June 2011

FIFTH SECTION

Application no. 622/11 by Anatoliy Viktorovych MAKARENKO against Ukraine lodged on 29 December 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Anatol iy Viktorovych Makarenko , is a Ukrainian national who was born in 1964 and lives in Kyiv. He is represented before the Court by Mr Y. Sukhov , a lawyer practising in Kyiv.

A. The circumstances of the case

1. Criminal proceedings against the applicant and surrounding political events

On 28 January 2009 the applicant was appointed Chief of the State Customs Service of Ukraine.

During Prime Minister Y. Timoshenko ’ s term of office, in January-February 2009, I. D. , First Vice-President of the Board of Naftogaz Ukrayiny (the State-owned company which functions as a natural gas monopoly in Ukraine ) concluded several business contracts with its Russian partners JSC Gazprom and Gazprom Export LLC. Pursuant to these contracts, a claim of 11 billion cubic meters of natural gas imported by way of transit to Ukraine by a Swiss company, RosUkrEnergo AG (the official intermediary used by Gazprom in supplying Russian and Central Asian gas to Eastern Europe), was ceded to Naftogaz Ukrayiny .

Pursuant the above transactions, on 26 February 2009 I. D. addressed a letter to the applicant requesting customs clearance for the above-mentioned volume of natural gas and the annulment of nineteen customs declarations attesting that the gas had been imported for transit purposes.

On the same date, O. Turchinov , the First Deputy Prime Minister of Ukraine at the time, instructed the applicant in writing to ensure prompt customs clearance of the above-mentioned volume of gas.

On 27 February 2009 the applicant countersigned I. D. ’ s letter and O. Turchinov ’ s instructions and transmitted them to the relevant customs officials for execution.

On 7 February 2010 the leader of the opposition, V. Yanukovych , was elected the new President of Ukraine.

On 22 March 2010 the applicant resigned from his post as Chief of the Customs Service.

On an unspecified date RosUkrEnergo AG instituted proceedings in the Arbitration Institute of the Stockholm Chamber of Commerce alleging that the 11 billions cubic meters of gas had been its property and had been unlawfully alienated by Naftogaz Ukrayiny .

On 8 June 2010 the Institute found for RosUkrEnergo AG.

On 10 June 2010 the State Security Service of Ukraine (“the SSSU”) instituted criminal proceedings into I. D. ’ s gas transactions. He was subsequently charged with concluding a series of sham contracts.

On 23 June 2010 the applicant, accompanied by Y. S., his lawyer, appeared for questioning as a witness in the above criminal proceedings.

At 15:43 on that date the questioning ended. However, the applicant was not allowed to leave the SSSU ’ s premises.

At 19:00 on the same date the applicant was arrested with reference to Articles 106 paragraph 2 and 115 of the Code of Criminal Procedure of Ukraine on suspicion of having committed maladministration (Article 367 paragraph 2 of the Criminal Code of Ukraine) in countersigning the letters demanding customs clearance for the gas imported by way of transit and so causing substantial damage to the prestige of the State and RosUkrEnergo AG ’ s interests. On the same date formal criminal proceedings were instituted against the applicant.

Following the applicant ’ s arrest, opposition activists gave statements to the media (for example, the online publications “ GigaMir ”, “RAPSI”, “ Glavred -Media” and “ Vecherniye Vesti ”) to the effect that the applicant ’ s arrest was the beginning of political repression of them. They alleged, in particular, that the applicant was the victim of ‘ selective justice ’ administered by the present regime to individuals who had served the State dutifully under the previous Government. They further contended that the applicant ’ s only fault was his dutiful execution of lawful instructions given by his hierarchical superiors and that, in any event, by virtue of his post he had not been obliged to verify who had been the owner of the disputed gas. Some of the human rights organisations, including the Kharkiv and the Helsinki Human Rights Groups, also expressed opinions that the applicant ’ s prosecution could have been politically motivated.

On 23 December 2010 the Koretsky Institute of State and Law of the Ukrainian Academy of Sciences (“the Koretsky Institute”), following a request by the applicant ’ s lawyer, gave a legal opinion stating that the applicant ’ s arrest and indictment were arbitrary. In particular, in countersigning the documents seeking customs clearance, the applicant executed orders given by the Government within the framework of their interpretation of their rights and duties emerging from international agreements valid at the material time. Any expectation that the applicant would refuse to abide by such instructions was unreasonable. Furthermore, according to customs law, in general it is only an officer who processes customs documents who bears personal liability for incorrect clearance. Even so, neither this officer, nor any of his superiors were authorised and expected under applicable law to verify the legality of acquisition of the goods presented for clearance.

