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FIFTH
SECTION
CASE OF GUREPKA v. UKRAINE (no. 2)
(Application
no. 38789/04)
JUDGMENT
STRASBOURG
8
April 2010
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 Gurepka v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Zdravka
Kalaydjieva, judges,
Mykhaylo Buromenskiy, ad hoc
judge,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 16 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38789/04) 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, Mr Nikolay Vasilyevich
Gurepka (“the applicant”), on 27 September 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev, from the Ministry of Justice.
- The
applicant alleged, in particular, the impossibility of an appeal
against the decision of the first-instance court in the
administrative offence proceedings (Article 2 of Protocol No. 7) and
his absence from those proceedings (Article 6 § 1) .
- On
26 May 2009 the President of the Fifth Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lives in Simferopol.
A. First set of proceedings
- On
6 September 2005 the Court found a violation of Article 2 of Protocol
No. 7 in the applicant's case having established the lack of an
effective remedy against the decision of 1 December 1998 by the
first-instance court ordering the applicant's administrative arrest
and detention (see Gurepka v. Ukraine, no. 61406/00, §§
59-62, 6 September 2005).
- After
the above judgment of the Court became final, the applicant was paid
the awarded amount of non-pecuniary damage.
- On
4 January, 20 February and 2 October 2006, the applicant sent
requests for review of the decision of 1 December 1998 to the
President of the Supreme Court but to no avail.
B. Second set of proceedings
- On
8 May 2003 the applicant and two other individuals instituted
proceedings in the Kievsky District Court against the Krymenergo
Power Supply Company for cutting off the electricity supply to the
apartment in which the plaintiffs had an office.
- On
27 April 2005 the court found in part for the applicant and ordered
the defendant to restore the electricity supply. The judgment was not
appealed against and became final. According to the applicant it was
enforced on 14 October 2005.
C. Third set of proceedings
- On
3 March 2004 the applicant failed to appear before the Simferopolsky
District Court in the civil proceedings in which he was participating
as a representative of the plaintiff. The same day, in the
applicant's absence, the court registry drew up a report on the
administrative offence of contempt of the court on account of the
applicant's failure to appear for the hearing which demonstrated his
disrespect to the court.
- On
19 April 2004 the Zheleznodorozhny District Court found the applicant
guilty of contempt of court under Article 185-3 of the Code on
Administrative Offences and fined him 136 hryvnias (UAH, around
20 euros (EUR) at the material time). The applicant was not
present at the hearing. In the court's decision it was mentioned that
the applicant had been duly informed of the court's hearing.
According to the applicant, he was not summoned to the above hearing.
- On
8 August 2004 the applicant requested the President of the Crimea
Court of Appeal to review the decision of 19 April 2004.
- By
a letter of 30 August 2004, the Acting President of the Crimea Court
of Appeal informed the applicant that there were no grounds for
review of his case, since the decision of 19 April 2004 had been
well-founded and there had been no procedural violations.
II. RELEVANT DOMESTIC LAW
Code on Administrative Offences of 7 December 1984
- Paragraph
1 of Article 185-3 of the Code provides as follows:
“Contempt of court, which is defined as malicious
avoidance of summons by a witness, victim, plaintiff or defendant; or
as failure by the above persons or others to comply with the orders
of the presiding judge; or as violation of public order during a
court hearing, or the committal by any person of acts which indicate
blatant disrespect for the court or for the rules of court, shall be
punishable by a fine of six to twelve times the monthly minimal
income of citizens or by administrative arrest for up to fifteen
days.”
- By
Amendment Act of 24 September 2008 the second level of jurisdiction
had been introduced in the administrative offence procedure (Article
287 of the Code on Administrative Offences).
-
Other relevant provisions of the Code summarised in the Gurepka
v. Ukraine judgment (cited above, §§ 28-32), and
Nadtochiy v. Ukraine (no. 7460/03, § 13, 15 May
2008).
