FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 25129/03 by Sergey Konstantinovich VASYLENKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 24 March 2009 as a Chamber composed of:

Rait Maruste , President, Karel Jungwiert , Renate Jaeger , Mark Villiger , Mirjana Lazarova Trajkovska , Zdravka Kalaydjieva , 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 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 Dnepropetrovsk . He is represented before the Court by Mr V. Koloshin, a lawyer practising in Dnipropetrovsk. The Ukrainian Government (“the Government”) are 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.

The applicant was born in 1977 and lives in Dnipropetrovsk.

On 28 March 2003 the applicant was stopped by an officer of the Traffic Police for having exceeded a displayed 40 kph speed limit by 40 kph. The officer drew up an official report in the applicant ’ s presence and sent it to the Krasnogvardeysky District Court of Dnipropetrovsk (hereafter “the District Court”) for consideration.

According to the applicant , he never received any summons to appear before the District Court.

On 30 April 2003 the District Court, trying the applicant in absentia , established that he had exceeded the speed limit while driving a vehicle. It further found that the applicant was guilty of the offence defined in Article 122 § 1 of Code on Administrative Offences and imposed a fine of 17 Ukrainian hryvn i as (UAH) [1] on him. The District Court noted in the judgment that the applicant had been notified of the date of the hearing.

On 2 June 2003 the applicant was served with a copy of the judgment of 30 April 2003.

On 5 June 2003 the prosecutor of the Dnipropetrovsk Region 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 a protest against that judgment.

On 11 June 2003 the applicant submitted to the President of the Dnipropetrovsk Region Court of Appeal a request for an extraordinary review of the judgment of 30 April 2003. The applicant contended, in particular, that he had not been summoned to the hearing.

By a letter of 26 June 2003 the President of the Court of Appeal notified the applicant that his request for an extraordinary review had been rejected since the impugned court judgment was lawful and reasonable. The President , however, did not address the issue of the applicant ’ s absence from at the hearing.

B. Relevant domestic law

1. Administrative Offences Code (hereafter “the Code”) in the wording relevant at the material time

In accordance with Article 23 of the Code, an administrative penalty was considered as a measure of administrative liability aimed at compelling a person who has committed an administrative offence to obey Ukrainian law, respect the social order and refrain from reoffending, and at preventing the commission of offences by other persons.

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] .

Article 287 of the Code provided that the decision imposing an administrative penalty c ould be appealed, except for decisions given by the first - instance court. The latter were final and were not subject to the ordinary administrative appeal procedure, unless the legislation provid ed otherwise.

Article 290 of the Code foresaw that the prosecutor could lodge a protes t against a decision imposing an administrative sanction.

Article 294 of the Code provide d that a court judgment on an administrative offence could be reviewed by the judge of the same court upon a protest lodged by a prosecutor, or by the President of the higher court o n his or her own motion.

2. The amendments to the Code introduced on 24 September 2008

On 24 September 2008 the Code was amended providing, inter alia , that the offence, foreseen in Article 122 § 1 of the Code, was punishable by a fine in an amount ranging from fifteen to twenty tax-free monthly incomes. The Code also introduced an ordinary appeal procedure for challenging the decisions given by the first-instance courts in administrative cases.

3. Road Traffic Rules (approved by Resolution of the Cabinet of Ministers of Ukraine no. 1306 of 10 October 2001)

The Rules provide that any person who drives a vehicle shall be considered as a driver.

COMPLAINTS

THE LAW

1. 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 ... 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 pointed out that the amount of the fine incurred was too small to be capable of bringing the offence within the criminal sphere for the purposes of the Convention.

The applicant disagreed with the Government.

The Court considers that the complaint raises questions of law which are sufficiently complex not to be susceptible of being resolved at the admissibility stage. Accordingly, the determination of this complaint, including the question, raised by the Government, of the applicability of Article 6 § 1 of the Convention, depends on an examination of the merits.

That being so, this complaint cannot be declared inadmissible on the ground that it is incompatible ratione materiae with the provisions of the Convention. The Court further notes that no other ground for declaring it inadmissible has been established and that it must therefore be declared admissible (see, mutatis mutandis, Ferrazzini v. Italy [GC], no. 44759/98, § 18 and 19 , ECHR 2001 ‑ VII ).

2. The applicant complained that the domestic legislation did not provide him with an effective appeal procedure against the judgment of 30 April 2003 by which he had been found guilty of an administrative offence. He relied on Article 13 of the Convention. The Court considered that this complaint could raise an issue 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 this complaint was inadmissible for the same reasons as the complaint under Article 6 of the Convention. They further insisted that the applicant ’ s offence was of a minor character within the meaning of Article 2 § 2 of Protocol No. 7. They stated, in particular, that the amount of the applicant ’ s fine constituted 3.47 % of the average wages in the relevant region of Ukraine at the material time. The Government contended, lastly, that the extraordinary review procedure prescribed by Article 294 of the Code was compatible with the requirements of the Convention and submitted statistical data proving, in their opinion, that, despite some lack of accessibility of the remedy concerned, it was still effective in practice.

The applicant disagreed.

The Court, assuming that Article 2 of Protocol No. 7 is applicable in the circumstances of the present case, finds that this complaint is inadmissible for the following reasons.

The Court notes that the second paragraph of Article 2 of Protocol No. 7 provides exceptions to the right guaranteed by the first paragraph of that Article concerning, inter alia , offences of minor character.

In the present case the applicant was sentenced for exceeding the speed limit while driving a vehicle, classified under the domestic law as an administrative offence, the maximum penalty for which was a fine of UAH 17 (about EUR 3). The Court, having particular regard to the relative modesty of the penalty, considers that the offence was of a minor character within the meaning of Article 2 of Protocol No. 7. The exception to the right to a review by a higher tribunal therefore applies.

The Court holds that this complaint should be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention .

3. T he applicant complained under Article 14 of the Convention that he had been discriminated against on linguistic grounds as the police report documenting his offence had been written in Ukrainian which he did not fully understand.

The Court has examined the applicant ’ s complaint and considers that, in the light of all the material in its possession and in so far as the matter complained of is within its competence, it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects it as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Joins to the merits the Government ’ s submission as to the applicability of Article 6 § 1 of the Convention and, accordingly, declares admissible the complaint based on that Article ;

Declares inadmissible the remainder of the application.

             Claudia Westerdiek Rait Maruste Registrar President

[1] About 3 euros (EUR)

[2] At the relevant time the tax-free monthly income was established in the amount of UAH 17.00 and constituted a fictional rate used for the determination of wages, taxes, fines, etc.