Communicated on 21 April 2020 Published on 8 June 2020

FIFTH SECTION

Application no. 59855/13 Ella Stanislavivna MALYNOVSKA against Ukraine lodged on 12 September 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.

The applicant is a lawyer. On 13 March 2013 she participated in a hearing before the Kyiv Circuit Administrative Court as a representative of a party in administrative proceedings.

Later on the same day a judge of that court (it is not clear from the case file as it presently stands whether that judge had been involved in the above-mentioned administrative proceedings) delivered a ruling finding the applicant to be in contempt of court under Article 185-3 of the Code on Administrative Offences (see “Relevant domestic law” below) and fined her 17,000 Ukrainian hryvnias ((UAH); equivalent to about 1,600 euros (EUR) at the time).

It was noted that during the hearing the applicant “had behaved in a bold manner and had clearly been in contempt of court, which had been manifested by repeated insults of the court, in particular, stating that the judges were inadequate, that they did not understand the Ukrainian language, and that one of the judges on the bench had arrived at the hearing beaten up and drunk.”

The judge relied on the administrative offence report, which had been drawn up by a clerk earlier that day, the verbatim record, as well as the audio record, of the court hearing in question.

It was indicated that the applicant had been duly notified of the date, time and venue of the hearing in the administrative offence proceedings against her, but that she had not appeared and that she had not requested that the hearing be adjourned. According to the applicant, she had not been informed of that hearing.

Relying on paragraph 8 of part 1 of Chapter XIX “Final Provisions” and paragraph 5 of part 1 of Chapter XX “Transitional Provisions” (see “Relevant domestic law” below), the judge considered that the amount of the non-taxable minimum-level income to be used as the basis for the calculation of the fine was not UAH 17, but 50% of the subsistence minimum (UAH 11,470 for 2013), which gave UAH 573 ,50 .

Accordingly, the judge concluded, the fine applicable in the applicant ’ s case could vary from UAH 11,470 (that is twenty times UAH 573.50) to UAH 57,350 (that is one hundred times UAH 573.50). Under the circumstances, it was decided that UAH 17,000 was an appropriate amount.

The operative part was followed by a brief text printed in a smaller font, which stated, in particular, that the ruling could be appealed within ten days.

On 29 March 2013 the Kyiv Administrative Court of Appeal refused to examine the applicant ’ s appeal against the above-mentioned ruling. Relying on Article 221-1 of the Code on Administrative Offences, the appellate court stated that the first-instance court ’ s ruling was final and could not be appealed.

On 16 May 2013 the Higher Administrative Court rejected the applicant ’ s request for leave to appeal on points of law.

The relevant provisions read as follows:

Article 185-3. Contempt of court

“ Contempt of court, which is defined as malicious avoidance of summons by a witness, victim, plaintiff or defendant; or as failure by the above persons or others to comply with the orders of the presiding judge; or as violation of public order during a court hearing, or the committal by any person of acts which indicate blatant disrespect for the court or for the rules of court, shall be punishable by a fine of twenty to a hundred times the non-taxable minimum-level income.”

Article 221-1. [Administrative courts]

“... administrative courts ... examine cases on administrative offences under Article 185-3 of this Code.

A judicial ruling adopted as a result of examination of such a case shall be final and not amenable to appeal.”

Article 294. Entry into force of a judicial ruling on an administrative offence and its review

“A judicial ruling on an administrative offence shall enter into force after the expiry of the term for lodging an app eal, with the exception of ... rulings on administrative offences under Article 185-3 of this Code...”

The relevant provisions read as follows:

Chapter XIX. Final Provisions

“1. This Code shall enter into force on 1 January 2011, with the following exceptions:

...

[8] sub-paragraph 169.1.1 of paragraph 1 of Article 169 of this Code, which shall enter into force on 1 January 2015. Until 31 December 2014, for the purposes of [the above-mentioned] sub-paragraph the tax allowance shall be provided in the amount equal to 50% of the subsistence minimum for a person with working capacity (per month) legally established as of 1 January of t he fiscal year in question ... ; ...”

Chapter XX. Transitional Provisions

Part 1. Particularities of taxation of physical persons ’ revenues.

“...

5. If provisions of other laws contain a reference to the non-taxable minimum-level income, it shall [mean] the amount of [UAH] 17 for the purposes of the application [of those laws], with the exception of administrative and criminal legal provisions in the part concerning the qualification of administrative and criminal offences, for which the non-taxable minimum-level income shall be set at the amount of the tax allowance established by sub-paragraph 169.1.1 of paragraph 1 of Article 169 [of this Code].”

COMPLAINTS

The applicant complains, without relying on any provisions of the Convention, that she had not been aware of the existence of the administrative offence report in her respect, let alone that she was familiarised with its contents. Accordingly, she alleges, she was not provided with adequate time and facilities for preparing her defence.

The applicant next complains under Article 6 § 1 of the Convention that she had not been informed of the judicial examination of the administrative offence charge against her and that the hearing took place in her absence. She further complains that the judge dealing with the case was not impartial.

She also complains under Article 2 of Protocol No. 7 that she was deprived of the possibility to appeal against the Kyiv Circuit Administrative Court ’ s ruling of 13 March 2013 finding her guilty of contempt of court and imposing a fine on her.

Furthermore, the applicant alleges that the fine imposed on her exceeded ten times the maximum amount stipulated in the applicable legislation.

Lastly, she complains that the impugned fine was arbitrary, excessive and disproportionate and that it had devastating consequences for her financial situation. She also complains that she had no effective domestic remedy in that respect.

QUESTIONS TO THE PARTIES

1. Could the administrative offence proceedings against the applicant be regarded as “criminal” within the meaning of Articles 6 and 7 of the Convention, as well as Article 2 of Protocol No. 7?

2. Did the applicant have a fair hearing in the determination of the criminal charges against her, in accordance with Article 6 § 1 of the Convention, given her absence from the court hearing of 13 March 2013?

3. Was the judge who dealt with the applicant ’ s case impartial, as required by Article 6 § 1 of the Convention? Had that judge been involved in the hearing, during which the applicant had manifested behaviour later qualified as contempt of court?

4. Was the applicant afforded adequate time and facilities to prepare her defence , as required by Article 6 § 3 (b) of the Convention (see, mutatis mutandis , Kornev and Karpenko v. Ukraine , no. 17444/04, 21 October 2010)?

5. Was the applicant afforded the right of appeal envisaged by Article 2 § 1 of Protocol No. 7 (see Gurepka v. Ukraine , no. 61406/00, 6 September 2005, and Gurepka v. Ukraine (no. 2) , no. 38789/04, 8 April 2010)? Did the absence of an appeal in the present case fall within the exceptions laid down by Article 2 § 2 of Protocol No. 7?

6. Was a heavier penalty imposed on the applicant than the one which was applicable at the time of the commission of the offence in the present case, as proscribed by Article 7 of the Convention?

7. Was there a violation of the applicant ’ s rights under Article 1 of Protocol No. 1 on account of the fine imposed on her?

8. Did the applicant have an effective domestic remedy in respect of her above complaints under Article 7 of the Convention and Article 1 of Protocol No. 1, as required by Article 13 of the Convention?