FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 10544/03 by Yevgeniy Mikhaylovich RYBKA against Ukraine

This version was rectified on 21 May 20 10

under Rule 81 of the Rules of Court

The European Court of Human Rights (Fifth Section), sitting on 17 November 2009 as a Chamber composed of:

Peer Lorenzen , President, Renate Jaeger , Karel Jungwiert , Rait Maruste , Mark Villiger , Mirjana Lazarova Trajkovska , judges, Mykhaylo Buromenskiy , ad hoc judge, and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 6 March 2003,

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 Yevgeniy Mikhaylovich Rybka , is a Ukrainian national who was born in 1971 and lives in Kyiv. The applicant was represented by Ms L. Pankratova , a lawyer practising in K yi v. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev , of the Ministry of Justice .

A. The circumstances of the case

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

On 28 July 2001 the applicant, together with his wife and son, went to Se b astopol for a private visit. At around 6 p.m. that evening they went to the bus station with the applicant ' s sister-in- law , to catch the bus home . At the bus station three persons wearing plain clothes approached the applicant as he stood alone outside the station hall. Two of these persons took the applicant by the arms, while the third said: “ Milit s i y a [1] ” ( Міліція ) and waived a paper in front of the applicant ' s face. The applicant could not read the paper.

The persons attempted to push the applicant into a minibus, which had no official police signs . The applicant resisted and the persons allegedly started beating him. They managed to handcuff the applicant and to pu sh him into the minibus. Meanwhile, the applicant ' s sister-in- law arrived and was thrust in to the same minibus.

According to the applicant, he was further beaten in the minibus.

The applicant and his sister -in- law were taken to the Nakhimovskyy District Police Station in Se b astopol . At the police station the applicant was forced to stand handcuffed against the wall for an hour. Subsequently, he was allegedly undressed and searched in the presence of his sister-in- law.

On the same day the applicant was questioned by the police, who enquired whether he belonged to a neo-Nazi organisation , taking into account his hair style and the symbol on the t-shirt he wore . The applicant explained that he was a journalist; that he did not belong to any type of extremist organisation and that he had come to Se b astopol for private purposes.

The applicant ' s wife went to the police station, where she was also questioned by the police and gave the same explanations.

At around half past ten in the evening of the same day , the police told the applicant that he had been apprehended on suspicion of being a member of the neo-Nazi organisation “S”. The applicant remained in detention.

On 29 July 2001 the applicant was taken to the Nakhimoskyy District Court of Se b astopol (the Nakhimovskyy Court ). T he police officers told the applicant that he would be tried for failing to comply with their lawful orders .

On the same day a judge of that court found the applicant guilty of wilful disobedience to the lawful orders of the police , an administrative offence , on 28 July 2001 , and issued a reprimand against him . The court ' s resolution stated that it was final and was not subject to appeal. Subsequently, the applicant was released.

According to the applicant, the court proceedings were not public, as neither his wife nor his colleagues were allowed to enter the court room. The applicant was not given an opportunity to study his case file and to consult a lawyer either before or during these proceedings.

On 30 July 2001 the applicant underwent a medical examination, according to which he was found to be suffering from minor bodily injuries which could have been caused on 28 July 2001.

On 9 August 2001 the applicant complained to the prosecutors, alleging that he had been ill-treated by the police officers on 28 July 2001. In a letter of 11 September 2001 the Se b astopol Prosecutor ' s Office informed the applicant that on 7 August 2001 the prosecutors had adopted a decision refusing to initiate a criminal investigation against the police officers. Relying on the findings of the Nakhimovskyy Court of 29 July 2001, t he prosecutors concluded that the police officers had not abused their power and that there was no indication that an offence had been committed . The applicant did not challenge the decision of 7 August 2001 before the domestic courts since , in his view, it was based on the court ' s resolution , which was not subject to appeal.

On 20 September 2001 the applicant lodged with the Supreme Court a request for leave to appeal in cassation against the resolution of 29 July 2001 under the new transitional cassation procedure.

