FIRST SECTION  CASE OF KOVAL v. UKRAINE  (Application no. 65550/01)   JUDGMENT   STRASBOURG 19 October 2006   FINAL  12/02/2007   This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Koval v. Ukraine,The European Court of Human Rights (First Section), sitting as a Chamber composed of: Mr C.L. Rozakis, President, Mr L. Loucaides, Mrs F. Tulkens, Mr V. Butkevych, Mrs N. Vajić, Mr A. Kovler, Mrs E. Steiner, judges,and Mr S. Nielsen, Section Registrar,Having deliberated in private on 28 September 2006,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 65550/01) 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 Vasyl Gavrylovych Koval (“the applicant”), on 12 October 2000.2. The applicant was represented by Mr S. Dunikowski and Ms A. Vakulenko, lawyers practising in Nanterre and Ukraine respectively. The Ukrainian Government (“the Government”) were represented by their Agents, Ms Z. Bortnovska and her successor, Ms V. Lutkovska, the Deputy Minister of Justice.3. The applicant alleged that the conditions of his detention and his lack of proper medical treatment and assistance from 30 November 1998 until 8 June 2000 had been degrading contrary to Article 3 of the Convention. He also alleged that he had no effective remedies in respect of his complaint under Article 3 contrary to Article 13 of the Convention. He further alleged that Article 6 § 1 of the Convention had been infringed as the proceedings, in which the forfeiture of the bail paid by his wife for his release was examined, had been unfair.4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.5. By a decision of 30 March 2004 the Court declared the application partly admissible.6. The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other's observations.7. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1).THE FACTSI. THE CIRCUMSTANCES OF THE CASE8. The applicant was born on 28 April 1951 and currently resides in Kyiv.A. The relevant period of the applicant's detention9. On 29 November 1997 the General Prosecution Service (“the GPS”) detained the applicant on suspicion of forgery committed by a public official (державним службовцем).10. On 30 November 1997 the head of a department of the GPS (“the Head of Department”) ordered that the applicant should be placed in custody since there was a risk that he might abscond and obstruct the investigation of the case.11. On 2 December 1997 the Head of Department ordered the applicant's detention pending trial and his transfer to the Zhytomyr Regional Investigative Isolation Unit (SIZO – Слідчий Ізолятор Житомирської області).12. On 29 June 1998 the GPS decided to release the applicant on bail as it was impossible to provide him with the necessary medical treatment in detention. The applicant was released.13. On 20 October 1998 the GPS, having allegedly found new evidence of the applicant's involvement in unlawful currency transactions and abuses of power, initiated a criminal investigation into the allegations.14. Furthermore, the GPS decided on that date that the applicant should be taken into custody on the ground that he was obstructing the investigation of criminal acts. New charges concerning other serious offences were brought against him. The GPS also ordered his transfer to the Security Service Investigative Isolation Unit (“the SIZO SBU” – Слідчий Ізолятор Служби Безпеки України). On the same date the applicant was placed in the SIZO.15. On 27 November 1998 the Pechersky District Court of Kyiv quashed the GPS's decision of 20 October 1998 and changed the preventive measure to an undertaking by the applicant not to abscond. The applicant was released.16. On 30 November 1998 the Deputy Prosecutor General lodged an application for supervisory review (протест) of the decision of the Pechersky District Court, seeking to have it quashed on the grounds that it was not justified by the evidence in the case file and contravened the relevant legislation.17. The Kyiv City Court allowed the Deputy Prosecutor General's application and quashed on 30 November 1998 the decision of 27 November 1998. On the same date the GPS ordered the applicant's detention pending trial. As a result, the applicant was immediately arrested and transferred to the SIZO SBU.18. On 3 August 1999 the Kyiv City Court decided not to release the applicant from detention, but to transfer him from the SIZO SBU to the Kyiv Regional Investigative Isolation Unit no. 13 (“SIZO no. 13”) owing to the need to provide him with specific medical assistance which could not be provided in the SIZO SBU. The applicant was detained in SIZO no. 13 from 3 August 1999 to 6 June 2000.19. On 6 June 2000 the applicant was transferred to Mensk Penitentiary. Apparently, he started serving his sentence on 8 June 2000, the date of his arrival at Mensk Penitentiary, where he started receiving inpatient treatment in the medical unit.B. The decision to forfeit bail and its review1. Initial decision to forfeit bail20. On 23 and 26 June 1998 the applicant's wife, Ms Larysa M. Koval, deposited the sum of 500,000 Ukrainian hryvnyas (UAH) in a GPS deposit account as bail with a view to the applicant's subsequent release.