FIFTH SECTION

DECISION

Application no. 21971/10 Mykola Stepanovych SALOGUB against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 10 December 2019 as a Committee composed of:

Síofra O ’ Leary, President, Ganna Yudkivska, Lado Chanturia, judges, and Milan Blaško, Deputy Section Registrar ,

Having regard to the above application lodged on 7 April 2010,

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

1 . The applicant, Mr Mykola Stepanovych Salogub, is a Ukrainian national who was born in 1982 and lives in Chernivtsi. He was represented before the Court by Mr B.V. Fokiy, a lawyer practising in Chernivtsi.

2 . The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.

3 . On 9 October 2018 the Government were given notice of the complaints concerning the applicant ’ s inability to call and examine witnesses and his absence from the appellate proceedings, whereas the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

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

5 . On 9 September 2009, the applicant (a student at the time) was stopped by the traffic police when driving a motorbike with a passenger, Sh. The police officer drew up an administrative-offence report, stating that the applicant had violated Article 130 § 1 of the Code of Administrative Offences (see paragraph 17 below). It was noted that he had been driving a motorbike with clear signs of alcohol intoxication (a strong smell of alcohol and a red face) and that he had refused to go to a hospital in order to establish his blood-alcohol level.

6 . The field in the report template “Statements of the person subject to administrative liability on the substance of the offence” contained the following hand-written statement and the applicant ’ s signature:

“I have been driving a motorbike after having drunk half a litre of beer. I admit my guilt. I refuse to go to a hospital for a medical examination with a view to establishing my blood-alcohol level.”

7 . The report referred to two witnesses, N. and R., and contained their full names, addresses and signatures.

8 . Lastly, it was noted that Sh., who had a driving licence too, had got behind the handlebars of the motorbike after the incident.

9 . The applicant ’ s account of his encounter with the traffic police, as presented in his application lodged with the Court, is different from that reflected in the above-mentioned report. According to the applicant, the officer asked him if he had consumed any alcohol. The applicant replied in the negative and expressed his willingness to undergo an alcohol test. Following that, the police officer made a remark that the applicant did not have a motorcycle helmet and drew up an administrative-offence report in that regard. He threatened the applicant that if the latter did not sign it, his motorbike would be seized. The applicant signed the report in the police vehicle, where it was dark. He could not see its contents. He was convinced that it concerned the absence of a motorcycle helmet.

10 . Furthermore, according to the applicant, apart from Sh., who was not asked to sign the police report, there were no witnesses. He claimed that the police officer had invented witnesses N. and R.

11 . On 27 October 2009 the applicant ’ s lawyer submitted to the Chernivtsi Sadgirskyy District Court (“the Sadgirskyy Court”) an application to summon Sh., N. and R. as witnesses. The reasons provided were as follows:

“[Sh.] was present during the drawing up of the administrative-offence report in respect of [the applicant], because the latter was giving him a lift on [his motorbike]. Accordingly, this person has knowledge of all the circumstances to be established in the proceedings.

However, contrary to the requirements of the Code of Administrative Offences, the report of 9 September 2009 does not contain [Sh. ’ s] signature or any reference to the fact that [he] was present during the drawing up of the report.

Furthermore, the administrative-offence report refers to the names of the persons who were not present during the drawing up of that report and whom neither [the applicant] nor [Sh.] know.

It is therefore considered necessary that [N.] and [R.] be summoned to give evidence.”

12 . The above-mentioned application was rejected. The case file before the Court does not contain a copy of the decision in that regard.

13 . On 25 November 2009 the Sadgirskyy Court found the applicant guilty as charged and sentenced him to a fine of 3,000 Ukrainian hryvnias (UAH – at the time equal to about 250 euros (EUR)). At the court hearing the applicant did not admit his guilt and explained that he had not been drunk and that he had been forced to sign the police report as he had been afraid that his motorbike would be taken away from him. The court considered, however, that the applicant ’ s guilt had been sufficiently established by his own written statement in the administrative-offence report, in which he had admitted to having drunk beer prior to driving and had refused to undergo an alcohol test.

