CASE OF SALOV v. UKRAINE
Violation of Art. 5-3;Violation of Art. 6-1;Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed
Antonella Mularoni
10. The applicant is a Ukrainian national who was born in 1958 and currently resides in Donetsk. He is a lawyer practising in Ukraine. 11. On 31 July 1999 the Central Electoral Commission registered the applicant as the representative of a candidate for the presidency of Ukraine, Mr Olexander O. Moroz. The latter was the leader of the Socialist Party of Ukraine at the time. 12. On 31 October 1999 the Kyivsky District Prosecution Service of Donetsk (the “Kyivsky Prosecution Service”) conducted a criminal investigation into allegations that the applicant had interfered with the citizens' right to vote (Article 127 § 2 of the Criminal Code of Ukraine – “the CC”). 13. On 1 November 1999 the applicant was apprehended for having disseminated false information about the alleged death of a presidential candidate, the incumbent President Mr Leonid D. Kuchma. The applicant had allegedly disseminated this information on 30 and 31 October 1999 in the form of a statement by the Speaker of the Verkhovna Rada (Parliament) published in a special nationwide issue of the Verkhovna Rada newspaper Holos Ukrayiny (газета “Голос України”). The text of the article disseminated by the applicant reads as follows: 14. Following the applicant's arrest, the Kyivsky Prosecution Service carried out a formal criminal investigation into the allegations made against him. 15. On 3 November 1999 the Kyivsky Prosecution Service decided to detain the applicant on suspicion of having committed a crime under Article 127 § 2 of the CC (see paragraph 41 below). The applicant was detained in the Temporary Investigative Isolation Unit of the Donetsk Region. He remained there until 10 November 1999. 16. On 5 November 1999 the applicant was formally charged with having committed an offence under Article 127 § 2 of the CC (see paragraph 41 below). The prosecution service classified his actions as having been committed by an official. 17. On 10 November 1999 the applicant lodged an application (dated 6 November 1999) with the Voroshylovsky District Court of Donetsk to be released from detention. On 17 November 1999 the court dismissed his application. 18. On 11 November 1999 the applicant was transferred to the Donetsk Investigative Detention Centre No. 5. 19. On 16 November 1999 the applicant underwent a medical examination. He was found to be suffering from bronchitis and second-degree hypertension. The medical commission recommended that the applicant be hospitalised. 20. On 22 November 1999 the Kyivsky Prosecution Service completed the pre-trial investigation into the applicant's case and committed him for trial. 21. On 25 November 1999 the case file was transferred to the court. On 10 December 1999 the Kuybyshevsky District Court of Donetsk (the District Court”) committed the applicant to stand trial on charges of interference with the citizens' right to vote, contrary to Article 127 § 2 of the CC (see paragraph 41 below). It also decided not to release him from detention. 22. In the course of the trial Judge T. of the District Court on 7 March 2000 passed a resolution (постанову) ordering He also requested the prosecution to reconsider the preventive measure of detention applied in respect of the applicant and to reclassify the charges against him. In particular, he stated: 23. On 30 March 2000 the deputy prosecutor of the Donetsk Region lodged a protest with the Presidium of the Donetsk Regional Court (“the Presidium”) against the resolution of 7 March 2000 and requested the initiation of supervisory review proceedings in the applicant's case. He also sought to set aside the resolution of 7 March 2000 in which the case had been remitted for additional investigation. The deputy prosecutor considered that there was sufficient evidence to corroborate the applicant's interference with the citizens' right to vote (Article 127 § 2 of the CC). On the same date the registry of the court acknowledged receipt of the protest. 24. On 5 April 2000 the Presidium, composed of its President, L.V.I., and the judges R.L.P., P.L.V., R.L.I., M.M.I. and B.A.M., in the presence of a prosecutor, quashed the resolution of 7 March 2000 and remitted the case for further judicial consideration. In particular, the Presidium found that the District Court had remitted the case back for additional investigation without a thorough examination of the indictment and of the requisite actus rea and mens rea of the offence with which the applicant had been charged. It had also not mentioned which particular investigative measures the prosecution was required to take. The Presidium decided not to release the applicant from detention. In particular, it stated: 25. On 24 April 2000 the District Court dismissed a petition filed by the applicant's lawyer requesting that the case be remitted for additional investigation. It also dismissed the applicant's application for release from detention. 26. On 1 June 2000 the District Court dismissed a further application for the applicant's release. 27. On 16 June 2000 the District Court changed the preventive measure applied in respect of the applicant to an undertaking not to abscond. 28. On 6 July 2000 the District Court, chaired by Judge T., who had heard the case on 7 March 2000, convicted the applicant of interfering with the citizens' right to vote for the purpose of influencing election results by means of fraudulent behaviour. The District Court sentenced the applicant to five years' imprisonment, which was suspended for a two-year probationary period as the actions of Mr Salov “in fact entailed no grave consequences”. It also ordered the applicant to pay a fine of 170 Ukrainian hryvnyas (UAH). It held as follows: 29. On 15 September 2000 the Donetsk Regional Court, composed of the judges D.A.D., G.G. and D.A.V., upheld the judgment of 6 July 2000. 