FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 16347/02 by Olga Mykolayivna LUCHANINOVA against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 27 March 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr R. Maruste , Mr J. Borrego Borrego , Mrs R. Jaeger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 19 September 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Olga Mykolayivna Luchaninova, is a Ukrainian national who was born in 1947 and lives in the town of Trostyanets .

I. The circumstances of the case

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

A. P roceedings concerning the applicant ’ s claim for a new flat

Since 1992 t he applicant together with her daughter resided in a flat provided by her employer, the j oint s tock c ompany “Kraft Jacobs Suchard Ukraine” (the “Company”). In 1994 her daughter left and lived until 1996 in another country. Since December 1996 the applicant ’ s daughter and grandson resided together with the applicant in the impugned flat.

In December 1997 the applicant instituted civil proceedings in the Trostyanets Town Court (the “ Trostyanets Court ”) against the Company and the Trostyanets Town Council. She requested the court to order the defendants to provide her with a new flat, claiming that under domestic law they were obliged to do so. The applicant further submitted that her flat was too small for her family.

On 20 January 2000 the court ruled against the applicant. It found that the applicant was on the waiting list for a new flat. However, there was no flat available for her.

On 22 March 2000 the Sumy Regional Court (the “ Sumy Court ”) rejected the applicant ’ s appeal in cassation.

B. P roceedings concerning the applicant ’ s first dismissal

In December 1997 the applicant was transferred from her position of machine operator at the Company ’ s factory to a position of packer.

In January 1998 the applicant instituted civil proceedings in the Trostyanets Court against the Company, seeking the reinstatement in her previous position.

On 19 February 1998 the applicant was dismissed.

On 23 February 1998 she lodged a new claim with the same court, challenging her dismissal and seeking compensation. On 9 April 1998 the new claim was joined to the initial proceedings.

On 22 June 1998 the court found against the applicant. On 12 August 1998 the Sumy Court quashed that decision and remitted the case for a fresh consideration.

On 25 December 1998 the Trostyanets Court found in part for the applicant. It ordered the Company to reinstate the applicant in the position of packer and to pay her UAH 4,292.40 [1] in salary arrears. The applicant ’ s claim for reinstatement in the position of machine operator was dismissed.

By additional decision of 5 March 1999, the same court awarded the applicant UAH 113.55 [2] for costs and expenses.

Both parties appealed in cassation. In her appeal, the applicant challenged the first instance court ’ s assessment of facts.

On 24 March 1999 the Sumy Court upheld the decisions of 25 December 1998 and 5 March 1999.

C. P roceedings concerning the applicant ’ s alleged ill-treatment and forced labour

In July 1999 the applicant instituted proceedings in the Trostyanets Court against the Company and its management, Messrs D., P., and B., seeking compensation for damages. The applicant alleged that in January 1999 she had been forced, under psychological pressure of the latter persons, to work as a packer, although she had not been able to perform such work due to her state of health. As a result, the applicant had to undergo specialised medical treatment.

On 26 April 2000 the court rejected the applicant ’ s claims as unsubstantiated.

The applicant appealed in cassation, alleging the first instance court ’ s failure to examine all the circumstances of her case.

On 5 July 2000 the Sumy Court rejected the applicant ’ s appeal in cassation.

D. P roceedings concerning the applicant ’ s guardianship

In 1995 the Trostyanets Town State Administration appointed the applicant as her grandson ’ s guardian in view of his mother ’ s departure to another country. By decision of 21 May 1998, the Trostyanets Administration discontinued the applicant ’ s guardianship on the ground that she failed to fulfil her duties as a guardian.

In June 1998 the applicant challenged the latter decision before the Trostyanets Court . The applicant also sought compensation for non-pecuniary damage. On 9 December 1998 the court rejected the applicant ’ s cl aims.

On 3 February 1999 the Sumy Court partially changed the judgment of the first instance court. It held that the applicant ’ s guardianship was to be discontinued on the ground that the applicant ’ s grandson was no longer in need of guardian, as his mother had returned in December 1996 and lived with him.

E. Proceedings against the applicant

On 8 September 2000 a security officer of the Company drew up a report, in which he stated that in the course of the applicant ’ s work on 7 September 2000 she had stolen thirty-five labels, the total value of which had been UAH 0.42 [3] . These labels were found in the applicant ’ s possession when she was leaving the Company ’ s premises. The applicant acquainted herself with the report and explained to the administration of the Company that she had not had intention to use the labels, but had been going to throw them away.

