JOINT CONCURRING OPINION OF JUDGES JUNGWIERT, NUSSBERGER AND POTOCKI

We agree that there has been a violation of Article 18 read in conjunction with Article 5 of the Convention in this case. However, we consider that the reasoning of the majority does not address the applicant’s main complaint, which concerns the link between human rights violations and democracy, namely that her detention has been used by the authorities to exclude her from political life and to prevent her standing in the parliamentary elections of 28 October 2012 (see paragraph 289).

The entire philosophy of the Convention rests on the assumption that public authorities in the member States act in good faith. Any public policy or individual measure may, however, have a “hidden agenda” and serve other purposes than those officially declared. This is especially disturbing if penal law is used for purposes other than bringing to justice those who have committed a crime or a wrongful act. In such cases, finding (only) violations of those human rights guaranteed under Article 5 and Article 6 of the Convention would not be sufficient, as this would not uncover and target the real problem, namely the intentional misuse of State power.

An applicant’s allegation of a violation of Article 18 of the Convention must therefore be taken very seriously. At the same time, a mere suspicion that the authorities used their powers for some other purpose than those defined in the Convention cannot be sufficient to prove that Article 18 was breached. Thus, the Court rightly applies a very exacting standard of proof (see Khodorkovskiy, cited above, §§ 255-256). This requirement must not, however, be such as to render it impossible for the applicant to prove a violation of Article 18. Concerning the assessment of evidence in respect of a violation of Article 18, several factors have to be taken into account.

First, the wording of Article 18 contains the word “purpose”, which necessarily refers to a subjective intention which can be revealed only by the person or persons holding it, unless it is – accidentally – documented in some way (compare, for example, the case of Gusinskiy , cited above, §§ 73 ‑ 78, in which the authorities’ intention was clear from an agreement signed between the detainee and a federal Minister for Press and Mass Communications). Generally, knowledge about what the Court calls a “hidden agenda” is within the sphere of the authorities and is thus not accessible to an applicant. It is therefore necessary to accept evidence of the authorities’ improper motives which relies on inferences drawn from the concrete circumstances and the context of the case. Otherwise the protection granted by Article 18 would be ineffective in practice.

Second, when relying on the circumstances and the context of a case the Court must nevertheless not apply double standards and accept more easily a violation of Article 18 in conjunction with Article 5 or 6 in the case of applicants holding specific prominent positions in society. As the Court stated in the case of Khodorkovskiy v. Russia , “high political status does not grant immunity” (see Khodorkovskiy , cited above, § 258). At the same time, in interpreting Article 18 of the Convention the direct link between human rights protection and democracy must be taken into account. If the human rights of politically active persons are restricted for the purpose of hindering or making impossible their participation in the political life of a country, democracy is in danger.

Third, Article 18 refers to the “restrictions permitted under this Convention to the said rights and freedoms”. Under this explicit wording, therefore, this provision not only prohibits “misus[ing] the whole legal machinery of the respondent State ab initio ” and “act[ing] with bad faith and in blatant disregard of the Convention from the beginning to the end” (see Khodorkovskiy , cited above, § 260), but also prohibits the use of specific restrictive measures such as pre-trial detention for improper purposes (see Lutsenko , cited above, § 109).

Fourth, it is true that the political process and adjudicative process are fundamentally different. In establishing that the authorities had improper motives in restricting a politician’s human rights, the Court cannot accept as evidence the opinions and resolutions of political institutions or NGOs, or statements by other public figures (see Khodorkovskiy , cited above, § 259). It must base its finding of a violation of Article 18 of the Convention only on the concrete facts of the case.

Fifth, the Court has held that the burden of proof should rest with the applicant even where a prima facie case of improper motive is established (see Khodorkovskiy , cited above § 256). Nevertheless, that cannot mean that in cases where the authorities cannot advance any “proper motive” it would not be possible to consider an “improper motive” to be proven.

In the light of these considerations we hold that in the present case there was a violation of Article 18 not only – as the majority has held – because pre-trial detention was ordered to punish the applicant for a lack of respect towards the court (see paragraph 299), but for ulterior motives.