On 24 October 2001 the Nakhimovskyy Court informed the applicant that his appeal in cassation would be considered by the Se b astopol Court of Appeal.

On 26 October 2001 the President of the Se b astopol Town Court of Appeal quashed the resolution of 29 July 2001 on the grounds that the Nakhimovskyy Court had failed to verify the lawfulness of the orders given by the police officers and that it had applied a sanction which had not been envisaged by the relevant law. The C ourt of A ppeal remitted the case to the Nakhimovskyy Court for fresh consideration.

On 23 November 2001 the latter court invited the applicant to attend the hearing , scheduled for 10 December 2001. In his letter of 4 December 2001 the applicant informed the court that he would not be able to attend the hearing for health reasons .

On 15 December 2001 the applicant received a letter from the court inviting him to a new hearing , scheduled for 17 December 2001. According to the applicant , he was still undergoing medical treatment on the latter date and was therefore unable to attend th at hearing.

On 27 December 2001 the Nakhimovskyy Court held a hearing in the applicant ' s case and delivered a resolution, the relevant parts of which read as follows:

“ ...On 28 July 2001 ... [Mr] Rybka wilfully disobeyed the lawful order of the police officer s in the course of [ an ] identity check at the bus station in the town of Se b astopol.

[Mr] Rybka ' s guilt [ is ] proven by the reports of the police officers, [Messrs ...] , according to which [Mr] ... presented [to Mr Rybka ] a police identity card and informed [him] that [he was ] being stopped by the police officers for an identity check. However, [Mr] Rybka tried to run away and resisted, thereby damaging the police officers ' uniform s . The police officers made similar submissions before the court ...

[Mr] Rybka failed to appear for the court hearing, [ although he had been] repeatedly informed [ of the date and time of the hearing]; in accordance with his earlier submissions, [he] did not plead guilty, and explained that one of the police officers had showed him a police identity card , but [he] had not been able to read it. Thereafter, he was shown to the “ Gazel ” minibus. Since his sister-in- law told him that [the persons apprehending him] were not police officers, he started res is ting, and that was why force had been used against him.

The court considers that [Mr] Rybka ' s actions contain the corpus of the administrative offence envisaged by Article 185 of the [Code on Administrative Offences].

However, since the time-limit for imposi ng administrative sanctions, provided for in Article 38 of the [Code on Administrative Offences], has expired, the court considers that the proceedings against [Mr] Rybka must be discontinued.

Pursuant to ... , [the court ]

Decide d :

To discontinue the proceedings against [Mr] Rybka , Yevgeniy Mikhailovich .

The decision is final [and] is not subject to appeal.”

T he applicant was not informed about the date or time of the hearing of 27 December 2001 . H e received a copy of th e court ' s resolution on 15 September 200 2 .

B. Relevant domestic law

Article 32 of the Code on Administrative Offences, as worded at the mate rial time, provided that administrative detention could be imposed and applied in exceptional circumstances for certain administrative offences for a maximum period of fifteen days.

Under Article 38 an administrative sanction could be imposed within two months following the day on which an offence was committed.

Article 185 envisaged the following sanctions for wilful disobedience to the orders of a police officer: a fine in the amount of eight to fifteen times the statutory non-taxable monthly income; a 20% salary deduction over a period of one to two months (corrective works) ; or administrative detention for up to fifteen days, if, in view of the particular circumstances of the case and with regard to the personality of the offender, the imposition of more lenient sanctions appeared insufficient.

According to Article 285, a copy of the resolution in an administrative offence case had to be handed over or sent to the person concerned within three days following the completion of the case.

Pursuant to Article 287 , a first-instance court ' s resolution imposing an administrative sanction was final and not open to appeal, sa v e in cases envisag ed in the law. Article 290 provided that a prosecutor could lodge an extraordinary appeal (“ protest ”) against the court ' s resolution. According to Article 294 , a court resolution concerning an administrative offence could be reviewed either by the same judge who had adopted it in the first place , upon an extraordinary appeal lodged by a prosecutor , or by the president of a higher court on his or her own motion.

