FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 1798/03
by Mammed Useinovich SETTAROV
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 16 March 2010 as a Chamber composed of:
Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Mark Villiger,
Isabelle Berro-Lefèvre,
Zdravka Kalaydjieva, judges,
Mykhaylo Buromenskiy, ad hoc judge,
and Claudia Westerdiek, Section Registrar.
Having regard to the above application lodged on 4 December 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Mammed Useinovich Settarov, is a Ukrainian national of Tatar origin who was born in 1975 and lives in Simferopol. He was represented before the Court by Mr N. Gurepka, a lawyer practising in the same city. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 24 April 2002 the applicant was involved in a car accident.
According to a report drawn up by the police on the same day, the applicant had been responsible for the accident.
On an unspecified date the police transferred the case to the Zaliznodorozhnyy District Court of Simferopol for adjudication.
By a resolution of 14 August 2002, the court discontinued the proceedings against the applicant as time-barred. In the same resolution it found that the car accident had been caused by the applicant and that he had committed an offence provided for in Article 124 of the Code on Administrative Offences. The court’s finding was based on the police report, the conclusions of an expert concerning the accident and the victim’s statements. The court did not accept the applicant’s version of the event, though it was confirmed by two witnesses, who had been in the applicant’s car on 24 April 2002.
Subsequently, the applicant asked the prosecutors to lodge a protest against the resolution of 14 August 2002. The prosecutors refused.
B. Relevant domestic law
The relevant law is summarised in Rybka v. Ukraine ((dec.), no. 10544/03, 17 November 2009).
COMPLAINTS
The applicant complained, under Article 6 § 1 of the Convention, that the proceedings had been unfair, alleging that the judge dealing with his case had not been independent and impartial.
The applicant further complained, under Article 14 of the Convention, that he had suffered discrimination in the exercise of his rights under Article 6 on the ground of his ethnic origin.
The applicant finally complained, in substance relying on Article 2 of Protocol No. 7, about the lack of a possibility to appeal against the court decision by which he had been declared guilty of an administrative offence.
THE LAW
1. The applicant complained that he had had no possibility to appeal against the resolution of 14 August 2002. Article 2 of Protocol No. 7 reads as follows:
“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.
2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.”
The Government maintained that the proceedings in the applicant’s case were administrative and that the domestic law made a clear distinction between a criminal and an administrative offence. They submitted that Article 2 of Protocol No. 7 was not applicable in the present case.
The applicant contended that the proceedings at issue were criminal for the purposes of the Convention, despite their domestic classification.
The Court reiterates that Article 2 of Protocol No. 7 guarantees to “everyone convicted of a criminal offence” the right to have the conviction reviewed by a higher tribunal.
In this context, the Court notes that, even assuming that the impugned proceedings were criminal for the purposes of the Convention, the resolution of 27 December 2001 was not a conviction within the meaning of Article 2 of Protocol No. 1 (see Rybka, cited above). Though it may be argued that the charges against the applicant were in fact determined by the domestic court, the formal outcome of the proceedings was that these charges were dropped as time-barred, which did not constitute a formal finding of guilt or imposition of a penalty.
Accordingly, the Court concludes that Article 2 of Protocol No. 7 is not applicable ratione materiae in the present case and that this part of the application must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The applicant further complained, separately under Article 6 § 1 of the Convention and in conjunction with Article 14, that the proceedings against him had been unfair and that he could not exercise his procedural rights because of his ethnic origin.
In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that these complaints must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy