Communicated on 1 December 2014
FIFTH SECTION
Application no. 39496/11
Anna Olegovna SINKOVA
against Ukraine
lodged on 21 June 2011
STATEMENT OF FACTS
The applicant, Ms Anna Olegovna Sinkova, is a Ukrainian national, who was born in 1991 and lives in Kyiv. She is represented before the Court by Mr A.P. Bushchenko and Ms Y.V. Zaikina, lawyers practising in Kharkiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a member of an artistic union “St. Luke Brotherhood”.
On 16 December 2010 she made what she describes an act of performance, which consisted of the following. The applicant went to the Eternal Glory Memorial to those perished in the Second World War, which comprised thirty-two soldier graves, including that of an Unknown Soldier. She took a frying pan prepared in advance, broke some eggs into it and fried those eggs on the “eternal flame” at the Unknown Soldier’s Grave. Subsequently the fried eggs were thrown into a garbage bin. Some other fellows of the aforementioned artistic union filmed the described event and posted the video on the internet. The video was accompanied by the following statement:
“Precious natural gas has been being burned, pointlessly, at the Glory Memorial in Kyiv already for fifty-three years. This pleasure costs the taxpayers about 300,000 hryvnias per month. And this is only one “eternal flame” pagan temple, whereas there are hundreds or even thousands of them throughout Ukraine. On 16 December the “St. Luke Brotherhood” reacted to this by an action of protest in the Glory Park in the capital. It showed that people should use the “eternal flame”.
We suggest to the outraged representatives of the Communist Party of Ukraine to follow the example of ancient Roman vestal virgins and to carry out around-the-clock duty at the “eternal flames” keeping the fire manually by wood. There is no doubt that communists will have no problems with fulfilling this task, because they already have experience of taking care of the Lenin monument in Kyiv and their financing is much better than that vestal virgins had.”
On 18 February 2011 an investigator of the Pecherskyy District Police Department in Kyiv opened a criminal case in respect of the applicant and two unidentified persons on suspicion of desecration of the Unknown Soldier grave by a group following a prior conspiracy (Article 297 § 2 of the Criminal Code – see the “Relevant domestic law” below). In particular, the applicant was suspected of having used the “eternal flame” on the grave for an inappropriate purpose thus insulting the memory of the soldiers.
On the same day the applicant was declared wanted by the police.
On 25 March 2011 a judge of the Pecherskyy District Court of Kyiv (further referred to as “the Pecherskyy Court”) allowed the investigator’s application for the applicant’s arrest.
On 29 March 2011 at 9 p.m. the applicant was arrested. On the same day she started to be represented by a lawyer of her choice.
On 31 March and 1 April 2011 two deputies of the Kyiv Regional Council applied to the Pecherskyy Court for the applicant’s release in exchange of their personal guarantees of her adequate procedural behaviour. The deputies specified that they were aware of the financial implications of such guarantees for them: if the applicant absconded, the guarantor would have to pay up to two hundred times the minimum untaxed income (17 Ukrainian hryvnias).
On 1 April 2011 the Pecherskyy Court remanded the applicant in custody as a preventive measure pending trial. It referred to the seriousness of the charges against her and the fact that she had been declared “wanted by the police”, which the court regarded as an indication of her absconding. In so far as the applicant’s lawyer relied on her positive character references from various sources, the court noted that those could not guarantee her compliance with all the procedural requirements while at liberty. While having noted that the applicant also relied on the letters of personal guarantees from the people’s deputies, the judge did not further comment on them. It was specified in the ruling that the term of the applicant’s detention was to be calculated from 29 March 2011. Under the applicable legislation, the duration of pre-trial detention was limited to two months, with the possibility of further extensions.
The applicant’s lawyer appealed. He submitted that his client was willing to cooperate with the investigation and that there were no reasons for her detention. It was further pointed out in the appeal that the applicant had been declared wanted by the police on the very same day when the criminal case against her had been opened. The lawyer noted that there had not been a single summons sent by the investigation to the applicant’s address prior to her arrest. According to her, she had found out about the charges against her only on the day of her arrest on 29 March 2011. Lastly, the lawyer submitted that the first-instance court had not considered any less intrusive preventive measure in alternative to detention and that it had left without consideration the people deputies’ letters of guarantees.
On 11 April 2011 the Kyiv City Court of Appeal rejected the above appeal. It noted that the Pecherskyy Court had already duly examined all the arguments raised in it.
On 19 May 2011 the pre-trial investigation was declared complete and the applicant was committed for trial.
On 17 June 2011 the Pecherskyy Court held a preparatory hearing, during which the applicant once again requested to be released. By that time, more people’s deputies and other prominent figures expressed their wish to act as her personal guarantors. She further reiterated that she had never absconded and that there had been no grounds for declaring her wanted by the police. Lastly, the applicant submitted that some unidentified persons had threated her during her detention with a view to making her confess to an unrelated criminal offence. The court rejected the applicant’s request for release mainly relying on the fact that she had been declared wanted by the police. As regards her argument that there had been no grounds for that, the court considered that it was to be examined in the course of her trial. The Pecherskyy Court stated, in general terms, that there were no grounds for the applicant’s release under a personal guarantee.