[1]21. On 29 June 1998 the Deputy Head of the GPS Department for Investigation of Serious Offences decided to release the applicant on bail as it was impossible to provide him with the necessary medical treatment in detention. That decision was approved by the Deputy Prosecutor General. As a result of the decision the applicant was prohibited from leaving the territory of Ukraine. On the same date Ms Koval signed a declaration attesting that she had been informed about the bail conditions and the possibility of the sum being confiscated. The same document was signed by the applicant.22. On 9 September 1998 the applicant, allegedly by chance, met one of the witnesses, Mr O. Bogomolov, at Kyiv Central Railway Station. During the meeting he apparently asked Mr O. Bogomolov to tell the investigation that the payment for the flat which the applicant had acquired from him had been made not in foreign currency, but in Ukrainian hryvnyas.23. On 12 October 1998 an investigator from the GPS received information from Mr O. Bogomolov to the effect that the applicant had met him on 9 September 1998 and had tried to influence his statement. This was later confirmed by the witness's wife (Ms Tyshchenko), who informed the prosecution that the applicant had threatened to initiate criminal proceedings against her and Mr Bogomolov for unlawful currency transactions. The investigator made a tape recording of the interview and produced a verbatim record of it and the witness statements by Ms Tyshchenko.24. On 20 October 1998 the GPS initiated a criminal investigation into the alleged unlawful currency transactions and abuses of power. On the same date the Deputy Prosecutor General ordered that the applicant should be taken into custody on the grounds that he was obstructing the investigation of criminal acts, had breached the obligations entered into at the time of his release from detention and was charged with serious offences. He also stated that new charges concerning other serious offences had been brought against the applicant.25. On 4 November 1998 the applicant's lawyers appealed to the Pechersky District Court against the decision to detain the applicant, alleging that it was unlawful and referring to the substantial deterioration of his state of health. They stated that the findings of his previous medical examination had been confirmed on 2 November 1998.26. On 27 November 1998 the Pechersky District Court quashed the GPS's order of 20 October 1998 following the applicant's appeal. On the same date the GPS changed the preventive measure to an undertaking by the applicant not to abscond. In particular, the court held:“... On 20 October 1998 criminal proceedings were instituted against Mr V.G. Koval on suspicion of his involvement in offences referred to in Article 165 § 2 and Article 80 § 2 of the Criminal Code and on the same date the applicant was charged with offences under Article 80 § 2, Article 165 § 1 and Article 172 of the Criminal Code and questioned as an accused on the basis of the aforementioned provisions.On 20 October the investigator decided that Mr V.G. Koval should be held in detention.As can be seen from the investigator's decision, the grounds for detaining V.G. Koval were that he was charged with serious offences and that the preventive measure chosen took into account the gravity of these offences, and also that while at liberty he interfered with the establishment of the truth in a criminal case and seriously breached his obligations as to appropriate conduct.... The representative of the General Prosecution Service, in the court's view, has not provided any corroborating evidence that Mr V.G. Koval has evaded requests to appear before an investigator or has tried to interfere with the investigation in the case. There is no evidence of the aforementioned facts in the case file...The General Prosecution Service's reference to the fact that Mr V.G. Koval encouraged the witnesses Ms L.D. Tyshchenko and Mr O.I. Bogomolov to change their witness statements in the part that related to the sale of a flat in foreign currency ... cannot be considered by the court to have had any influence on the investigation, as Mr V.G. Koval had met the aforementioned persons by chance and did not insist on their changing their statements; his recommendations that they tell the investigator in the case that the payments had been made in national currency, as can be seen from the verbatim records of the interviews of the aforementioned persons, were of a consultative nature.The court has not obtained any other corroborating evidence that Mr V.G. Koval influenced the course of the investigation or interfered with the establishment of the truth in the case, or that he violated other obligations he had entered into with regard to appropriate conduct...Also, the court considers that Mr V.G. Koval's state of health was not taken into account when the issue of the applicable preventive measure was being decided upon...... on the basis of the foregoing, and in accordance with Article 236-4 of the Code of Criminal Procedure of Ukraine, the courtDECIDES... to quash the detention order issued by the Deputy Prosecutor General on 30 