CASE OF SINKOVA v. UKRAINE
No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Vincent A. De Gaetano;Georges Ravarani
5. The applicant was born in 1991 and lives in Kyiv. 6. At the time of the events she belonged to an artistic group called the St Luke Brotherhood, which was known for its provocative public performances. 7. On 16 December 2010 the applicant, together with three other members of the above-mentioned union, made what she described as an “act of performance”, which, according to both parties’ accounts, consisted of the following. They went to the Eternal Glory Memorial to those who perished in the Second World War, which contained the tombs of thirty-two soldiers, including that of an Unknown Soldier. The applicant took a frying pan prepared in advance, broke some eggs into it and fried them over the Eternal Flame at the Tomb of the Unknown Soldier. Two of her friends joined her and fried sausages on skewers over the flame. Another member of the group filmed the event. Two police officers approached them and made a remark that their behaviour was inappropriate, without further interference. On the same day the applicant posted the video on the Internet on behalf of the St Luke Brotherhood. It was accompanied by the following statement: “Precious natural gas has been being burned, pointlessly, at the Glory Memorial in Kyiv for fifty-three years now. This pleasure costs taxpayers about 300,000 hryvnias [UAH] 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 act 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 lit 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 which the vestal virgins had.” 8. While the parties did not provide a copy of the video in question to the Court, it was possible to view it on several publicly available websites. In addition to the factual account from the parties summarised above, the Court notes that the soundtrack to the video was a famous 1974 Soviet song “The battle is going on again” (devoted to the victory of the 1917 revolution and optimism about the future of the communist regime). The video started with the following opening titles: “The St Luke Brotherhood presents”, “Recipe of the day”, “Eternal fried eggs on the eternal flame”. The participants in the performance did not make any public address and their conversation was not audible. They had no posters or other visual aids, apart from the food and cooking utensils. It could be seen on the video that once the applicant had broken the eggs in the frying pan and was about to approach the fire, while her friends held skewers with sausages, the two police officers appeared and the applicant explained something to them and they left. In order to reach the flame the applicant had to step over a sculpture of a wreath of oak leaves and step on the words “Glory to the Unknown Soldier”. 9. There were several complaints to the police that the action on the video had amounted to desecration of the Tomb of the Unknown Soldier and called for criminal prosecution. 10. On 21 December 2010 the police questioned D., one of the women who had participated in the performance. She submitted that she had not known the other members of the group and that she had met them by chance. As they had allegedly explained to her, they had been hungry and had intended to cook food in order to eat it. 11. On the same day criminal proceedings were instituted against D. and three unidentified persons on suspicion of hooliganism. 12. On 23 December 2010 D. wrote a confession that she had participated in a protest against inappropriate use of natural gas and that she regretted it. She knew only the first names of the other participants. 13. On 24 December 2010 another criminal case was opened against her and three unidentified persons in respect of the same event, this time on suspicion of desecration of a tomb. It was joined to that opened earlier. Subsequently the charge of hooliganism was dropped. 14. The police retrieved photos of several persons who might have been involved in the incident from the passport office’s database and showed them to D. She recognised the applicant. 15. On 5 February 2011 the investigator questioned the applicant’s grandmother and mother, who lived at the address of the applicant’s registered residence. They submitted that they knew nothing about her involvement in the event in question. They also stated that the applicant did not in fact live there and denied knowing her whereabouts or having her contact details. They only knew that she had left for western Ukraine, without further details. The grandmother stated that the applicant had visited her about two weeks earlier. The applicant’s mother had seen her about a week earlier and had received a telephone call from her two days earlier. 16. On 18 February 2011 the investigator severed the criminal case in respect of the applicant and two unidentified persons on suspicion of desecration of the Tomb of the Unknown Soldier by a group following a prior conspiracy. 17. On the same day the applicant was declared wanted by the police. 18. On 17 March 2011 the investigator applied to the Pecherskyy District Court of Kyiv (“the Pecherskyy Court”) for the applicant’s detention as a preventive measure pending trial. His arguments were as follows: the offence of which the applicant was suspected was punishable by a prison term of more than three years; the applicant had absconded, as a result of which she had been declared wanted by the police; and she could reoffend or hinder the establishment of the truth if at liberty. 19. On 25 March 2011 a judge of the Pecherskyy Court allowed that application in part: he ordered the applicant’s arrest with a view to bringing her before the court for examination. 20. On 29 March 2011 at 9 p.m. the applicant was arrested at the flat of a certain Z. in Kyiv. As the latter subsequently stated during her questioning, the applicant had been living there from 25 March 2011 at the request of an acquaintance. 21. On 31 March 2011 the applicant was questioned as an accused in the presence of her lawyer. While insisting that her only intention had been to protest against the inappropriate use of natural gas, she confessed to the offence and expressed remorse. 22. On the same day the investigator once again applied to the Pecherskyy Court for the applicant’s detention as a preventive measure. His reasoning was the same as before. 23. 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 guarantee of her adequate procedural behaviour. 