Communicated on 22 November 2017
FOURTH SECTION
Application no. 10528/10
Anatoliy Petrovych KUTSAK
against Ukraine
lodged on 9 February 2010
STATEMENT OF FACTS
The applicant, Mr Anatoliy Petrovych Kutsak, is a Ukrainian national who was born in 1960 and lives in Kherson.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 2 October 2008 the Dniprovskiy District Court of Kherson, in the applicant’s absence, found the applicant liable for a breach of traffic regulations and decided to suspend his driving licence for one year. It was stated in the judgment that the applicant had been duly and in a timely manner informed of the hearing but had failed to appear and that, pursuant to the law, his presence was not mandatory for the resolution of the case. According to the applicant, he had not become aware of the proceedings until autumn 2009 (see below).
In July 2009, following a traffic accident, the applicant’s driving licence was temporarily seized by the police.
On 28 October 2009, when the applicant applied to the police for the return of his driving licence, the police refused his request, referring to the judgment of 2 October 2008. The police informed the applicant that, pursuant to the law, the enforcement of a court decision on the suspension of a driving licence starts from the moment of the actual seizure of that licence.
On 30 October 2009, at the applicant’s request, a copy of the judgment of 2 October 2008 was provided to him.
On 4 November 2009 the applicant appealed against the judgment, having requested the renewal of the time-limit for lodging his appeal. The applicant stated, in particular, that he had not been aware of the proceedings against him and that his home address as relied on by the court had not been up to date. He further pointed out that, in any event, the case-file contained no proof that any summons had been sent to him at any address or that he had received any such summons.
On 26 November 2009 the Kherson Regional Court of Appeal refused the applicant’s request for the renewal of the time-limit and left his appeal unexamined, having found (without giving any reasons) that the applicant had been duly informed of the hearing before the first instance court but had failed to appear. The decision of the Court of Appeal was final and not subject to appeal under the domestic law.
B. Relevant domestic law
Code on Administrative Offences of 7 December 1984 (as in force at the material time)
Section 268. Rights of a person against whom administrative proceedings have been brought
“A person against whom administrative proceedings have been brought shall be entitled to: ... give explanations, present pieces of evidence, [and] bring claims ... In the absence of the suspected person, the case can be considered only where there is information that he or she has received timely notification of the place and time of the hearing and if he or she has not requested an adjournment of the case ...”
COMPLAINT
The applicant complains under Articles 6 § 1 and 13 of the Convention that the decision against him in the administrative offence proceedings was taken without his having been involved in those proceedings and that his request for the renewal of time-limit for appealing against the above-mentioned decision was unlawfully rejected.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention, given the absence of the applicant from the court hearings of 2 October 2008 and the decision of the Kherson Regional Court of Appeal of 26 November 2009 by which the applicant’s request for the renewal of the time-limit for lodging an appeal against the judgment of 2 October 2008 was rejected?
2. Was the applicant duly informed of the hearing of 2 October 2008 before the Dniprovskiy District Court of Kherson and of its judgment of the same day?
The Government are requested to submit all relevant documents concerning the notification of the applicant of the impugned proceedings and their outcome.
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