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FIFTH
SECTION
CASE OF
LUCHANINOVA v. UKRAINE
(Application
no. 16347/02)
JUDGMENT
STRASBOURG
9 June
2011
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 Luchaninova v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Boštjan M.
Zupančič,
Isabelle Berro-Lefèvre,
Ann
Power,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 10 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16347/02) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Ms Olga Mykolayivna
Luchaninova (“the applicant”), on 19 September 2000.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev, of the
Ministry of Justice.
- On
27 March 2007 the Court declared the application partly inadmissible
and decided to communicate to the Government the complaints under
Article 6 § 1 of the Convention, separately and in conjunction
with Article 6 § 3 (b) and (c), concerning the alleged
unfairness of the proceedings against the applicant and her
complaints about the lack of an appeal under
Article 2 of Protocol No. 7, which had been lodged on
15 February 2001. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1947 and lives in the town of Trostyanets.
A. Proceedings against the applicant
- On
8 September 2000 a security officer of the applicant’s
former employer, a private company, drew up a report in which he
stated that in the course of the applicant’s work on
7 September 2000 she had stolen thirty-five labels, the
total value of which was 0.42 Ukrainian hryvnias (UAH).
These labels were found in the applicant’s possession when she
was leaving the company’s premises. The applicant acquainted
herself with the report and explained to the company administration
that she had not had any intention of using the labels, but had been
going to throw them away.
- On
the same day the report was submitted to the Trostyanets Court with a
request that the applicant be found guilty of having committed an
administrative offence within the meaning of Article 51 § 1 of
the Code on Administrative Offences.
- On
an unspecified date the applicant requested the court to provide her
with free legal assistance.
- Between
10 September and 1 November 2000 the applicant could not appear
before the court as she was undergoing inpatient examinations and
treatment in several medical institutions; she informed the court of
this.
- Between
3 and 22 November 2000 the applicant’s six-year-old grandson
was undergoing specialised treatment in the Okhtyrka Town Clinic for
Skin and Venereal Diseases, to which there was restricted public
access. The applicant was staying with him in the clinic in view of
his young age.
- On
6 November 2000 the judge of the Trostyanets Court who was dealing
with the applicant’s case came to the clinic and informed the
applicant that he was going to hold a hearing in the room where she
was staying with her grandson. All other patients were asked to leave
the room. The applicant objected to the holding of the hearing in the
room at the clinic. She also requested the judge to withdraw from the
case. Her objection and request were dismissed and she refused to
participate in the hearing, but remained in the room. The hearing was
held in the presence of a lawyer appointed by the judge to defend the
applicant. There were also four witnesses heard in person, all of
whom were employees of the company. No other persons were allowed to
enter the room.
- On
the same day the court found the applicant guilty of petty theft and
imposed a fine amounting to UAH 51.
In its resolution the court explained that the hearing had been held
in the clinic because of the applicant’s repeated failure to
appear before it.
- The
applicant lodged requests for supervisory proceedings with various
authorities, including prosecutors and courts, claiming, inter
alia, that the proceedings before the Trostyanets Court had not
been public and that she had not been able to exercise her rights to
defence, or to present evidence, and other procedural rights.
According to the applicant, she was not informed about the hearing in
advance and she did not consent to be represented by the
court-appointed lawyer, as the latter had allegedly represented the
company in other proceedings to which she had been a party.
- On
3 April 2001 the Deputy Prosecutor of the Sumy Region
lodged a request with the Sumy Court for supervisory review (protest)
of the applicant’s case. The prosecutor submitted that the
Trostyanets Court had wrongly assessed the evidence in the case and
had misapplied domestic law. The prosecutor also alleged that because
the hearing had been held in the clinic the applicant had not been
able to exercise her procedural rights.
- On
9 April 2001 the President of the Sumy Court rejected the protest.
As to the fact that the Trostyanets Court had held a hearing in the
clinic, the President of the Regional Court found that the
applicant’s procedural rights had not been violated, since
during that hearing she had been represented by a lawyer and she had
not informed the court of any intention to submit evidence or to
question witnesses.
- On
18 June 2001 the President of the Supreme Court reviewed the case
and, relying on Articles 293 and 294 of the Code on Administrative
Offences of 1984, partially changed the resolution of 6 November
2000. While upholding the first-instance court’s finding that
the applicant was guilty of the offence with which she had been
charged, the President found that:
“... the first-instance court had not taken into
due account the requirements of Articles 33 and 34 [of the Code on
Administrative Offences of 1984], in particular [it had failed to
take into due account] the small value of the stolen objects ... the
offender’s age, the actual absence of harm to the company, and
that Ms Luchaninova was being brought to criminal liability for the
first time.
