KUZMINA v. UKRAINE - 11984/06 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section Committee)) [2016] ECHR 529 (16 June 2016)

In the case of Kuzmina v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Khanlar Hajiyev, President,
          Faris Vehabović,
          Carlo Ranzoni, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 24 May 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 11984/06) 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 Tatyana Igorevna Kuzmina (“the applicant”), on 11 March 2006.

2. The Ukrainian Government (“the Government”) were represented, most recently, by their Acting Agent, Ms O. Davydchuk.

3. On 13 January 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1961 and lives in Kyiv.

5. On 30 June 2004 the Darnytskyy District Court of Kyiv found that the applicant had committed the following crimes: appropriation of private property by means of fraud or abuse of trust, theft of property and theft of official documents. The court sentenced her to five years’ imprisonment suspended for three years with probation.

6. On 23 December 2004 the applicant’s conviction was upheld by the Kyiv Court of Appeal. She appealed on points of law to the Supreme Court.

7. On 31 May 2005 a three-judge panel of the Supreme Court considered the applicant’s appeal on points of law in accordance with Article 394 § 2 of the Code of Criminal Procedure (by virtue of which it could either dismiss the appeal or assign the case for further consideration with the participation of all the parties). The Supreme Court did not notify the applicant or her lawyer of that hearing. The prosecutor was present and made oral representations during the hearing. Having regard to his opinion and the material in the case file, the panel dismissed the appeal as unsubstantiated.

8. In a letter dated 12 September 2005 the Supreme Court notified the applicant, enclosing a copy of its decision. She received the letter on 16 September 2005.

II. RELEVANT DOMESTIC LAW

9. The relevant provisions of the domestic law, applicable at the material time, can be found in the judgment in the case of Zhuk v. Ukraine (no. 45783/05, §§ 18-20, 21 October 2010).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

10. The applicant complained that the Supreme Court had examined her appeal on points of law in her absence, in breach of the principle of equality of arms. She relied on Article 6 § 1 of the Convention, which reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. Admissibility

11. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

12. The applicant insisted that the prosecutor had benefited from personally participating in the hearing before the Supreme Court, where he had made oral statements. She, however, had been deprived of such an opportunity, in breach of the principle of equality of arms.

13. The Government submitted that there had been no violation of Article 6 § 1 of the Convention. They maintained that the prosecutor’s presence at the hearing before the Supreme Court had not influenced its decision and that the applicant had been given appropriate opportunities to present her arguments in the proceedings.

14. The Court has previously found violations in similar cases against Ukraine (see Zhuk, §§ 29-35, cited above, and Korobov v. Ukraine, no. 39598/03, § 92, 21 July 2011), stating that by virtue of the domestic law applicable at that time, the prosecutor had the advantage of being present at that type of hearing before the Supreme Court and, unlike the defendant, could make oral submissions to the three-judge panel, such submissions being intended to influence the latter’s opinion. The Court concluded that procedural fairness required that the applicants should also have been given an opportunity to make oral submissions in reply.

15. Having regard to the circumstances of the present case, the Court follows this line of reasoning and finds that the principle of equality of arms has not been respected in the present case.

16. Accordingly, there has been a violation of Article 6 § 1 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

17. The applicant further complained of other violations of her rights under Articles 5 § 1 and 6 the Convention.

18. The Court has examined these complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

19. 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

20. The applicant claimed 500,000 Ukrainian hryvnias in respect of non-pecuniary damage.

21. The Government submitted that the claim was unfounded.

22. The Court considers that the applicant must have suffered anguish and distress on account of the facts giving rise to the finding of a violation in the present case. Ruling on an equitable basis, the Court awards the applicant 900 euros (EUR) in respect of non-pecuniary damage.

B. Costs and expenses

23. The applicant did not submit any claims under this head. The Court therefore makes no award.

C. Default interest

24. The Court considers it appropriate that the default interest rate 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,

1. Declares the complaint under Article 6 § 1 of the Convention concerning equality of arms in the proceedings before the Supreme Court admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 900 (nine hundred euros) plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 16 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Khanlar Hajiyev
Deputy Registrar President

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