Published on 20 November 2023

FIFTH SECTION

Application no. 16497/20 Artem Sergiyovych SYTNYK against Ukraine lodged on 7 April 2020 communicated on 30 October 2023

STATEMENT OF FACTS

The applicant, Mr Artem Sergiyovych Sytnyk, is a Ukrainian national, who was born in 1979 and lives in Brovary. He is represented before the Court by Mr N.S. Kulchytskyy and Mr M.V. Bem, lawyers practising in Kyiv.

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

Starting from January 2015 until the expiry of his mandate in April 2022, the applicant occupied the post of director of the National Anti-Corruption Bureau of Ukraine (“the NABU”) and was involved in some high-profile prosecution cases, including in respect of corruption allegations involving the Minister of the Interior’s son and the Prosecutor General.

As known from public sources, in May 2022 he was appointed to the post of Deputy Head of the National Agency on Corruption Prevention.

In April 2019 a friend of the applicant, N., reported to the Prosecutor General’s Office that he had borne expenses related to the rent of a holiday house by the applicant and the latter’s family and friends in the “P.S.” fishing and hunting reserve during the periods from 29 December 2018 to 2 January 2019 and from 8 to 10 March 2019. Although N. submitted not remembering the exact amounts, he estimated the total expenses for each period at about 100,000 Ukrainian hryvnias (UAH) [1] . N. claimed that, in addition to having paid for the rent, he had also purchased for the applicant and the entire group various foodstuffs, drinks, children toys and other items.

During an additional police questioning on 17 May 2019, N. submitted that he had visited the applicant in the “P.S.” reserve several times during the two periods in question and that they had had meals together. He alleged, in broad terms, that after the applicant’s departure he had had to cover all the expenses, without providing further details. N. answered in the positive to the investigator’s question whether he had paid UAH 3,500 and 4,000 [2] for the rent of a holiday house for the applicant and the latter’s family and friends [3] . He contended that the applicant had never proposed him to reimburse those expenses.

On 5 July 2019 the applicant gave written explanations to the Anti-Corruption Unit of the Economic Protection Department of the National Police of Ukraine, which was dealing with the case. He submitted that, having found out from his friend N. about the possibility of relatively inexpensive rent of a holiday house in the “P.S.” reserve, the applicant had indeed asked him to arrange for such a rent, for himself and several other friends, on two occasions. The applicant emphasised that he had reimbursed the entirety of the rental cost to N., as it had been verbally agreed between them. He noted that the other persons with whom he had shared the rented house could confirm that.

On 12 July 2019 an investigator of the above-mentioned Anti-Corruption Unit drew up two administrative offence reports, in which he held that the applicant had received gifts from N. in breach of the Code on Administrative Offences on two occasions. The investigator considered it established that N. had paid for the rent of a holiday house in the “P.S.” reserve, which the applicant had used for free twice. Relying on the general rental pricelist of the “P.S.” reserve, the investigator established the rental cost, or the value of the gifts, at UAH 25,000 [4] . While it was not disputed that N. had paid UAH 7,500 [5] for the rent, having benefitted from a 70% discount owing to his relative’s friendly relations with the reserve’s director, the investigator noted that that discount was not publicly available and was not applicable to the applicant. In the absence of any documentary evidence to the contrary, the investigator found that the applicant had never reimbursed the rental cost to N.

The case was sent to the Sarny Town Court (“the Sarny Court”) for examination by a single-judge formation. It was assigned to judge R.

While the Code on Administrative Offences did not provide for a recusal of a judge, the applicant requested, twice, judge R. to withdraw from the examination of the case. He claimed that the prosecution authorities could be regarded as having leverage over R. because the latter had been involved, as a witness, in ongoing criminal proceedings on charges against a former prosecutor suspected of having received a bribe allegedly with the aim of sharing it with judge R.

On 25 July and 6 August 2019 judge R. rejected the above-mentioned requests on the grounds that the applicant had not provided any evidence casting doubts on his impartiality and that the reasons adduced by the applicant were speculative and based on mere assumptions.

On 6 September 2019 the Sarny Court found the applicant guilty of a breach of paragraph 1 of Article 172-5 of the Code on Administrative Offences. It imposed on him the maximum penalty under that provision: a fine at the amount of UAH 3,400 [6] and confiscation of the gift (its value was estimated at UAH 25,000).

It held that the applicant had not provided any evidence proving that he had reimbursed the rental cost to N. In that regard, during the court hearing two acquaintances of the applicant with whom he had shared the rented house had confirmed having witnessed the verbal agreement between the applicant and N. that the former would reimburse the rental cost to the latter. The same persons had also testified that, in accordance with the agreement, after the holidays they had paid their share of the expenses to the applicant and that he had eventually reimbursed the entirety of the rental cost to N. However, given that they had not eye-witnessed that final settlement between the applicant and N., the Sarny Court expressed doubts as to whether it had indeed taken place.

The applicant lodged an appeal. He argued, in particular, that the first-instance court had failed to explain why it had decided to attach more importance to the statements made by N., which were not supported by any evidence, as compared to his own version of the events supported by witness evidence. Furthermore, the applicant noted that on 13 March 2019 N. had applied to the authorities for a removal of his criminal conviction of 2005 from the official records. The applicant expressed an opinion that this had made N. vulnerable and susceptible to pressure by the prosecution authorities. He also complained that the prosecution authorities had had ample opportunity to put pressure on judge R. given the ongoing criminal investigation in which the latter’s procedural status could be changed from a witness to a suspect.

