The case concerns the alleged breach of the applicant\u2019s passive electoral right under Article 3 of Protocol No.\u00a01 in two aspects: the invalidation of the 28 October 2012 election results in his constituency and the cancellation of his registration for the 15 December 2013 partial repeat parliamentary elections, given that he had left for Italy in the meantime.<\/p>\n
FIFTH SECTION This judgment is final but it may be subject to editorial revision.<\/p>\n In the case of Romanyuk v. Ukraine,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:<\/p>\n Lado Chanturia, President, Having regard to:<\/p>\n the application (no.\u00a077909\/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 27 November 2012 by a Ukrainian national, Mr Viktor Mykolayovych Romanyuk, born in 1975 and living in Vasylkiv (\u201cthe applicant\u201d) who was represented by Mr\u00a0M.V.\u00a0Motruk, a lawyer practising in Kyiv;<\/p>\n the decision to give notice of the application to the Ukrainian Government (\u201cthe Government\u201d), represented by their then Agent, Mr Ivan Lishchyna.<\/p>\n the parties\u2019 observations;<\/p>\n Having deliberated in private on 12 May 2022,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n SUBJECT-MATTER OF THE CASE<\/strong><\/p>\n 1. The case concerns the alleged breach of the applicant\u2019s passive electoral right under Article 3 of Protocol No.\u00a01 in two aspects: the invalidation of the 28 October 2012 election results in his constituency and the cancellation of his registration for the 15 December 2013 partial repeat parliamentary elections, given that he had left for Italy in the meantime. The applicant also complained that the judicial order seeking his pre-trial detention within the criminal proceedings, which had been instituted against him in Ukraine on 30 January 2013 and which had led to his one-week detention in Italy in March 2013, had been in breach of Article\u00a05\u00a0\u00a7\u00a01 of the Convention.<\/p>\n 2. The applicant ran as a candidate for the main opposition party, \u201cBatkivshchyna\u201d, in the parliamentary elections of 28\u00a0October 2012 in single-seat electoral constituency no. 94[1]. According to the results sheets (referred to as \u201cprotocols\u201d) drawn up by the Precinct Electoral Commissions (PECs), he won the elections, whereas his main rival, Ms Z., the candidate for the government party, \u201cParty of Regions\u201d, arrived second. The Constituency Electoral Commission (\u201cthe ConEC\u201d), however, invalidated the voting results in twenty-seven polling stations, in all of which the applicant had been considerably ahead of Ms Z. The ConEC\u2019s reasoning was limited to the general reference to the judicial decisions following complaints from twenty-seven observers, mainly from Ms Z. and \u201cParty of Regions\u201d, which stated that the PECs had unlawfully restricted their access to those polling stations. The applicant challenged that invalidation arguing, in particular, that the ConEC had not analysed the scope of the restriction in question and how it might have influenced the voting results. The administrative courts of two levels of jurisdiction rejected his complaint on the grounds that the ConEC had acted within its discretionary powers. The Central Election Commission (\u201cthe CEC\u201d) found it impossible to establish the election results in the constituency and applied to the Parliament for putting in place the necessary modalities for organising partial repeat elections.<\/p>\n 3. On 30 January 2013 the Kyiv City Prosecutor\u2019s Office instituted criminal proceedings against the applicant on suspicion of \u201can incomplete attempt\u201d of State funds misappropriation committed in 2008. Namely, the applicant, who had been the deputy director of the \u201cIndar\u201d insulin factory (70.7% of which was owned by the State), was suspected of having conspired with the chairman of the board of directors, Mr L., with a view to misappropriating its funds. They were suspected of having created, in breach of legal rules, a limited liability company and of having transferred to it some real estate from the \u201cIndar\u201d factory. However, that transfer was not completed, because the applicant and L. had not applied for its registration.<\/p>\n 4. On 4 February 2013 the applicant left for Italy. Several days later he was declared wanted by the police. The investigating judge ordered the applicant\u2019s arrest with a view to ensuring his presence in the court for the examination of the issue of a preventive measure. On 26 March 2013 the Kyiv Shevchenkivskyy District Court ordered the applicant\u2019s pre-trial detention. Meanwhile, on 22 March 2013, the applicant had been arrested in Italy. On 29\u00a0March 2013 he was released subject to an obligation not to abscond.<\/p>\n 5. On 9 July 2013 the Milan City Court of Appeal (\u201cthe Milan Court\u201d) refused the Ukrainian authorities\u2019 request for the applicant\u2019s extradition. It noted that, according to the Italian criminal law, there was an incomplete attempt of crime where a person had not been able to complete it for reasons independent of his\/her will. The case-file materials clearly indicated that the crime imputed to the applicant had not been completed because he had not pursued the applicable administrative formalities. At no point had it been alleged that the applicant had not been able to complete the supposed crime for reasons beyond his control and independent of his will. The time lapse between the events in question (2008) and the institution of the criminal proceedings (2013) was also noted.