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FIFTH
SECTION
CASE OF KORNEV AND KARPENKO v. UKRAINE
(Application
no. 17444/04)
JUDGMENT
STRASBOURG
21 October
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 Kornev and Karpenko
v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva,
Ganna Yudkivska, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 28 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17444/04) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Ukrainian nationals, Mr Denis Yevgenyevich
Kornev and Ms Larisa Ivanovna Karpenko (“the applicants”),
on 27 April 2004.
- The
applicants, who had been granted legal aid, were represented by Mr
A.P. Bushchenko, a lawyer practising in Kharkiv. The Ukrainian
Government (“the Government”) were represented by their
Agent, Mr Y. Zaytsev, from the Ministry of Justice.
- The
applicants alleged, in particular, several violations of Articles 5
and 6 of the Convention in their respect.
- On
14 September 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 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1984 and 1951 respectively and live in
Kharkiv.
A. Criminal proceedings against the first applicant
- On
16 May 2003 Ms Shch., on the instructions of the police, bought four
grams of cannabis from the first applicant. Following this, the first
applicant was arrested by the police on suspicion of supplying drugs.
The 20-hryvnia (Ukrainian hryvnias, UAH) note given by the police to
Shch. to buy the drugs had been found on him. During a search
conducted at the applicant’s house later the same day another
twenty grams of cannabis were revealed.
- During
pre-trial investigation the applicant confessed to selling drugs to
Shch., whom he knew by her first name, and to keeping drugs at his
house.
- On
19 May 2003 the applicant was released on an undertaking not to
abscond.
- On
23 July 2003 the criminal case against the applicant was referred to
the Chervonozavodsky District Court of Kharkiv (the District Court).
- At
the end of November the first applicant was summoned to appear before
the court on 2 December 2003. According to the applicant, he fell ill
on 31 November 2003. The next day the doctor gave him a sick note.
- On
2 December 2003, despite the fact that the second applicant had
informed the court of the reasons for the first applicant’s
absence, the court decided to replace the undertaking not to abscond
with detention.
- On
8 December 2003 the first applicant was arrested, and on 16 December
2003 he was brought before the judge, who rejected his request for
release.
- During
the hearing of 16 December 2003 the court rejected the applicant’s
request for Shch. to be summoned on the ground that in accordance
with the law the buyer participating in a police drug test purchase
operation should not be summoned to court.
- On
26 January 2004 the court rejected another request for release lodged
by the first applicant.
- On
19 July 2004 the District Court found the applicant guilty of
supplying drugs and sentenced him to five years’ imprisonment,
with confiscation of his property. The court established that the
applicant had bought cannabis from an unknown person on 11 May 2003
and had kept it at home for selling. On 16 May 2003 he sold some
cannabis to Shch. and more cannabis was found at his home. The court
noted that during the trial the applicant retracted his confession
and first claimed that a certain A. had forced him to keep the drugs
and that Ms M. had taken them from him. Then the applicant denied
completely that any drugs had ever been in his possession and stated
that the police had planted money and drugs and forced him to
confess. The court considered that despite this retraction the
applicant’s guilt was confirmed by the body of evidence,
including the written statements of Shch., as well as statements made
at the hearing by police officers N. and K., who had conducted the
operation, and witnesses K. and E. who had been invited by the police
to observe the operation. All of them confirmed that Shch. had gone
to the applicant with a banknote and come back with a small packet of
a substance later established to be cannabis.
- The
applicant appealed against his conviction, complaining, among other
things, that despite numerous requests on his behalf, Ms Shch. had
not been summoned and questioned by the court and that it had not
been proven that he had sold drugs to Ms Shch.
- On
29 July 2005 the Kharkiv Regional Court of Appeal changed the
applicant’s sentence to a suspended one of three years. The
court did not reply to the applicant’s complaint that witness
Shch. had not been questioned in court.
- The
applicant appealed in cassation, further complaining that Shch. had
not been questioned in the court hearings.
- On
25 April 2006 the Supreme Court of Ukraine upheld the decision of the
appellate court. No reply had been given to the applicant’s
complaint that Shch. had not been summoned or questioned in the court
hearings.