On 30 September 2010 the SSSU dropped the charge of maladministration under Article 367 paragraph 2, having re-qualified the applicant ’ s actions under Article 364 paragraph 3 of the Criminal Code (intentional abuse of office). In the indictment it noted, in particular, that between 20 January and 6 February 2009 I. D. had concluded a number of contracts which “ appear to be conforming to the requirements of the law on their face, but in fact represent a method of int entional, unlawful and unpaid alienation of [a] third party ’ s property for the benefit of another ”. Criminal proceedings under Article 367 paragraph 2 of the Criminal Code were consequently discontinued, and proceedings under Article 364 paragraph 3 of the Criminal Code were instituted in their stead. The applicant unsuccessfully attempted to challenge the latter decision on procedural grounds. However, the courts refused to consider his request, considering that it lacked a legal basis.

On 19 November 2010 the Council of Scientific Legal Expert Assessments of the Koretsky Institute, following a request from the applicant ’ s lawyer, produced a new opinion, contending that the qualification of the applicant ’ s conduct under Article 364 paragraph 3 of the Criminal Code was arbitrary, in particular, as the Chief of the Customs Service could not be considered ‘ an officer of a law-enforcement body ’ for the purposes of this provision.

On various dates several other legal opinions disputing, on various grounds, the foreseeability of the interpretation of applicable criminal, civil and procedural law by the SSSU to the applicant ’ s case were offered by other well-known legal scholars and institutions.

On 13 October 2010 the applicant was notified that the pre-trial investigation of his case had been completed and the case would shortly be transferred to the court for examination.

According to the materials in the case file, the criminal proceedings against the applicant are currently pending before the first-instance court.

2. Proceedings disputing the lawfulness of the applicant ’ s arrest and detention on 23 June 2010

On 30 July 2010 the applicant challenged the lawfulness of his arrest on 23 June 2010 before the Shevchenkivsky District Court of Kyiv. He alleged, firstly, that his arrest did not fall within the ambit of Article 106 paragraph 2 of the Code of Criminal Procedure, and so had been arbitrary and unforeseeable. Furthermore, before his official arrest at 19:00, he had already been held in the SSSU ’ s premises for more than three hours (since 15:43) without any justification.

On 27 September 2010 the Shevchenkivsky District Court of Kyiv rejected the applicant ’ s complaint, having found that he had not provided sufficient explanation as to why he considered that his arrest and detention had been unlawful.

On 12 October 2010 the Kyiv City Court of Appeal upheld this decision.

3. Proceedings concerning remand of the applicant in custody and periodic review of this measure

On 24 June 2010 the Pechersky District Court of Kyiv remanded the applicant in custody for two months. By way of reasoning for this decision, the court noted that the applicant had been 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 prominent social status and wealth. Moreover, the applicant had no employment or young children in his charge. The court dismissed a request lodged by fifty Members of Parliament to release the applicant on their personal surety.

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 initiation of the initial proceedings on 10 June and his 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. Fifty Members of Parliament had offered their personal surety to ensure his proper procedural conduct.

On 2 July 2010 the Kyiv City 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 comprised of his remand in custody .”

The court also concurred with the first-instance court ’ s findings that the applicant ’ s social connections and wealth might be used by him to influence the investigative activities, should he remain at liberty.

On 28 July 2010 the Supreme Court rejected the applicant ’ s request for leave to appeal in cassation against the above-mentioned decisions as falling outside its jurisdiction.

On 20 August 2010 the Pechersky District Court of Kyiv extended the applicant ’ s term in custody until 10 October 2010. The court noted that a number of investigative measures were still necessary, while any reasons justifying the lifting of the custodial measure were lacking.

On 27 August 2010 the Kyiv City Court of Appeal dismissed the applicant ’ s appeal against this decision. Subsequently (25 October 2010), the Supreme Court of Ukraine rejected the applicant ’ s request for leave to appeal in cassation as being outside its jurisdiction.

On 6 October 2010 the Pechersky District Court of Kyiv extended the applicant ’ s custody until 23 October 2010, referring to essentially the same arguments as in its previous decision.

On 12 October 2010 the Kyiv City Court of Appeal dismissed the applicant ’ s appeal against this decision.

On 22 October 2010 the Kyiv City Court of Appeal extended the applicant ’ s custody for one month, referring to the lack of any grounds for his release.

On 9 December 2010 the Kyiv City Court of Appeal extended the applicant ’ s custody for one month on the same grounds as before.

The applicant has not informed the Court of any subsequent decisions with respect to his remand in custody.

B. Relevant domestic law

1. Constitution of Ukraine 1996

The relevant provisions of Article 29 of the Constitution of Ukraine may be found in the judgment in the case of Soldatenko v. Ukraine (no. 2440/07, § 21 , 23 October 2008 ).

