CASE OF TOKAR v. UKRAINE

FIFTH SECTION

CASE OF TOKAR v. UKRAINE

(Application no. 38268/15)

JUDGMENT
 

STRASBOURG

6 March 2025

This judgment is final but it may be subject to editorial revision.

In the case of Tokar v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Armen Harutyunyan, President,
 Andreas Zünd,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 38268/15) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 27 July 2015 by a Ukrainian national, Mr Oleksandr Vasylyovych Tokar (“the applicant”), who was born in 1957, lives in Odesa and was represented by Mrs L. Donina and Mr S. Tokar, lawyers practising in Odesa;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, Ms M. Sokorenko;

the parties’ observations;

Having deliberated in private on 6 February 2025,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The application concerns a refusal to issue the applicant with an identity document required for travelling abroad as a result of allegedly inaccurate data held in the police database. It raises issues under Article 2 of Protocol No. 4 and Article 13 of the Convention.

2. On 22 July 2011 the applicant applied for an identity document as required for travelling abroad (“the international passport”).

3.  In October 2011 the migration authorities of the Odesa Regional Police Directorate (“the ORPD”) rejected the applicant’s application following information from the police’s Information Technology division (“the IT unit”) that criminal proceedings for tax evasion had been initiated against the applicant in May 1997, in the context of which he had been placed under obligation not to leave his place of residence (підписка про невиізд). There was no information in the police registers on the outcome of those proceedings. The police relied on Article 6 of the Leave and Entry Procedures Act (Закон України «Про порядок виїзду з України і в’їзду в Україну громадян України) and Article 22.3 of Government Resolution No. 231 of 31 March 1995 (“Resolution No. 231”) implementing the above Law, which provided that a person could be temporarily denied an international passport if criminal proceedings had been instituted against him or her, up until the proceedings had been concluded.

4.  The applicant appealed against the refusal to the Odesa Circuit Administrative Court (“the Administrative Court”) arguing that the information contained in the police database referred to by the authorities was incorrect. He submitted that the criminal proceedings in the context of which he was ordered, in September 1997, not to leave his place of residence concerned allegations of group bribery. This case, as far as he was concerned, had been closed at the end of 1997, but no decision to that effect had been sent to him. The applicant asked the Administrative Court to obtain the relevant documents from the prosecutor’s office, to enter the information on the closure of the bribery case into the police database and to delete the erroneous data on the tax evasion case concerning him from the police registers.

5.  The ORPD and the prosecutor’s office were unable to provide the Administrative Court with documents from the criminal case file against the applicant. The ORPD informed the court that on 30 November 1997 the group bribery case, in which the applicant was one of the accused, had been merged with an earlier tax evasion case and that on 9 December 1997 the case file in the merged case had been referred to a court to decide on the question of jurisdiction. However, the ORPD had no information on the outcome of these proceedings. The prosecutor’s office informed the Administrative Court that it did not have any information on the applicant’s case, as the prosecutor’s file had been destroyed because the statutory period for their retention had expired.

6.  On 11 January 2013 the Administrative Court dismissed the applicant’s claim, finding that the migration authorities had lawfully rejected the applicant’s passport application, given the information that criminal proceedings had been initiated against him and in the absence of information that any judgment had been given in his case or a decision made to terminate the proceedings. The Administrative Court further found that the IT unit was not entitled to enter or delete data concerning criminal proceedings in the police registers on its own initiative.

7.  On 21 August 2013 the Odesa Administrative Court of Appeal (“the Court of Appeal”), upon appeal by the applicant, set aside the lower court’s judgment and decided in the applicant’s favour. The court held that the authorities had failed to discharge the burden of proof and had not provided any evidence to show that the decision to reject the applicant’s passport application was based on valid legal grounds, namely that the applicant was still bound by the obligation not to leave his place of residence when he applied for his international passport. The Court of Appeal noted that the authorities did not have up-to-date information on the status of the criminal proceedings against the applicant, the last information available dating from December 1997, and did not know the whereabouts of the case file. It held that, under the law, the fact of a preventive measure, confirmed by the relevant procedural document, constituted a ground for restricting the applicant’s freedom of movement, rather than the availability of information on the existence of such a ground.

