Case of European Court of Human Rights, October 17, 2019 (case POLYAKH AND OTHERS v. UKRAINE)

Defense:UKRAINE
Resolution Date:October 17, 2019
SUMMARY

Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Civil rights and obligations;Reasonable time);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary... (see full summary)

 
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FIFTH SECTION

CASE OF POLYAKH AND OTHERS v. UKRAINE

(Applications nos. 58812/15 and 4 others – see appended list)

JUDGMENT

STRASBOURG

17 October 2019

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Polyakh and Others v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Angelika Nußberger, President,Gabriele Kucsko-Stadlmayer,Ganna Yudkivska,André Potocki,Yonko Grozev,Síofra O’Leary,Lәtif Hüseynov, judgesand Claudia Westerdiek, Section Registrar,

Having deliberated in private on 24 September 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in five applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Ukrainian nationals whose names and dates of birth are listed in the Appendix, on the various dates listed in the Appendix.

  2. The applicants were represented by lawyers whose names are listed in the Appendix. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.

  3. The applicants alleged, in particular, that the application to them of restrictive measures under the Government Cleansing (Lustration) Act had breached their rights under Article 8 of the Convention. The first three applicants also complained that the domestic courts’ prolonged failure to examine their claims concerning their dismissal under the Act had breached their right to a fair trial within a reasonable time under Article 6 of the Convention. The second applicant also complained that he had had no effective remedy in respect of his complaints.

  4. On 30 May 2017 notice of the first three applications was given to the Government.

  5. On 14 November 2018 notice of the above complaints under Article 8 of the Convention in the fourth and fifth applications was given to the Government and the remainder of those two applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

    THE FACTS

  6. On 7 February 2010 Viktor Yanukovych was elected President of Ukraine. The Office for Democratic Institutions and Human Rights of the Organisation for Security and Cooperation in Europe (OSCE) made a generally positive assessment of the electoral process (see paragraph 110 below).

  7. On 25 February 2010 President Yanukovych took office.

  8. On 30 September 2010 the Constitutional Court adopted a judgment by which it declared unconstitutional constitutional amendments of 2004 which had considerably reduced presidential powers and which had remained in effect from 2005 until the decision of the Constitutional Court was adopted. The European Commission for Democracy through Law (Venice Commission) criticised the decision and its consequences for the constitutional order of Ukraine (see paragraph 106 below). In practice, that decision resulted in an increase in the constitutional powers of the president by comparison with what they had been when the presidential elections had been held.

  9. A number of international observers expressed alarm at what they perceived as a campaign of selective prosecution of political opponents of President Yanukovych which had started in November 2010, when the new Prosecutor General had been appointed. These materials are summarised in the Court’s judgments in Lutsenko v. Ukraine (no. 6492/11, §§ 46 and 47, 3 July 2012), and Tymoshenko v. Ukraine (no. 49872/11, §§ 187 and 188, 30 April 2013), as well as in paragraphs 112 and 113 below).

  10. In 2012 the Commissioner for Human Rights of the Council of Europe expressed serious concern over allegations of political pressure on the Ukrainian judiciary (see the relevant report in Oleksandr Volkov v. Ukraine, no. 21722/11, § 80, ECHR 2013).

  11. International observers, notably the OSCE, were of the opinion that the 2012 parliamentary elections in Ukraine had failed to meet international standards, owing in particular to interference by the administration in the electoral process, and had constituted a step backwards compared with the national elections held in 2010 (see paragraphs 111 and 112 below).

  12. President Yanukovych’s rule came to an end as a result of protests known as “EuroMaidan”, which took place from November 2013 to 22 February 2014. The events which took place during those protests are the subject of several other applications before the Court.