On 24 September 2008 the Parliament of Ukraine made changes to the Code, by which it introduced an appeal procedure in administrative offence cases. In particular, under the amended Articles 287 and 294 of the Code , the parties to administrative offence proceedings have the right to appeal against court resolutions in their cases within ten days following their delivery. Such appeals must be submitted through the court of first instance that adopted the contested resolution. That court must, within three days, refer the appeal or appeals, together with the case file, to the court of appeal, which, in its turn, has twenty days to consider the case. The cases are dealt with by a judge of the criminal chamber of the court of appeal in an open hearing. The judge has the power to reject the appeal , t o quash the resolution and discontinue the proceedings or adopt a new resolution, and to change the resolution . The judge ' s decision is final and not subject to any further appeal.

C . Relevant Council of Europe Material

The relevant parts of the Explanatory Report to Protocol No. 7 (ETS No. 117) prepared by the Steering Committee for Human Rights and submitted to the Committee of Ministers of the Council of Europe, which concern Article 2 of Protocol No. 2 , read 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.

18. Different rules govern review by a higher tribunal in the various member States of the Council of Europe. In some countries, such review is in certain cases limited to questions of law, such as the recours en cassation . In others, there is a right to appeal against findings of facts as well as on the questions of law. The article leaves the modalities for the exercise of the right and the grounds on which it may be exercised to be determined by domestic law.

19. In some States, a person wishing to appeal to a higher tribunal must in certain cases apply for leave to appeal. The right to apply to a tribunal or an administrative authority for leave to appeal is itself to be regarded as a form of review within the meaning of this article.

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...”

COMPLAINTS

1. The applicant complained under Article 3 of the Convention about his alleged ill-treatment by the police on 28 July 2001 and the alleged lack of an effective investigation into his complaints of ill-treatment.

2. He further complained under Article 5 § 1 that his detention from 28 to 29 July 2001 had been unlawful.

3. The applicant also alleged that the proceedings against him had been unfair . In particular, he argue d that the hearing on 29 July 2001 had not been public. He relied on Article 6 § 1 of the Convention.

4. The applicant finally complained under Articles 6 § 1 and 13 of the Convention about the lack of an effective remedy against the resolution of 27 December 2001.

THE LAW

1. The applicant complained that he had had no possibility to appeal against th at resolution of 27 December 2001. He invoked Articles 6 § 1 and 13 of the C onvention , which read as follows:

Article 6

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

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.”

The Court reiterates that Article s 6 and 13 of the Convention do 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, sh ould the impugned proceedings be characterised as “criminal” for Convention purposes, the applicant ' s complaint may fall to be exami ned 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.”

The Government maintained 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 2 of Protocol No. 7 was not applicable in the present case, as the applicant had not been convicted of a criminal offence.

The applicant contended that the proceedings at issue were criminal for the purposes of the Convention , despite their domestic classification. He relied on the criteria for the assessment of the applicability of the criminal aspect of Article 6 of the Convention outlined in Engel and Others v. the Netherlands (8 June 1976, § § 82-83, Series A no. 22 ) and Öztürk v. Germany ( 21 February 1984, § 53 , Series A no. 73) , which the applicant considered to be equally pertinent to the assessment of the applicability of Article 2 of Protocol No. 7. In particular, he stated that the legal rule on which his case was based was of a generally binding character and had punitive and deterrent purposes, and that the sanctions envisaged by this rule, because of their nature and degree of severity, belonged to the “criminal” sphere.

The Court reiterates that Article 2 of Protocol No. 7 guarantees to “everyone convicted of a criminal offence “ the right to have the conviction reviewed by a higher tribunal. This provision presupposes conviction by a tribunal, that is, determination of one ' s guilt of a criminal act.

Turning to the circumstances of the present case, the Court observes first that the applicant was brought before the domestic court on charges of wilful disobedience to the orders of a police officer, which was punishable by a fine, a salary deduction or administrative d etention for up to fifteen days. Such penalties were clearly intended to be punitive and deterrent in their effe ct. Therefore, the Court holds that the proceedings at issue were criminal for the purposes of the Convention (see Öztürk , cited above ).

