Communicated on 5 October 2020 Published on 26 October 2020

FIFTH SECTION

Application no. 77909/12 Viktor Mykolayovych ROMANYUK against Ukraine lodged on 27 November 2012

STATEMENT OF FACTS

The applicant, Mr Viktor Mykolayovych Romanyuk , is a Ukrainian national, who was born in 1975 and lives in Vasylkiv . He is represented before the Court by Mr M. Pavlenko and Mr M. Motruk , lawyers practising in Kyiv.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant ran as a candidate for the main opposition party, “ Batkivshchyna ”, in the parliamentary elections of 28 October 2012 in single-seat electoral constituency no. 94 in the Kyiv region.

According to the initial results as recorded in the protocols of the precinct electoral commissions (PECs), he had won the elections, having obtained almost 10,000 votes more than his main rival, Ms Z., the candidate for the government party, “Party of Regions”.

A number of observers, mainly from Ms Z. and the “Party of Regions”, complained to the local courts that they had not been admitted to twenty ‑ seven polling stations, in all of which the applicant had considerably been ahead of Ms Z. (almost 11,000 votes in total). Those complaints were granted.

Relying on the respective judicial decisions, the above-mentioned observers requested the constituency electoral commission (“the ConEC ”) to invalidate the voting results in the polling stations at issue.

On 4 November 2012 the ConEC invalidated the voting results in the twenty-seven polling stations, relying on Article 94 § 15 (2) of the Parliamentary Election Act. Apart from listing the judicial decisions in question, it did not provide any further reasoning for the invalidation.

The applicant challenged that decision before the Kyiv Circuit Administrative Court. In addition to alleging a number of procedural irregularities in the decision-making process by the ConEC , he argued that the ConEC had not tried to analyse the scope of the restriction of the observers ’ rights and how it might have influenced the voting results. The Kyiv Circuit Administrative Court found against the applicant. It held that the ConEC had acted in compliance with the applicable legislation. The Kyiv Administrative Court of Appeal upheld that ruling.

On 5 November 2012 the Central Election Commission (“the CEC”) issued a ruling finding it impossible to establish the election results in single-mandate electoral constituency no. 94 (along with four other single ‑ mandate constituencies). Its ruling read as follows:

“The [CEC] has been receiving numerous statements from participants of the electoral process about the impossibility to accurately establish voting result s and the election results ... in [single-mandate electoral constituency no. 94].”

The above paragraph was followed by a summary of the constitutional and other general legal provisions enshrining the principle of rule of law and sovereignty of the people, as well as the general election-related principles ( universal, equal, free and secret suffrage).

The CEC also noted that, under Article 16 of the CEC Act, it was entitled to examine ex officio issues of violations of electoral legislation where those came to its knowledge.

The remaining part of the reasoning, which followed, read:

“The results of the examination of the facts referred to in the statements submitted to the [CEC] show that it is impossible to accurately establish the [election] results in [single-mandate electoral constituency no. 94].”

The CEC therefore decided “to apply to [Parliament] with a view to taking a decision in respect of the conduct of repeat [parliamentary elections] in [single-mandate electoral constituency no. 94]”.

The applicant ’ s attempt to get the above decision of the CEC overturned by administrative courts was unsuccessful. The Kyiv Administrative Court of Appeal and the Higher Administrative Court rejected his claim. They dismissed as unfounded his arguments that the CEC had not taken into account all the relevant circumstances and that its decision had lacked legal basis.

On 1 February 2013 the Kyiv City Prosecutor ’ s Office instituted criminal proceedings against the applicant on suspicion of “an incomplete attempt” of State funds misappropriation committed in 2008. More specifically, the applicant, who had been the deputy director of the “ Indar ” insulin factory (70.7% of which was owned by the State), was suspected of having conspired with the chairman of the board of directors of that factory, L., with a view to misappropriating its funds. They were accused of having created, in breach of legal rules, a limited liability company “ Indar Workforce” and of having transferred some real estate from the “ Indar ” factory to that newly-created entity. However, that transfer was not completed, because the applicant and L. had not applied to the Property Inventory and Registration Authority ( «БТІ» ) for getting it registered.

On an unspecified date a similar criminal case was opened against L.

On 7 February 2013 the investigator declared the applicant wanted by the police on the grounds that L. had been absent from his domicile and his whereabouts were unknown.

On 8 February 2013 the investigating judge allowed the investigator ’ s application for the applicant ’ s arrest with a view to ensuring his presence in the court for the examination of the issue of a preventive measure. The reasoning was that there was a risk that, having found out about the investigator ’ s application for his pre-trial detention, the applicant might abscond or influence witnesses.

On an unspecified date in February 2013 the applicant moved to Italy.

On 22 March 2013 he was arrested in Italy.

On 29 March 2013 the applicant was, however, released subject to an obligation not to abscond.