October 1998 ...”27. On 30 November 1998 the Deputy Prosecutor General lodged an application for supervisory review (протест) of the decision of the Pechersky District Court, seeking to have it quashed on the grounds that it was not justified by the evidence in the file and contravened the relevant legislation.28. On the same date the Presidium of the Kyiv City Court allowed the Deputy Prosecutor General's application and quashed the decision. On the same date the GPS ordered the applicant's detention pending trial. As a result, the applicant was immediately arrested and transferred to the SIZO SBU. In particular, the Kyiv City Court held:“... it can be seen from the witness statement by Mr O.I. Bogomolov that in the period when Mr Koval was released on bail (September 1998) Mr Koval met Mr Bogomolov and asked him to change his witness statements about the currency which he had used to pay for the flat he had acquired, a fact which could have influenced considerations as to the elements of the offence provided for in Article 80 § 2 of the Criminal Code of Ukraine.Taking into account the foregoing, and Mr Koval's attempt to influence the course of the investigation in the case and the fact that he was charged with serious offences, on 20 October 1998 the measure applied to Mr Koval was changed to detention.[The court accordingly] DECIDES...To quash the decision of 27 November 1998 by the judge of the Pechersky District Court of Kyiv to declare null and void the warrant issued by the Deputy Prosecutor General for the arrest of Mr V.G. Koval.”29. Further complaints by the applicant lodged with the President of the Supreme Court with a view to initiating supervisory-review proceedings against the Kyiv City Court's decision were dismissed on 13 January 1999 as being unsubstantiated.30. On 19 January 1999 the GPS investigator refused to institute criminal proceedings against the applicant for attempting to influence witnesses as his actions did not correspond to the corpus delicti envisaged in Article 180 of the Criminal Code. The tape recording of Mr Bogomolov's witness statements was destroyed on 3 March 1999 on the ground that it was no longer necessary because the criminal proceedings against Mr Bogomolov had ended. That decision was based on Articles 81 and 131 of the Code of Criminal Procedure.31. On 27 May, 1 June and 4 June 1999 the applicant, his wife and his lawyers lodged unsuccessful complaints with the Kyiv City Court, seeking to have the preventive measure changed to an undertaking by the applicant not to abscond, and also to have him medically examined. Hearings took place on 14 June, 15, 20, 27 and 29 July and 3 August 1999.2. Examination of the merits of the charges against the applicant32. On 27 December 1999 the Kyiv City Court sentenced the applicant to five years and six months' imprisonment and ordered the confiscation of his personal property. The court also deprived the applicant of the right to occupy official positions for three years and stripped him of the rank of Ambassador Extraordinary and Plenipotentiary, second class, following his conviction for unlawful currency transactions (Article 80-2 of the 1960 Criminal Code of Ukraine[2] – “the CCU”), abuse of power (Article 165-1 of the CCU), and forgery committed by a public official (Article 172 of the CCU). In the course of the proceedings the applicant requested leave to question particular witnesses who, he maintained, could prove his innocence. This request was refused by the Kyiv City Court, which based its findings of guilt on other corroborating evidence.33. The Kyiv City Court also ordered the forfeiture of the applicant's bail, a sum of UAH 500,000[3]. In particular, it held:“... when questioned as an accused Mr O.I. Bogomolov explained that he had changed his witness statement after his conversation with Mr V.G. Koval, who had recommended that, if he did not wish to be held criminally liable, he should say that the agreement had been concluded in hryvnyas and not in United States dollars.... A witness, Ms Tyshchenko, has explained that Mr O.I. Bogomolov changed his witness statements after a meeting with Mr V.G. Koval, who said that his lawyers would seek to institute criminal proceedings against Mr O.I. Bogomolov under Article 80 § 2 of the Criminal Code.... As can be seen from the case file, on 29 June 1998 it was decided that V.G. Koval should be released on payment of UAH 500,000 bail.The sum mentioned above was deposited by ... Ms L.M. Koval in the account of the General Prosecution Service.Mr V.G. Koval had been informed about his obligations and the consequences of his possible failure to comply with them, and Ms L.M. Koval as surety had been informed about the offences that Mr V.G. Koval was charged with and also that in the event of failure to comply with his obligations bail would be forfeited in favour of the State. One of the obligations of Mr V.G. Koval related to appropriate conduct.In a decision of 20 October 1998 the preventive measure of release on bail applied to Mr V.G. Koval was amended to detention. This was because he had seriously breached his obligations relating to appropriate