As it follows from the judgment of the Pecherskyy Court of 4 October 2012 (see below), on an unspecified date the applicant was released under an undertaking not to leave the town.
On 4 October 2012 the Pecherskyy Court found the applicant guilty as charged and sentenced her to three years’ imprisonment suspended for two years. The court decided to suspend the punishment on the ground that the applicant had no criminal record and enjoyed positive character references. While the applicant did not contest the fact that she had fried eggs on the “eternal flame”, she insisted that her actions did not constitute desecration of the Unknown Soldier’s grave and that her motives had clearly been stated in the statement made public together with the video. The court decided to keep unchanged the preventive measure (undertaking not to leave the town).
The applicant appealed. She maintained that there was no corpus delicti in her actions. She also argued that there was no evidence that the Unknown Soldier’s grave was located beneath the “eternal flame”. Lastly, she submitted that the criminal proceedings against her violated her right to freedom of expression under Article 10 of the Convention.
The prosecutor also appealed considering the sentence to be too lenient.
On 18 December 2012 the Kyiv City Court of Appeal upheld the judgment of the first-instance court. It stated that desecration of a grave could have different expressions indicating an insulting attitude, mockery or disrespect towards a grave or the person buried, regardless of the stated motives. Relying on the relevant documents of the local authorities, the appellate court also dismissed the applicant’s submission regarding the supposedly unestablished location of the Unknown Soldier’s grave. Finally, as regards her argument on her right to freedom of expression, the court noted that that right was not unlimited and that the restriction in the applicant’s case was in accordance with the law and pursued a legitimate aim. The appellate court also rejected the prosecutor’s appeal.
The applicant further reiterated her arguments in her cassation appeal, which was, however, rejected by the Higher Specialised Court for Civil and Criminal Matters on 11 April 2013.
B. Relevant domestic law
The relevant provisions of the Code of Criminal Procedure 1960 (in force and as worded at the material time) concerning preventive measures are quoted, in particular, in the Court’s judgment on the case of Murukin v. Ukraine (no. 15816/04, § 21, 2 September 2010).
Article 297 of the Criminal Code 2001 (as worded at the material time) read as follows:
“1. Desecration of a grave or other burial place, as well as abuse of a corpse (remains, ashes) of a deceased, desecration of an urn containing ashes of a deceased, or illegal seizure of a corpse (remains, ashes) of a deceased, of an urn containing ashes of a deceased, of objects from a grave or from any other burial place or on a corpse (remains, ashes) of a deceased, shall be punished with a fine in the amount of up to two hundred nontaxable minimum citizens’ incomes or with arrest for up to six months, or with restriction of liberty for up to three years or imprisonment for that period.
2. The same actions committed repeatedly, or following a prior conspiracy by a group of persons, or driven by lucrative or hooligan motives, or committed in respect of a common grave or an Unknown Soldier’s grave, or combined with violence or its threat, shall be punishable with restriction of liberty from three to five years or imprisonment for the same period.
3. Actions referred to in the above paragraphs, if they led to grave consequences, shall be punished with imprisonment from five to twelve years.”
COMPLAINTS
The applicant complains under Article 5 § 1 (c) of the Convention that her pre-trial detention was unlawful, because it was not based on a reasonable suspicion that she had committed a crime and because the authorities failed to advance relevant and sufficient reasons in its justification. She submits in this connection that the provision, on the basis of which she was detained (Article 297 of the Criminal Code), is worded too vaguely and that it should not have been applied to her actions. The applicant further argues that her placement in custody was not necessary in the circumstances of the case. Lastly, in the context of this complaint, the applicant notes that her detention from 29 May to 17 June 2011 was not covered by any judicial decision, since the ruling of the Pecherskyy Court of 1 April 2011 authorised her detention only for two months, from 29 March to 29 May 2011.
The applicant also complains under Article 5 § 3 that there were no relevant and sufficient reasons to justify her continued detention.
The applicant next complains under Article 5 § 5 that she had no possibility to claim compensation in respect of her unlawful detention.
Relying on Article 7 of the Convention, the applicant further complains that the legislation on the basis of which she was convicted lacked precision and foreseeability.
She also complains under Article 10 that her conviction violated her right to freedom of expression, because it was unlawful (given the allegedly poor quality of the applicable legislation as noted above), did not pursue any legitimate aim (according to the applicant, its sole purpose was to punish her for the expression of her views) and was not necessary in a democratic society (given that the “performance” had already taken place and had not led to any negative consequences for anybody).
The applicant also alleges, in broad terms, a violation of her rights under Article 11 of the Convention.
Lastly, she complains that the circumstances of her case disclose a violation of Article 18 in conjunction with Article 5 § 1 of the Convention in so far as the real purpose of her conviction was to punish her for the expression of her views.
QUESTIONS TO THE PARTIES
1. Was the applicant’s pre-trial detention in breach of Article 5 §§ 1 and 3 of the Convention, regard being had to the reasonableness of her arrest on 29 March 2011 and the grounds given to justify her continued detention thereafter?
2. Did the applicant have an effective and enforceable right to compensation for her detention in alleged contravention of Article 5 §§ 1 and 3, as required by Article 5 § 5 of the Convention?
3. Has there been an interference with the applicant’s freedom of expression within the meaning of Article 10 § 1 of the Convention?
If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?
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