74576/13

FIFTH SECTION CASE OF MALYNOVSKA v. UKRAINE (Application no. 74576/13)             JUDGMENT   STRASBOURG 3 February 2022   This judgment is final but it may be subject to editorial revision. In the case of Malynovska v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Ivana Jelić, President,  Ganna Yudkivska,  Arnfinn Bårdsen, judges, and Martina Keller, Deputy Section Registrar, Having regard to: the application (no. 74576/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 15 November 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 complaint under Article 2 of Protocol No. 7 to the Ukrainian Government (“the Government”), represented by their then Agent, Mr I. Lishchyna, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 13 January 2022, Delivers the following judgment, which was adopted on that date: SUBJECT-MATTER OF THE CASE 1.  The case concerns the applicant’s complaint under Article 2 of Protocol No. 7 that she was denied the right of appeal in administrative offence proceedings. 2.  On 16 May 2013 a judge of the Kyiv Shevchenkivskyy District Court found the applicant guilty of petty hooliganism (an administrative offence) 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. 3.  The applicant was immediately placed in detention. She lodged an appeal and requested, without success, that the enforcement of her sentence be suspended pending the examination of her appeal. 4.  On 21 May 2013 the applicant was released having served the administrative detention in full. 5.  On 11 June 2013 the Kyiv City Court of Appeal returned her appeal 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 the ruling in the applicant’s case had entered into force and had been subject to enforcement immediately after its pronouncement. Accordingly, there were no legal grounds for appellate review. THE COURT’S ASSESSMENT 6.  The applicant complained that there had been a violation of her right of appeal in criminal matters under Article 2 of Protocol No. 7, given that her appeal had not had a suspensive effect in respect of the custodial sentence imposed on her and that even thereafter it had not been examined. 7.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 8.  The Government submitted that the applicant’s rights had not been breached. At the same time, they drew the Court’s attention to the decision of the Constitutional Court of 23 November 2018, by which the provisions of the Code on Administrative Offences on the immediate enforcement of custodial sentences in administrative offence proceedings had been declared “unconstitutional” and had been repealed on those grounds. 9.  The relevant provisions of the domestic legislation in force at the material time, as well as the general principles enshrined in the Court’s case-law regarding Article 2 of Protocol No. 7, can be found in Shvydka v. Ukraine (no. 17888/12, §§ 16 and 48-52, 30 October 2014). 10.  The circumstances of the present case are somewhat similar to those in the case of Shvydka (cited above, §§ 46-55). Like in the present case, the applicant in the cited case was found guilty of petty hooliganism under the Code on Administrative Offences and was sentenced to administrative detention. While the applicable legal provisions regarding the appellate review were the same, in the case of Shvydka the applicant’s appeal was examined on the merits, whereas in the present case the appellate court refused to examine the applicant’s appeal. 11.  The Court noted in Shvydka that the applicant’s appeal had had no suspensive effect and, by the time it had been examined, the applicant had already served her sentence in full. The Court found it inconceivable how that appellate review would have been able to effectively cure the defects of the lower court’s decision at such a belated stage. That was the key consideration that led the Court to finding a violation of Article 2 of Protocol No. 7 (see Shvydka, cited above, § 53). 12.  The situation in the present case was even worse: not only the applicant’s appeal had no suspensive effect in respect of her immediately enforceable custodial sentence, but it was never examined on the merits. 13.  While the Court takes note of the improvements in the domestic legislation referred to by the Government (see paragraph 8 above), they took place about five years after the events in the present case and are not relevant for the applicant’s complaint. 14.  It follows that there has been a violation of Article 2 of Protocol No. 7. APPLICATION OF ARTICLE 41 OF THE CONVENTION 15.  The applicant did not submit a claim for just satisfaction when invited to do so after the notice of the application had been given to the Government. Instead, she referred to her claim earlier formulated in the application form. 16.  The applicant was informed at the communication stage of the proceedings that the indication given by her at an earlier stage of her wishes regarding just satisfaction would not compensate for any failure to make such a “claim” in her observations. Consequently, in the light of the general principles set out in the Court’s case-law, and its established practice in such matters, the Court takes the view that the applicant did not submit a “claim” within the meaning of Rule 60 of the Rules of Court (see Nagmetov v. Russia [GC], no. 35589/08, §§ 57-62, 30 March 2017 and Eminağaoğlu v. Turkey, no. 76521/12, § 167, 9 March 2021. Accordingly, there is no “claim” to be examined. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a violation of Article 2 of Protocol No. 7. Done in English, and notified in writing on 3 February 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Martina Keller  Ivana Jelić  Deputy Registrar President