FIFTH SECTIONCASE OF TOKAR v. UKRAINE(Application no. 38268/15)      JUDGMENT STRASBOURG6 March 2025 This judgment is final but it may be subject to editorial revision.In the case of Tokar v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Armen Harutyunyan, President, Andreas Zünd, Mykola Gnatovskyy, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the application (no. 38268/15) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 27 July 2015 by a Ukrainian national, Mr Oleksandr Vasylyovych Tokar (“the applicant”), who was born in 1957, lives in Odesa and was represented by Mrs L. Donina and Mr S. Tokar, lawyers practising in Odesa;the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, Ms M. Sokorenko;the parties’ observations; Having deliberated in private on 6 February 2025,Delivers the following judgment, which was adopted on that date:SUBJECT MATTER OF THE CASE1. The application concerns a refusal to issue the applicant with an identity document required for travelling abroad as a result of allegedly inaccurate data held in the police database. It raises issues under Article 2 of Protocol No. 4 and Article 13 of the Convention.Refusal to issue the applicant with a travel document and ENSUING administrative proceedings2. On 22 July 2011 the applicant applied for an identity document as required for travelling abroad (“the international passport”).3. In October 2011 the migration authorities of the Odesa Regional Police Directorate (“the ORPD”) rejected the applicant’s application following information from the police’s Information Technology division (“the IT unit”) that criminal proceedings for tax evasion had been initiated against the applicant in May 1997, in the context of which he had been placed under obligation not to leave his place of residence (підписка про невиізд). There was no information in the police registers on the outcome of those proceedings. The police relied on Article 6 of the Leave and Entry Procedures Act (Закон України «Про порядок виїзду з України і в’їзду в Україну громадян України) and Article 22.3 of Government Resolution No. 231 of 31 March 1995 (“Resolution No. 231”) implementing the above Law, which provided that a person could be temporarily denied an international passport if criminal proceedings had been instituted against him or her, up until the proceedings had been concluded.4. The applicant appealed against the refusal to the Odesa Circuit Administrative Court (“the Administrative Court”) arguing that the information contained in the police database referred to by the authorities was incorrect. He submitted that the criminal proceedings in the context of which he was ordered, in September 1997, not to leave his place of residence concerned allegations of group bribery. This case, as far as he was concerned, had been closed at the end of 1997, but no decision to that effect had been sent to him. The applicant asked the Administrative Court to obtain the relevant documents from the prosecutor’s office, to enter the information on the closure of the bribery case into the police database and to delete the erroneous data on the tax evasion case concerning him from the police registers.5. The ORPD and the prosecutor’s office were unable to provide the Administrative Court with documents from the criminal case file against the applicant. The ORPD informed the court that on 30 November 1997 the group bribery case, in which the applicant was one of the accused, had been merged with an earlier tax evasion case and that on 9 December 1997 the case file in the merged case had been referred to a court to decide on the question of jurisdiction. However, the ORPD had no information on the outcome of these proceedings. The prosecutor’s office informed the Administrative Court that it did not have any information on the applicant’s case, as the prosecutor’s file had been destroyed because the statutory period for their retention had expired.6. On 11 January 2013 the Administrative Court dismissed the applicant’s claim, finding that the migration authorities had lawfully rejected the applicant’s passport application, given the information that criminal proceedings had been initiated against him and in the absence of information that any judgment had been given in his case or a decision made to terminate the proceedings. The Administrative Court further found that the IT unit was not entitled to enter or delete data concerning criminal proceedings in the police registers on its own initiative.7. On 21 August 2013 the Odesa Administrative Court of Appeal (“the Court of Appeal”), upon appeal by the applicant, set aside the lower court’s judgment and decided in the applicant’s favour. The court held that the authorities had failed to discharge the burden of proof and had not provided any evidence to show that the decision to reject the applicant’s passport application was based on valid legal grounds, namely that the applicant was still bound by the obligation not to leave his place of residence when he applied for his international passport. The Court of Appeal noted that the authorities did not have up-to-date information on the status of the criminal proceedings against the applicant, the last information available dating from December 1997, and did not know the whereabouts of the case file. It held that, under the law, the fact of a preventive measure, confirmed by the relevant procedural document, constituted a ground for restricting the applicant’s freedom of movement, rather than the availability of information on the existence of such a ground.8. On the basis of the foregoing, and observing further that under the Information Act official information provided by State authorities should be correct and accurate, the Court of Appeal held that the refusal to issue the applicant with an international passport was unlawful. It ordered the State Migration Service, which had been responsible for issuing travel documents since January 2013 succeeding the ORPD, to issue a passport to the applicant. The ORPD was ordered to remove the information that the applicant was under obligation not to leave the country in the tax evasion case from the police registers, pointing out that, following amendments to the law, it was the preventive measure, and no longer the fact that criminal proceedings had been initiated, that constituted the legal basis for rejecting a passport application.9. On 8 October 2013, after the judgment of the Court of Appeal had become enforceable, the applicant asked for and was issued with an international passport. According