24. On 1 April 2011 the Pecherskyy Court remanded the applicant in custody as a preventive measure pending trial. It noted that she was accused of a serious offence punishable by imprisonment of from three to five years. Furthermore, the judge referred to the fact that the applicant had absconded and had therefore been put on the wanted list. It was also considered that she might hinder establishing the truth if at liberty. 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 having noted that the applicant also relied on the letters of personal guarantee 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. 25. 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 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 charge 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 measures as an alternative to detention and that it had left without consideration the people deputies’ letters of guarantee. 26. 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. 27. On 25 May 2011 the applicant was indicted. On the same day the case was sent to the Pecherskyy Court for trial. 28. On 10 June 2011 the applicant applied to the court for release under an undertaking not to abscond. She submitted that she enjoyed positive character references, had no criminal record and had cooperated with the investigation. Furthermore, the applicant observed that by that time the investigation had already been completed and could not therefore be hampered. She emphasised that her actions had been nothing else than a protest driven by good motives. Several members of parliament and other prominent figures joined her in that application and expressed their wish to act as her personal guarantors. 29. On 17 June 2011 the Pecherskyy Court held a preparatory hearing, during which it rejected the applicant’s application for release with reference to the seriousness of the charge against her, “the nature and the circumstances of the offence of which she [was] accused”, as well as the fact that she had been declared wanted by the police. The judge also stated, in general terms, that there were no grounds for the applicant’s release under a personal guarantee. 30. On 30 June 2011 the applicant applied once again to be released. On the same day the Pecherskyy Court allowed that application and released her under an undertaking not to leave the town. 31. On 4 October 2012 the Pecherskyy Court found the applicant guilty of the desecration of the Tomb of the Unknown Soldier, acting as part of a group of persons following a prior conspiracy. The court noted that the applicant had convinced D. and two other people, whose identities remained unestablished, to carry out a performance at the “Eternal Glory” memorial aimed at protesting against the waste of natural gas caused by the burning of the Eternal Flame. D., who was questioned in court, confirmed that account of events. The court also questioned the memorial keeper, who had witnessed the performance from a distance, and the two police officers who had spoken to the applicant and her friends (see paragraph 7 above). Furthermore, the court examined the video-recording of the performance as material evidence. 32. The judgment mentioned the statement made by the applicant during the hearing that in her opinion people bringing flowers to the memorial did not really understand what exactly it was dedicated to. She insisted that she had not committed any crime as her performance had not been meant to desecrate the Tomb of the Unknown Soldier. Furthermore, she maintained that there could not be a tomb beneath the Eternal Flame because of the gas pipe. 33. The Pecherskyy Court held that the applicant’s arguments had no impact on the legal classification of her actions and that they were refuted by the evidence as a whole. The judgment further stated in that regard: “... the court considers that by committing deliberate acts in a group which showed disrespect for the burial place of the Unknown Soldier and for the public tradition of honouring the memory of soldiers who perished defending or liberating Kyiv and the lands of Ukraine from the fascist hordes, and by subsequently presenting those actions as a protest, [the applicant] has tried to escape social condemnation of her conduct and criminal liability for the offence.” 34. Relying on local authority documents, the court dismissed the applicant’s submission that there was no established location for the Tomb of the Unknown Soldier. 35. The court did not discern any aggravating or mitigating circumstances in the case. At the same time, in deciding on the penalty, it took into account, on the one hand, the fact that the applicant did not have a criminal record, that she was working as a political analyst and got positive character references by her place of residence and work. On the other hand, the court noted that the criminal offence in question was of medium gravity and that the applicant did not show any remorse for what she had done. As a result, she was sentenced to three years’ imprisonment, suspended for two years. 36. On the same date the Pecherskyy Court exempted D. from criminal liability under the surety of her employer. 37. The applicant appealed. Relying on the definition of the desecration of a burial place under the Burial and Funeral Business Act (see paragraph 47 below), she maintained that in the absence of any intention by her to “defile the family or social memory of a deceased or to show contempt for a burial place, or social and religious principles and traditions”, there were no constituent elements of a crime in her actions. The applicant reiterated her argument that her performance had been nothing more than a protest. Lastly, she submitted that the criminal proceedings against her had violated her right to freedom of expression under Article 10 of the Convention. 38. The prosecutor also appealed, considering the sentence to be too lenient. 39. On 18 December 2012 the Kyiv City Court of Appeal upheld the judgment of the first-instance court. It stated that desecration of a tomb could have different expressions, indicating an insulting attitude, mockery or disrespect towards a tomb or the person buried therein, regardless of the stated motives. As regards the applicant’s 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. 40. The applicant further reiterated her arguments in an appeal on points of law lodged by her, which was, however, rejected by the Higher Specialised Court for Civil and Criminal Matters on 11 April 2013.