In these circumstances, and because the offence was not
a serious one, Ms Luchaninova should not be fined, but verbally
reprimanded [for the offence]...”
-
No hearing was held either before the Sumy Court or the Supreme
Court. Their decisions were based on an examination of the material
from the case file and contained no reference to the applicant’s
submissions in her appeals.
B. The applicant’s dismissal and the ensuing
court proceedings
- On
11 January 2001 the applicant was dismissed from her position of
packer on the ground that she had stolen the company’s
property.
- The
applicant instituted court proceedings challenging her dismissal and
seeking compensation. The civil courts, relying on the resolution of
6 November 2000 by which the applicant had been found guilty of
theft of the company’s property, rejected her claims as
unsubstantiated. The final decision in these proceedings was taken by
the Supreme Court on 25 February 2003.
II. RELEVANT DOMESTIC LAW
A. Relevant provisions of the Code on Administrative
Offences of 1984, as worded at the material time
- According
to Article 9 of the Code on Administrative Offences, illegal and
culpable action or inactivity infringing public order, citizens’
property, rights or freedoms, or administrative procedures, for which
administrative liability was envisaged, constituted an administrative
offence. An offender would be held administratively liable for the
offences set out in the Code, provided they did not lead to criminal
liability.
- Article
17 provided that a person acting in circumstances of extreme
necessity or for reasons of necessary defence, or who was not aware
of or able to control his or her actions, would not be liable for
administrative offences.
- Pursuant
to Article 22, where the administrative offence was not a serious
one, an offender could be discharged from administrative liability
and verbally reprimanded. A resolution terminating the proceedings
should be issued in that case (Article 284).
- Article
23 defined an administrative sanction as a measure of administrative
liability the aim of which was to compel a person who had committed
an administrative offence to obey laws, respect the social order and
refrain from reoffending, and to prevent the commission of offences
by other persons.
- Pursuant
to Article 24, administrative sanctions included, inter alia,
a note of warning (in writing), a fine, public or correctional work,
or administrative arrest.
- Article
33 provided that when deciding to impose an administrative sanction
the nature of the offence, the personality of the offender, his or
her material condition, and any circumstances mitigating or
aggravating the offender’s liability had to be taken into
account.
- Article
34 listed a number of mitigating circumstances, which included
sincere repentance on the part of the guilty person, voluntary
compensation for any losses caused by the offence, and cases where
the offender was a minor. The list was not exhaustive and the
authority deciding on the case was free to recognise other
circumstances as mitigating administrative liability.
- Article
38 § 1 provided that an administrative sanction could be imposed
within two months of the day on which an offence had been committed,
or following the discovery that the offence was of a continuous
nature.
- Article
51 §1 of the Code envisaged the following sanctions for petty
(in the amount of up to 51 UAH)
theft of collective property, including property of private
companies, or State-owned property: a fine in the amount of three to
ten times the statutory non-taxable monthly income, or corrective
work for a period of one to two months with a 20% salary deduction.
- Pursuant
to Article 249, cases concerning administrative offences were to be
considered at a public hearing. For educational and preventive
purposes, such cases could be considered at an offender’s place
of work, study or residence.
- Under
Article 268 § 2, the presence of a defendant at
hearings concerning certain administrative offences, including the
one envisaged by Article 51, was obligatory. Should the
defendant fail to appear before the court, he or she could be brought
before it by the police.
- According
to Article 276 § 1, cases concerning administrative offences
were generally to be considered at the location in which the offence
had been committed.
- Pursuant
to Article 287 of the Code, the first-instance court’s
resolution imposing an administrative sanction was final and could
not be appealed against save in cases provided for by law.
- According
to Article 294, a court resolution concerning an administrative
offence could be reviewed by the judge who had adopted it, upon an
extraordinary appeal lodged by a prosecutor, or by the president of a
higher court of his or her own motion. The powers of the judge (or
president of a court) reviewing the case were determined by
Article 293 § 1 and included the power (1) to
approve the resolution without changes; (2) to quash the resolution
and to remit the case for new examination; (3) to quash the
resolution and close the case; and (4) to change the sanction within
the limits envisaged by law. In the latter case a heavier penalty
could not be imposed.