<\/p>\n 6. In early December 2013 the administrative courts[2], following a voter\u2019s complaint, cancelled the applicant\u2019s registration as a candidate for the partial repeat parliamentary elections scheduled for 15\u00a0December 2013 on the grounds that he did not comply with the five-year residence requirement. The CEC, for its part, argued that he had submitted all the legally required documents, including a copy with his passport with his domicile registration in Ukraine. While the Parliamentary Elections Act of 2011, which was in force at the material time, did not contain any further explanations regarding the residence requirement[3], the courts considered, with the reference to some other legislation[4], that it implied staying more than 183 per year at the territory of Ukraine. Having regard to the applicant\u2019s undisputed residence in Italy for the preceding ten months, the courts held that he did not comply with that requirement. They did not comment on his argument that he had been restricted in his freedom of movement, given, firstly, his detention in Italy and, secondly, the pending issue of his extradition to Ukraine.<\/p>\n THE COURT\u2019S ASSESSMENT<\/strong><\/p>\n I. ALLEGED VIOLATION OF ARTICLE 5 \u00a7 1 OF THE CONVENTION<\/strong><\/p>\n 7. The applicant complained that his detention from 22 to 29\u00a0March 2013 had been based on an arbitrary order issued by the Ukrainian authorities and had thus been in breach of Article\u00a05 \u00a7 1 of the Convention.<\/p>\n 8. The Government submitted that the detention order had been in accordance with the law.<\/p>\n 9. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 10. The general principles of relevance can be found, for example, in Vasiliciuc v. the Republic of Moldova (no. 15944\/11, \u00a7\u00a7 34-36, 2\u00a0May 2017).<\/p>\n 11. The Court does not consider that the applicant\u2019s deprivation of liberty was based on \u201ca reasonable suspicion of having committed an offence\u201d. It notes that the charge against him, advanced in 2013, concerned \u201can incomplete attempt\u201d of funds misappropriation supposedly committed some five years earlier. As explicitly stated in all the relevant documents, the misappropriation in question had not been completed only because the applicant and another suspect had not applied for getting registered the property transfer. It was never alleged that they had had any obstacles for that. Those considerations led the Milan Court to reject the Ukrainian authorities\u2019 request for the applicant\u2019s extradition in July 2013 (see paragraph\u00a05 above).<\/p>\n 12. There has therefore been a violation of Article 5 \u00a7 1 of the Convention.<\/p>\n II. ALLEGED VIOLATION OF ARTICLE 3 of protocol no. 1<\/strong><\/p>\n 13. The applicant complained that the invalidation of the 28 October 2012 election results in constituency no. 94, as well as the cancellation of his candidacy for the 15\u00a0December 2013 partial repeat parliamentary elections, had been arbitrary.<\/p>\n 14. The Government submitted that the restriction of numerous observers\u2019 access to the polling stations had been a serious irregularity warranting the invalidation of the election results. As regards the second grievance, the Government pointed out that the residence-related legislation had been amended and clarified since the Court had found a violation of Article 3 of Protocol\u00a0No.\u00a01 in somewhat comparable circumstances in Melnychenko v.\u00a0Ukraine (no.\u00a017707\/02, ECHR 2004\u2011X). Notably, the Freedom of Movement Act, in force since 15 January 2004, defined residence as a place where a person lived for more than six months per year.<\/p>\n 15. The Court declares both complaints admissible.<\/p>\n 16. In so far as the first complaint is concerned, the Court considers that discounting all votes cast in an entire electoral constituency owing merely to the fact that some observers had been restricted in their access to twenty-seven (out of 136) polling stations, without any attempt to establish the extent of that irregularity and its impact on the outcome of the overall election results in the constituency, was contrary to Article 3 of Protocol\u00a0No. 1 (see Kovach v. Ukraine, no. 39424\/02, \u00a7 60, ECHR 2008, and Hajili v. Azerbaijan, no.\u00a06984\/06, \u00a7\u00a7 49-58, 10 January 2012).