We take as a starting-point that the Court in the present case found that the reasons given by the trial court for the applicant’s pre-trial detention were not compatible with the requirements of Article 5 § 1 of the Convention. This means that the detention of the applicant on 5 August 2011 for an unlimited period of time was arbitrary under the Convention.

The decisive question is therefore whether, despite its arbitrariness, the detention was nevertheless ordered in good faith or whether the real aim of the authorities in seeking and imposing such a measure was different from that stated and was motivated by an ulterior intention which can be proven according to the standards required by the Convention. In order to answer this question the Court has to situate the restrictions on the applicant’s rights, especially the ordering of indefinite pre-trial detention on 5 August 2011, in the broader context and to take into account such factors as the point in time when it was ordered, the status of the applicant, and the way in which the authorities acted.

In this context, we consider that it is not possible to dissociate entirely this issue from the nature of the criminal proceedings brought against the applicant, although the Court’s examination of the complaint under Article 18 of the Convention in the present case does not relate to the trial as such [7] . In our view, the decision to detain the applicant must be seen in the broader context of those proceedings and of the position and status of the applicant herself at the time the proceedings were initiated. Only one year before her arrest the applicant was the main political opponent of the current President of Ukraine and obtained 45.47% of the popular vote (see paragraph 12). Even more importantly, the applicant’s party had made clear its intention to participate, with the applicant as its leader, in the parliamentary elections which were to take place in October 2012 - in other words, within a time-frame that made it necessary to start preparations for the election campaign at the time of the applicant’s pre-trial detention.

We further note that the charges brought against the applicant in the present case do not concern offences of corruption or fraud or offences in which it was alleged that she had sought to make personal financial gain. On the contrary, the abuse of power with which she was charged related exclusively to the circumstances of the political decision, taken by her as Prime Minister of Ukraine, to sign an international gas agreement on terms which were subsequently claimed to have been unfavourable to the country.

Moreover, it is necessary to take into account the manner in which the investigation was conducted. Although it is well-known that criminal investigations in Ukraine often last for many years, in the extremely complex case involving the applicant they were conducted with remarkable speed, namely between 11 April 2011 and 25 May 2011, that is, within less than six weeks. Of even greater significance is the fact that the investigations were conducted in such a way that the applicant was completely hindered from continuing her political activity. Thus, she was given fifteen working days to read a case file which comprised more than 4,000 pages and was called almost daily to attend the GPO’s premises for questioning (see paragraph 15); after the trial started hearings were held on an almost daily basis (see paragraph 27).

It should also be noted that criminal charges were brought not only against the applicant, but also against more than eight high-level members of her Government, for abuse of office and/or misuse of State funds during their tenure. The Government’s allegation that the prosecutions did not target the opposition and that there were many ongoing investigations of members of the governing party was proven not to be true as, with only a few exceptions, the latter concerned only low-level career officials (see paragraph 187). In the case of the former Minister of the Interior Lutsenko, the Court has already found violations of Articles 5 § 1, 5 § 2, 5 § 3, 5 § 4 and Article 5 in conjunction with Article 18 of the Convention ( Lutsenko v. Ukraine , cited above); other cases are pending.

The detention order against the applicant, which was made on 5 August 2011 after 16 hearings, did not refer to any breaches by the applicant of the obligation not to leave town, a measure with which she had fully complied. Nor was it suggested that she had been absent from any of the court hearings. The fact that the applicant had on one occasion been a few minutes late for a hearing and that she had failed to state her address, which was already in the court file, did not provide arguable grounds for finding a lack of cooperation on her part, thus justifying her indefinite pre-trial detention.

Taking into account the lack of any acceptable reason for ordering indefinite pre-trial detention and these very particular circumstances of the case, we consider it as proven on the basis of the standard required by Article 18 of the Convention that the reasons given for seeking and issuing a detention order against the applicant were not only insufficient in terms of Article 5 § 1 of the Convention but were not the only reasons, and that there were other ulterior motives underlying the action of the relevant authorities which were not related to the proper conduct of the criminal proceedings per se , but rather to the applicant’s identity and influence as a leading opposition politician in Ukraine.

These are our reasons for concluding that there has been a violation of Article 18 of the Convention, read in conjunction with Article 5 § 1 of the Convention, in respect of the applicant’s pre-trial detention.