Student’s conviction for frying eggs on a war memorial did not breach her freedom of expression, but her detention pending trial was unlawful
JUDGMENT
Sinkova v. Ukraine 27.02.2018 (no. 39496/11)
SUMMARY
Frying eggs in front of the flame of the Unknown Soldier. Detention without a court order, insufficient justification of the reasons for detention, lack of compensation procedure for deprivation of liberty. Violation of the right to personal freedom and security.
PROVISIONS
Article 5 par. 3
Article 5 par.5
PRINCIPAL FACTS
The applicant, Anna Sinkova, is a Ukrainian national who was born in 1991 and lives in Kyiv.
The case concerned her arrest, detention and conviction for frying eggs on the flame of the Tomb of the Unknown Soldier in Kyiv in December 2010. Two of her friends joined her and fried sausages over the flame. Another filmed. At the time, she belonged to an artistic group known for its provocative public performances. She later posted a video of the scene on the Internet, with the explanation that she had been protesting against the waste of precious natural gas.
She was found guilty in 2012 of desecrating the Tomb of the Unknown Soldier and given a three-year suspended prison sentence. She did not serve any of this sentence, however, before her conviction, she had spent three months in pre-trial detention, notably from 29 March 2011 to 30 June 2011.
Remanding her in custody had essentially been justified on the grounds of the seriousness of the charge against her and the hypothetical risk of her absconding as the police had not been able to find her at the initial stage of the proceedings. These reasons were used in refusals to release her, despite letters by members of parliament and other prominent figures, pledging to be her personal guarantors.
THE DECISION OF THE COURT
Article 5 (right to liberty and security)
The Court found that Ms Sinkova’s arrest had been based on a judicial order and aimed to ensure her attendance at a hearing on her case as, despite the police’s efforts, they had not been able to find her until 29 March 2011. It was not convinced by her argument that the police had not tried hard enough to find her. On the contrary, they had contacted family living at the address of her registered residence, but the family had denied knowing where she was. Even less convincing was her suggestion that she could have been directly contacted as author of the video on the Internet, given that the police had only been able to identify her by showing a photo held on the passport office’s database to one of the friends who had participated in the performance. The Court did not therefore consider that her arrest had been either arbitrary or unlawful and held that there had been no violation of Article 5 § 1.
However, the initial order for Ms Sinkova’s detention had expired on 29 May 2011 and she had been held in custody solely on the basis of the bill of indictment submitted to the trial court. Her further detention as a preventive measure had only been ordered on 17 June 2011 when the trial court had held its preparatory hearing on her case. Her detention between those two dates had not therefore been covered by any judicial decision, in violation of Article 5 § 1. The Court pointed out a number of other similar cases where it had already found a violation of Article 5 § 1 because of such a practice of keeping defendants in detention without a specific legal basis or clear rules and concluded that that issue stemmed from a legislative lacuna in Ukraine.
Furthermore, the authorities had not sufficiently justified the entire period, from 29 March to 30 June 2011, of Ms Sinkova’s detention. When extending her detention and rejecting her applications for release, the domestic courts had mainly referred to the initial grounds for her placement in detention, namely the seriousness of the charge and the risk of her absconding, without any updated details. At no stage had they considered any alternative measures against her.
Nor had they taken into consideration any of the numerous letters of personal guarantee in support of her release. There had therefore been a violation of Article 5 § 3.
Lastly, the Court noted that, as long as Ms Sinkova’s detention was in formal compliance with the domestic legislation, it was not possible for her to claim compensation at national level. Nor was there any legally envisaged procedure in Ukraine to bring compensation proceedings for deprivation of liberty found in breach of the European Convention. Ukrainian law had not therefore provided an enforceable right to compensation for the unlawfulness of her detention under Article 5 §§ 1 and 3.
There had therefore been a violation of Article 5 § 5.
Article 10 (freedom of expression)
The Court found that Ms Sinkova had only been prosecuted on criminal charges and convicted for frying eggs on the Tomb of the Unknown Soldier; that charge had not concerned either her posting the video on the Internet or the accompanying explanation. She had therefore been convicted for a particular type of conduct in a particular place, based on a general prohibition of expressing contempt for the Tomb of the Unknown Soldier.
Indeed, she could have found more suitable ways to express her views or participate in protests about the State’s use of natural gas or the needs of war veterans, without breaking the criminal law or insulting the memory of soldiers who had given their lives defending their country.
Moreover, she has never served a single day of her suspended prison sentence.
Ms Sinkova’s conviction was therefore reconcilable with her freedom of expression and the Court concluded that there had been no violation of Article 10.
Just satisfaction (Article 41)
The Court held that Ukraine was to pay Ms Sinkova 4,000 euros in respect of non-pecuniary damage.
Separate opinion
Judges Yudkivska, Motoc and Paczolay expressed a joint partly dissenting opinion which is annexed to the judgment (echrcaselaw.com editing).