III. EXPLANATORY REPORT TO PROTOCOL No. 7 TO THE
CONVENTION
- The
relevant paragraphs of the explanatory report to Protocol No. 7 are
worded as follows:
“17. This article recognises the right of everyone
convicted of a criminal offence by a tribunal to have his conviction
or sentence reviewed by a higher tribunal. It does not require that
in every case he should be entitled to have both his conviction and
sentence so reviewed. Thus, for example, if the person convicted has
pleaded guilty to the offence charged, the right may be restricted to
a review of his sentence. As compared with the wording of the
corresponding provisions of the United Nations Covenant (Article 14,
paragraph 5), the word 'tribunal' has been added to show clearly that
this provision does not concern offences which have been tried by
bodies which are not tribunals within the meaning of Article 6 of the
Convention.
...
20. Paragraph 2 of the article permits exceptions to
this right of review by a higher tribunal:
- for offences of a minor character, as prescribed by
law;
- in cases in which the person concerned has been tried
in the first instance by the highest tribunal, for example by virtue
of his status as a minister, judge or other holder of high office, or
because of the nature of the offence;
- where the person concerned was convicted following an
appeal against acquittal.
21. When deciding whether an offence is of a minor
character, an important criterion is the question of whether the
offence is punishable by imprisonment or not.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that he had not been present before the court
when the latter had rendered its decision ordering him to pay the
fine under Article 185-3 of the Code on Administrative Offences and
that the proceedings had been unfair. He relied on Article 6 § 1
of the Convention, which reads, in so far as relevant, as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
-
The applicant maintained that he had not been properly summoned to
appear before the court, and the records of the despatch of a summons
did not prove that it had been served on him. The applicant claimed
that he had never received such a summons and there was no
acknowledgement of receipt in the court's records. Therefore he
considered that he had been deprived of an opportunity to be heard in
person by the court. He further maintained that the report on his
administrative offence had been falsified, as the representative of
the court registry who had drawn up the report had been with him in
another courtroom within the other set of proceedings.
- The
Government maintained that the applicant had been duly notified about
the court hearing and his failure to appear could not be attributed
to the State. Therefore, they considered that there had been no
violation of the applicant's rights under Article 6 § 1 of the
Convention.
- The
Court reiterates that the principle of equality of arms – one
of the elements of the broader concept of a fair trial –
requires each party to be given a reasonable opportunity to present
his case under conditions that do not place him at a substantial
disadvantage vis-à-vis his opponent (see Nadtochiy
v. Ukraine, cited above, § 26, with further references).
- In
the present case, the applicant was found guilty of failing to appear
before the court and a report on the administrative offence was drawn
up in his absence (see paragraph 11). Furthermore, there is no
confirmation in the materials submitted by the Government that the
applicant had been duly notified of the court proceedings against
him. The record of dispatching of the summons to the applicant does
not prove that it was received by him. Therefore, there is no
evidence that the applicant had been aware at all of the proceedings
against him while they were pending.
- The
Court considers that the impugned proceedings lacked important
procedural guarantees and that these procedural deficiencies, in the
circumstances of the case, were serious enough to compromise the
fairness of the proceedings. In these circumstances it sees no need
to examine the applicant's other arguments concerning unfairness of
the proceedings.
There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 7
- The
applicant complained that he could not appeal against the decision of
the court by which he had been found guilty of an administrative
offence. He relied on Article 13 of the Convention.
- The
Court reiterates 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 Kopczynski v. Poland (dec.), no.
28863/95, 1 July 1998, and Csepyová v. Slovakia
(dec.), no. 67199/01, 14 May 2002). However, the Court,
which has control of the characterisation to be given in law to the
facts of the case, decided to examine the problem raised by the
applicant under Article 2 of Protocol No. 7 which is the
relevant provision and which provides 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
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicant noted that at the material time, April 2004, there had been
no ordinary appeal procedure against decisions of first-instance
courts on administrative offences. He considered that the offence of
which he had been found guilty was serious enough and therefore it
could not fall under the exceptions of the second paragraph of
Article 2 of Protocol No. 7
- The
Government noted that the applicant could lodge a request for an
extraordinary appeal with the court or the prosecutor and he had
lodged such an appeal with the Crimea Court of Appeal which had
reviewed his case. They also noted that since September 2008 an
ordinary appeal procedure had been introduced in the Code on
Administrative Offences (see paragraph 16 above).
