FIFTH SECTION

DECISION

Application no. 25129/03 Sergey Konstantinovich VASYLENKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 18 October 2011 as a Chamber composed of:

Dean Spielmann, President, Karel Jungwiert, Boštjan M. Zupančič, Mark Villiger, Isabelle Berro-Lefèvre, Angelika Nußberger , judges, Stanislav Shevchuk , ad hoc judge, and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 12 July 2003,

Having regard to the partial decision of 24 March 2009,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Sergey Konstantinovich Vasylenko, is a Ukrainian national who was born in 1977 and lives in Dnipropetrovsk. He was represented before the Court by Mr V. Koloshin, a lawyer practising in Dnipropetrovsk. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 28 March 2003 an officer of the Traffic Police stopped the applicant for having exceeded a displayed 40 kph (kilometres per hour) speed limit by 40 kph. The officer, using a speed measurement device, noted that the speed limit had been exceeded. He drew up an official report in the presence of the applicant, who made no objections, and sent the report to the Krasnogvardiysky District Court of Dnipropetrovsk (“the District Court”) for its consideration.

On 30 April 2003 the District Court considered the applicant’s case in the absence of any party. It found that the applicant had exceeded the speed limit while driving a vehicle. It further found the applicant guilty of the offence defined in Article 122 § 1 of the Code of Administrative Offences, and imposed a fine of 17 Ukrainian hryvnias (UAH) [1] on him. The District Court noted in its judgment that the applicant had been notified of the date of the hearing. According to the applicant, he never received any notice concerning the hearing in the District Court.

On 2 June 2003 the applicant was served with a copy of the judgment of 30 April 2003. The judgment was not subject to an ordinary appeal.

On 5 June 2003 a prosecutor of the Dnipropetrovsk Regional Prosecutor’s Office, replying to a request by the applicant for an extraordinary review of the judgment of 30 April 2003, informed him that there were no grounds for lodging an objection ( протест ) against that judgment.

On 11 June 2003 the applicant submitted to the President of the Dnipropetrovsk Regional Court of Appeal a request for an extraordinary review of the judgment of 30 April 2003. The applicant contended that he had not been notified of the hearing and that his case had been wrongly determined.

By a letter dated 26 June 2003 the President of the Regional Court of Appeal notified the applicant that his request for an extraordinary review had been refused since the impugned court judgment was lawful and reasonable.

B. Relevant domestic law

Code of Administrative Offences (hereafter “the Code”) in the wording applicable at the material time

Article 122 § 1 of the Code prohibited drivers of vehicles from, inter alia , exceeding the prescribed speed limit by more than 20 kph. A breach of that provision was punishable by a written warning or a fine of up to an amount equal to the tax-free monthly income [2] .

In accordance with Article 268 of the Code, any administrative case had to be considered in the presence of the person concerned. The case could be considered in the absence of that person only if there was information that he or she had been duly notified of the hearing and if he or she had not made any request for an adjournment.

Article 307 of the Code provided, inter alia , that the fine was to be paid within fifteen days of the date of receipt of the relevant decision.

Article 308 of the Code provided that in the event of failure to pay the fine within the time-limit provided under Article 307 of the Code the decision imposing the fine had to be enforced by the bailiffs.

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention that his right to a fair trial had been violated in so far as the proceedings in his case had been held in his absence.

THE LAW

The applicant complained that his right to a fair trial had been violated in so far as the proceedings in his case were held in his absence. He relied on Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:

Article 6 (right to a fair hearing)

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

The Government maintained that this complaint fell outside the scope of Article 6 § 1 of the Convention since the applicant’s proceedings did not relate to the determination of a “criminal charge” against him. They submitted that the applicant’s offence was classified under the domestic legislation as an administrative one and that, by having committed it, the applicant had not inflicted any serious harm either on the public or any third person. Neither had he been severely punished for the offence. They emphasised that the amount of the fine incurred was too small to raise any issue under Article 6 of the Convention.

The applicant disagreed with the Government.

The Court notes that since the admissibility decision of 24 March 2009 in the present case, the question of the significance of the disadvantage suffered by an applicant as a result of the alleged violation has become a matter relevant to the admissibility of an application. In particular, the new admissibility criterion, which has been introduced by Protocol No. 14, is based on the assessment of the significance of such a disadvantage. Besides that, the pettiness of the amount at stake may prompt the Court to conclude that an applicant is abusing his right of application to an international tribunal distracting the latter from dealing with serious issues of human rights protection (see Bock v. Germany (dec.), no. 22051/07, 19 January 2010). The Court has applied this new approach independently of the criterion provided for by Article 35 § 3 (b) of the Convention (see Dudek (VIII) v. Germany (dec.), nos. 12977/09, 15856/09, 15890/09, 15892/09 and 16119/09, 23 November 2010).

In the light of these new principles a question arises as to whether the present complaint should be reviewed as regards its admissibility. The Court notes that under Article 35 § 4 of the Convention, it may reject an application at any stage of the proceedings. This provision allows the Court, even during the examination at the merits stage, and subject to compliance with Rule 55 of the Rules of Court, to review a decision declaring an application admissible, if it is of the view that it should have been considered inadmissible for any of the reasons enumerated in paragraphs 1 to 3 of the same Article (see, for example, Medeanu v. Romania (dec.), no. 29958/96, 8 April 2003, and Sammut and Visa Investments Limited v. Malta (dec.) no. 27023/03, 16 October 2007). In accordance with Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its observations on the admissibility of the application.

As regards the new admissibility criterion provided for by Article 35 § 3 (b) of the Convention, the Court notes that under Article 20 of Protocol No.14 this criterion does not apply to applications declared admissible before the entry into force of the Protocol (1 June 2010). The Court is therefore precluded from reviewing the matter under this provision.

As to the new principles concerning the abuse of the right of individual application (see Bock , cited above, and Dudek (VIII), cited above), the Court notes that these principles were established after the expiry of the time-limit provided to the Government for commenting on the admissibility of the application. It should be noted that the Government did contend that the case involved no significant harm to the applicant in view of the meagre sum of the fine at stake and that it could not therefore raise any issue under the Convention. Accordingly, in the Court’s opinion the Government’s submissions are sufficient to enable the Court to consider, in accordance with Article 35 § 4 of the Convention as conditioned by Rule 55 of the Rules of Court, the admissibility of the present complaint in the light of the recent interpretation of the rule prohibiting the abuse of the right of individual application.

The Court has examined all the circumstances of the case at hand. In particular, it has had regard to the disproportion between the triviality of the facts, namely the manifest pettiness of the amount of the fine, against the background of the Court’s overload and the fact that a large number of applications raising serious issues on human rights are pending.

The Court does not find it established that the domestic proceedings in question bore any pecuniary or non-pecuniary importance for the applicant. Nor does it discern any issue of general interest in the present case. It further notes that the requirement of appropriate notification of court hearings has been raised by the Court in a number of cases, including those against the respondent State (see, for example, Strizhak v. Ukraine , no. 72269/01, § 41, 8 November 2005 and Gurepka v. Ukraine (no. 2) , no. 38789/04, §§ 23-25, 8 April 2010).

Accordingly, it is appropriate to reject the complaint as an abuse of the right of application pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares inadmissible the remainder of the application.

Claudia Westerdiek Dean Spielmann              Registrar              President

[1] About 3 euros (EUR).

[2] At the relevant time the tax-free monthly income was established in the amount of UAH 17 and constituted a fictional rate used for the determination of wages, taxes, fines, etc.