B. Administrative proceedings against the second
applicant
- On
2 December 2003 the second applicant attended the District Court and
informed Judge O. that the first applicant was ill. She was
accompanied by five other persons. According to the second applicant
they were all invited to the judge’s office but he later asked
them to leave his office, which they could not do because police
officers were barring the exit. The same day the judge’s
secretary drew up an administrative offence report on the second
applicant. The report was passed to Judge Shch., who questioned the
applicant, found her guilty of contempt of court and ordered her
administrative arrest for fifteen days. In his decision Judge Shch.
noted that at around 10 a.m. that day the second applicant entered
the office of Judge O. with a “support group” consisting
of Ms M., Ms I., Ms G., Mr K. and Mr P. in order to put pressure on
the above judge in the criminal case against her son (the first
applicant) and refused to leave the office when requested to do so by
the judge, his secretary and the judicial police. The court found
that the applicant had stayed in the office of Judge O. for forty
minutes and prevented him from commencing the court hearings.
- After
the above decision the second applicant became unwell and was taken
to hospital.
- On
17 January 2004 the Deputy President of the Kharkiv Regional Court
dismissed an extraordinary appeal by the second applicant against the
decision of 2 December 2003 ordering her administrative arrest.
- On 27 January 2004 the prosecutor of the
Chervonozavodsky District requested the court to reduce the second
applicant’s sentence on account of her state of health. This
request was granted and the administrative arrest was replaced by a
fine of UAH 136.
II. RELEVANT DOMESTIC LAW
A. Code of Criminal Procedure
24. The
relevant provisions of the Code read, in so far as relevant, as
follows:
Article 52-1. Security measures for persons
participating in criminal trials
“Where there is a real threat to life, health,
home, or property of those participating in criminal trials, such
persons shall have the right to be protected by security measures
The right to be protected by security measures, where
there are relevant grounds, shall be vested in:
a person who has reported a crime to a law-enforcement
authority or otherwise participated in or contributed to actions to
detect, prevent, stop, or solve a crime ...”
Article 52-3. Non-disclosure of information on a
person being protected by security measures
“Non-disclosure of information on a person in
respect of whom security measures have been taken may be ensured by
restricting the availability of any data on the person in the
materials (in petitions, statements and so on) and also in reports on
the investigative actions or records of the court hearings. Having
decided to take security measures, the body of inquiry, investigator,
prosecutor, or court (judge) shall make a reasoned decision to
replace by a pseudonym the surname, name and patronymic of the person
taken under protection. Afterwards, the procedural documents shall
only refer to the pseudonym of the person, while his or her real
surname, name and patronymic (the year, month, and place of his or
her birth, his or her family situation, place of work, occupation or
position, place of residence, and other personal details
characterising the person concerned) shall only be stated in the
decision on the replacement of his or her personal details. A
decision to that effect, which is not to be added to the case file,
shall be kept separately by the authority in charge of the criminal
case in question. If the surname of the person taken under protection
is replaced by a pseudonym, the reports on investigative actions and
other documents referring to real personal details of the person
shall be replaced in the case file by copies in which his or her real
surname is replaced by the pseudonym.
Information on security measures as well as on persons
taken under protection thereby shall be restricted-access
information. The rules laid down in paragraph 2 of Article 48,
Articles 217 - 219 and 255 of this Code shall not apply to documents
containing such information.”
B. Code on Administrative Offences, 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 a failure by the above persons or others to comply with the orders
of the presiding judge; or a 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 minimum
income of citizens or by administrative arrest for up to fifteen
days.”
- Paragraph
1 of Article 268 of the Code provides, among others, the following
rights of a person who is brought to administrative liability:
“A person placed under administrative liability
shall be entitled to study case materials, to give explanations, to
present evidence, to make requests; to have the assistance of a
lawyer ... during the examination of the case...”
- The
right to a lawyer in administrative offence proceedings is further
guaranteed by Article 271 of the Code.
- Under
Article 277 of the Code, cases concerning administrative offences set
forth in the first paragraph of Article 185-3 shall be decided within
one day.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
first applicant complained under Article 5 § 3 that he was not
brought before the judge for six days after his arrest. Article 5, in
so far as relevant, reads as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(b) the lawful arrest or detention of a
person for non- compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial...”
- The
Government contested that argument.