On the same day the report was sub mitted to the Trostyanets Court , requesting to find the applicant guilt y of having committed an administrative offence within the meaning of Article 51 § 1 of the Code on Administrative Offences.

On an unspecified date the applicant requested the court to provide her with free legal assistance.

According to the applicant, between 10 September and 1 November 2000 she was undergoing inpatient examination and treatment in several medical institutions, of which she informed the court.

Between 3 and 22 November 2000 the applicant ’ s six-year- old grandson was undergoing specialized treatment in the Okhtyrka Town Clinic for Skin and Venereal Diseases with restricted public access. The applicant was staying with him in the clinic in view of his young age.

On 6 November 2000 the judge of the Trostyanets Court , who was dealing with the applicant ’ s case, came to the clinic and informed the applicant that he would hold a hearing in the room, where she was staying with her grandson. All other patients were asked to leave the room. The applicant objected to h olding the hearing in the room in the clinic . She also requested the judge to withdraw from the case. Her objection and request having been dismissed, she refused to participate in the hearing, but remained in the room. The hearing was held in the presence of a lawyer who was appointed by the court to defend the applicant. There were also four witnesses heard in person, all of whom were employees of the Company. Other persons were not allowed to enter the room.

On the same day the court found the applicant guilty of petty theft and imposed a fine amounting to UAH 51 [4] . In its resolution the court explained that the hearing had been held in the clinic due to the applicant ’ s repeated failure to appear before it.

The applicant lodged requests for supervisory proceedings with various authorities, includ ing the prosecutors and courts, alleging inter alia that the proceedings before the Trostynets Court had not been public and that she had not been able to exercise her rights to defence, to present evidence, and other procedural rights. According to the applicant, she was not informed about the hearing in advance and she did not consent to be represented by the court-appointed lawyer , as the latter had allegedly represented the Company in other proceedings to which she had been a party .

On 3 April 2001 the Deputy Prosecutor of the Sumy Region lodged with the Sumy Court a request for supervisory review ( protest ) of the applicant ’ s case. The prosecutor submitted that the Trostyanets Court had wrongly assessed the evidence in the case and had misapplied domestic law. The prosecutor also alleged that due to the fact that the hearing had been held in the clinic the applicant had not been able to exercise her procedural rights.

On 9 April 2001 the President of the Sumy Court rejected the protest. As regards the fact that the Trostyanets Court had held a hearing in the clinic, the president of the regional court found that the applicant ’ s procedural rights had not been violated, since during that hearing she had been represented by a lawyer and she had not informed the court about any intention to submit evidence or to question witnesses.

On 18 June 2001, the President of the Supreme Court reviewed the case, part ially changed the resolution of 6 November 2000. It issued a reprimand against the applicant , instead of the fine, noting the lack of seriousness of the offence.

There was no hearing held either before the Sumy Court or the Supreme Court. Their decisions were based on an examination of the file and contained no reference to the applicant ’ s submissions in the decisions.

F. Civil proceedings concerning the applicant ’ s second dismissal

On 11 January 2001 the applicant was dismissed from her position of packer on the ground that she had stolen the Company ’ s property.

On 16 January 2001 the applicant lodged with the Trostyanets Court a civil law claim against the Company, seeking the reinstatement in her position of packer and compensation.

On 19 April and 18 May 2001 the applicant requested the court to adjourn the case pending the outcome of her complaints against the resolution of the Trostyanets Court of 6 November 2000, by which she had been found guilty of an administrative offence. The applicant also requested the judge, dealing with her civil case, to withdraw on the grounds that he lacked impartiality. Her latter request was rejected by the president of the Trostyanets Court as unsubstantiated.

On 21 May 2001 the court left the applicant ’ s civil claims without consideration due to her failure to appear.

On 28 July 2001 the applicant appealed against the decision of 21 May 2001. While she did not contest the first instance court ’ s finding that she had been absent from the hearings scheduled by that court, the applicant contended that it had unlawfully refused to adjourn the case. She further alleged that the first instance judge had not been impartial.

On 21 August 2001 the Sumy Regional Court of Appeal (the former Sumy Regional Court ) rejected the applicant ’ s appeal. It held that the applicant ’ s requests for adjournment of the case and her objection to the first instance judge ’ s participation in the case could not justify her failure to appear before that court. On 25 January 2002 a panel of three judges of the Supreme Court rejected the applicant ’ s request for leave to appeal in cassation.

