In Sinkova v Ukraine, a woman was arrested, detained and convicted for frying eggs on the Tomb of the Unknown Soldier in Kiev in 2010 in what she claimed was a protest against the waste of natural gas. The European Court of Human Rights (ECtHR) held the conviction did not infringe her right to freedom of expression, although it did find that her right to liberty and security had been violated under the European Convention on Human Rights (the Convention). The ECtHR acknowledged while the conviction had interfered with her freedom of speech, it had been a proportionate restriction under domestic law.
Ms Sinkova was arrested for desecrating the memorial and held in pre-trial detention from 29 March until 30 June 2011 before being convicted. During this time, her release was refused on the grounds that the charge being brought against her was of a serious nature and because she was a flight risk, as the police had been unable to locate her when seeking to initiate the trial proceedings.
Ms Sinkova attested that this was a breach of her rights to liberty and security under Article 5 of the Convention. She claimed her arrest was not necessary and her detention had not been justified. Under current Ukrainian legislation she was not entitled to claim for damages for unlawful detention. She also maintained that her conviction was a violation of her right to freedom of expression under Article 10 of the Convention as she believed she was being prosecuted for expressing her view surrounding the allocation of government funds for natural gas used to maintain flames at such memorials.
Her arrest had been carried out under a judicial order with the intention of securing her presence at the initial court hearing. The ECtHR acknowledged that, despite the best efforts of the police, they had not been able to locate her until 29 March 2011. Therefore, her arrest was not judged to be arbitrary or unlawful and there was no violation of Article 5 of the ECHR in this instance. However, the ECtHR held that her detention was in violation of Article 5 right to liberty and security. The court ruled that the entire period of her detention had not been adequately justified by the Ukrainian authorities and sufficient consideration to alternatives to custody had not been considered. In addition to this, during the period of 29 May to 17 June, she remained in detention despite the expiration of the initial order, so these dates were not covered by any judicial decision until her detention was officially extended.
However, Ms Sinkova’s right to freedom of expression under Article 10 had not been breached, the ECtHR ruled. According to the court, she was not prosecuted for expressing her opinion but rather for her conduct in a particular place that amounted to a criminal offence. She could have found a more suitable method of expressing her opinion without committing a crime.
Click here for the ECtHR judgement press release.