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
1. Whether the deprivation of liberty was justified
under sub-paragraphs (b) or (c) of Article 5 § 1
- The
first applicant maintained that the domestic court’s decision
on his detention had clearly indicated that he had to be detained as
an accused person under the relevant articles of the Code of Criminal
Procedure.
- The
Government contended that Article 5 § 1 (c) of the Convention
related directly to the pre-trial detention, that is when a person
was taken into custody prior to the referral of his or her criminal
case file to a court for examination on the merits. In the
applicant’s case, he had been arrested at the moment when the
criminal investigation had been completed and the case had been
examined by the court. Therefore, in their opinion, the purpose of
the applicant’s detention had been different from that set
forth in Article 5 § 1 (c) of the Convention.
- The
Government observed that from 19 May 2003 the applicant had been on
an obligation not to abscond, which implied, among other things, an
undertaking on his part to appear before the court when summoned. On
2 December 2003 the applicant failed to do so and therefore he had
been arrested for the purpose of ensuring his compliance with the
undertaking to appear before the court at its first request. The
Government considered that the applicant had been detained under
Article 5 § 1 (b) of the Convention and accordingly Article 5 §
3 did not apply in his case.
- The
Court reiterates that Article 5 § 1 of the Convention requires
that the detention be “lawful”, which includes the
condition of compliance with “a procedure prescribed by law”.
The Convention here essentially refers back to national law and
states the obligation to conform to the substantive and procedural
rules thereof, but it requires in addition that any deprivation of
liberty should be consistent with the purpose of Article 5, namely to
protect individuals from arbitrariness. Moreover, it is in the first
place for the national authorities, notably the courts, to interpret
and apply domestic law (see Benham v. the United Kingdom,
judgment of 10 June 1996, Reports of Judgments and Decisions
1996 III, pp. 752-53, §§ 40-41).
- Article
5 § 1 contains an exhaustive list of permissible grounds of
deprivation of liberty. However, the applicability of one ground does
not necessarily preclude that of another; detention may, depending on
the circumstances, be justified under more than one sub paragraph
(see, for example, Eriksen v. Norway, judgment of 27 May 1997,
Reports of Judgments and Decisions 1997 III, pp. 861-62,
§ 76, and Enhorn v. Sweden, no. 56529/00, § 34,
ECHR 2005 ...). Taking into account that the applicability of
sub-paragraph (c) of Article 5 § 1 also triggers the protection
provided by Article 5 § 3, which constitutes an important
additional guarantee for an arrested person, the Court considers it
appropriate to analyse first whether this sub-paragraph is applicable
to the present case.
- The
Court observes that in the present case the first applicant was
obliged under domestic law to appear before the District Court where
criminal charges against him had to be dealt with. However, he failed
to appear. Subsequently, he was remanded in custody by the above
court on 2 December 2003 on the basis of relevant provisions of
the Code of Criminal Procedure. There is nothing to indicate that the
procedure prescribed by domestic law was not followed.
- The
Court notes that the first applicant was summoned by the District
Court in the context of criminal proceedings against him. Moreover,
he was taken into custody on the basis of provisions of the Code of
Criminal Procedure, which authorise the taking into custody of a
defendant on trial. In fact, there was no other reason for the
authorities to compel the applicant to appear before the District
Court than the criminal proceedings against him. The Court concludes
that his detention falls within the ambit of sub paragraph (c)
of Article 5 § 1 of the Convention.
- The
Court sees no reason not to agree with the Government’s
argument that sub-paragraph (b) of Article 5 § 1 is also
applicable to the present case. However, having found that
sub-paragraph (c) is applicable, the Court will proceed to examine
whether the more stringent guarantees provided by Article 5 § 3
were complied with.
2. Whether the guarantees provided by Article 5 §
3 were complied with
- The
first applicant noted that he had not been brought promptly before
the court. In his opinion, the fact that his detention had been
ordered by the court could not dispense the authorities from their
obligation under Article 5 § 3 of the Convention to bring him
promptly before the judge once he had been detained.
- The
Government stated, without any further elaboration, that the
applicant had been brought promptly before the judge.
- The
Court reiterates that Article 5 § 3 of the Convention provides
persons arrested or detained on suspicion of having committed a
criminal offence with a guarantee against any arbitrary or
unjustified deprivation of liberty (see, for example, Aquilina v.
