FIFTH SECTION

Application no. 10042/11 by Yevgen Volodymyrovych KORNIYCHUK against Ukraine lodged on 1 February 2011

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Yevgen Volodymyrovych Korniychuk, is a Ukrainian national who was born in 1966 and lives in Kyiv, Yagotyn. He is repres ented before the Court by Mr I. Fomin, a lawyer practising in Kyiv.

A. The circumstances of the case

The applicant is a lawyer by profession. For the last ten years he has been actively participating in political life in Ukraine and was elected to P arliament on two occasions. The applicant ’ s father-in-law is the President of the Supreme Court of Ukraine.

Between November 2005 and June 2006, as well as between June 2007 and March 2008, the applicant was one of the equity partners of the law firm Magisters & Partners Ltd (subsequently renamed Magisters Ltd).

Between 26 December 2007 and 24 March 2010 the applicant occupied the post of First Deputy Minister of Justice in Yulia Tymoshenko ’ s government. In that capacity the applicant was responsible for, among other things, ensuring the representation of State interests before the courts in Ukraine and abroad (see “ Relevant domestic law” below ).

In December 2008 the State-owned j oint- s tock c ompany “ Naftogaz of Ukraine” (“ 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 & Partners Ltd on 14 June 2002.

On 23 February 2009, following a written request by Naftogaz , the applicant, as First Deputy Minister of Justice, issued a letter informing Naftogaz that there existed exceptional conditions, as provided under domestic law, for purchasing legal services from Magisters Ltd without inviting bids from other law firms. The incoming request from Naftogaz and the applicant ’ s outgoing letter in reply were allegedly not registered in the registry of the Ministry of Justice.

A copy of the applicant ’ s letter was further submitted by Naftogaz to the Ministry of Economy in support of its application to obtain permission to purchase legal services without pursuing a bidding procedure. After obtaining permission from the Ministry of Economy , Naftogaz contracted further legal services with Magisters Ltd.

On 22 June 2009 the General Prosecutor ’ s Office instituted crimina l proceedings under Article 366 § 2 of the Criminal Code in relation to the alleged forgery of the letter of 23 February 2009 by officials of the Ministry of Justice.

On 1 July 2009 the General Prosecutor ’ s Office instituted crimina l proceedings under Article 364 § 2 of the Criminal Code for abuse of power by the officials of the Ministry of Justice connected with the alleged forgery of the letter of 23 February 2009.

On 14 September 2009 the Pechersk District Court of Kyiv (the “first-instance court”) quashed the decision of 22 June 2009 to institute criminal proceedings under Article 366 § 2 of the Criminal Code , finding that the case file did not contain sufficient information to suggest that there had been any grounds for the opening of criminal proceedings . On 21 October 2009 the Kyiv Court of Appeal upheld th e decision of the first-instance court.

On 28 December 2009 the first-instance court quashed the decision of 1 July 2009 to institute criminal proceedings under Article 364 § 2 of the Criminal Code , finding that the material contained in the case file was insufficient to conclude that there had been any grounds for the opening of criminal proceedings . On 10 February 2010 the Kyiv Court of Appeal upheld th e decision of the first-instance court.

On 15 July 2010 the Supreme Court upheld the decision of the first-instance court of 14 September 2009. The Supreme Court noted, in particular, that the content of the file did not suggest that there had been any damage to the interests of the State or Naftogaz as a result of the alleged forgery.

On 22 December 2010 the General Prosecutor ’ s Office instituted criminal proceedings against the applicant for exceeding the power vested in him as First Deputy Min ister of Justice (Article 365 § 3 of the Criminal Code). In describing the applicant ’ s actus reus , the prosecutor found that t he applicant had reached the wrong conclusion in his letter of 23 February 2009 when stating that there had existed exceptional conditions for Naftogaz not to pursue a bidding pr ocedure. Giving opinions on such matters was outside the competence of the Ministry of Justice. Moreover, the applicant had bypassed the registry of the Ministry of Justice when accepting the request from Naftogaz and issuing his letter in reply.

On the same day the applicant was summoned for questioning. That day he was in hospital with his wife , who was giving birth to their child.

