The ECHR judgment of July 4, 2019 in the case of Korban v. Ukraine (application No. 26744/16).
In 2016, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Ukraine.
In the case, an application was successfully examined regarding the facts of unlawful detention of the applicant by the authorities for political reasons. The case did not violate the requirements of Article 18 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The case has violated the requirements of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms in its substantive aspect, paragraph 1, paragraph 3, paragraph 5 of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, paragraph 2 of Article 6 of the Convention for the Protection of Human Rights and fundamental freedoms.
Circumstances of the case
The applicant, a well-known politician, was detained at home on October 31, 2015. His detention without a court order expired on November 3, 2015, and the applicant was released. However, he was again detained two minutes later. The applicant complained, inter alia, that these detentions were unlawful and arbitrary. He also claimed that his imprisonment was related to political motives.
QUESTIONS OF LAW
Concerning compliance with Article 18 of the Convention in conjunction with Article 5 of the Convention. The Court considers that the applicant was detained on the basis of “reasonable suspicion” of a crime. In other words, even if the Court found several violations of Article 5 of the Convention, it could still be argued that the applicant was deprived of his liberty for the purpose of Article 5 § 1 (c) of the Convention. In analyzing the applicant's complaint about the alleged violation of Article 18 of the Convention, the Court should first check whether the impugned restriction had an additional purpose that was not provided for in Article 5 § 1 of the Convention. Even with a positive answer to this question, a violation of Article 18 of the Convention could only be established if the goal were dominant.
The time of the applicant's first detention and how it was carried out could be considered as potentially indicating the real purpose of the detention. The authorities informed the applicant of suspicions against him and detained him only on 31 October 2015, that is, more than a year after the initiation of the criminal case. The applicant’s detention was carried out with the participation of a special forces unit, which broke open the front door to the applicant’s apartment. Suddenly, for no apparent reason, the applicant’s detention and criminal prosecution became a matter of particular urgency and vigor for the prosecution authorities. In the absence of any convincing explanations from the authorities by political parties, the media and civil society, this was generally perceived as selective justice.
The applicant linked his deprivation of liberty and criminal prosecution, in particular, with the alleged conflict with persons who at that time held the posts of head of the regional administration and the President of Ukraine, which led to the resignation of the first in March 2015. In the absence of complaints of political persecution by the official or any member of his political team, other than the applicant, the Court found the applicant's argument unconvincing.
The Court was also not convinced by the applicant's argument that the real reason for his criminal prosecution could have been his rivalry with the presidential candidate during the parliamentary elections. The applicant suggested that the entire legal mechanism was used for other purposes at the request of a friend and political associate of the president. The case file did not contain evidence of such a serious charge. Moreover, it seemed unlikely that the candidate, who won the election with almost 36% of the vote, would take revenge after the fact to the applicant, who did not receive even half of this amount. Despite the fact that the applicant alleged that the election results were falsified and unfair, he did not file a complaint about a violation of Article 3 of Protocol No. 1 to the Convention.
Since the applicant claimed that he had sharply criticized the President of Ukraine and those in power, it should be noted that there was no information about any attempts to drown out the voices of those who criticized the President of Ukraine or the government. The pluralism of public expression of opinions in Ukraine regarding the criminal prosecution of the applicant rather testified to the opposite: that everyone could freely criticize the president in particular and the authorities in general.
The Court also doubted the alleged link between the applicant’s deprivation of liberty and the success of his party in the local elections. Firstly, a criminal case against the applicant was opened a year before the creation of his party (“Ukrainian Association of Patriots - UKROP”, hereinafter - UKROP). Secondly, in addition to the Bloc of Petro Poroshenko, who won the election, the other two parties achieved better results than the UCROP, but did not claim that they were harassed.
In view of the foregoing, the applicant's allegations in the context of Article 18 of the Convention have not been sufficiently substantiated. Even if there were any hidden reasons for the persecution of the applicant and the deprivation of his freedom, the Court was unable to identify them on the basis of the applicant's allegations, not to mention their recognition as dominant.
In the case there was no violation of the requirements of Article 18 of the Convention (adopted unanimously).
The Court also unanimously decided that there had been a violation of Article 3 of the Convention in its substantive aspect in that the applicant participated in the hearings immediately after he underwent a serious operation, while being detained in metal the cage. The Court unanimously found a violation of Article 5 § 1 of the Convention in respect of the first and repeated detention of the applicant. The Court also decided, with six votes to one, against one, that the case had been violated in Article 5 § 3 of the Convention because of a lack of appropriate and sufficient grounds for depriving the applicant of his liberty. He also unanimously acknowledged a violation of Article 5 § 5 of the Convention, pointing out that the effective exercise of the applicant's right to compensation was not provided with a sufficient degree of certainty. Finally, the Court unanimously held that there had been a violation of Article 6 § 2 of the Convention in connection with the allegations made by senior officials regarding the applicant’s criminal case to the media.