Malta [GC], no. 25642/94, § 47, ECHR 1999 III).
- Article
5 § 3 is aimed at ensuring prompt and automatic judicial control
of police or administrative detention ordered in accordance with the
provisions of Article 5 § 1 (c) (see De Jong,
Baljet and Van den Brink v. the Netherlands, judgment of 22 May
1984, Series A no. 77, p. 24, § 51 and Aquilina, cited
above, §§ 48-49).
- The
Court has pointed out that under Article 5 § 3, there is both a
procedural and a substantive requirement. The procedural requirement
places the “officer” under the obligation of himself
hearing the individual brought before him; the substantive
requirement imposes on him the obligations to review the
circumstances militating for or against detention, to decide, by
reference to legal criteria, whether there are reasons to justify
detention, and to order release if there are no such reasons (see
Schiesser v. Switzerland, judgment of 4 December 1979,
Series A no. 34, pp. 13-14, § 31, with further
references).
- The
detention of the applicant in the present case was from the outset
ordered by a court. Thus, the Court is called upon to determine
whether the judicial involvement in the applicant’s arrest was
sufficient to meet the requirements of Article 5 § 3.
- The
Court observes, first, that the text of Article 5 § 3 requires
that a person shall be brought promptly before a judge or other
judicial officer after being arrested or detained. The text of the
provision does not provide for any possible exceptions from that
requirement, not even on grounds of prior judicial involvement. To
conclude otherwise would run counter to the plain meaning of the text
of the provision. Moreover, the Court reiterates that, according to
its case-law, the judicial control foreseen by Article 5 § 3
must meet certain requirements, one of those being that the judicial
officer must himself or herself actually hear the detained person
before taking the appropriate decision (see De Jong,
Baljet and Van den Brink, cited above, § 51, and
Aquilina, cited above, § 50). The Court notes that
in the present case the first applicant failed to appear before the
court when the decision concerning his arrest was taken. This fact in
itself does not give rise to an issue under Article 5 § 3, as a
requirement cannot be derived from the Convention to the effect that
a person who is evading court proceedings should be present at the
court hearing where authorisation for his or her arrest is dealt with
(see Harkmann v. Estonia (dec.), no. 2192/03, 1 March 2005).
However, the Court observes that the first applicant had no chance to
present the court with possible personal or other reasons militating
against his detention after his actual arrest on 8 December 2003,
despite the authorities’ obligation under Article 5 § 3 to
give him the opportunity to be heard.
- The
Court notes that the first applicant had been kept in custody for
eight days before 16 December 2003 when he was brought to the court
which examined the lawfulness of his detention. The Court finds that
such a period is incompatible with the requirement of “promptness”
under Article 5 § 3 (see, for example, Brogan and Others v.
the United Kingdom, judgment of 29 November 1988, Series A no.
145 B, pp. 33-34, § 62).
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION IN
RESPECT OF THE FIRST APPLICANT
- The
first applicant further complained that the criminal proceedings
against him were unfair, in particular that he could not question
witness Shch. He referred to Article 6 § 3 (d), which read as
follows:
“3. Everyone charged with a criminal
offence has the following minimum rights:
...
(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...”
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
first applicant maintained that his conviction for selling drugs, as
opposed to being in possession of drugs, had been mainly based on
statements by witness Shch., which she had given at the stage of
investigation. The only other proof had been his own confession that
he had been at the scene of the crime, but it could not be taken into
account since he had retracted it at the judicial examination stage
and claimed that the confession had been received under coercion from
the investigation. He considered that without the statements by
witness Shch. the authorities would not be able to secure his
conviction for selling drugs, as no other person had been present at
the scene of the crime. Moreover, all other witnesses were police
officers, who were not impartial and were not eyewitnesses to the
alleged crime.
- The
first applicant further noted that he had admitted in his testimony
that at the relevant time and place he had met with his classmate Ms
M., whom he knew well. He had not met any other person; therefore he
concluded that it was Ms M. who had acted under the fictitious name
of Shch. as a principal witness. The fact that Ms M. had not been
questioned during the proceedings despite the applicant’s
explicit request confirmed his suspicions. The applicant therefore
challenged the reasonableness of the security measures taken in
respect of witness Shch. if she indeed was Ms M, whom he knew well.
