‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Thursday, 5 March 2015

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 10

Pre-trial detention - Tsitsiriggos v. GreeceViolation of Article 5 § 1 Violation of Article 5 § 5 Violation of Article 8 - The applicant, Dimitrios Tsitsiriggos, is a Greek national who was born in 1958 and lives in Piraeus (Greece). On 4 February 2008 Mr Tsitsiriggos was arrested and placed in pre-trial detention on suspicion of having set up an illegal investment fund and misappropriating several million euros.

Mr Kotiy alleged that he had been arrested in Kharkiv (Ukraine) on 13 November 2008 when going to the migration authorities to renew his international travel passport and, previously put on the national list of wanted persons on account of criminal proceedings brought against him for financial fraud involving his company based in Ukraine, was escorted to Kyiv for questioning the next day. On 20 November a further set of criminal proceedings were brought against him and he was held in detention until 24 November 2008 when a hearing was held to examine the investigating authorities’ request to detain Mr Kotiy in custody; the District Court found that there was no evidence to suggest that he might abscond, obstruct the investigation or continue any criminal activity and Mr Kotiy was therefore released. On his release, the investigating authorities obtained a written undertaking from Mr Kotiy not to abscond from his place of residence in Kharkiv and seized his international travel passports. Ultimately, in December 2011, the investigator closed both sets of criminal proceedings against Mr Kotiy, finding that the charges against him had not been proved. The written undertaking not to abscond was lifted and Mr Kotiy’s passports were returned to him.
Relying in particular on Article 5 § 1 (right to liberty and security) of the European Convention, Mr Kotiy alleged that both his initial arrest and detention between 13 and 14 November 2008 as well as his official arrest on 14 November and further detention until 24 November had been unlawful and arbitrary; in particular, the initial arrest and detention had not been recorded and his further detention had neither been based on a reasonable suspicion that he had committed an offence or sufficiently justified. He also alleged under Article 5 § 5 that he had not had an enforceable right to compensation in the domestic legal system for his unlawful arrest and detention. Lastly, relying in particular on Article 8 (right to respect for private and family life), he complained about the restriction on his right to leave Ukraine for more than three years. He alleged in particular that the obligation not to abscond and the seizure of his passports had been unlawful – as they had not been subject to judicial review – and disproportionate, given that his family life was largely concentrated in another country.