The applicant appeared before the investigator and , after questioning , was arrested under Articles 106 and 115 of the Code of Criminal Procedure. According to the arrest order , the applicant was arrested on the ground that “the eyewitnesses, including victims, directly identified this person as the one who committed the offence”. The applicant ’ s arrest was motivated by the necessity to prevent hi m from escap ing from justice or obstructing t he establish ment of the truth, and to ensure the execution of the court ’ s eventual judgment. The arrest order further contained a short description of the facts giving rise to prosecution under Article 365 § 3 of the Criminal Code . T he procedural rights of an arrestee were also listed . The order was signed by the applicant.

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 which would justify his arrest under Article s 106 and 115 of the Code of Criminal Procedure. The applicant contended that he had appeared before the investigator upon the latter ’ s first request despite the fact that on that day his wife was in hospital g iving birth to their child. This indicated that he had had no intention of abscond ing or hinder ing the investigation.

The investigator requested that the court impose a custodial preventive measure on the applicant.

On the same day the first-instance court found that the case file did not contain sufficient information about the applicant in order to tak e a decision on the investigator ’ s request. In particular, the file did not contain sufficient information about the applicant ’ s health, family and financial status or his occupation. Relying on Article 165-2 of the Code of Criminal Procedure, the court extended the applicant ’ s preliminary detention, as a temporary preventive measure, to ten days. That decision was not subject to appeal.

On 30 December 2010 the first-instance court considered the investigator ’ s request, the applicant ’ s complaint of 24 December 2010 and his further submissions for the application of non-custodial preventive measures. The court found that the investigator ’ s request was well-founded and ordered the applicant ’ s detention in custody. In reaching its conclusion, the court had regard to the gravity of the charge, the applicant ’ s character and the necessity of ensuring the execution of procedural decisions. The court further held that the above finding rendered it unnecessary to examine alternative preventive measures. As regards the applicant ’ s appeal against his arrest, it was unsubstantiated as there had been no violation of domestic law.

The applicant appealed. He claimed that his arrest was unlawful as the arrest order did not refer to any factual circumstances justify ing the application of Article s 106 and 115 of the Code of Criminal Procedure. He emphasised that the courts ha d earlier quashed the decisions to open an investigation , having considered the same facts which gave rise to the current investigation and arrest. The applicant further claimed that in ordering his detention in custody the court had failed to refer to any factual circumstances in support of its decision. It had also failed to take into account the fact that the applicant was the sole breadwinner for his three minor children and his wife , while the ir newborn child was still in hospital. The positive characteristics of the applicant and his submissions for changing the preventive measure into a non-custodial one had also been disregarded.

On 13 January 2011 the Kyiv Court of Appeal rejected the applicant ’ s appeal and upheld the decision of 30 December 2010 as lawful and reasonable. It considered the applicant ’ s arguments to be ill-founded and held that there had been no significant violations of domestic law which would constitute grounds to quash the impugned decision.

On 31 January 2011 the applicant was additionally charged with the crime provided for in Article 366 § 2 of the Criminal Code.

On 10 February 2011 the first-instance court extended the applicant ’ s detention in custody to three months , finding that there were no grounds to chang e the preliminary measure to a more lenient one.

As announced by the press office of the President of Ukraine and also in other media reports, on 14 February 2011 the President of the Supreme Court met with the President of Ukraine in private . J udicial reform and the work of the Supreme Court , as well as other matters , were discussed during the meeting.

The n ext day , pursuant to the decision of the investigator, the applicant was released from custody having given a written undertaking not to abscond .

On 10 March 2001 the applicant was committed for trial. The proceedings are pending.

B. Relevant domestic law

1. Criminal Code of 5 April 2001 (as in force at the relevant time)

The relevant extracts of the Code provide as follows:

Article 364. Abuse of power or office

“1 Abuse of power or office, namely the intentional use, for financial gain or with an other personal interest or in the interest of third persons, by an official of his/her power or office against the interest s of the service, if it has caused serious damage to State or public interests or to lawful interests, rights and freedoms of natural or legal persons, –

shall be pu n ishable by ...

2. The same acts, if they caused grave consequences, –

shall be punishable by ...”

Article 365. Excess of power or office

“1. Excess of power or office, namely the intentional commission of acts by an official which go manifestly beyond the scope of the rights and powers vested in him or her and which cause serious damage to the State or public interest or to the lawful interests, rights and freedoms of natural or legal persons –

shall be punishable by ...