14 . On 4 December 2009 the applicant lodged an appeal, in which he alleged that the first-instance court had not established all the circumstances of the case in a comprehensive manner and had not questioned a single witness. The applicant referred to his application for summoning witnesses of 27 October 2009 and repeated its reasoning.

15 . The Government provided a copy of the letter from the Chernivtsi Regional Court of Appeal (“the Regional Court”) of 22 December 2009 notifying the applicant of a hearing scheduled at 11 a.m. on 28 December 2009. It appears that that letter was sent by ordinary mail. According to the applicant, he did not receive it.

16 . On 28 December 2009 the Regional Court upheld the judgment of the Sadgirskyy Court. It observed that, as the applicant had himself written in the police report, he had drunk half a litre of beer before driving. Accordingly, the appellate court considered that the arguments advanced by the applicant in his appeal were groundless. It noted in its ruling that the applicant had been duly notified of the hearing, but had not appeared for it. Nor had there been any representative for the prosecution present. The appellate court delivered its ruling on the basis of the examination of case ‑ file material and the applicant ’ s appeal.

17 . Article 130 § 1 of the Code of Administrative Offences (“the Code”) of 1984 (as amended) establishes administrative liability for driving a vehicle under the influence of alcohol or refusal of a driver to undergo an alcohol test. The penalty for this offence at the pertinent time was: a fine from 150 to 200 times the non-taxable income amount (meaning from UAH 2,550 to UAH 3,400; or, in the euro equivalent, from EUR 198 to EUR 265); or suspension of a driving licence for a period of one to two years; or community service for forty to fifty hours; or administrative detention for seven to ten days.

18 . Article 256 of the Code regulates the contents of an administrative-offence report. It states that it must contain, in particular, the names and addresses of witnesses and victims if such exist, the statement of the person being brought to administrative liability, as well as other information required to resolve the case.             

19 . Article 272 of the Code defines a witness as any person known to have information on any circumstances to be established in the proceedings.

COMPLAINTS

21 . The applicant complained that the administrative-offence proceedings against him had been in breach of Article 6 §§ 1 and 3 (d) of the Convention.

THE LAW

22 . The applicant complained that he had not been able to call and examine Sh., N. and R. as witnesses and that the appellate court had examined the case in his absence. He relied on Article 6 §§ 1 and 3 (d) of the Convention which reads, in so far as relevant:

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

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(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...”

(a) The applicant

23 . The applicant submitted that the only evidence, on the basis of which he had been convicted, had been the police report of 9 September 2009. While it had referred to three witnesses, none of them had been called and questioned in the court hearing, in spite of the applicant ’ s application to that effect.

24 . The applicant emphasised that Sh. had been the only witness for the defence capable of confirming his version of the events and that by refusing to summon that witness the courts had seriously undermined the fairness of the proceedings.

25 . As regards the other two witnesses referred to in the police report, N. and R., the applicant considered them to be the witnesses for the prosecution and alleged that they had been merely invented by the police. Accordingly, the applicant argued, attempting to summon those witnesses would have proven that the case against him had been fabricated.

26 . Lastly, the applicant noted that the decisions of both the first ‑ instance court and the appellate court had been silent on the issue of witness evidence altogether, let alone giving any reasons for rejecting his related motion.

(b) The Government

27 . The Government submitted that the applicant had had a fair trial. They argued that he had had an ample opportunity to present his version of the events and that the courts of two levels of jurisdiction had examined the totality of evidence in an adversarial manner.

28 . The Government also observed that the applicant had never denied the contents of his written statement in the administrative-offence report of 9 September 2009.

(a) As regards the witness Sh.

(i) General case-law principles on witnesses for defence

29 . The Court clarified and restated the general principles concerning the right to obtain attendance and examination of “witnesses on behalf” of the defence in Murtazaliyeva v. Russia ( [GC], no. 36658/05, §§ 139, 144-49 and 158-67, 18 December 2018 ) .

30 . Specifically, in that case (§ 158) the Court formulated the following three-pronged test for a situation where a request for the examination of a witness on behalf of the accused has been made in accordance with domestic law:

“ 1. Whether the request to examine a witness was sufficiently reasoned and relevant to the subject matter of the accusation?

2. Whether the domestic courts considered the relevance of that testimony and provided sufficient reasons for their decision not to examine a witness at trial?

3. Whether the domestic courts ’ decision not to examine a witness undermined the overall fairness of the proceedings?”

(ii) Application of the above principles to the present case

 Whether the request to examine a witness was sufficiently reasoned and relevant to the subject matter of the accusation?

31 . The Court observes that the applicant reasoned his request to examine Sh. as a witness by the reference to the latter ’ s presence during the drawing up of the administrative-offence report. According to the applicant, that fact was a sufficient indication that Sh. “[had] knowledge of all the circumstances to be established in the proceedings” (see paragraph 11 above).

32 . While the Court takes note of the briefness of the reasoning given by the applicant, it accepts that under the circumstances the relevance of that defence witness ’ s testimony was so apparent that even such scant reasoning could be regarded as sufficient to answer the first question of the test in the affirmative (see Murtazaliyeva , cited above, § 161, with further references; compare Pello v. Estonia , no. 11423/03, § 33, 12 April 2007).

 Whether the domestic courts considered the relevance of that testimony and provided sufficient reasons for their decision not to examine a witness at trial?

33 . Since the Convention does not require the attendance and examination of every witness on behalf of the accused, the courts cannot be expected to give a detailed answer to every application of the defence but must provide adequate reasons. The reasoning of the domestic courts must be commensurate, that is to say adequate in terms of scope and level of detail, with the reasons advanced by the defence. The stronger and weightier the arguments advanced by the defence, the closer must be the scrutiny and the more convincing must be the reasoning of the domestic courts if they refuse the defence ’ s request to examine a witness (see Murtazaliyeva , cited above, §§ 164-66).

34 . Turning to the present case, the Court notes that it is not clear whether there was a separate decision of the Sadgirskyy Court rejecting the applicant ’ s motion for calling witnesses or whether that issue was dealt with in the court ’ s judgment of 25 November 2009 only (see paragraphs 12 and 13 above). As is apparent from the reasoning provided in the above ‑ mentioned judgment, the court considered the applicant ’ s guilt to have been established by his written statement in the administrative-offence report, which the applicant had not contested (see paragraph 13 above). This implied that no other evidence, including witness evidence, was considered relevant. The Court considers that assessment to be reasonable and commensurate with the reasons advanced by the defence (see paragraph 11 above).

( γ ) Whether the domestic courts ’ decision not to examine a witness undermined the overall fairness of the proceedings?

35 . The Court has held in its case-law that the examination of the impact which a decision refusing to examine a defence witness at the trial has on the overall fairness of the proceedings is indispensable in every case. Compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident. In the Court ’ s opinion, the preservation of overall fairness as the final benchmark for the assessment of the proceedings ensures that the above three-pronged test does not become excessively rigid or mechanical in its application. While the conclusions under the first two steps of that test would generally be strongly indicative as to whether the proceedings were fair, it cannot be excluded that in certain, admittedly exceptional, cases considerations of fairness might warrant the opposite conclusion (see Murtazaliyeva , cited above, §§ 167 and 168).

36 . The Court observes that in the present case the key incriminating evidence against the applicant was the police report of 9 September 2009. As he was assisted by a lawyer of his choosing, the applicant was able to comment without hindrance on that decisive piece of evidence, to adduce any further evidence he considered relevant and to present his account of the events to the domestic courts. It is noteworthy, however, that the applicant has never argued that the handwritten self-incriminating statement in his name in the above-mentioned administrative-offence report was not written by his hand. If it was not his handwriting, it is not clear why he did not point that out during his trial or in his appeal. Indeed, the Court notes that the applicant consistently argued that the police report had been forged in the part concerning the reference to witnesses N. and R., but never in the part concerning his own statement therein (see paragraphs 14 and 23 - 26 above).