In the event that Ms Shch. and Ms M. were indeed two different
persons, the questioning of Ms M. was equally important, since she
could corroborate his alibi. However, as mentioned above, neither
Ms Shch. nor Ms M. had ever been questioned by the domestic
courts. He concluded that such a failure irreparably damaged the
fairness of the proceedings against him.
- The
Government agreed that the first applicant had had no opportunity to
question witness Shch. in the court hearings, given that the latter
had been under the witness protection programme set forth in articles
52-1 and 52-3 of the Code of Criminal Procedure. They noted, however,
that witness Shch. had been one of six witnesses in the criminal case
against the first applicant and that her statements, given at the
pre-trial stage, were consistent with the statements made by five
other witnesses whom the applicant was able to, and did, question in
court. Furthermore, the conviction of the first applicant had been
based on the body of evidence and not solely or decisively on the
statements by witness Shch. The Government contended that if there
were any procedural violation in the criminal case the higher courts
could rectify it; they found no procedural violations and confirmed
that the decision of the first-instance court had been correct. They
concluded that there had been no violation of the applicant’s
right under Article 6 § 3 (d) of the Convention.
- The
Court reiterates that all the evidence must normally be produced at a
public hearing, in the presence of the accused, with a view to
adversarial argument. There are exceptions to this principle, but
they must not infringe the rights of the defence. As a general rule,
paragraphs 1 and 3(d) of Article 6 require that the defendant be
given an adequate and proper opportunity to challenge and question a
witness against him, either when he makes his statements or at a
later stage (see Lüdi v. Switzerland, judgment of 15 June
1992, Series A no. 238, p. 21, § 49). A conviction should not be
based either solely or to a decisive extent on statements which the
defence has not been able to challenge (see, mutatis mutandis,
Doorson v. the Netherlands, judgment of 26 March 1996, Reports
1996 II, p. 472, § 76).
- As the Court has stated on a number of occasions (see,
among other authorities, Lüdi, cited above, p. 21, §
47), it may prove necessary in certain circumstances to refer to
statements made during the investigative stage. If the defendant has
been given an adequate and proper opportunity to challenge the
statements, either when made or at a later stage, their admission in
evidence will not in itself contravene Article 6 §§ 1 and 3
(d). The corollary of that, however, is that where a conviction is
based solely or to a decisive degree on statements that have been
made by a person whom the accused has had no opportunity to examine
or to have examined, whether during the investigation or at the
trial, the rights of the defence are restricted to an extent that is
incompatible with the guarantees provided by Article 6 (see
Unterpertinger v. Austria, judgment of 24 November 1986,
Series A no. 110, pp. 14-15, §§ 31-33; Saïdi v.
France, judgment of 20 September 1993, Series A no. 261-C,
pp. 56-57, §§ 43-44; Lucà v. Italy, no.
33354/96, § 40, 27 February 2001; and Solakov, cited
above, § 57).
- The
Court notes that in the present case the principal witness for the
prosecution had been placed under the witness protection programme
and did not appear before the domestic courts at all. It does not
consider it necessary to examine the applicant’s arguments that
the witness protection was unjustified as he knew the true identity
of witness Shch. What is important is that her statements were
essential for the proceedings in question, given that she was the
only person who had directly participated in buying drugs from the
first applicant and could testify that he sold the drugs to her. It
is not the task of this Court to substitute for the domestic courts
in the assessment of evidence or in proposing a concrete solution to
balance the interests of the parties. It observes, however, that the
applicant and his lawyer had been given no opportunity to
cross-examine this witness at any stage of the proceedings, even as
an anonymous witness, and the domestic courts themselves based their
conclusions in the case on her written statements given at the
pre-trial investigation stage. Moreover, it has not been claimed by
the authorities that there was a need to balance the interests of
various persons concerned, in particular, of witness Shch.