8.  On the basis of the foregoing, and observing further that under the Information Act official information provided by State authorities should be correct and accurate, the Court of Appeal held that the refusal to issue the applicant with an international passport was unlawful. It ordered the State Migration Service, which had been responsible for issuing travel documents since January 2013 succeeding the ORPD, to issue a passport to the applicant. The ORPD was ordered to remove the information that the applicant was under obligation not to leave the country in the tax evasion case from the police registers, pointing out that, following amendments to the law, it was the preventive measure, and no longer the fact that criminal proceedings had been initiated, that constituted the legal basis for rejecting a passport application.

9.  On 8 October 2013, after the judgment of the Court of Appeal had become enforceable, the applicant asked for and was issued with an international passport. According to him, the erroneous record had also been removed from the police database.

10. In a final judgment of 18 June 2015 the Higher Administrative Court ("HAC"), on appeal by the police, quashed the judgment of the Court of Appeal and upheld the decision of the first-instance court. The HAC held that the migration authorities had lawfully rejected the applicant’s passport application, because, where there was information that there were criminal proceedings against a person, the rejection of such an application was mandatory until the criminal proceedings had been concluded or the relevant preventive measure had been lifted.

11.  Accepting information provided by the authorities concerning the criminal proceedings, the HAC noted that the police and the prosecutor’s office had no information on the outcome of the tax evasion case, which had been referred to a court in 1997. It further found that there was nothing in the file before it to indicate that the order not to leave the place of residence given to the applicant in 1997 had been lifted, and that the applicant’s assertion that the criminal proceedings on the bribery charges had been discontinued was not supported by any evidence.

12.  The HAC further found that the procedure for the maintenance of the relevant information by the police did not entitle the IT unit to amend the registers on its own initiative, but only upon the required information from the investigating authorities or the courts. Domestic law also made no provision for the deletion of an entry relating to a criminal case from the police registers in the absence of information on the outcome of the criminal proceedings received through the appropriate channels.

13.  On 5 November 2015 the HAC rejected an application by the applicant in which he asked the court to clarify its judgment of 18 June 2015 by indicating how he should protect his rights to freedom of movement.

14.  On 22 June 2016 another international passport was issued to the applicant by the State Migration Service at his request.

15.  According to the information note submitted by the Migration Service to the Government on 10 August 2023, both international passports issued to the applicant are valid.

16.  Between January and May 2013, while the administrative proceedings were still ongoing, the applicant filed complaints with the Primorsky District Court of Odesa (“the District Court”), the Odesa Regional Prosecutor’s Office and the ORPD, seeking the correction of the allegedly incorrect information in the police database and a formal decision lifting the preventive measure in the tax evasion case, which had been closed.

17. The applicant’s complaints were rejected by the District Court and the Odesa Regional Prosecutor’s Office on the grounds that the legislation in force did not provide a way to challenge the investigator’s actions or to have the database amended in the manner sought by the applicant. The ORPD informed the applicant that its Investigation Department had never dealt with the tax evasion case which had apparently been referred to the Odesa Regional Court of Appeal in December 1997.

18.  On 29 July 2013 the Odesa Regional Court of Appeal informed the applicant that no criminal case against him on charges of tax evasion had been ever brought before it.

THE COURT’S ASSESSMENT

19.  The applicant complained that the refusal to issue him with a travel document was unlawful and arbitrary, since the information contained in the police database and relied on as the grounds for the refusal was incorrect.