  13. The EuroMaidan events are summarised in the following terms in a report by the International Advisory Panel (IAP), a body constituted by the Secretary General of the Council of Europe to assess the effectiveness of the investigations carried out by the Ukrainian authorities into events during the EuroMaidan demonstrations between November 2013 and February 2014 and the events in Odessa in May 2014:

    “1. In late November 2013, following the decision of the Ukrainian authorities not to sign the long-awaited EU-Ukraine Association Agreement, pro-European and anti-government demonstrations took place in Kyiv. The Ukrainian authorities’ ensuing attempts to disperse those demonstrations led to an increase in the number of protesters, the scope of their activity and their geographical spread. Between November 2013 and February 2014 a number of clashes took place, resulting in more than 100 protest-related deaths and more than 1,000 injuries (civilians and law enforcement officers) and some missing persons. The conflict between the Ukrainian authorities and EuroMaidan protesters ended in late February 2014 when several high-ranking individuals (including President Yanukovych) fled or resigned and there was a change in the government of Ukraine.” (Report of the International Advisory Panel on its Review of the Investigations into the Events in Odessa of 2 May 2014)

  14. By Law no. 742-VII of 21 February 2014 Parliament declared that the 2004 version of the Constitution had been restored.

  15. On 22 February 2014, by Resolution no. 757-VII, Parliament declared that Mr Yanukovych had unconstitutionally ceased to exercise his presidential functions and duties. It called an extraordinary presidential election, which took place on 25 May 2014.

  16. The applicants are career civil servants who, prior to their dismissal under the Government Cleansing (Lustration) Act of 2014 (“GCA”), occupied certain positions in the civil service.

  17. The first applicant started his career as an investigator and then became a district prosecutor in the Chernigiv Region, before working at the Chernigiv regional prosecutor’s office. On an unspecified date in or before 2005 he was transferred to the Prosecutor General’s Office (“PGO”). He then served as:

    (i)deputy head of the documentation department at the PGO from 21 January 2012 to 16 July 2014 and

    (ii)head of the documentation department at the PGO from 16 July 2014 to 23 October 2014.

  18. The second applicant served in the following positions:

    (i)deputy head of the tax police, head of the investigations section of the tax police of the Mykolaiv Region from 3 February 2009 to 8 May 2013,

    (ii)head of the financial investigations department of the Directorate of the Ministry of Revenues and Duties in the region from 8 May 2013 to 29 July 2013, and

    (iii)first deputy head of the financial investigations department of the Directorate of the Ministry of Revenues and Duties in the region from 29 July 2013 to 29 October 2014.

  19. The changes in the titles of the second applicant’s positions in 2013 and 2014 appear to have been related to the overall reorganisation of the State Tax Service, which prior to 2012 used to be an independent agency. In that year it was merged with the State Customs Service to form the Ministry of Revenues and Duties. There may have been similar changes in the title of the position occupied by the fourth applicant in the same period (see below).

  20. The third applicant served as deputy prosecutor of the Chernigiv Region from 19 December 2002 to 23 October 2014.

  21. The fourth applicant served as head of the Yaremche tax authority from 26 April 2006 to 25 March 2015.

  22. The fourth applicant was reprimanded by the State Tax Service on 27 July 2006 and 11 September 2008 for “not taking measures for the proper organisation of work and effective control”, which had led to a failure to meet tax collection targets in the first six months of 2006 and 2008 respectively.

  23. The fifth applicant in 1990-1991 occupied the position of the second secretary of a district department of the Communist Party of the Ukrainian Soviet Socialist Republic (Ukrainian SSR).

    From 16 March 2010 to 21 July 2015 he served as deputy head of the agriculture department of the Oleksandrivka District State Administration.

  24. On 16 October 2014 the GCA came into force. It provided for the dismissal of individuals, like the applicants, who: (i) had occupied certain positions in the civil service in the period from 25 February 2010 to 22 February 2014 (“the one-year rule”) or in the Communist Party of the Ukrainian SSR prior to 1991 or (ii) failed to file lustration statements (declarations) as required by the GCA, and banned them from the civil service and certain other jobs for ten years (see paragraphs 73, 74, 75 (iii) and 77 below).

  25. Pursuant to the GCA, the applicants’ names were published in the Lustration Register, a publicly accessible online database maintained by the Ministry of Justice (see paragraph 78 below).[1]

  26. Relevant specific circumstances related to the applicants’ dismissal are set out below.

  27. In October 2014, based on their employment history (see paragraphs 18 to 20 above), the first three applicants were dismissed under the GCA.

  28. On 1 March 2014 the Cabinet of Ministers decided to dissolve the Ministry of Revenues and Duties and to again create a separate Tax Service and Customs Service.

  29. On 16 January 2015 the applicant was warned that he would be made...

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