B. Amendments to the Code on Administrative Offences of
1984, introduced on 24 September 2008
- On
24 September 2008 the Parliament of Ukraine made changes to the Code
whereby it introduced an appeal procedure in administrative offence
cases. In particular, under the amended Articles 287 and 294 of the
Code, the parties to the administrative-offence proceedings have the
right to appeal against court resolutions in their cases within ten
days of their delivery. Such an appeal is to be submitted through the
court of first instance that adopted the contested resolution. That
court must refer, within three days, the appeal or appeals together
with the case file to the appeal court, which, in its turn, has
twenty days to consider the case. Cases are dealt with by a judge of
the appeal court in an open hearing. The judge has powers to reject
the appeal, to quash the resolution and discontinue the proceedings
or adopt a new resolution, or to change the resolution. The judge’s
decision is final and not subject to any further appeal.
THE LAW
I. ALLEGATIONS OF UNFAIR TRIAL AND LACK OF AN APPEAL
- The
applicant complained about the outcome of the proceedings against
her, stating that they had been unfair. In particular, she submitted
that the proceedings had not been public, that she had not been
provided with adequate time and facilities to prepare her defence,
and that she had not been able to obtain the attendance and
examination of witnesses on her behalf, since she had not been
informed in advance of the hearing of 6 November 2000 and had
not been able to consult a lawyer. She argued that the
court-appointed lawyer was not her lawyer of choice. The applicant
invoked Article 6 §§ 1 and 3 (b), (c), and (d) of the
Convention in this regard.
- Relying
on Article 13 of the Convention, the applicant further complained of
a lack of effective domestic remedies for her complaints of
unfairness in the trial. In particular, she claimed that her
submissions concerning unfairness in the proceedings before the
Trostyanets Town Court and the alleged unlawfulness of its resolution
of 6 November 2000 had not been considered by the higher
courts.
- Article
6 §§ 1 and 3 (b), (c), and (d) and Article 13 of the
Convention provide, in so far as relevant, as follows:
Article 6
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair and
public hearing ... by a ... tribunal ... Judgment shall be pronounced
publicly but the press and public may be excluded from all or part of
the trial in the interests of morals, public order or national
security in a democratic society, where the interests of juveniles or
the protection of the private life of the parties so require, or to
the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of
justice.
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(b) to have adequate time and facilities for
the preparation of his defence;
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him ...”
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- Before
turning to the examination of the applicant’s complaints, the
Court notes that Article 13 of the Convention does not, as
such, guarantee a right of appeal or a right to a second level of
jurisdiction (see, mutatis mutandis, Nurhan Yılmaz v.
Turkey (no. 2), no. 16741/04, § 21,
8 April 2008, and Gurepka v. Ukraine, no. 61406/00, § 51,
6 September 2005). Nevertheless, should the impugned proceedings be
characterised as “criminal” for Convention purposes, the
applicant’s complaint concerning the lack of an appeal may fall
to be examined under Article 2 of Protocol No. 7, which reads as
follows:
“1. Everyone convicted of a criminal
offence by a tribunal shall have the right to have his conviction or
sentence reviewed by a higher tribunal. The exercise of this right,
including the grounds on which it may be exercised, shall be governed
by law.
2. This right may be subject to exceptions in
regard to offences of a minor character, as prescribed by law, or in
cases in which the person concerned was tried in the first instance
by the highest tribunal or was convicted following an appeal against
acquittal.”
A. Admissibility
1. The Government’s objection as to applicability
ratione materiae
- The
Government stated that the proceedings in the applicant’s case
were administrative and that the domestic law made a clear
distinction between a criminal and an administrative offence. They
submitted that Article 6 of the Convention was not applicable in the
present case, as the proceedings against the applicant did not relate
to the determination of a “criminal charge” against her.
- The
Court observes that the applicant was convicted for petty theft.
Pursuant to Article 51 § 1 of the Code on Administrative
Offences, it was punishable by a fine or corrective work. Having
regard to the general character of the legal provision infringed by
the applicant and the deterrent and punitive purpose of the penalties
envisaged by that provision, the Court considers that the proceedings
at issue were criminal for the purposes of the Convention (see Öztürk
v. Germany, 21 February 1984, §§ 52-54, Series A no.
73; Lauko v. Slovakia, 2 September 1998, §§ 56-59,
Reports of Judgments and Decisions 1998 VI; and Rybka
v. Ukraine (dec.), no. 10544/03, 17 November 2009). The fact
that the applicant’s punishment imposed by the Trostyanets
Court – the fine – was eventually replaced by a reprimand
cannot deprive the offence at issue of its inherently criminal
character.