- The
Court is not satisfied that the applicant was given an adequate and
proper opportunity to contest the statements on which his conviction
was based. There has accordingly been a violation of Article 6 §
3 (d) of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION IN
RESPECT OF THE SECOND APPLICANT
- The
second applicant complained under Article 6 § 3 (b) that she had
had no time to prepare her defence, under Article 6 § 3 (c) that
she had not been represented and had not been given time to arrange
for such representation, and under Article 6 § 3 (d) that she
could not question any witnesses. The relevant provisions of Article
6 § 3 read as follows:
“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...”
A. Admissibility
- The
Government challenged the applicability of Article 6 in its criminal
limb to the administrative offence proceedings against the second
applicant. They maintained that the proceedings in respect of the
second applicant were administrative and not criminal under the
domestic law. They further contended that the applicant had been
ultimately punished with a fine of UAH 136, which brought the offence
committed by the second applicant into the category of minor
offences.
- The
second applicant disagreed. She noted that the maximum penalty
envisaged by Article 185-3 was fifteen days’ imprisonment and
therefore the severity of this penalty brought it with the criminal
limb of Article 6. Furthermore, she had originally been
sentenced to that maximum penalty and it was only because of her
hospitalisation that her administrative detention had not been
enforced.
- The
Court observes that in some other Ukrainian cases it has examined
similar issues concerning the same type of proceedings and under the
same article of the Code on Administrative Offences, and has found
that given the severity of the sanction envisaged the offence
foreseen by Article 185-3 was not a minor offence (see Gurepka
v. Ukraine (no. 2), no. 38789/04,
§ 33, 8 April 2010) and the administrative proceedings
had to be considered criminal in nature, attracting the full
guarantees of Article 6 of the Convention (see Gurepka v. Ukraine,
no. 61406/00, § 55, 6 September 2005). The Court sees no
reason to depart from its reasoning in the present case and concludes
that Article 6 is applicable to the impugned proceedings against the
second applicant.
- The
Court further 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
Court reiterates that the requirements of Article 6 § 3 are to
be seen as particular aspects of the right to a fair trial guaranteed
by Article 6 § 1. The Court will therefore examine the
relevant complaints under both provisions taken together (see, among
many other authorities, F.C.B. v. Italy, judgment of 28
August 1991, Series A no. 208 B, p. 20, § 29, and Poitrimol
v. France, judgment of 23 November 1993, Series A no. 277 A,
p. 13, § 29).
1. The right to adequate time and facilities to prepare
her defence
- The
second applicant maintained that the period between the alleged
offence and the trial was too short to enable her to prepare her
defence properly. She noted that under the relevant law her
administrative case had to be examined within one day and there was
no exception to this rule. Furthermore, the Code on Administrative
Offences did not contain a provision explicitly entitling her to seek
adjournment of the proceedings in her case in order to prepare her
defence.
- The
Government made no observations on the merits considering Article 6
inapplicable.
- The
Court reiterates that Article 6 § 3 (b) guarantees the accused
“adequate time and facilities for the preparation of his
defence” and therefore implies that the substantive defence
activity on his behalf may comprise everything which is “necessary”
to prepare the main trial. 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 (see
Can v. Austria, no. 9300/81, Commission’s report of
12 July 1984, Series A no. 96, § 53; Connolly v. the
United Kingdom (dec.), no. 27245/95, 26 June 1996; and Mayzit
v. Russia, no. 63378/00, § 78, 20 January 2005).
Furthermore, the facilities available to everyone charged with a
criminal offence should include the opportunity to acquaint himself
for the purposes of preparing his defence with the results of
investigations carried out throughout the proceedings (see C.G.P.
v. the Netherlands, (dec.), no. 29835/96, 15 January 1997, and
Foucher v. France, judgment of 18 March 1997, Reports
1997-II, §§ 26-38). The issue of adequacy of time and
facilities afforded to an accused must be assessed in the light of
the circumstances of each particular case.
- In
the present case, the Court notes that despite the lack of a clear
indication of the exact lapse of time between the offence committed
by the second applicant and the examination of her administrative
case in this respect, it is evident that this period was not longer
than a few hours. Even if it is accepted that the applicant’s
case was not a complex one, the Court doubts that the circumstances
in which the applicant’s trial was conducted were such as to
enable her to familiarise herself properly with and to assess
adequately the charge and evidence against her and to develop a
viable legal strategy for her defence.