37 . The Court also notes that the applicant has neither denied nor commented, at the domestic level or before this Court, the fact indicated in the administrative-offence report that after the encounter with the traffic police it was Sh. who had got behind the handlebars of the motorbike (see paragraph 8 above). There must have been a reason for that, and the applicant ’ s alcohol intoxication appeared a more plausible reason than the supposed absence of a motorcycle helmet.

38 . In sum, having regard to the evidence, on the basis of which the applicant was convicted, the manner in which the domestic courts assessed that evidence, and the applicant ’ s procedural behaviour as outlined above, the Court considers that the domestic courts ’ decision not to summon Sh. did not undermine the overall fairness of the proceedings.

(b) As regards the witnesses N. and R.

39 . The Court formulated the general principles concerning the right to obtain attendance and examination of witnesses for prosecution in Al ‑ Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 119-47, ECHR 2011) and further clarified them in Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 110-31, ECHR 2015).

40 . The two cited cases, as well as numerous subsequent cases, in which the Court has applied the relevant general principles, concerned situations where a prosecution witness had not attended trial and statements previously made by him or her had been admitted as evidence. The preliminary question to be examined when applying the test developed by the Court for such situations is whether there was a good reason for admitting the evidence of an absent witness, keeping in mind that witnesses should as a general rule give evidence during the trial and that all reasonable efforts should be made to secure their attendance. The Court does not find it necessary to go through the other aspects of the test at issue in the present case for the reasons explained below.

42 . Although the applicant formulated this complaint as concerning the refusal of the domestic courts to summon witnesses from prosecution, the Court observes that its substance rather indicates an allegation of the falsification of the administrative-offence report by the police in so far as it contained references to the witnesses N. and R.

43 . The Court reiterates that it is not its function to deal with alleged errors of law or fact committed by the national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention, for instance where they can be said to amount to “unfairness” in breach of Article 6 of the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way in which evidence should be assessed, these being primarily matters for regulation by national law and the national courts. In principle, issues such as the weight attached by the national courts to particular items of evidence or to findings or assessments submitted to them for consideration are not for the Court to review. The Court should not act as a fourth ‑ instance body and will therefore not question under Article 6 § 1 the national courts ’ assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable (see, for example, De Tommaso v. Italy [GC], no. 43395/09, § 170, 23 February 2017, with further case-law references).

44 . In the present case the Court sees no reason to question the findings and conclusions of the domestic courts in the administrative-offence proceedings against the applicant, including their approach to assessing the police report of 9 September 2009. Accordingly, an isolated consideration of t he particular incident regarding the allegedly inaccurate reference in that report to the witnesses N. and R. would be unjustified (see paragraph 35 above).

(c) Conclusion

45 . On the basis of the foregoing, the Court concludes that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

46 . The applicant submitted that he had not been aware of the appellate court ’ s hearing and had not therefore been able to attend it. Accordingly, he maintained, he had not been afforded a public hearing and had been deprived of the possibility to present his arguments to the appellate court.

47 . The applicant argued that the circumstances of his case were similar to those in Lazarenko and Others v. Ukraine , in which the Court had found a violation of Article 6 § 1 on account of the applicants ’ unawareness of the appeal proceedings (nos. 70329/12 and 5 others, § 44, 27 June 2017).

48 . The Government submitted that the applicant had been duly notified of the date and time of the appellate hearing. In substantiation, they referred to the notification letter sent by the Regional Court to the applicant on 22 December 2009 by standard post (see paragraph 15 above).

49 . The applicant denied having received that letter.