20.  The Government submitted that the application should be declared inadmissible as a whole on the grounds that

(i) the applicant could not claim to be a victim within the meaning of Article 34 of the Convention, since he had been issued with travel documents in 2013 and 2016;

(ii) the applicant had abused the right of individual application since he had not informed the Court that the passports had been issued; and

(iii) the application was manifestly ill-founded since it appeared impossible to verify the applicant’s allegations about the criminal proceedings and the preventive measure against him with the domestic authorities, given the length of time that had elapsed since the measure had been ordered against him and his complaint.

21.  In addition, the Government objected that the applicant had not exhausted domestic remedies. Observing that domestic legislation had not provided a mechanism for lifting a preventive measure imposed under the old 1960 Code of Criminal Procedure in cases which had been closed, the Government submitted that judicial practice had now made that possible. In 2018 the Grand Chamber of the Supreme Court had held that applications for the release of property seized under the 1960 Code of Criminal Procedure in proceedings which had subsequently been discontinued should be decided by the civil courts since they essentially concerned undisputed property rights. The Government suggested that the applicant should have applied this practice by analogy and applied to the civil court for the termination of the order not to leave his place of residence which restricted his freedom of movement.

22.  The applicant submitted that he had been issued with the passports while the judgment of the Court of Appeal was enforceable. Since the HAC had overturned this judgment, he had legally been put back into the situation in which he had been refused the international passport, with the incorrect information still registered against him in the police registers. The point of registering the obligation not to leave his place of residence in the police database, of which he had not been aware prior to the rejection of his passport application, was to restrict not only his right to travel abroad but also his right to choose his place of residence within the country.

23.  The Court observes that, although the applicant obtained a travel document in 2013 and then in 2016, the domestic authorities have not acknowledged the alleged violation of his freedom of movement for the two years during which the authorities refused to issue the applicant with a passport (see paragraphs 3 and 9 above). It notes that the Court of Appeal’s judgment in favour of the applicant was overturned by the HAC, and the applicant has not received any compensation or other redress in this regard.

24.  Accordingly, the Court dismisses the Government’s objection as to the applicant’s victim status and the abuse of his right of individual petition (see Navalnyy v. Russia [Committee], no. 32963/16, § 15, 15 May 2018).

25. As regards the Government’s objection that the applicant had not exhausted domestic remedies, the Court observes that he had challenged the decision of the migration authorities in the administrative courts, arguing that the grounds on which the refusal had been based did not exist and that the information in the police register relied on by the authorities was inaccurate. The Court notes that such judicial review was the principal legal means available to the applicant under domestic law to obtain the redress sought.

26.  In addition, in his attempt to rectify the information in the police database, the applicant had also used criminal law avenues. However, these remedies proved ineffective, mainly because it did not appear to be possible under national law to have such information rectified (see paragraphs 16‑18 above).

27.  The Court considers that it would be excessive to require the applicant to use the civil remedy as suggested by the Government. This is all the more so since the Government have not given any example that this remedy could effectively be applied in the present case, given the disappearance of the criminal file while the authorities retained the procedural documents. It therefore rejects the Government’s plea of non-exhaustion.

28.  The Court furthermore notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

29.  The Court reiterates that a measure by means of which an individual is denied the use of a document which would have permitted him to leave the country had he so wished, amounts to an interference with that individual’s rights within the meaning of Article 2 of Protocol No. 4 (see Berkovich and Others v. Russia, nos. 5871/07 and 9 others, § 78, 27 March 2018, with further references).

30.  Turning to the question of the lawfulness of the interference, the Court observes that the migration authorities’ decision to reject the applicant’s passport application had a statutory basis, namely Article 6 of the Exit and Entry Procedures Act and Article 22.3 of Resolution No. 231, which provided that a delivery of an international passport could be denied if there was an ongoing criminal case against a person concerned. The applicant argued, however, that the criminal proceedings on bribery charges, in respect of which he had been ordered not to leave his place of residence, had been closed in 1997 and that he had never been a suspect in any tax evasion proceedings registered in the police database and referred to by the authorities. In this connection, the Court notes that there is no material in the case file and the Government did not suggest that the migration authorities made any reasonable attempts to verify the applicant’s allegations with a view to establish whether the criminal proceedings referred to in the police database were relevant and had not yet been determined in 2011, when he applied for his passport. The refusal of the applicant by the administrative authority was akin to an automatic measure. In this regard, it recalls that an automatic travel ban is contrary to the obligations of the authorities under Article 2 of Protocol No. 4 (see Riener v. Bulgaria, no. 46343/99, § 128, 23 May 2006).