- Accordingly,
the Court concludes that Article 6 of the Convention is applicable in
the present case and rejects the Government’s objection in that
regard.
2. The Government’s objection as to the
applicant’s victim status
- The
Government submitted that the applicant could no longer claim to be
the victim of a violation of the Convention with regard to the
proceedings against her, as, by the final decision of 18 June 2001 in
the case, the President of the Supreme Court had released her from
administrative liability for the offence with which she had been
charged.
- The
Court reiterates that, as a rule, a person may not claim to be the
victim of a violation of his or her right to a fair trial under
Article 6 of the Convention which, according to him or her, took
place in the course of proceedings in which that person was
acquitted, or which were discontinued (see, for example, Osmanov
and Husseinov v. Bulgaria (dec), nos. 54178/00 and 59901/00,
4 September 2003).
- In
the present case, however, the applicant was not acquitted, nor were
the proceedings against her formally discontinued (compare and
contrast Rybka, cited above). In particular, the court’s
resolution of 6 November 2000 finding the applicant guilty of
the administrative offence was not quashed. It was changed only in
the part concerning the imposition of the sanction, the applicant’s
conviction having been upheld. Although the President of the Supreme
Court eventually ordered a reprimand – the measure envisaged by
Article 22 of the Code of Administrative Offences where an
administrative offence is not of a serious nature – his
decision of 18 June 2001 was based on the provisions of Article
34 of the Code and concerned circumstances mitigating administrative
liability but not discharging the offender from it. It transpires
that in the applicant’s case the President of the Supreme Court
used his power to mitigate a sanction, within the meaning of
sub-paragraph 4 of Article 293 § 1 of the Code,
and not his power to set aside a conviction under sub-paragraph 3 of
that provision. Therefore, the Court finds it difficult to agree with
the Government that the applicant was discharged from administrative
liability.
- In
any event, the Court notes that the decision of the President of the
Supreme Court was adopted in the course of an extraordinary review of
the case initiated by a prosecutor and it contained no assessment of
the conduct of the proceedings before the Trostyanets Court or of the
applicant’s complaints in that regard. Therefore, the decision
of 18 June 2001 could not be seen as an acknowledgment,
either explicit or in substance, of the alleged breach of the
Convention (see, mutatis mutandis, Constantinescu v.
Romania, no. 28871/95, § 38-43, ECHR 2000 VIII).
- Accordingly,
the Court rejects the Government’s objection as to the
applicant’s victim status.
3. Whether the applicant has suffered a significant
disadvantage
- In
view of the circumstances of the present case, the Court finds it
appropriate to examine whether the applicant’s complaints
comply with the new admissibility requirement added by Protocol No.
14 to Article 35 of the Convention. In particular, Article 35 §
3 (b) of the Convention reads as follows:
“3. The Court shall declare
inadmissible any individual application submitted under Article 34 if
it considers that:
...
(b) the applicant has not suffered a
significant disadvantage, unless respect for human rights as de-fined
in the Convention and the Protocols thereto requires an examination
of the application on the merits and provided that no case may be
rejected on this ground which has not been duly considered by a
domestic tribunal.”
Accordingly,
the Court must examine first whether the applicant has suffered a
“significant disadvantage” warranting the consideration
of her complaints on the merits.
- In
this context, the Court reiterates that the new admissibility
requirement hinges on the idea that a violation of a right, however
real from a purely legal point of view, should attain a minimum level
of severity to warrant consideration by an international court. The
assessment of this minimum level is, in the nature of things,
relative and depends on all the circumstances of the case. The
severity of an alleged violation should be assessed, taking account
of both an applicant’s subjective perceptions and what is
objectively at stake in a particular case (see Korolev v. Russia
(dec.), no. 25551/05, ECHR 2010 ...).
- The
Court observes that the formal outcome of the proceedings in the
present case was that the applicant was found guilty of petty theft
and reprimanded. The Court does not doubt that the applicant’s
conviction of the offence, even though it was not accompanied by a
penalty, did have a negative effect on her personal situation.
However, it must also assess any other, mainly objective consequences
of the conviction for the applicant in order to determine the
significance of its impact for the purposes of Article 35 §
3 (b) of the Convention.
- In
this connection, the Court observes that the outcome of the
proceedings, which the applicant claimed had been unlawful and
conducted in an unfair manner, had a particularly negative effect on
her professional life. In particular, the applicant’s
conviction was taken as a basis for her dismissal from work. The
civil courts dealing with her eventual claim for reinstatement
rejected it, relying on the findings made in the context of the
proceedings against the applicant.