to him, the erroneous record had also been removed from the police database.10. In a final judgment of 18 June 2015 the Higher Administrative Court ("HAC"), on appeal by the police, quashed the judgment of the Court of Appeal and upheld the decision of the first-instance court. The HAC held that the migration authorities had lawfully rejected the applicant’s passport application, because, where there was information that there were criminal proceedings against a person, the rejection of such an application was mandatory until the criminal proceedings had been concluded or the relevant preventive measure had been lifted.11. Accepting information provided by the authorities concerning the criminal proceedings, the HAC noted that the police and the prosecutor’s office had no information on the outcome of the tax evasion case, which had been referred to a court in 1997. It further found that there was nothing in the file before it to indicate that the order not to leave the place of residence given to the applicant in 1997 had been lifted, and that the applicant’s assertion that the criminal proceedings on the bribery charges had been discontinued was not supported by any evidence.12. The HAC further found that the procedure for the maintenance of the relevant information by the police did not entitle the IT unit to amend the registers on its own initiative, but only upon the required information from the investigating authorities or the courts. Domestic law also made no provision for the deletion of an entry relating to a criminal case from the police registers in the absence of information on the outcome of the criminal proceedings received through the appropriate channels.13. On 5 November 2015 the HAC rejected an application by the applicant in which he asked the court to clarify its judgment of 18 June 2015 by indicating how he should protect his rights to freedom of movement.14. On 22 June 2016 another international passport was issued to the applicant by the State Migration Service at his request.15. According to the information note submitted by the Migration Service to the Government on 10 August 2023, both international passports issued to the applicant are valid.APPLICANT’S attempts to have the Police Database AMENDED USING Criminal law remedies16. Between January and May 2013, while the administrative proceedings were still ongoing, the applicant filed complaints with the Primorsky District Court of Odesa (“the District Court”), the Odesa Regional Prosecutor’s Office and the ORPD, seeking the correction of the allegedly incorrect information in the police database and a formal decision lifting the preventive measure in the tax evasion case, which had been closed.17. The applicant’s complaints were rejected by the District Court and the Odesa Regional Prosecutor’s Office on the grounds that the legislation in force did not provide a way to challenge the investigator’s actions or to have the database amended in the manner sought by the applicant. The ORPD informed the applicant that its Investigation Department had never dealt with the tax evasion case which had apparently been referred to the Odesa Regional Court of Appeal in December 1997.18. On 29 July 2013 the Odesa Regional Court of Appeal informed the applicant that no criminal case against him on charges of tax evasion had been ever brought before it.THE COURT’S ASSESSMENTALLEGED VIOLATION OF ARTICLE 2 OF Protocol NO. 4 to THE CONVENTION19. The applicant complained that the refusal to issue him with a travel document was unlawful and arbitrary, since the information contained in the police database and relied on as the grounds for the refusal was incorrect.Admissibility20. The Government submitted that the application should be declared inadmissible as a whole on the grounds that(i) the applicant could not claim to be a victim within the meaning of Article 34 of the Convention, since he had been issued with travel documents in 2013 and 2016;(ii) the applicant had abused the right of individual application since he had not informed the Court that the passports had been issued; and(iii) the application was manifestly ill-founded since it appeared impossible to verify the applicant’s allegations about the criminal proceedings and the preventive measure against him with the domestic authorities, given the length of time that had elapsed since the measure had been ordered against him and his complaint.21. In addition, the Government objected that the applicant had not exhausted domestic remedies. Observing that domestic legislation had not provided a mechanism for lifting a preventive measure imposed under the old 1960 Code of Criminal Procedure in cases which had been closed, the Government submitted that judicial practice had now made that possible. In 2018 the Grand Chamber of the Supreme Court had held that applications for the release of property seized under the 1960 Code of Criminal Procedure in proceedings which had subsequently been discontinued should be decided by the civil courts since they essentially concerned undisputed property rights. The Government suggested that the applicant should have applied this practice by analogy and applied to the civil court for the termination of the order not to leave his place of residence which restricted his freedom of movement.22. The applicant submitted that he had been issued with the passports while the judgment of the Court of Appeal was enforceable. Since the HAC had overturned this judgment, he had legally been put back into the situation in which he had been refused the international passport, with the incorrect information still registered against him in the police registers. The point of registering the obligation not to leave his place of residence in the police database, of which he had not been aware prior to the rejection of his passport application, was to restrict not only his right to travel abroad but also his right to choose his place of residence within the country.23. The Court observes that, although the applicant obtained a travel document in 2013 and then in 2016, the domestic authorities have not acknowledged the alleged violation of his freedom of movement for the two years during which the authorities refused to issue the applicant with a passport (see paragraphs 3 and 9 above). It notes that the Court of Appeal’s judgment in favour of the applicant was overturned by the HAC, and the applicant has not received any compensation or other redress in this regard.24.

Article of the Convention at issue: Article 2
Outcome: violation