Do today’s HACC decisions comply with European practice?

The right to liberty and security of person is established by Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, in which we are interested in paragraph 3:

Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial...

Analyzing the cases on liberty and security of person, the European Court concluded that the Human Rights Convention requires that any detention or custody be based on the provisions of national law, but such a requirement concerns, among other things, the quality of the law, requiring it to comply with the rule of law inherent in all articles of the Convention (see the judgment in Del Río Prada v. Spain [GC], application no. 42750/09, paragraph 125, ECHR 2013).

In its judgment in the case of Korban v. Ukraine, no. 26744/16, dated 04.07.2019, para. 154, the Court noted: “One of the general principles established by the Court’s case-law is that detention will be considered ’arbitrary’ if, despite compliance with national law, there is bad faith or misrepresentation by the public authorities, or if the public authorities neglect to attempt to apply the relevant legislation correctly (see the judgment in S., V. and A. v. Denmark [GC], applications no. 35553/12 and 2 others, paragraphs 74 and 76, of 22 October 2018, with further references).”

Considering the case of Zaikin v. Ukraine, no. 37822/16, 11.05.2023, para. 7, the Court reiterated that when deciding on the release or further detention of a person, the public authorities are obliged to consider alternative means of ensuring his or her appearance in court.

Moreover. In the judgment in the case of Buzadji v. the Republic of Moldova [GC], Application no. 23755/07, paras. 87 and 102, of July 05, 2016, the Court expressed an even more rigid legal position: “The presumption always applies in favor of release. Until conviction, he or she must be presumed innocent, and the purpose of the Convention provision is, in effect, to require the release of the accused as soon as his or her continued detention is no longer reasonable.”

The most striking example of a negative trend that has emerged in Ukrainian legal proceedings in connection with the determination of bail is the decision in the case of Istomina v. Ukraine (№23312/15, of 13.01.2022, para. 25). Criminal proceedings were initiated against the applicant on suspicion of tax evasion, involvement in the activities of fictitious enterprises and forgery of documents.

The investigator believed that the applicant was the organizer of these crimes, which caused the state damage in the amount of UAH 12,250,479. In the application for a preventive measure against the applicant, the investigator asked the court to grant the applicant bail in the same amount. The district court issued a ruling on bail, setting bail in the amount of UAH 12,249,426, which was 125 times higher than the bail that could have been set in connection with the type of crime the applicant was accused of.

Subsequently, due to the applicant’s failure to pay bail, the court imposed a pre-trial restraint in the form of detention with an alternative of paying bail in the previous amount. The applicant’s attempts to convince the judicial system that this amount of bail was too high given her wealth were unsuccessful. Analyzing the circumstances in this case, the European Court noted: “(...), the guarantee provided for in Article 5 § 3 of the Convention is not intended to ensure compensation for any damage caused by the alleged crime, but only the presence of the accused at the trial. Therefore, the amount of bail should be set primarily in view of the personality of the accused, his property and his relationship with the guarantors, in other words, in view of the degree of certainty that the possible prospect of forfeiture of bail or action against the guarantors in the event of his failure to appear at the court hearing will be a sufficient deterrent to deprive him of the desire to flee (see Gafa v. Malta, application no. 54335/14, paragraph 70, of May 22, 2018).

Since the issue is a fundamental right to liberty guaranteed by Article 5 of the Convention, the authorities must make every effort to set an appropriate amount of bail and to decide whether it is necessary to continue detention. The gravity of the charges against the accused cannot be a decisive factor in justifying the amount of bail (see the judgment in Hristova v. Bulgaria, application no. 60859/00, paragraph 111, of 07 December 2006).

Moreover, in paragraph 26 of the above-quoted judgment the Court noted: “Failure of the domestic courts to assess the applicant’s ability to pay the required amount may lead to a finding of a violation by the Court”.

The judgment of the European Court in the case of Mangouras v. Spain (no. 12050/04, 28.09.2010, para. 80) is also decisive in terms of the practice of national courts, in which the Court stated: “Furthermore, the amount of bail must be duly justified in the bail order (see the Georgieva judgment cited above, §§ 15, 30 and 31) and must take into account the accused’s financial situation (see the Hristova judgment cited above, § 111).

At the same time, the failure of the domestic courts to assess the applicant’s ability to pay the required amount was one of the reasons why the Court found a violation in the judgment in Toshev v. Bulgaria (no. 56308/00, §§ 68 ff., 10 August 2006). In particular, according to the circumstances of this case, the applicant spent a long time in custody because he could not pay the amount of bail set by the national court, and the Bulgarian judicial system at that time did not provide for periodic assessment of the solvency of a person in custody.

The state is responsible to the individual by implementing the judgment of the European Court — by taking individual measures, paying just satisfaction, and — most importantly — by taking general measures. The latter should be aimed at correcting the mistake that gave rise to the ECtHR’s finding of a human rights violation in such a way that it does not happen again. Just in case, I would like to draw your attention to the fact that the above-mentioned judgment in the case of Istomina v. Ukraine was adopted by the ECtHR in 2022. What is really interesting is whether the state has implemented general measures under this judgment.

Valeriya Lutkovska, Ukrainian Parliament Commissioner for Human Rights (2012-2018), Government Agent for the European Court of Human Rights (2011-2012), Honored Lawyer of Ukraine