2. Criminal Code of Ukraine 2001

The relevant provisions of the Code read as follows:

Article 364. Abuse of power or official position

“ 1. Abuse of power or official position, namely intentional use of power or official position by an official contrary to the interests of his service for personal gain or for other personal interests or in the interests of third parties, causing significant damage to the rights, freedoms and interests of individual citizens or State or public interests, or the interests of legal persons protected by law ... shall be punishable ....

...

3. Acts as described in paragraphs one or two of this Article , if committed by a law-enforcement officer, shall be punishable by deprivation of liberty for a term of five to ten years, with a prohibition on occupying certain posts or carrying out certain activities for a period of up to three years, and with confiscation of property.”

Article 367 Maladministration

“1. Maladministration, namely a failure to perform or inadequate performance by an official of his service duties on account of negligence, causing significant damage to the rights, freedoms and interests of individual citizens or the interests of legal persons protected by law, shall be punishable ...

2. The same act, if it has caused serious damage, shall be punishable by deprivation of liberty for a term of two to five years accompanied by a prohibition on occupying certain posts or carrying out certain activities for a period of up to three years, [with or without] a fine ....”

3. Code of Criminal Procedure of Ukraine of 1960

The relevant provisions of Articles 106 and 115 of the Code of Criminal Procedure of Ukraine read as follows:

Article 106 . Arrest of a suspect by an investigating body

“An investigating body shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds:

(1) if the person is discovered whilst, or immediately after, committing an offence;

(2) if eyewitnesses, including victims, directly identify this person as the one who committed the offence; or

(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 grounds to suspect a person of a criminal offence, an investigating body may arrest such a person if he or she attempts to flee, or when his or her place of residence is not registered, or the identity of the individual in question is unknown.

For each case of a suspect ’ s arrest, the investigating body shall be required to draw up an arrest report ( протокол затримання ) outlining the grounds [for arrest], the motives [for arrest], the day, time, year and month [of arrest], the place of arrest, the explanations of the person detained and the time when it was recorded that the suspect was 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.

...”

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.”

COMPLAINTS

1. The applicant complains that his arrest and detention were politically motivated. In particular, he complains that he was arbitrarily detained between 15:43 and 19:00 on 23 June 2010 and that his arrest on the same date was unforeseeable within the meaning of Article 106 of the Code of Criminal Procedure and not based on a reasonable suspicion that he had committed any crime. He further complains that his remand in custody pending the criminal investigation of his case was not based on sufficient reasons. The applicant relies upon Article 5 § 1 (b) of the Convention in respect of the above complaints.

2. The applicant further complains under Article 5 § 1 (b) and § 3 of the Convention that the extensions of his pre-trial detention were not based on sufficient reasons.

3. He further complains under Article 6 § 1 of the Convention that the courts which examined the issue of his pre-trial detention lacked impartiality and independence as, in particular, on several occasions the same judges were involved in consideration of whether to extend his custodial term. Additionally, he complains under the above provision that the courts refused to consider his appeal against the decision of 30 September 2010 to institute criminal proceedings against him under Article 364 paragraph 3 of the Criminal Code of Ukraine.

4. Finally, the applicant complains under Article 14 of the Convention that the judicial authorities referred to his prominent social status and wealth as an argument for holding him in custody.

QUESTION S TO THE PARTIES

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular:

(a) did his being held at the premises of the State Security Service between 15:43 and 19:00 on 23 June 2010 constitute a deprivation of liberty? If so, was it covered by any of the subparagraphs of Article 5 § 1 of the Convention?

(b) was the applicant ’ s arrest on 23 June 2010 lawful and free of arbitrariness ? Namely, could Article 106 paragraph 2 of the Code of Criminal Procedure serve as the legal basis for arresting the applicant following his examination as a witness in criminal proceedings against a third party?

(c) was the applicant ’ s arrest on 23 June 2010 based on a ‘ reasonable suspicion ’ that he had committed an offence (see Lukanov v. Bulgaria , 20 March 1997, § § 42-46 , Reports of Judgments and Decisions 1997 ‑ II )?

(d) was the decision to remand the applicant in custody free of arbitrariness and necessary in the circumstances (see Nešťák v. Slovakia , no. 65559/01, § 74, 27 February 2007, and Khayredinov v. Ukraine , no. 38717/04 , §§ 29-31 , 14 October 2010 )?

2. Was the applicant ’ s continued detention based on sufficient and relevant grounds for the purposes of Article 5 § 3 of the Convention (see Khayredinov , cited above, §§ 37-43)?

3. Was the applicant ’ s arrest and detention applied for a purpose other than those envisaged by Article 5 , contrary to Article 18 of the Convention , given the applicant ’ s criminal prosecution for endorsement of instructions issued to him by the previous Government ?