- They
further submitted that in the instant case, unlike in the applicant's
previous case (see paragraph 6 above), the court fixed more lenient
punishment, namely a fine of UAH 136, around EUR 20 at the material
time) and therefore, with a view to the actual consequences of the
proceedings for the applicant, these proceedings should fall within
the exceptions provided for in the second paragraph of Article 2 of
Protocol No. 7.
- The
Court reiterates that it has already faced a similar issue in the
applicant's previous case (cited above) and found that the Code on
Administrative Offences did not provide for an ordinary appeal
procedure and that the extraordinary appeal procedure did not satisfy
requirements of Article 2 of Protocol No. 7 (see Gurepka v.
Ukraine, no. 61406/00, §§ 59-61, 6 September 2005). The
Government's argument that the second level of jurisdiction had been
introduced into the Code in 2008 is not relevant to the circumstances
of the present case, which took place in 2004. In these circumstances
the Court does not find any reasons to deviate from the conclusions
reached in the Gurepka judgment.
- The
Government contended that the offence of which the applicant was
convicted was an “offence of a minor character” within
the meaning of Article 2 § 2. In that connection the Court has
considered the terms of the Explanatory Report to Protocol No. 7,
which states expressly that when deciding whether an offence is of a
minor character, an important criterion is whether or not the offence
is punishable by imprisonment (see paragraph 24 above). In the
instant case, Article 185-3 of the Code on Administrative Offences
stipulated that the offence in question was punishable by a term of
detention of up to fifteen days. Having regard to the aim of Article
2 of Protocol No. 7 and the nature of the guarantees for which it
provides, the Court is satisfied that an offence for which the law
prescribes a custodial sentence as the main punishment cannot be
described as “minor” within the meaning of the second
paragraph of that Article. The exception invoked by the Government is
therefore not applicable in the present case (see Zaicevs v.
Latvia, no. 65022/01, § 55, ECHR 2007 IX (extracts)).
- In
the light of the foregoing considerations, the Court concludes that
there has been a violation of Article 2 of Protocol No. 7 to the
Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 2 of Protocol No. 7 that in the
first set of proceedings his requests for extraordinary review
lodged with the Supreme Court were rejected and, therefore, that the
Court's judgment in his previous case no. 61406/00 (cited above)
had not been enforced. He also complained that the domestic
authorities had not given him a fair trial within a reasonable time
in violation of Article 6 § 1 of the Convention. The applicant
complained under Articles 6 and 13 of the Convention of the
unfairness and length of the second set of proceedings and the lack
of effective judicial protection in the higher courts.
- However, in the light of all the material before it,
and in so far as the matters complained of are within its competence,
the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the provisions the
applicant relied on.
- It follows that this part of the application is
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
IV. 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.”
- The
applicant claimed EUR 15,000 in respect of non-pecuniary damage.
- The
Government considered the amount claimed excessive and that there was
no causal link between the alleged violations and non-pecuniary
damage claimed.
- The
Court notes that where an individual, as in the instant case, has
been convicted by a court in proceedings which did not meet the
Convention requirement of fairness, a retrial, a reopening or a
review of the case, if requested, represents in principle an
appropriate way of redressing the violation (see, mutatis
mutandis, Öcalan v. Turkey [GC], no. 46221/99, §§
207-210, ECHR 2005 IV). Therefore, it considers that the finding
of a violation constitutes in itself sufficient just satisfaction.
- As
to the costs and expenses, the applicant did not submit any claims
and the Court therefore makes no award.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Article 6 § 1
of the Convention and Article 2 of Protocol No. 7 concerning the
third set of proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
2 of Protocol No. 7 to the Convention;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 8 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
