FIFTH SECTION

DECISION

Application no. 59855/13 Ella Stanislavivna MALYNOVSKA against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 9 December 2021 as a Committee composed of:

Arnfinn BÃ¥rdsen, President, Ganna Yudkivska, Mattias Guyomar, judges, and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 59855/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 September 2013 by a Ukrainian national, Ms Ella Stanislavivna Malynovska, born in 1967 and living in Kyiv (“the applicant”), who was granted leave to present her own case in the proceedings before the Court;

the decision to give notice of the complaints under Article 1 of Protocol No. 1 and Article 13 of the Convention, as well as Articles 6 and 7 of the Convention and Article 2 of Protocol No. 7, to the Ukrainian Government (“the Government”), represented by their then Agent, Mr Ivan Lishchyna, and to declare inadmissible the remainder of the application;

the applicant’s observations;

the decision not to admit the Government’s belated observations to the case file and the decision to include the relevant documents submitted by them in the case file;

Having deliberated, decides as follows:

SUBJECT-MATTER OF THE CASE

1. The case concerns the applicant’s complaints that the contempt ‑ of ‑ court proceedings against her were in breach of various requirements of Article 6 of the Convention, that she was denied the right of appeal under Article 2 of Protocol No. 7 and that the fine imposed on her was contrary to Article 7 of the Convention and Article 1 of Protocol No. 1. The applicant also complained under Article 13 of the Convention that she had not had an effective domestic remedy in respect of the last-mentioned complaint.

2. In March 2013 the applicant, a legal professional, was found guilty of contempt of court (an administrative offence) and was given a fine in the amount of 17,000 Ukrainian hryvnias [1] . As it transpires from the documents submitted by the Government, which were sent to the applicant and which she did not comment, she has not paid the fine. In June 2015 the bailiff discontinued the enforcement on the grounds that the applicant had no funds or possessions which could be seized. No further attempts to launch the enforcement were made within the legally envisaged three-month time-limit thereafter. In February 2017 the enforcement case file was destroyed on the expiry of the statutory storage period.

THE COURT’S ASSESSMENT

3. The applicant complained that the fine imposed on her exceeded the legally envisaged maximum by ten times and that she did not have an effective domestic remedy in that regard. She relied on Article 1 of Protocol No. 1 and Article 13 of the Convention.

4. The Government did not submit any observations within the time ‑ limit given for that purpose.

5. As it appears from the documents submitted by the Government and not disputed by the applicant, she neither paid the fine complained of nor is currently under an obligation to pay it (contrast, mutatis mutandis , Misiukonis and Others v. Lithuania , no. 49426/09, § 54, 15 November 2016). In particular, the applicant has not argued that such an obligation continued to exist and was practically enforceable after February 2017.

6. In the absence of any evidence of financial losses sustained by the applicant or any indication that she might still sustain such losses as a result of the fine imposed on her more than eight years ago, the Court considers that there has been no interference with the applicant’s property rights under Article 1 of Protocol No. 1, even if it was applicable.

7. It follows that her complaint under that provision is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

8. That being so, the applicant did not have an “arguable claim” for the purposes of Article 13 of the Convention (see KudÅ‚a v. Poland [GC], no. 30210/96, § 157, ECHR 2000 ‑ XI).

9. Accordingly, her related complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

10. The applicant also complained that the contempt-of-court proceedings against her had been in breach of various safeguards enshrined in Article 6 of the Convention, that the penalty imposed on her had been contrary to Article 7 of the Convention and that she had been denied the right of appeal under Article 2 of Protocol No. 7.

11. The general case-law principles regarding the assessment of the applicability of Article 6 under its criminal limb to contempt-of-court proceedings have been recently summarised in Gestur Jónsson and Ragnar Halldór Hall v. Iceland ([GC], nos. 68273/14 and 68271/14, §§ 75-83, 22 December 2020).

12. In the present case the offence in question was not classified as “criminal” under domestic law (the first Engel criterion).

13. As to the nature of the offence in question (the second Engel criterion), the Court has held that rules enabling a court to sanction disorderly conduct in proceedings before it are a common feature of legal systems of the Contracting States. Such rules and sanctions derive from the indispensable power of a court to ensure the proper and orderly functioning of its own proceedings. Measures ordered by courts under such rules are more akin to the exercise of disciplinary powers than to the imposition of a punishment for commission of a criminal offence. The kind of proscribed conduct for which the applicant in the present case was fined in principle falls outside the ambit of Article 6 of the Convention. The courts may need to respond to such conduct even if it is neither necessary nor practicable to bring a criminal charge against the person concerned (see Žugić v. Croatia , no. 3699/08, § 66, 31 May 2011, and Gestur Jónsson and Ragnar Halldór Hall , cited above, § 89).

14. Lastly, in so far as the nature and degree of severity of the penalty are concerned (the third Engel criterion), the Court notes that the kind of misconduct for which the applicant was held liable could not be sanctioned by imprisonment and that the fine at issue could not be converted into deprivation of liberty in the event of non-payment. Albeit not negligible, the size of the fine imposed on the applicant does not in the Court’s view suffice to deem the severity and nature of the sanction as “criminal” in the autonomous sense of Article 6 of the Convention (see Gestur Jónsson and Ragnar Halldór Hall , cited above, §§ 94-97).

15. It follows that the proceedings in question did not involve the determination of a “criminal charge” within the meaning of Article 6 of the Convention and that this provision did not apply to those proceedings under its criminal limb. In these circumstances and for reasons of consistency in the interpretation of the Convention and its Protocols taken as a whole, Article 7 of the Convention and Article 2 of Protocol No. 7 could not be regarded as being applicable either (see, mutatis mutandis , Gestur Jónsson and Ragnar Halldór Hall , cited above, §§ 112-13).

16. The Court therefore finds that this part of the application is incompatible ratione materiae with the provisions of the Convention or the Protocols thereto, and must be declared inadmissible, 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 20 January 2022.

Martina Keller Arnfinn BÃ¥rdsen Deputy Registrar President

[1] Equivalent to about 1,600 euros at the time.