Communicated on 31 August 2020 Published on 21 September 2020

FIFTH SECTION

Application no. 74576/13 Ella Stanislavivna MALYNOVSKA against Ukraine lodged on 15 November 2013

STATEMENT OF FACTS

The applicant, Ms Ella Stanislavivna Malynovska , is a Ukrainian national, who was born in 1967 and lives in Kyiv.

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

On 16 May 2013 a judge of the Kyiv Shevchenkivskyy District Court found the applicant guilty of petty hooliganism under Article 173 of the Code on Administrative Offences and sentenced her to five days ’ administrative detention. It was noted in the ruling that it could be appealed within ten days after its pronouncement, whereas the sentence was subject to immediate enforcement.

The applicant was placed in detention immediately thereafter.

On the same or on the following day she lodged an appeal. She also requested, without success, that the enforcement of her sentence be suspended pending the examination of her appeal.

On 21 May 2013 the applicant was released having served the administrative detention in full.

On 11 June 2013 the Kyiv City Court of Appeal returned the applicant ’ s appeal to her without examination. It held that it was competent to examine appeals only in respect of local courts ’ rulings which had not entered into force, whereas such ruling in the applicant ’ s case had entered into force and had been subject to enforcement immediately after its pronouncement. Accordingly, it was considered that there were no legal grounds for the appellate review.

Article 301 of the Code on Administrative Offences 1984 (as worded at the material time) provided that enforcement of an administrative penalty could be suspended for up to one month if there were circumstances complicating or rendering impossible the enforcement of the penalty of administrative detention or communal works.

Other relevant legal provisions are quoted in Shvydka v. Ukraine (no. 17888/12, §§ 16-17, 30 October 2014).

COMPLAINT

The applicant complains under Article 2 of Protocol No. 7 that she was deprived of the right to appeal against the ruling of the Shevchenkivskyy Court of 16 May 2013.

QUESTION S TO THE PARTIES

Was the applicant afforded the right of appeal envisaged by Article 2 § 1 of Protocol No. 7?

Did the absence of an appeal in the present case fall within the exceptions laid down by Article 2 § 2 of Protocol No. 7?