conduct, had coerced witness into making false statements with regard to offences committed by him, and had interfered with the establishment of the truth in the case.In accordance with Article 154-1 of the Code of Criminal Procedure, if a suspect, accused and/or defendant breaches his or her obligations, bail shall be forfeited in favour of the State.The fact that Mr V.G. Koval infringed his obligations with regard to appropriate conduct by coercing the witness Mr O.I. Bogomolov into making false statements is proved by the aforementioned witness statements of Mr O.I. Bogomolov and Ms L.D. Tyshchenko, as the Presidium of the Kyiv City Court found in its decision of 30 November 1998.In such circumstances the court considers it necessary for the bail deposited by Ms L.M. Koval in the amount of UAH 500,000 to be forfeited in favour of the State.On the basis of the foregoing, and having regard to Articles 323 and 324 of the Code of Criminal Procedure, the courtORDERS... the forfeiture in favour of the State of the sum of bail in the amount of UAH 500,000 currently being held in the deposit account of the General Prosecution Service of Ukraine.”34. On 4 January 2000 the applicant appealed to the Supreme Court, seeking to have the Kyiv City Court's judgment of 27 December 1999 quashed and the proceedings in the case terminated. He and his lawyers claimed that the Kyiv City Court had unfairly assessed the evidence in the case, having based its finding on evidence that did not prove his guilt and having failed to establish the objective truth in the case.35. On 27 April 2000 the Supreme Court partly allowed the applicant's appeal and varied the judgment of 27 December 1999. In particular, it reclassified the offence of unlawful currency transactions and sentenced him to five years' and six months' imprisonment for aiding and abetting unlawful currency transactions. It also held that the applicant should be regarded as having been sentenced for forgery committed by a public official, as provided in the Criminal Code of 12 January 1983. It upheld the remainder of the judgment. The Supreme Court held in particular:“... As can be seen from the case file, Mr Koval was released on bail on 29 June 1998 for a sum of UAH 500,000.The aforementioned sum was deposited by Mr Koval's wife Ms L.M. Koval on 23 and 26 June 1998 in the account of the General Prosecution Service.Mr Koval was informed about his bail obligations and the consequences of his failure to comply with them, and Ms L.M. Koval was informed about the offences that Mr Koval had been charged with, and about the possible forfeiture of the bail in the event of his failure to comply with these obligations. One of the obligations imposed on Mr Koval related to appropriate conduct.In accordance with the decision of 20 October 1998 by the investigator from the General Prosecution Service, the preventive measure of bail chosen in respect of Mr Koval was changed to detention. One of the reasons for this [change] was that he had seriously breached his obligations regarding appropriate conduct, and in particular that he had coerced witness into making false statements, thus interfering with the establishment of the truth in the case.In accordance with Article 154-1 of the Code of Criminal Procedure, if a suspect, accused or defendant infringes his obligations, bail is forfeited in favour of the State.The fact that Mr Koval breached his bail obligations concerning appropriate conduct by coercing Mr Bogomolov into giving false evidence has been proved by the witness statements of Mr Bogomolov and Ms Tyshchenko, as the Presidium of the Kyiv City Court found in its decision of 30 November 1998.Accordingly, the investigative bodies changed the preventive measure applied to the applicant on lawful grounds.The submissions to the effect that that decision was unlawful and that the decision of the Presidium of the City Court was unsubstantiated are invalid as it can be seen from the case file that Mr Koval had tried to influence witnesses to give false evidence.The reference to the investigator's decision to refuse, on the basis of paragraph 2 of Article 6 and Article 130 of the Code of Criminal Procedure, to institute criminal proceedings against Mr Koval under Article 180 of the Criminal Code of Ukraine is not substantiated as the refusal to institute criminal proceedings was based on allegations of coercing Mr Bogomolov and Ms Tyshchenko into giving false witness statements. At the same time, the decision in question mentions that Mr Koval attempted to coerce witnesses into giving false statements.The submissions in the appeal to the effect that Ms L.M. Koval was not examined by the court as a surety, in breach of the law, is unsubstantiated, since in accordance with Article 154-1, paragraph 6, of the Code of Criminal Procedure, the non-appearance of a surety in court without good reasons does not constitute an obstacle to reviewing the issue of the forfeiture of bail ...As can been seen from the case file, neither the defendant nor his lawyers requested Ms L.M. Koval, as surety, to produce witness statements before the court.

Outcome for Article 13: violation