2. Excess of power or office combined with violence or use of a weapon, or combined with humiliating acts or acts causing pain to the victim, provided that such acts do not fall within the scope of torture, –

shall be punishable by ...

3. Acts as described in paragraphs 1 or 2 of this Article, if they have caused grave consequences, –

shall be punished by imprisonment for seven to ten years with a prohibition of up to three years on occupying certain posts or carrying out certain activities. ”

Article 366. Forgery in office

“1. Forgery in office, namely the introduction by an official person of deliberately untruthful information into official documents, any other forgery of documents, as well as drafting and issuing of deliberately untruthful documents –

shall be punishable by ...

2. The same act, if it has caused grave consequences, –

shall be punishable by imprisonment for two to five years with a prohibition of up to three years on occupying certain posts or carrying out certain activities.”

2. Code of Criminal Procedure of 28 December 1960

The relevant extracts of the Code provide as follows:

Article 106. Arrest of a suspect by the body of inquiry

“The body of inquiry 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 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 ground s to suspect a person of a criminal offence, a body of inquiry may arrest such a person if the latter has attempted to flee, or does not have a permanent place of residence, or the identity of that person has not been established.

For each case of a suspect ’ s arrest, the body of inquiry shall be required to draw up an arrest order ( протокол затримання ) outlining the grounds, the motives, the day, time, year and month, the place of arrest, the explanations of the person detained and the time when it was recorded 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 order shall be signed by the person who drew it up and by the detainee.

A copy of the arrest order 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 ground s 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 preliminary detention is appealed against to a court, the detainee ’ s complaint shall be immediately 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 the application of the preventive measure. If the complaint is received after the preventive measure was applied, the judge shall examine it within three days after receiving it. If the request has not been received or if the complaint has been received after the term of seventy-two hours of detention, the complaint shall be considered by the judge within five days of 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 that the preliminary detention is lawful or allowing the complaint and finding the preliminary detention 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.

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 an order to that effect, and shall inform the official or body that carried out the arrest accordingly.”

Article 115. Arrest of a suspect by an investigator

“An investigator may arrest and question a person suspected of having committed a crime according to the procedure envisaged by Articles 106, 106-1, and 107 of the Code.”

Article 148. Purpose 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, from obstructing the establishment of the truth in a criminal case or pursu ing 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 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 165-2. Procedure for the 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, the investigator, or the 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 an application with the court. The prosecutor is entitled to lodge a similar application. In determining this issue, the prosecutor shall familiarise himself with all the material in the case file that would justify placing the person in custody, and verify that the evidence was received in a lawful manner and is sufficient to bring charges against the person.

The request shall be considered within seventy-two hours of the arrest of the suspect or accused.

If the application 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. The preliminary detention in such cases 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 at which the arrested person was brought to the locality.

Upon receiving the application, the judge shall examine the material in the case file submitted by the body of inquiry, the investigator, or the 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 and the defence counsel, if the latter appeared before the court, and make an order:

(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 order may be appealed against to the court of appeal by the prosecutor, the suspect, the accused or his or her defence counsel or legal representative, within three days of its delivery. The introduction of an appeal shall not suspend the execution of the judge ’ s order.

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 a decision on this matter, the judge may extend the applicant ’ s preliminary detention up to ten days or, if requested by the suspect or the accused, up to fifteen days. If it is necessary to examine additional material concerning a 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 make an order that that person be arrested and detained for the same period.”

3. Resolution No. 1577 of the Cabinet of Ministers on “Regulations on the Ministry of Justice” of 14 November 2006

According to paragraph 4 (16) of the regulations, the Ministry of Justice is empowered to provide interpretation of legislation for State bodies, companies, institutions and organisations.

4. Order No. 1871/7 of the Ministry of Justice on “Approving the division of functional powers between the Minister of Justice, the First Deputy Minister of Justice and other Deputies Minister of Justice” of 29 December 2008 (as in force at the relevant time)

The order provided that the applicant, as First Deputy Minister of Justice, was responsible, inter alia , for ensuring the representation of State interests before the courts in Ukraine and abroad .

C. Resolution of the European Parliament

On 9 June 2011 the European Parliament adopted resolution on Ukraine : the cases of Yulia Tymoshenko and other members of the former government. The resolution reads in as much as relevant as follows:

“ The European Parliament,

... G. whereas 12 former high-ranking officials from the Tymoshenko government are in pre-trial detention, including ... the former First Deputy Minister of Justice, Yevhen Korniychuk , who was arrested on 22 December 2010 on charges of breaking the law in connection with public procurement procedures for legal services, ...