50 . The Court notes that, according to the applicant, his absence from the appellate hearing amounted to a breach of the following two safeguards enshrined in Article 6: firstly, the requirement of a public hearing and, secondly, the equality-of-arms principle.

(a) Lack of a public hearing

51 . The Court reiterates that a person charged with a criminal offence should, as a general principle based on the notion of a fair trial, be entitled to be present at the first-instance hearing. However, the personal attendance of the defendant does not take on the same crucial significance for an appeal hearing as it does for the trial hearing. The manner of application of Article 6 to proceedings before courts of appeal depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein (see, among many other references, Hermi v. Italy [GC], no. 18114/02, § 60, ECHR 2006 ‑ XII).

52 . Furthermore, the Court found that in the light of the broadening of the notion of a “criminal charge” to cases not belonging to the traditional categories of criminal law (such as administrative penalties, customs law and tax surcharges), there were clearly “criminal charges” of differing weights. While the requirements of a fair hearing are strictest concerning the hard core of criminal law, the guarantees of the limb of Article 6 applying to criminal law do not necessarily apply with their full stringency to other categories of cases falling under that head and which do not carry any significant degree of stigma (see Jussila v. Finland [GC], no. 73053/01, § 43, ECHR 2006 ‑ XIV).

53 . The Court observes that the proceedings against the applicant in the present case concerned the administrative offence of driving under the influence of alcohol, which, as such, does not belong to the traditional categories of criminal law (see Suhadolc v. Slovenia (dec.), no. 57655/08, 17 May 2011).

54 . The Court notes that the applicant, who was represented by a lawyer of his choosing, was present during the hearing before the first-instance court and was able to advance all the arguments deemed necessary for his defence (see paragraphs 11 and 13 above).

55 . It appears from the case-file material that the appellate court initially intended to examine the case in a public and oral hearing. However, in the absence of the applicant and any representative from the prosecution, it eventually considered the case on the basis of written material only (see paragraphs 15 and 16 above).

56 . Regardless of whether the applicant received the notification letter about the appellate court ’ s hearing, the Court considers that, in the circumstances of the present case, which are characterised by the minor nature of the offence in issue and the pecuniary sanction imposed, the applicant ’ s absence from that hearing does not disclose a breach of the “public hearing” rule under Article 6 § 1 (compare Van Velzen v.the Netherlands (dec.), no. 21496/10, 17 May 2016).

(b) Compliance with the equality-of-arms principle

57 . The Court reiterates that the principle of equality of arms requires that each party should be afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent (see Dombo Beheer B.V. v. the Netherlands , 27 October 1993, § 33, Series A no. 274, and Avotiņš v. Latvia [GC], no. 17502/07, § 119, ECHR 2016 ). Each party must be given the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party, including the other party ’ s appeal. What is at stake is the litigants ’ confidence in the workings of justice, which is based on, inter alia , the knowledge that they have had the opportunity to express their views on every document in the file (see Beer v. Austria , no. 30428/96, §§ 17-18, 6 February 2001).

58 . The Court notes that the circumstances of the present case considerably differed from those in the case of Lazarenko and Others referred to by the applicant (see paragraph 47 above). In the cited case the applicants had obtained a decision favourable for them at first instance (civil proceedings) but had not been informed of the adversary party ’ s appeal. Accordingly, the Court concluded that they had been deprived of an opportunity to comment on the appeals lodged in their cases and that therefore there had been a breach of the principle of equality of arms.

59 . In the present case it was the applicant who lodged an appeal and there were no comments on it by the prosecution (at least the appellate court mentioned none in its ruling; see paragraphs 14 and 16 above).

60 . Furthermore, the Court notes that during the examination of the case by the appellate court, which the applicant was not able to attend, there was no representative of the prosecution (the traffic police).

61 . It follows that the applicant failed to show how his absence from the appellate court had placed him at a substantial disadvantage.

(c) Conclusion

62 . The Court therefore concludes that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 January 2020 .

Milan Blaško Síofra O ’ Leary Deputy Registrar President