FIFTH SECTION
Application no. 10644/08
Yelena Aleksandrovna MIKHAYLOVA
against Ukraine
lodged on 27 November 2007
STATEMENT OF FACTS
The applicant, Ms Yelena Aleksandrovna Mikhaylova, is a Ukrainian national, who was born in 1957 and lives in Novaya Kakhovka. She is represented before the Court by Mr A.A. Kristenko, a lawyer practising in Kharkiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 2007 a municipal company instituted proceedings against the applicant in the Novokakhovskiy local court seeking recovery of utilities arrears. The applicant had previously appeared before that court as a party or as a representative.
On 1 June 2007 the applicant appeared before the court and challenged the presiding judge M. on the grounds that: she was not aware of any case in which the said judge had adopted a lawful decision, judge M. had not protected the applicant’s rights and those whom she had represented, judge M. had never accepted the challenges considering them being invented and subjective. Before the applicant had finished her request for replacement of judge M., the latter had announced a break and instructed her secretary to draw up an administrative offence report on the applicant. The report was drawn up at 10.04 and then passed to judge B. who examined it. The applicant was not informed about procedural rights and was not given time to prepare her defence. At 11.46 the judge announced the decision, in which the applicant was found guilty of contempt of court and punished with administrative arrest for five days. The applicant then spent five days in detention.
On 8 June 2007 the applicant complained about the court’s decision to the President of the Kherson Regional Court of Appeal, who rejected her complaint on 2 July 2007.
B. Relevant domestic law
The relevant domestic law is summarised in the judgments of Gurepka v. Ukraine (no. 61406/00, §§ 28-32, 6 September 2005) and Kornev and Karpenko v. Ukraine (no. 17444/04, §§ 25-28, 21 October 2010).
COMPLAINTS
The applicant complains under Article 7 of the Convention that her expressions could not be considered as contempt of court and that the latter offence was not formulated in the domestic law with sufficient precision. She further complains that her punishment was unlawful and unnecessary interference with her freedom of expression in breach of Article 10 of the Convention. The applicant complains under Article 6 § 1 of the Convention that the court was not impartial, given that in absence of a prosecutor it acted both as prosecuting and judicial authority. She also complains under Article 6 § 3 (b) that she had no time to prepare her defence, under Article 6 § 3 (c) that she was not represented and was not given time to arrange for such representation, and under Article 6 § 3 (d) that she could not question any witnesses. She finally complains that the decision of the court was not subject to ordinary appeal contrary to Article 2 of Protocol No. 7.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charge against her, in accordance with Article 6 § 1 of the Convention?
2. Given that the prosecution case is likely to have been presented by the judge B., was the court which dealt with the applicant’s case independent and impartial, as required by Article 6 § 1 of the Convention?
3. Was the applicant afforded adequate time and facilities to prepare her defence, as required by Article 6 § 3 (b) of the Convention?
4. Was the applicant able to defend herself through legal assistance of her own choosing, as required by Article 6 § 3 (c) of the Convention?
5. Was the applicant able to examine witnesses against her and to obtain the attendance of witnesses on her behalf, as required by Article 6 § 3 (d) of the Convention?
6. Has there been an interference with the applicant’s freedom of expression, within the meaning of Article 10 § 1 of the Convention? If so, was that interference necessary in terms of Article 10 § 2?
7. Was the applicant afforded the right of appeal against the decision of 1 June 2007 envisaged by Article 2 § 1 of Protocol No. 7?
8. Did the absence of an appeal in the present case fall within the exceptions laid down by Article 2 § 2 of Protocol No. 7?
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