I. whereas a preliminary report of the Danish Helsinki Committee for Human Rights on the Lutsenko and Korniychuk trials has listed massive violations of the European Convention on Human Rights, ...

1. Stresses the importance of ensuring the utmost transparency in investigations, prosecutions and trials, and warns against any use of criminal law as a tool to achieve political ends;

2. Is concerned about the increase in selective prosecution of figures from the political opposition in Ukraine as well as the disproportionality of measures applied ...

3. Reminds the Ukrainian authorities that the principle of collective responsibility for the decisions of the government does not permit the prosecution of individual members of the government for decisions that were taken collegially; ... ”

D. International reports

1. 2010 Country Report on Human Rights and Practices of the US Department of State released by the Bureau of Democracy, Human Rights, and Labour in respect of Ukraine

The relevant extract of the report reads as follows:

“There was a sharp increase in charges brought against opposition politicians after the appointment of a new prosecutor general on November 4, giving rise to the appearance of selective and politically motivated prosecutions by the Yanukovych government. Between November 1 and December 31, prosecutors brought charges against former prime minister Yulia Tymoshenko and more than eight high-level members of her government for abuse of office and/or misuse of state funds during their tenure. The questioning of accused individuals by government prosecutors, which often lasted for hours at a time over a period of several days, and the denial of bail in certain cases further exacerbated the perception of politically motivated prosecution (see section 4). The government contended that the prosecutions were not targeting the opposition, and that there were many ongoing investigations of members of the governing party; however, with only a few exceptions these were low-level, career officials.”

2. Preliminary Report on the trials against former Minister of Interior Y u riy Lutsenko and former First Deputy Minister of Justice Yev h en Korniychuk issued by the Danish Helsinki Committee on 28 April 2011

The Committee expressed concerns as to the possible flaws in the criminal proceedings against the applicant and noted that the “charges raised against the former ministers seem to the experienced eye somewhat far-fetched and one would expect them to result in political rather than criminal responsibility, if any at all.”

COMPLAINTS

1. The applicant complains under Article 5 § 1 of the Convention that he was arrested and held in custody unlawfully , arbitrarily and in disregard of the earlier findings by the courts that the alleged facts could not give rise to a criminal prosecution.

2. The applicant complains under Article 5 § 2 of the Convention that he was not informed of the grounds for his arrest.

3. The applicant complains under Article 5 § 3 of the Convention that the courts failed to give relevant and sufficient reasons for his pre-trial detention and failed to examine alternative preventive measures in his case.

4. The applicant complains that the courts did not reply to his arguments concerning the unlawfulness and unreasonableness of his arrest and pre-trial detenti on.

5. In his request for priority treatment of the case , submitted together with the application form, the applicant complains that his criminal prosecution and detentio n have been politically motivated.

QUESTION S TO THE PARTIES

1 . Were the applicant ’ s arrest on 22 December 2010 and his subsequent detention contrary to Article 5 § 1 of the Convention? In particular, were the impugned measures lawful, free from arbitrariness and executed in connection with a reasonable suspicion that an offence had been committed?

The Government are invited to provide:

(i) a copy of the letter of 23 February 2009 giving rise to the applicant ’ s prosecution;

(ii) copies of the earlier decisions to institute criminal proceedings in connection with the issuance of the letter of 23 February 2009.

2. Was the applicant informed sufficiently of the reasons for his arrest, as required by Article 5 § 2 of the Convention?

3. Did the courts give sufficient and relevant reasons for the applicant ’ s detention for the purposes of Article 5 § 3 of the Convention? Did they consider alternative measures to ensure the applicant ’ s appearance at trial ?

4. Was the procedure by which the applicant challenged the lawfulness of his detention in conformity with Article 5 § 4 of the Convention? In particular, did the courts duly address the issues raised by the defence in the course of those proceedings?

5. W ere the applicant ’ s arrest and detention applied for a purpose other than those envisaged under Article 5, contrary to Article 18 of the Convention , given that the applicant was First Deputy Minister of Justice in the previous government and in view of the applicant ’ s family relationship with the President of the Supreme Court ?