Secondly, the Court notes that the resolution of 27 December 2001 concerned the termination of the proceedings against the applicant. The question therefore arises whether it represented the applicant ' s conviction of an offence, within the meaning of Article 2 of Protocol No. 7.

In this context, the Court recalls that in Minelli v. Switzerland ( 25 March 1983, § 32 , Series A no. 62) and Lutz v. Germany ( 25 August 1987, §§ 56 ‑ 57 , Series A no. 123) it extended the guarantees of Article 6 § 2 to proceedings which, as in the present case, had been time-barred and which had ended in decisions refusing the reimbursement of the costs of the accused on the grounds that it was highly likely that they would have been found guilty had the statutory period of limitation not expired . In the earlier case, the Court found that, n otwithstanding the absence of a formal finding of guilt of the accused, the judicial decision concerning him reflect ed an opinion that he had been guilty (s ee Minelli , cited above , § § 37-38) .

However, a distinction must be drawn between the guarantees of Article 6 § 2 of the Convention and Article 2 of Protocol No. 7. The former provision has a b roa der field of application – applicants may rely on its guarantees in respect of matters taking place even outside the formal process of determination of criminal charges (see, for instance, Lamanna v. Austria , no. 28923/95, 10 July 2001 ). Conversely, Article 2 of Protocol No. 7 is aimed at providing a possibility to put right any shortcomings at the trial or sentencing stages of proceeding, once they have been concluded by a conviction.

According to its clear text, Article 2 of Protocol No. 7 applies in the case of a “conviction” or a “sentence”. This provision does not guarantee the right of appeal against an acquittal or any other decision, which does not constitute a formal finding of guilt or imposition of a penalty. Thus, the existence of a formal finding of guilt ending in a conviction or a sentence is a precondition for the application of the guarantees of Article 2 of Protocol No. 7. Such a finding must be the object and final consummation of the proceedings and may not always entail an imposition of penalty (see Fortum Oil And Gas Oy v. Finland ( dec .), no. 32559/96, 12 November 2002). As a rule, it is to be mentioned in the operative part of a verdict, by which the object of such a decision is carried into effect. In any event, the decisive factor for the issue at hand must be whether a particular decision was aimed at finding a person guilty of a crime.

As regards the instant case, the Court attaches particular importance to the fact that the formal outcome of the proceedings against the applicant was that the charges against him were dropped as time-barred. The resolution of the Nakhimovskyy Court of 27 December 2001 expressly stated that the proceedings were “discontinued”; it did not find the applicant guilty as charged. The court ' s opinion or conclusion concerning the applicant ' s guilt was not formalised in the operative part of that decision. Therefore, it was not a conviction for the purposes of Article 2 of Protocol No. 7 [2] , although it can be argued that the charges against the applicant were in fact determined by the court (see, mutatis mutandis , Velikovi and Others v. Bulgaria , nos. 43278/98 and foll . , § 259 , 15 March 2007 ).

While it cannot be excluded that an issue may arise under Article 6 § 2 of the Convention as regards the fact that the applicant ' s guilt of a criminal offence was actually established outside the normal processes of the determination of a criminal charge, the Court notes that the applicant made no complaint in that respect and it finds no reason to pursue this matter ex officio .

In the light of the foregoing, the Court concludes that Article 2 of Protocol No. 7 is not applicable in the present case and that this part of the application is manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention.

2. The applicant further complained under Article 3 of the Convention about his alleged ill-treatment by the police on 28 July 2001 and the alleged lack of an effective investigation into his complaints of ill-treatment.

He also complained under Article 5 § 1 that his detention from 28 to 29 July 2001 had been unlawful.

Lastly, t he applicant alleged that the proceedings against him had been unfair . In particular, he argue d that the hearing on 29 July 2001 had not been public. He relied on Article 6 § 1 of the Convention.

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 or its Protocols.

It follows that the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these re asons, the Court unanimously

Declares the application inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar President

[1] The name in Ukrainian of the authority equivalent to the police.

[2] R ectified on 21 May 20 10: the text was “ Article 2 of Protocol No. 1 ” .