- Therefore,
the Court concludes that in the circumstances the applicant has
suffered a significant disadvantage as a result of the alleged
violations of the Convention.
4. Conclusion as to the admissibility of the
applicant’s complaints
- The
Court finds that the applicant’s complaints under Article 6 §
1 of the Convention, separately and in conjunction with Article 6 §
3 (b) and (c), concerning the alleged unfairness of the proceedings
against the applicant and her complaint under
Article 2 of Protocol No. 7 about the lack of an appeal are
not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the
Convention. It further notes that they are not inadmissible on any
other grounds. They must therefore be declared admissible.
- However,
the Court notes that the applicant have failed to substantiate her
complaint under Article 6 § 3 (d) of the Convention. In
particular, the applicant has not demonstrated that in the course of
the proceedings she requested the domestic court to call any witness
on her behalf. Furthermore, there is no indication in the case-file
that the applicant, having been present at the hearing of 6 November
2000, was prevented from questioning the witnesses against her.
Therefore, the Court rejects this complaint as being manifestly
ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the
Convention.
B. Merits
1. Alleged unfairness of the proceedings
- Turning
to the applicant’s complaints of unfairness of the proceedings
declared admissible, the Court notes that they concern several
principle issues, namely that the hearing in her case was not public,
and that specific guarantees of Article 6 § 3 (b)
and (c) of the Convention were not respected.
- The
Court further notes that the Government did not comment on the
merits of this part of the case.
a. Public hearing
- As
regards the applicant’s complaint that the hearing in her case
was not public, the Court reiterates that the holding of court
hearings in public constitutes a fundamental principle enshrined in
Article 6 § 1 of the Convention (see Riepan v. Austria,
no. 35115/97, § 27, ECHR 2000 XII). The right to a
public hearing is, however, subject to the restrictions set out in
the second sentence of Article 6 § 1 of the
Convention.
- The
Court observes that, although public access to the hearing at issue
was not formally excluded, the circumstances in which the hearing was
held constituted a clear obstacle to its public character. First, the
hearing was held in a clinic with restricted access. Secondly, the
trial court did not allow persons other than those participating in
the proceedings to remain in or enter the room in which it was held.
Thirdly, it does not appear that there was any public information
about the date and place of the hearing.
- Having
regard to the explanation given by the Trostyanets Court in its
resolution of 6 November 2000, it would appear that the
hearing was held in the clinic in order to ensure that the applicant,
whose presence was obligatory under Ukrainian law, was tried within
the two-month time-limit set by the Code on Administrative Offences
(see paragraph 26 above). However, the Court notes that the domestic
law provided that a defendant, whose presence was obligatory, could
be brought before a trial court with the assistance of the police
(see paragraph 29 above).
- Although
it is for domestic courts to choose the most appropriate way to deal
with situations when a defendant fails to appear before them, the
Court considers that the measures applied by the court in the present
case, which restricted the applicant’s right to a public
hearing, were not “strictly necessary” in the sense of
Article 6 § 1 of the Convention.
- Accordingly,
there has been a violation of that provision on account of the lack
of a public hearing in the applicant’s case.
b. Article 6 § 3 (b) and (c)
- In
so far as the applicant complained about a violation of
Article 6 § 3 (b) and (c) of the Convention,
the Court notes that the requirements of these provisions are to be
seen as particular aspects of the right to a fair trial guaranteed by
Article 6 § 1 of the Convention. The Court will
therefore examine the applicant’s complaints under these
provisions taken together (see, among many other authorities, Kornev
and Karpenko v. Ukraine, no. 17444/04, §
63, 21 October 2010).
- In
this context, the Court reiterates that Article 6 of the Convention,
read as a whole, guarantees the right of an accused to participate
effectively in a criminal trial (see Rowe and Davis v. the United
Kingdom [GC], no. 28901/95, § 60, ECHR 2000-II).
- In
particular, the accused must have the opportunity to organise his
defence in an appropriate way and without restriction as to the
opportunity to put all relevant defence arguments before the trial
court and thus to influence the outcome of the proceedings. The
facilities available to everyone charged with a criminal offence
should include the opportunity to acquaint himself with the material
on which the charges are based (see, for instance, Kornev and
Karpenko, cited above, § 66).