- The
Court concludes that the applicant was not afforded adequate time and
facilities for the preparation of her defence. There has accordingly
been a violation of Article 6 § 3 of the Convention taken
together with Article 6 § 1 of the Convention.
2. The right to defend herself in person or through
legal assistance of her own choosing and the right to examine or have
examined witnesses
- The
second applicant claimed that despite the fact that she had not
requested legal representation or the attendance of witnesses, she
could not be reproached for this, since, as mentioned above, she had
had no time to assess the situation and realise the necessity and
importance of such requests in the examination of her case.
Therefore, she considered that her omissions did not exempt the State
from responsibility for violation of her procedural rights.
- The
Government made no observations on the merits, considering Article 6
inapplicable.
- In
view of the finding made with respect of the applicant’s right
to adequate time and facilities for the preparation of her defence,
the Court does not consider it necessary also to examine the other
alleged violations of Article 6 § 3 of the Convention (see,
mutatis mutandis, Ashughyan v. Armenia, no.
33268/03, §§ 67-68, 17 July 2008).
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
first applicant also complained under Article 5 § 1 (c) of the
Convention that his pre-trial detention was arbitrary and unlawful,
under Article 5 § 3 about the length of his detention and under
Article 5 § 4 that there had not been periodic reviews of his
detention. He further complained under Article 6 of the Convention
that the court was not impartial and the proceedings were excessively
long, that he was not immediately provided with detailed information
concerning the allegations against him, and that he had insufficient
time to prepare his defence. The second applicant complains that the
judge was aggressive and accusational and therefore lacked the
impartiality required by Article 6 § 1 of the Convention.
- Having
carefully examined the applicants’ submissions in the light of
all the material in its possession, 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 Convention. It follows that this part of the
application must be declared inadmissible as manifestly ill-founded,
pursuant to Article 35 §§ 1, 3 and 4 of the
Convention.
V. 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
applicants claimed 500,000 euros (EUR) each in respect of
non-pecuniary damage.
- The
Government considered the claim ill-founded and the amount excessive.
- 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 Nadtochiy v.
Ukraine, no. 7460/03, § 55, 15 May 2008). Therefore, it
considers that the finding of a violation constitutes in itself
sufficient just satisfaction for the violation of Article 6 in
respect of both applicants. The Court further takes the view that the
first applicant has suffered non-pecuniary damage as a result of the
violations of Article 5. Making its assessment on an equitable basis,
as required by Article 41 of the Convention, the Court awards
the first applicant EUR 800 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed UAH 30 (around EUR 3) for travel expenses,
UAH 1,176.81 (around EUR 118) for postal expenses, UAH 2,700
(around EUR 270) for legal fees for the domestic proceedings and EUR
4,256 for legal fees incurred before the Court.
- The
Government considered that not all the expenses were related to the
present application. Furthermore, they noted that the applicants had
been granted legal aid, therefore their claims for costs and expenses
had to be rejected.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the applicants jointly the sum of
EUR 2,000 covering costs under all heads.
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 complaints of the first applicant
under Article 5 § 3 and Article 6 § 3 (d) of the Convention
and complaints of the second applicant under Article 6 §§ 1
and 3 concerning fairness of the administrative offence proceedings
and procedural violations therein admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention in respect of the first applicant;
- Holds that there has been a violation of Article
6 § 3 (d) of the Convention in respect of the first applicant;
- Holds that there has been a violation of Article
6 § 1 taken together with Article 6 § 3 (b) of the
Convention in that the second applicant did not have a fair hearing,
on account of the fact that she was not afforded adequate time and
facilities for the preparation of her defence;
- Holds that there is no need to examine the other
complaints of the second applicant under Article 6 § 3 of
the Convention;
- Holds
(a) that
the respondent State is to pay the first applicant, within three
months of the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, EUR 800
(eight hundred euros), plus any tax that may be chargeable to him, in
respect of non-pecuniary damage, to be converted into Ukrainian
hryvnias at the rate applicable on the date of settlement;
(b) that the respondent State is to pay the applicants
jointly, within three months of the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 2,000 (two thousand euros), plus any tax that
may be chargeable to them, in respect of costs and expenses, to be
converted into Ukrainian hryvnias at the rate applicable on the date
of settlement;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period, plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 21 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
