Information Note on the Court’s case-law 231
July 2019
Korban v. Ukraine - 26744/16
Judgment 4.7.2019 [Section V]
Article 18
Restrictions for unauthorised purposes
Alleged politically motivated deprivation of liberty: no violation
Facts – The applicant, a well-known politician, was arrested at his home on 31 October 2015. The time-limit for arrest without a judicial decision expired on 3 November 2015 and the applicant was released. However, he was re-arrested two minutes later. The applicant complained, inter alia, that those arrests had been unlawful and arbitrary. He further argued that the deprivation of his liberty had been ordered for ulterior, political motives.
Law – Article 18 in conjunction with Article 5: The Court found that the applicant had been arrested on “reasonable suspicion” of having committed a criminal offence. In other words, even though the Court had found a number of violations of Article 5, it could still be stated that the applicant had been deprived of his liberty for a purpose prescribed by Article 5 § 1 (c). In analysing the applicant’s complaint under Article 18, the Court had first to examine whether the restriction in question had additionally pursued any other purpose which was not prescribed by Article 5 § 1. Even in the event of an affirmative answer to that question, there would only be a breach of Article 18 if that other purpose had been predominant.
The timing of the applicant’s initial arrest and the manner in which it had been carried out could be interpreted as possible indices of an ulterior purpose. It was only on 31 October 2015, more than a year after the institution of criminal proceedings, that the investigating authorities had notified the applicant of their suspicions and arrested him. His arrest had taken place with the involvement of a special forces unit, which had broken through the entrance door to his flat. All of a sudden, without any apparent reason, the applicant’s arrest and criminal prosecution had become a matter of particular urgency and zeal for the prosecuting authorities. In the absence of any convincing explanations from the authorities, it had been broadly perceived by political parties, mass media and civil society as selective justice.
The applicant linked his criminal prosecution and deprivation of liberty, in particular, with the alleged conflict between the then head of a regional state administration and the President of Ukraine, which had led to the former’s resignation in March 2015. In the absence of complaints of political persecution raised by the above-mentioned official or any member of his political team other than the applicant, the Court did not find that argument convincing.
The Court was also not convinced by the applicant’s allegation that the real impetus for his criminal prosecution might have stemmed from his rivalry with the candidate from the President’s party during mid-term parliamentary elections. The applicant had suggested that the whole legal machinery had been misused at the whim of a friend and political ally of the President. There was no evidence in the case-file materials in support of such a serious allegation. Furthermore, it appeared unlikely that the candidate, who had won the elections with almost 36% of the vote, would post factum seek to take revenge on the applicant, who had obtained less than half of that percentage. Although the applicant had suggested that the election results had been rigged and were unfair, he had not lodged a complaint under Article 3 of Protocol No. 1.
In so far as the applicant had claimed that he had been sharply criticising the President of Ukraine and those in power, there was no information of any attempts to stifle voices critical of the then President of Ukraine or the government. The plurality of publicly expressed opinions in Ukraine concerning the applicant’s criminal prosecution itself was rather an indication to the contrary: that anybody had been free to criticise the President in particular and the authorities in general.
The Court was also sceptical of the alleged link between the deprivation of the applicant’s liberty and the success of his party in the local elections. Firstly, the criminal proceedings against the applicant had been instituted about a year prior to the creation of his party (UKROP). Secondly, apart from the “Bloc of Petro Poroshenko”, which had won the election, two other parties had obtained better results than UKROP but had not alleged that they had been persecuted.
In the light of all the foregoing, the allegations the applicant had raised in the context of his complaint under Article 18 had not been sufficiently proven. Even if there might have been some ulterior motives for prosecuting the applicant and depriving him of his liberty, the Court was unable to identify them on the basis of the applicant’s submissions, let alone find that those ulterior motives were predominant.
Conclusion: no violation (unanimously).
The Court also held, unanimously, that there had been violations of Article 3 (substantive aspect) in respect of the applicant’s participation in court hearings in the days following major surgery and on account of his confinement in a metal cage during court hearings. The Court found, unanimously, a breach of Article 5 § 1 in respect of the applicant’s arrest and re-arrest. The Court also found, by six votes to one, a violation of Article 5 § 3 due to the absence of relevant and sufficient reasons for the applicant’s deprivation of liberty and, unanimously, a violation of Article 5 § 5, finding that the applicant’s effective enjoyment of the right to compensation had not been ensured with a sufficient degree of certainty. Finally, the Court held, unanimously, that there had been a breach of Article 6 § 2 as regards statements made by high-ranking officials to the mass media in respect of the criminal proceedings against the applicant.
Article 41: no claim made in respect of damage.
(See also Buzadji v. the Republic of Moldova [GC], 23755/07, 5 July 2016, Information Note 198; Svinarenko and Slyadnev v. Russia [GC], 32541/08 and 43441/08, 17 July 2014, Information Note 176; and Merabishvili v. Georgia [GC], 72508/13, 28 November 2017, Information Note 212)
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