On 13 December 2019 the Rivne Regional Court of Appeal, by a final ruling, upheld the ruling of the Sarny Court and endorsed its reasoning.

Shortly thereafter the applicant’s name was included in the publicly accessible online Unified state register of persons who committed corruption or corruption-related offences.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

Paragraph 1 of Article 172-5 provides for a fine in the amount of one hundred to two hundred times the non-taxable minimum income [7] , plus confiscation of the gift concerned, as penalty for a breach of legal restrictions on receiving gifts by persons listed in points 1 and 2 of Article 3 § 1 of the Corruption Prevention Act [8] .

Article 59 provides for publication, in the Unified state register of persons who committed corruption or corruption-related offences, of the following data concerning persons brought to criminal, administrative, disciplinary or civil-law liability in respect of corruption or corruption-related offences: surname, name and patronymic; place of work and post at the time of the commission of the offence; constituent elements of the offence; and the penalty. Those data shall be accessible for public round the clock and for free. The authority in charge of regulating the procedures of creation and maintenance of the Unified state register in question is the National Agency on Corruption Prevention (“the NACP”).

Candidates to posts “involving responsibility or particular responsibility” and posts with high corruption risk shall be subject to a “special verification”, a part of which is a check by the NACP whether the candidate’s name is included in the Unified state register of persons who committed corruption or corruption-related offences (Article 56). It appears that the subsequent assessment of the results of such verification remains at the respective authority’s discretion.

Paragraph 8 provides for the following grounds for removal of data from the Unified state register of persons who committed corruption or corruption-related offences:

(1) a judicial ruling quashing the verdict;

(2) an acquittal verdict;

(3) renewal of the expired time-limit for lodging an appeal;

(4) quashing of the ruling on administrative liability;

(5) quashing of the decision on disciplinary liability; and

(6) direct involvement of the person concerned in the measures for defence of Ukraine, starting from 24 February 2022 and during the martial law period, in connection with the military aggression of the Russian Federation against Ukraine.

COMPLAINTS

Relying on Article 6 § 1 of the Convention, the applicant complains that the administrative offence proceedings against him were unfair in several aspects. The applicant alleges, in particular, that the domestic courts failed to address the specific and pertinent arguments in his defence and placed the burden of proof on him instead of the prosecution. He submits that no analysis was given to his detailed and consistent statements, which were corroborated by witness evidence, whereas the domestic courts took at face value the vague and contradictory statements by N. Furthermore, the applicant contends that the vulnerability of N. vis-à-vis possible pressure from the prosecution authorities was never addressed. He also considers arbitrary the courts’ approach to the calculation of the “gift value” in two aspects. Firstly, he observes that it was never disputed that he had shared the rented holiday house with two friends. Accordingly, he finds it incomprehensible why the courts presumed that he alone had been supposed to bear all the expenses. Secondly, the applicant complains that disregarding the de facto applied discount is prone to create a dangerous precedent given that not disclosing the existence of a discount to a recipient of goods or services might put that person in a danger of facing an administrative-offence charge without even being aware of that. The applicant also complains that judge R. could not be regarded as independent and impartial, given the real possibility for the prosecution authorities to put pressure on him within a concomitant criminal investigation.

The applicant further complains that his allegedly unfair conviction in the administrative offence proceedings and the inclusion of his name, without a limit in time, in the Unified state register of persons who committed corruption or corruption-related offences have been in breach of his right to respect for his private life under Article 8 of the Convention. He emphasises that that is particularly humiliating and stigmatising for him, given that he has devoted many years of his professional life to combatting corruption.

Lastly, the applicant complains, relying on Article 18 of the Convention taken in conjunction with Article 6, that the administrative offence proceedings against him were orchestrated by the Minister of the Interior and the Prosecutor General as a revenge for the criminal investigations under the applicant’s leadership affecting those officials or their relatives. The applicant submits, in particular, that the Minister of the Interior publicly insulted and threatened him on several occasions.

QUESTIONS TO THE PARTIES

1. Was Article 6 § 1 of the Convention under its criminal head applicable to the proceedings in the present case?

2. If so, did the applicant have a fair hearing by an independent and impartial tribunal, in accordance with that provision?

3. Was Article 8 of the Convention applicable to the applicant’s case? Was there an interference with his right to respect for his private life, within the meaning of Article 8 § 1 of the Convention a) on account of his conviction that was allegedly the result of an unfair and arbitrary process; and b) on account of the inscription of his name, for an indefinite period, in the public register of corrupt officials?

4. If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

5. Did the administrative offence proceedings against the applicant and the ensuing alleged interference with his right to respect for his private life aim to achieve an ulterior purpose, contrary to Article 18, taken in conjunction with Articles 6 and 8 of the Convention?

[1] Equivalent to about 3,300 euros (EUR) at the material time.

[2] Equivalent to about EUR 110 and 130, respectively.

[3] The total rent amounts for the two periods taking into account the 70% discount, which was obtained owing to N.’s relative’s friendly relations with the reserve’s director.

[4] Equivalent to about EUR 840.

[5] Equivalent to about EUR 240.

[6] Equivalent to about EUR 120.

[7] The non-taxable minimum income for the purposes of fines’ calculation is UAH 17 (equivalent to about EUR 0.6 in September 2019 and EUR 0.4 according to the present currency exchange rate).

[8] The extensive list provided therein includes various categories of elected and appointed State officials, officials not having the status of civil servants but occupying posts in public-law legal entities or providing public services, military officers and students of certain categories, representative of public unions or educational establishments, and members of tender or disciplinary commissions.