Published on 17 April 2023

FIFTH SECTION

Application no. 38268/15 Oleksandr Vasylyovych TOKAR against Ukraine lodged on 27 July 2015 communicated on 28 March 2023

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s inability to obtain, in 2012, an identity document required for foreign travels (“an international passport”) because of the allegedly inaccurate record in the police database suggesting that the applicant had been under obligation not to abscond since 1997 in criminal proceedings on tax evasion charges.

In March 2012, after unsuccessful attempts to get the information in the police database rectified, the applicant instituted court proceedings against the State Migration Service and the police challenging the refusal to issue him an international passport and seeking to delete the record of the preventive measure from the police database. He submitted that the criminal proceedings against him, in which the preventive measure in question had been ordered, concerned bribery charges and that those proceedings were closed as far back as 1997. He argued that he had never been the subject of any tax evasion proceedings.

In the course of the court proceedings, neither the police nor the prosecutors’ office was able to provide information concerning the criminal proceedings against the applicant, including on the validity of the obligation not to abscond; apparently, the criminal case file was lost, the prosecutor’s file destroyed, and the available pieces of evidence did not contain the necessary information.

With the final decision of 18 June 2015 the Higher Administrative Court of Ukraine (“the HACU”) quashed the decision of the Court of Appeal, by which the applicant’s claim was allowed, and upheld the decision of the first ‑ instance court rejecting the claim. The HACU found that the impugned record in the police database constituted a valid legal ground for the Migration Service to refuse the applicant in issuing the passport. Having further relied on the rules governing the procedure of maintaining criminal records by the police, the HACU found that the police had no right to amend the records in databases on its own motion but only upon receipt of information concerning the relevant criminal case from the investigating authorities or the courts. It further noted that domestic law provided no possibility to delete the record related to the criminal proceedings from the police data base in the absence of information on the outcome of those proceedings.

Relying on Article 2 of Protocol No. 4, the applicant complains about the unjustified restriction on his freedom of movement as a result of the refusal of the state authorities to issue him an international passport, which was based on inaccurate data in the police register concerning his obligation not to abscond. He further complains under Article 13 that his numerous complaints about the wrong data in the police database were to no avail.

QUESTIONS TO THE PARTIES

1. Was the applicant’s freedom to leave the territory of the respondent State, as guaranteed by Article 2 § 2 of Protocol No. 4, restricted in the presence case? If so, was that restriction in accordance with domestic law and necessary in terms of Article 2 § 3 of Protocol No. 4 (see, mutatis mutandis, Ivanov v. Ukraine , no. 15007/02, 7 December 2006)?

2. In the particular circumstances of this case, did the applicant have at his disposal an effective domestic remedy for his complaint under Article 2 of Protocol No. 4, as required by Article 13 of the Convention?

The Government is requested to provide all relevant documents.