30. On 3 November 2000 and 9 February 2001 respectively the Regional Court and the Supreme Court of Ukraine dismissed, as being unsubstantiated, the applicant's complaints and his request for a supervisory review of his conviction. 31. On 22 November 2000 the Donetsk Lawyers' Qualifications and Disciplinary Commission annulled the applicant's licence to practise as a lawyer (no. 1051, issued on 17 December 1997). It based its decision on the applicant's conviction of 6 June 2000. 32. On 23 April 2004 the applicant received a new licence to practise as a lawyer (no. 1572), after passing an examination before the Donetsk Lawyers' Qualifications and Disciplinary Commission and paying the sum of UAH 1,200. He was allowed to sit exams after the legal effects of his conviction were annulled (погашена судимість). 33. In July 2000 the applicant instituted proceedings in the Voroshylovsky District Court of Donetsk against the prosecution service of Donetsk and the Donetsk Regional Department of the Ministry of the Interior, claiming compensation for the non-pecuniary and pecuniary damage resulting from his unlawful 10-day detention in 1999 in the Temporary Investigative Isolation Unit (Ізолятор Тимчасового Утримання). In particular, it was contended that he should have been held in the Investigative Detention Centre (Слідчий Ізолятор) and not in the Temporary Investigative Isolation Unit, as his status had been that of a suspect in criminal proceedings. 34. On 15 June 2001 the Voroshylovsky District Court of Donetsk allowed his claims in part. It also ordered the prosecution service of Donetsk and the Donetsk Regional Department of the Ministry of the Interior to pay UAH 3,000 (EUR 500) to the applicant. 35. On 22 November 2001 the Donetsk Regional Court of Appeal decided that the State Treasury, and not the prosecution service or the Ministry of the Interior, was liable for compensating the applicant. It therefore ordered the Donetsk Regional State Treasury Department to pay the applicant UAH 3,000 (EUR 500) in compensation for pecuniary and non-pecuniary damage. 36. The applicant alleges that this compensation was not paid to him. 37. The relevant provisions of the Constitution of Ukraine read as follows: 38. The relevant provisions of the Judiciary Act of 5 June 1981, with subsequent changes and amendments, as in force at the material time, read as follows: 39. Section 7 of this Act provides that any citizen of Ukraine who has attained the age of twenty-one and has a minimum of two years' legal experience may become a judge. By section 9(3), judges are appointed for a maximum initial period of five years, following an examination by the judicial qualifications commission and a decision of the relevant local authority. In accordance with sections 33 and 34 of the Act, a judge of the district court may be subject to disciplinary investigation on the basis of a request by the President of the regional court. 40. By sections 6 and 7 of this Act, the qualifications commissions had the power to institute disciplinary proceedings, and to submit conclusions on the feasibility of appointing a candidate for a position as a district-court judge and on the renewal of the judicial term of a judge elected for an initial period of five years. They could also request an attestation for a judge proposed for a promotion in judicial or administrative rank within the court, or an assessment of his legal knowledge. The presidents of the regional courts could request the qualifications commissions to certify or assess judges' knowledge and qualifications. In accordance with sections 32 and 33 of the Act, the presidents of the higher courts were allowed to request the institution of disciplinary proceedings against judges of the district courts. 41. The relevant provisions of Article 127 of the Criminal Code read as follows: 42. The relevant provisions of the Code of Administrative Offences read as follows: 43. The relevant provisions of Section III, Chapter 23, of the Code of Criminal Procedure read as follows: 44. The relevant provisions of Chapter 31 of the Code of Criminal Procedure provide as follows: 45. The relevant provisions of the Presidential Elections Act read as follows: 46. The relevant provisions of the reservation contained in the instrument of ratification are set out in the judgment of Nevmerzhitsky v. Ukraine (no. 54825/00, § 56, 5 April 2005). 47. The relevant transitional provisions of the Constitution of Ukraine are set out in the Nevmerzhitsky judgment cited above. 48. The relevant resolution of the Plenary Supreme Court of Ukraine reads as follows: 49. In its decision the Constitutional Court found that the Cabinet of Ministers had acted unconstitutionally in passing the resolution of 22 March 1999 (no. 432) that reduced the expenditure of the 1999 State budget on the needs of: the Supreme Court by 40%, the regional courts by 7.5%, the district (and city) courts by 6.8%, the Higher Arbitration Court by 26.4%, the arbitration courts by 19.4%, and the military courts by 15.5%. According to the information issued by the Ministry of Justice (responsible for the courts' administration at the material time), this expenditure covered 51.6% of the needs of the first-instance courts and 62.8% of the needs of the regional courts. The Constitutional Court found that Resolution no. 432 exerted financial influence on the courts and infringed the citizens' right to judicial protection. 50. The Council of Judges, in its Decision no. 13 of 12 December 2000, found that the existing procedure for the selection and appointment of candidates for judicial posts, as established by the Ministry of Justice, Higher Council of Justice and the judicial qualifications commissions, was not compatible with the need to form a highly qualified judiciary able to administer justice effectively and independently. 51. On 12 December 2000 the Council of Judges adopted Resolution no. 10, finding that the decisions of the Cabinet of Ministers to lower judicial salaries were contrary to the principle of the independence of the judiciary.