31. That said, the Court must examine whether, in the particular circumstances of the case at issue, there was an effective judicial review of the legality and proportionality of the decision to refuse the applicant’s passport application. Such a review was all the more necessary since that the decision was adopted approximately fourteen years after institution of the criminal proceedings against the applicant, the outcome of which remained unknown (see and compare Rotaru v. the Republic of Moldova, no. 26764/12, § 29, 8 December 2020).

32.  It is apparent from the material before the Court that the Court of Appeal, when reversing the judgment of the first-instance court and finding that the refusal to issue a passport had been arbitrary, had performed a comprehensive assessment of all available elements (see paragraphs 7 and 8 above). Moreover, after the judgment of the Court of Appeal had become enforceable, the applicant managed to obtain his international passport and have the police database amended (see paragraph 9 above).

33.  However, the Court of Appeal’s judgment was subsequently set aside by the HAC, which examined the applicant’s claim at last instance and rejected it, based solely on the formal lawfulness of the migration authorities’ action in rejecting the passport application. Having established that no information was available to the police on the outcome of the criminal proceedings against the applicant, they confirmed the ban. The fact that the criminal investigation authorities were unable to provide up-to-date information on these criminal proceedings and to produce any evidence showing that they were actually ongoing at the time of the applicant’s passport application, as required by law, had no bearing on their conclusions. Furthermore, at no time did the HAC examine the question of the proportionality of the interference in the specific context of the applicant’s case.

34.  The Court emphasizes that it is the duty and responsibility of the State, not the applicant, to ensure the proper functioning of its legal system. This includes the maintenance of accurate registers, the conducting of investigations, and the smooth transfer of information from one authority to another. In the present case, however, the HAC reversed the burden of proof and made the applicant bear the consequences of the apparent malfunctioning of the domestic legal system. Moreover, the HAC did so in the knowledge that it would not be possible for the applicant, under the circumstances, to get the police records amended (see paragraph 12 above).

35.  In the light of these considerations, given an automatic nature of the refusal to issue the passport and in the absence of a proper judicial review by the domestic authorities, the Court finds that the applicant was deprived of the possibility of benefiting from sufficient procedural guarantees to prevent the risk of abuse of power by the authorities and that he was therefore deprived of the necessary protection against arbitrariness conferred on him by the principle of the rule of law in a democratic society.

36.  In those circumstances, the Court considers that the interference with the applicant’s right to freedom of movement was not “provided for by law”. This finding makes it unnecessary to examine compliance with the other requirements set out in Article 2 of Protocol No. 4 to the Convention.

37.   There has accordingly been a violation of that provision.

38.  The applicant complained that he had not had an effective domestic remedy in respect of his complaint under Article 2 of Protocol No. 4.

39.  The Court considers that this complaint must be declared admissible. In the light of its finding in paragraphs 25 and 27 as well as the reasoning that led to the finding of a violation of Article 2 of Protocol No. 4, the Court finds that the applicant did not have at his disposal any available domestic remedy capable of remedying his complaint and concludes that there has been a violation of Article 13 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

40. The applicant claimed 7,500 euros (EUR) in respect of non-pecuniary damage.

41.  The Government submitted that the amount claimed was exorbitant and unfounded.

42.  In the light of the evidence before it and ruling on an equitable basis, as required by Article 41, the Court considers that the applicant should be awarded EUR 2,000 in this respect.

43.  The applicant did not submit a claim for costs and expenses. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  hat the respondent State is to pay the applicant, within three months, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 6 March 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Armen Harutyunyan
 Deputy Registrar President