The Court’s assessment
"(a)  Whether there was an interference
62.  The parties agreed that there had been an interference with the applicant’s right to respect for his private and family life. The Court finds no reason to hold otherwise. It notes that the investigator’s decisions to obtain from the applicant a written undertaking not to abscond and the subsequent seizure of the applicant’s international travel passports prevented the applicant from travelling to Germany, where he had lived for several years and where his family continued to live. The measures therefore interfered with the applicant’s family life.
63.  The Court further notes that from 2003 until his arrival in Ukraine in November 2008, the applicant had held various managerial positions in Germany and was professionally involved in German society. The imposed restriction therefore prevented him from pursuing his normal professional activity and maintaining his relationships with his usual circle of acquaintances, which had negative repercussions on the applicant’s private life (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251‑B). Thus, the measures also impinged upon the applicant’s private life within the meaning of the Convention.
(b)  Whether the interference was justified
64.  The Court next has to examine whether the interference satisfied the conditions of paragraph 2 of Article 8.
(i)  Whether the interference was “in accordance with the law”
65.  The expression “in accordance with the law” requires, firstly, that the impugned measure should have some basis in domestic law. Secondly, it refers to the quality of the law in question, requiring that it should be accessible to the person concerned ‒ who must, moreover, be able to foresee its consequences for him ‒ and compatible with the rule of law (see, among other authorities, Kopp v. Switzerland, 25 March 1998, § 55, Reports 1998‑II).
(α)  Compliance with domestic law
66.  The Court notes that the investigator’s decisions concerning the written undertaking not to abscond and the seizure of the applicant’s international travel passports were taken on the basis of the relevant provisions of the CCP. It notes that under the domestic law the police authorities were empowered to seize the international travel passports (see paragraph 32 above). It accepts that the interference had a basis in domestic law.
(β)  Quality of law
67.  For domestic law to meet the Convention requirements regarding quality of law, it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights, it would be contrary to the rule of law ‒ one of the basic principles of a democratic society enshrined in the Convention ‒ for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise (see Gillan and Quinton v. the United Kingdom, no. 4158/05, § 77, ECHR 2010 (extracts), with further references).
68.  The existence of specific procedural safeguards is material in this context. What is required by way of safeguard will depend, to some extent at least, on the nature and extent of the interference in question (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 46, ECHR 2001-IX). In various contexts of Article 8 of the Convention, the Court has emphasised that measures affecting human rights must be subject to some form of adversarial proceedings before an independent body competent to review in a timely fashion the reasons for the decision and the relevant evidence (see Al-Nashif v. Bulgaria, no. 50963/99, § 123, 20 June 2002; X v. Finland, no. 34806/04, §§ 220-222, ECHR 2012 (extracts), and Oleksandr Volkov v. Ukraine, no. 21722/11, § 184, ECHR 2013).
69.  In this regard the Court notes that the interference in question stemmed from the written undertaking not to abscond obtained from the applicant and the seizure of his international travel passports. These measures were taken by the investigator in the course of criminal proceedings against the applicant. In accordance with the provisions of Article 234 of the CCP, the investigator’s decisions could be challenged before the prosecutor or the court. The Court does not consider that a complaint to the prosecutor could afford adequate safeguards ensuring a proper review of the matter (see Merit v. Ukraine, no. 66561/01, §§ 62-63, 30 March 2004). As to the judicial remedy mentioned in Article 234 of the CCP, the investigator’s decisions could be challenged before the court only at the stage of the preliminary hearing of the criminal case or its consideration of the merits. Such judicial review was not accessible during the period of investigation and could not therefore address the complaint in a timely fashion. Moreover, it does not appear that during the investigation, which lasted for over three years and seven months, the applicant was provided with any other judicial remedy whereby he could have required a court to rule on the lawfulness and proportionality of the impugned measure or have it discontinued.
70.  The Court therefore concludes that the domestic law did not provide sufficient guarantees against arbitrariness in the application of the above measures and did not meet the requirements of quality of law for the purpose of the Convention. In these circumstances it cannot be said that the interference in question was “in accordance with the law” as required by Article 8 § 2 of the Convention.
(ii)  Proportionality of interference
71.  In addition to the above findings, the Court considers it appropriate to examine whether the interference complied with other requirements of paragraph 2 of Article 8. It accepts that the interference pursued the legitimate aim of preventing crime within the meaning of Article 8 of the Convention. It will now assess whether the impugned measures were necessary in the circumstances of the applicant’s case.
72.  The Government contended that the application of a preventive measure had been justified by the seriousness of the charges against the applicant and that the written undertaking not to abscond had been the least intrusive measure compared with the other preventive measures available in criminal proceedings. The Court notes, however, that the selected preventive measure obliged the applicant to reside at a specific address in Ukraine and ignored the possibility that the applicant might continue to live in Germany, where he pursued his professional activities and where he and his family had settled several years before. Even occasional travels abroad were impossible, since the applicant’s international travel passports had been seized. Accordingly, in the specific circumstances of the applicant’s case, the written undertaking not to abscond was not a minimally intrusive measure, as maintained by the Government, but in fact amounted to an extensive interference with the applicant’s private and family life. The fact that at the time of his arrest the applicant was allegedly temporarily unemployed does not mitigate the interference. As to the Government’s contention that the applicant’s family could have moved to Ukraine in order to overcome the restriction on the family life imposed by the domestic authorities, the Court considers that the resettlement of the applicant’s family, including his children, would not have been a balanced solution, taking into account the other preventive measures available and the interests of the family. Meantime, the domestic authorities failed to make assessment of the other non-custodial preventive measures available in domestic law ‒ such as bail, for example ‒ which could have been less detrimental to the applicant’s private and family life.
73.  The fact that the applicant did not apply to the investigator asking for permission to leave his registered place of residence or return the passports does not appear to be significant, given that such an application could not be considered to constitute an effective remedy or method of addressing the substance of the applicant’s complaint. Moreover, the applicant cannot be reproached for not having raised the matter at the domestic level bearing in mind that he had, for example, challenged the decisions to initiate criminal proceedings against him and that this action, if successful, could eventually have resolved the issue of the impugned measures.
74.  Lastly, assessing the necessity of the restrictive measures in the context of their duration, the Court takes note of the applicant’s contention that from the moment he gave the written undertaking not to abscond (24 November 2008) until his application to the Court (23 May 2009) he was not called upon by the investigator to take part in any investigatory procedure. This allegation has not been refuted by the Government.
75.  In the light of the above considerations, the Court finds that by applying the impugned restrictive measures concerning the applicant, the domestic authorities failed to strike a fair balance between the applicant’s right to respect for his private and family life, on the one hand, and the public interest in ensuring the effective investigation of a criminal case on the other.
(c)  Conclusion
76.  The Court concludes that there has been violation of Article 8 of the Convention on the grounds that the interference with the applicant’s private and family life was not “in accordance with the law” and was not “necessary in a democratic society”."
Texts are based on the press releases of the European Court of Human Rights. 
This selection covers categories 1 and 2 judgments.

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