<\/p>\n 17. In so far as the second complaint is concerned, the Court takes note of the following circumstances indicating that the five-year residence requirement, as worded in the applicable law at the material time, could still be regarded as lacking clarity. The CEC and the courts interpreted it differently. Furthermore, the courts had to refer to a number of legal provisions unrelated to the electoral context in order to explain their approach. Lastly, in the recent amendments to the electoral legislation it was deemed necessary to introduce an additional provision clarifying the residence requirement. That said, the Court does not need to undertake a detailed analysis of the quality of the applicable law. The fact that the domestic courts failed to give any assessment to the applicant\u2019s pertinent argument about the particularities of his personal situation (namely, that he had not been able to return to Ukraine, given his detention in Italy and the pending issue of his extradition) is sufficient for the Court to conclude that the cancellation of his candidacy was arbitrary and lacked proportionality (see, in particular, Selahattin Demirta\u015f v. Turkey (no.\u00a02) [GC], no.\u00a014305\/17, \u00a7\u00a0388, 22 December 2020, with further references).<\/p>\n 18. There has therefore been a violation of Article 3 of Protocol No.\u00a01 in respect of both complaints.<\/p>\n III. remaining complaint<\/strong><\/p>\n 19. The applicant also complained under Article 18 of the Convention in conjunction with Article\u00a05 \u00a7 1 that his detention order had been politically motivated. Having regard to the facts of the case, the submissions of the parties, and its findings, the Court considers that it has examined the main legal questions raised in the present application, and that there is no need to examine separately the above-mentioned complaint (compare\u00a0Centre for Legal Resources on behalf of Valentin\u00a0C\u00e2mpeanu\u00a0v. Romania\u00a0[GC], no.\u00a047848\/08, \u00a7 156, ECHR\u00a02014).<\/p>\n APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n 20. The applicant claimed the following amounts in respect of pecuniary damage: 550 euros (EUR) as the costs incurred in detention, EUR\u00a014,770 as the expenses related to his stay in Italy for fourteen months thereafter; and EUR\u00a010,491 as the unearned wages of a member of parliament.<\/p>\n 21. There is no causal link between the violations found and the pecuniary damage related to the applicant\u2019s stay in Italy. He also failed to provide any information about the difference between the salaries that he would have received as a member of parliament and his other income, if any, during the relevant period (compare Kovach v. Ukraine, no.\u00a039424\/02, \u00a7\u00a066, ECHR\u00a02008, and Kerimova v. Azerbaijan, no. 20799\/06, \u00a7 64, 30\u00a0September 2010). The Court therefore dismisses the applicant\u2019s claim under this head.<\/p>\n 22. The applicant also claimed EUR\u00a010,000 in respect of non\u2011pecuniary damage. The Court considers it reasonable to award him EUR\u00a04,000 under this head.<\/p>\n 23. Lastly, the applicant claimed EUR\u00a017,350 for costs and expenses. Given his failure to provide any supporting documents, the Court rejects this claim.<\/p>\n 24. The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Declares the complaints under Article 5 \u00a7 1 of the Convention and Article\u00a03 of Protocol No. 1 admissible;<\/p>\n 2. Holds that there has been a violation of Article 5 \u00a7 1 of the Convention;<\/p>\n 3. Holds that there has been a violation of Article 3 of Protocol No.\u00a01 in respect of the invalidation of the 28 October 2012 election results in constituency no. 94 and the cancellation of the applicant\u2019s registration as a candidate for the 15 December 2013 partial repeat parliamentary elections;<\/p>\n 4. Holds that there is no need to examine the remaining complaint;<\/p>\n 5. Holds<\/p>\n (a) that the respondent State is to pay the applicant, within three months, EUR\u00a04,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;<\/p>\n (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 6. Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 20 September 2022, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Martina Keller \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Lado Chanturia ____________<\/p>\n [1] Comprising 136 precincts, with 151,370 voters in total.
\nCASE OF ROMANYUK v. UKRAINE<\/strong>
\n(Application no. 77909\/12)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n20 September 2022<\/p>\n
\nGanna Yudkivska,
\nMattias Guyomar, judges,
\nand Martina Keller, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n
\n[2] The Kyiv Administrative Court of Appeal, sitting as a court of first instance, on 1 December 2013 and the Higher Administrative Court on 4 December 2013.
\n[3] On 1 January 2020 it was replaced by the Electoral Code (2019), which now contains a detailed explanation what is meant by the residence requirement for parliamentary election candidates: if a person\u2019s one-time trip abroad for private reasons did not exceed ninety days and if the duration of his\/her stay abroad during each of the five years preceding the election day did not exceed 183 days. There is no breach of the residence requirement if a person stayed abroad for official business or for studies, spent his\/her leave, or underwent medical treatment upon a doctor\u2019s prescription.
\n[4] Notably, the definitions of the \u201ccontinuous residence\u201d in the Citizenship Act, the \u201cpermanent residence\u201d in the Tax Code, and \u201ca place of residence\u201d under the Freedom of Movement and Free Choice of Residence in Ukraine Act.<\/p>\n