ukraine, no. 33627/06, § 75, 15 November 2012). Consequently, it dismisses this part of the complaint.44. Meanwhile, it is indisputable that from 1.30 a.m. on 14 November 2008 the applicant was present in the police department in Kyiv and had to answer questions until 4.17 a.m. in connection with the charges against him. The Court takes note of the applicant’s allegation that his appearance in the police department was not voluntary and that at that time he had been on the list of wanted persons. In this context it finds it unrealistic to assume that the applicant was free to leave the police department (see, for example, Osypenko v. Ukraine, no. 4634/04, § 49, 9 November 2010). In view of the coercive element present during that period of time (see Baisuev and Anzorov v. Georgia, no. 39804/04, § 55, 18 December 2012), the Court finds that from 1.30 a.m. on 14 November 2008 the applicant was deprived of his liberty within the meaning of Article 5 § 1 of the Convention.45. It was a few hours later, namely at 4.20 a.m. on 14 November 2008 that the investigator formalised the applicant’s arrest and issued an arrest report which authorised the applicant’s detention for the next seventy-two hours in connection with the events which had taken place a few years previously. The investigator did not obtain a preliminary arrest warrant from the court, as required by Article 29 of the Constitution and Article 165-2 § 4 of the CCP, but based his decision on Article 106 of the CCP, which provided exceptional grounds to arrest an individual without a court order. However, the arrest report only repeated such general grounds without referring to any specific circumstances explaining why this provision of the CCP could be applied in the applicant’s case. Without this information, the arrest report did not constitute a meaningful guarantee showing that the applicant’s arrest had been effected on the basis of reasonable suspicion that the applicant had committed a criminal offence (see Grinenko, cited above, § 83).46. Furthermore, neither the investigator in his arrest report nor the District Court examining the matter on 17 November 2008 provided reasons setting out why the applicant’s preliminary detention ‒ as a temporary preventive measure within the meaning of Article 149 of the CCP ‒ was a necessary procedural step aimed at preventing certain risks for the proceedings. The domestic authorities did not substantiate that there had been any of the specific purposes laid down in the domestic law for applying preventive measures. In this regard the Court does not consider that the applicant’s detention could be justified by the fact that he had been placed on the national list of wanted persons, since there is nothing to show that he was in hiding. On the contrary, it appears that the applicant was doing business openly in Germany and Ukraine, had been living in Germany for several years prior to his arrest, and was in communication with the authorities ‒ in particular the Ukrainian police authorities, who must have been aware that he was residing in Germany both from his own communications (see paragraph 8 above) and from the documents available in the criminal case file (see paragraph 9 above). In these circumstances, putting the applicant on the national list of wanted persons, and thereby triggering a search for the applicant on the territory of Ukraine, was a futile measure and could not give a valid reason for the applicant’s detention. The Court also notes that on 7 December 2009 the District Court released the applicant from detention precisely because there was no evidence suggesting that the applicant might abscond from justice, obstruct the investigation or continue any criminal activity.47. Having regard to the above considerations, the Court finds that the applicant’s detention between 14 and 24 November 2008 was incompatible with the requirements of Article 5 § 1 of the Convention. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION48. The applicant complained under Article 5 § 5 of the Convention that he did not have an enforceable right to compensation in respect of his unlawful arrest and detention.49. Article 5 § 5 of the Convention provides:“5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”A. Admissibility50. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits51.

Article of the Convention at issue: Article 8
Outcome: violation