In the meantime, on 26 March 2013, the Kyiv Shevchenkivskyy District Court (“the Shevchenkivskyy Court”) ordered the applicant ’ s pre-trial detention as a preventive measure pending trial on the following grounds: the applicant did not live at his registered address, was not responding to the investigator ’ s summonses, and his actual place of residence was unknown. Furthermore, the judge noted that the crime in question was serious and that the applicant had been declared wanted by the police.

On 9 July 2013 the Milan City Court of Appeal (“the Milan Court”) refused the Ukrainian authorities ’ request for the applicant ’ s extradition. It noted that, according to the Italian criminal law, there was an incomplete attempt of crime where a person had not been able to complete its commission for reasons independent of his/her will. The Milan Court observed that the case-file materials clearly indicated that the crime imputed to the applicant had not been completed because he had not applied to the Property Inventory and Registration Authority. At no point had it been alleged that the applicant had not been able to complete the supposed crime for reasons beyond his control and independent of his will. The Milan Court also took note in that connection of the time lapse between the events in question (2008) and the institution of the criminal proceedings against the applicant (2013). Its conclusion was that, in the absence of an indication of a criminal offence, the extradition request was to be rejected.

The applicant did not provide further information. According to public sources, the criminal proceedings against him were discontinued in 2014.

The applicant ’ s registration as a candidate for the partial repeat parliamentary elections scheduled for 15 December 2013 was cancelled following a voter ’ s complaint, on the grounds that the applicant had not complied with the five-year residency requirement (while the applicant ’ s domicile continued to be registered in Ukraine, as recorded in his passport (previously referred to as propiska ), he had moved to Italy) .

Article 15 § 3 provided that an attempt of a criminal offence was incomplete where a person had not been able to undertake all the actions he/she considered necessary for its completion for reasons independent of his/her will.

The relevant provisions read as follows:

Article 94. The procedure of reception and examination of precinct electoral commissions ’ documents by [ ConECs ]

“... 15. A [ ConEC ] may decide to invalidate the voting results at a polling station ( « може прийняти рішення про визнання голосування на виборчій дільниці недійсним » ) only in the following cases:

(1) where the recount [has revealed serious irregularities]; [or]

(2) where there are judicial decisions confirming the following: deliberate obstacles to work of election commission members on the day preceding the election day, during the election day or during the count; deliberate unlawful removal from the polling station or from the premises where the count takes place of [official observers and other persons entitled to be present]; as well as [their] unlawful refusal of access [to the mentioned premises].”

Article 96. Establishing voting results in a single-mandate constituency

“... 11. The [ ConEC ] is obliged to establish the voting results in the single-mandate constituency regardless of the number of polling stations in which the voting has been invalidated.

12. Invalidation of voting results in a single-mandate constituency shall be prohibited.”

Article 99 concerned establishing voting results in single-mandate constituencies by the CEC. It provided that the CEC had fifteen days for that. It also listed the data to be entered by the CEC in its protocol. As stipulated in paragraph 2, the candidate who obtained more votes than any other candidate in the single-mandate constituency was to be considered elected.

Article 16 stipulated that, if the CEC became aware of violations of electoral legislation from any sources not contradicting the law, it was entitled to examine the issue ex officio within its powers and to take a decision in compliance with the legally established procedure (§ 1).

COMPLAINTS

The applicant complains that the judicial order seeking his pre-trial detention, issued in the context of the criminal proceedings against him in Ukraine, was in breach of Article 5 § 1 of the Convention. He also complains, relying of Article 18 in conjunction with Article 5 § 1, that his detention order was politically motivated.

Furthermore, the applicant complains under Article 3 of Protocol No. 1 that there was a breach of his right to free elections on account of: firstly, the invalidation of the 28 October 2012 elections in his constituency; and, secondly, the cancellation of his candidacy for the partial repeat parliamentary elections of 15 December 2013.

QUESTIONS TO THE PARTIES

1. Was the judicial order seeking the applicant ’ s pre-trial detention issued in the context of the criminal proceedings against him in Ukraine in compliance with Article 5 § 1 of the Convention?

2. Was the order seeking the applicant ’ s pre-trial detention issued for a purpose other than those envisaged by Article 5, contrary to Article 18 of the Convention?

3. Has there been a breach of the applicant ’ s right under Article 3 of Protocol No. 1 to the Convention to free elections on account of:

(a) the invalidation of the 28 October 2012 elections in his constituency (see, mutatis mutandis, Kovach v. Ukraine, no. 39424/02, ECHR 2008, and Kerimova v. Azerbaijan, no. 20799/06, 30 September 2010); and

(b) the cancellation of his candidacy for the partial repeat parliamentary elections of 15 December 2013 (see Melnychenko v. Ukraine, no. 17707/02, ECHR 2004 ‑ X)?