- In
order to exercise his right of defence, the accused should normally
be allowed to benefit effectively from the assistance of a lawyer
right from the initial stages of the proceedings (see Salduz v.
Turkey [GC], no. 36391/02, § 52, 27 November 2008, and
Yaremenko v. Ukraine, no. 32092/02, §§ 90-91,
12 June 2008). If need be, a lawyer should be assigned
officially. The mere nomination of a lawyer by the authorities does
not ensure effective assistance (see Kamasinski v. Austria, 19
December 1989, § 65, Series A no. 168).
- Turning
to the circumstances of the applicant’s case, the Court notes
that it was neither legally nor factually complex. It concerned the
theft of a small number of labels which belonged to the applicant’s
employer. The charges against the applicant were based on the report
of a security officer and on the testimony of the applicant’s
colleagues. The applicant did not deny that she had intended to take
the labels out of her place of work.
- The
Court further observes that the applicant became aware of the charges
against her when her employer’s report was filed with the trial
court, approximately two months before the hearing at issue took
place.
- Nonetheless,
even assuming that the applicant was aware of the two-month statutory
limit and could have prepared counter-arguments, the Court observes
that she was not informed about that hearing in time to prepare to
participate in it. Moreover, she requested free legal assistance and
the domestic court granted it and appointed a lawyer to defend her.
However, she was not informed about that decision before the hearing
of 6 November 2000 and, thus, could not use the lawyer’s
assistance to prepare her defence.
- Therefore,
the Court finds that there has been a violation of Article 6 §
1 of the Convention taken together with Article 6 § 3 (b)
and (c) of the Convention in that the applicant was not given the
opportunity to organise her defence and effectively benefit from the
assistance of a lawyer.
2. Alleged lack of appeal against the applicant’s
conviction
- The
applicant complained that there was no opportunity to appeal against
the resolution of 6 November 2000 by which she had been found
guilty of the administrative offence.
- The
Government submitted that the applicant had been discharged from
administrative liability and therefore there was no issue under
Article 2 of Protocol No. 7.
- The
Court notes that Ukrainian law did not provide the applicant with a
possibility to appeal against her conviction (see Gurepka,
cited above, §§ 60-62). Although her case was eventually
reviewed by the President of the Supreme Court, the Court notes that
the applicant was formally and actually excluded from that procedure
(see paragraphs 16 and 44 above). Therefore, she may not be
considered to have enjoyed the right of appeal against her
conviction, as guaranteed by Article 2 of Protocol No. 7.
- Nevertheless,
the Court notes that this right is not absolute; it may be subject to
exceptions, particularly in regard to offences of a minor nature.
- Although
the Government did not comment on that aspect of the case, the Court
cannot disregard that the offence of which the applicant was
convicted concerned a petty theft and was not punishable by
imprisonment. The Court therefore concludes that it was of a minor
nature, falling within the exceptions permitted by the second
paragraph of Article 2 of Protocol No. 7 (compare and
contrast Zaicevs v. Latvia, no. 65022/01, §§ 55 and
56, ECHR 2007 IX (extracts), and Gurepka v. Ukraine (no. 2),
no. 38789/04, § 33, 8 April 2010).
- Accordingly,
there has been no violation of Article 2 of Protocol No. 7.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 3,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government submitted that there were no grounds for awarding the
applicant just satisfaction.
- The
Court considers that the applicant has suffered some distress and
anxiety on account of the violations of her right to a fair trial.
Ruling on an equitable basis, as required by Article 41 of the
Convention, it awards her the requested amount of EUR 3,000 in this
connection.
B. Costs and expenses
- The
applicant did not submit a claim for costs and expenses. Accordingly,
the Court considers that there is no call to award her any sum on
that account.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the applicant’s complaints under
Article 6 § 1 of the Convention, separately and
in conjunction with Article 6 § 3 (b) and
(c), concerning the alleged unfairness of the proceedings against the
applicant and her complaint under Article 2 of
Protocol No. 7 about the lack of an appeal admissible and
the complaint under Article 6 § 3 (d) of the
Convention inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the lack of a
public hearing in the applicant’s case;
- Holds that there has been a violation of Article
6 § 1 taken together with Article 6 § 3 (b)
and (c) of the Convention in that the applicant was not given the
opportunity to organise her defence and effectively benefit from the
assistance of a lawyer;
- Holds that there has been no violation of
Article 2 of Protocol No. 7;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into the national
currency of the respondent State at the rate applicable on the date
of settlement;
(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.
Done in English, and notified in writing on 9 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