On 22 August 2001 the applicant resubmitted to the Trostyanets Court her civil claims for the reinstatement in her position of packer and for compensation.

On 3 July 2002 the court rejected her claims as unsubstantiated. The court, referring to the resolution of 6 November 2000 by which the applicant had been found guilty of theft of the Company ’ s property, held that the applicant had been lawfully dismissed.

On 30 July 2002 the applicant appealed against the judgment of 3 July 2002, alleging that the first instance court had wrongly assessed the evidence and had misapplied domestic law. In particular, the applicant argued that the court had not taken into account the fact that the resolution of the Trostyanets Court of 6 November 2000 had been partially changed by the Supreme Court.

On 16 September 2002 the Sumy Regional Court of Appeal rejected the applicant ’ s appeal. On 25 February 2003 a panel of three judges of the Supreme Court rejected the applicant ’ s request for leave to appeal in cassation.

II. Relevant domestic law

Under Article 38 of the Code on Administrative Offences, as worded at the material time, (the “Code”), an administrative sanction could be imposed within two months following the day on which an offence was committed.

Article 51 § 1 of the Code envisaged the following sanctions for petty theft of collective property, including property of private companies, or State -owned property: a fine in the amount of three to ten statutory minimum amounts of the citizens ’ income not subject to taxation; or corrective works for a period from one to two months accompanied by deduction of twenty percent of the salary.

Pursuant to Article 249, the cases concerning administrative offences were to be considered at a public hearing . For educational and preventive purposes, such cases could be considered at the place of work, studies or residence of an offender.

Under Article 268 § 2, the presence of a defendant in proceedings concerning certain administrative offences, including the one envisaged by Article 51, was obligatory. In case of the defendant ’ s failure to appear before the court, he or she could be brought before it by the police.

According to Article 276 § 1, the cases concerning administrative offences generally were to be considered in the location in which the offence was committed.

Pursuant to Article 287 of the Code, the first instance court ’ s resolution, imposing an administrative sanction, was final and was not normally subject to appeal .

Article 290 provided that a prosecutor could lodge an extraordinary appeal ( protest ) against such a resolution.

Article 294 of the Code provided that a court resolution concerning an administrative offence could be reviewed by the same judge, who had adopted it, upon an extraordinary appeal lodged by a prosecutor; or by the president of a higher court on his or her own motion.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that the proceedings against her had not been public and that her rights envisaged in Article 6 § 3 (b), (c), and (d) of the Convention had been violated in the course of these proceedings. In particular, she submitted that she had not been provided with adequate time and facilities to prepare her defence and that she had not been able to obtain the attendance and examination of witnesses on her behalf, since she had not been informed in advance of the hearing on 6 November 2000 and had not been able to consult a lawyer . Furthermore, t he court-appointed lawyer was not the lawyer of her choice.

She also complained about the lack of effective domestic remedies , as required by Article 13 of the Convention , in that her submissions concerning the unfairness of the proceedings against her and the unlawfulness of the resolution of Trostyanets Court of 6 November 2000 had not been considered by the higher courts.

The applicant further alleged that in January 1999 she had been subjected to ill-treatment and had been required to perform forced labour by the management of the company for which she had worked. She invoked Articles 3 and 4 § 2 of the Convention.

The applicant also complained about a violation of Article 5 § 1 of the Convention without any further specification.

The applicant complained under Articles 6 § 1 and 13 of the Convention about the unfairness, outcome and length of the civil proceedings to which she was a party.

The applicant finally complained about a violation of Article 8 § 1 of the Convention on account of the outcome of the guardianship proceedings concerning her grandson .

THE LAW

1. The applicant complained about the unfairness and outcome of the proceedings against her. She invoke d Article 6 § § 1 and 3 (b), (c), and (d), which provide s , in so far as relevant, as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by a ... tribunal...

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by a ... tribunal ... Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

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... ”

The applicant further complained about the lack of effective domestic remedies in respect of her complaints about the unfairness of the proceedings against her. She invoked Article 13, which reads:

“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 considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.

2. The Court has examined the remainder of the applicant ’ s complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of were within its competence, they did not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

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

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaints under Article 6 § 1 of the Convention separately and in conjunction with Article 6 § 3 (b) and (c) concerning the alleged unfairness of the proceedings against the applicant and her complaints about the lack of effective remedies in respect of the above allegations ;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President

[1] . Around 927 euros – “EUR”.

[2] . Around EUR 25.

[3] . Around EUR 0.09.

[4] . Around EUR 11.