FIFTH SECTION
Application no. 55339/07
Danuta Zbignevna SHESTOPALOVA
against Ukraine
lodged on 19 November 2007
STATEMENT OF FACTS
The applicant, Ms Danuta Zbignevna Shestopalova, is a Ukrainian national, who was born in 1971 and lives in the city of Melitopol, Ukraine.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Reinstatement dispute
Between 2004 and 2006 the applicant was head of the Disadvantaged Persons’ Service Centre of the Melitopol City Council (Центр по обслуговуванню одиноких, непрацездатних та малозабезпечених громадян Управління праці, соціального захисту та житлових субсидій Мелітопольської міської Ради) (“the Centre”). On 21 April 2006 she was dismissed as part of reorganisation of the Centre. Later another person was appointed to a position similar to the one previously occupied by the applicant.
In May 2006 the applicant instituted civil proceedings in the Melitopolskyy Local Court (“Melitopolskyy Court”) seeking reinstatement, salary arrears and compensation for non-pecuniary damage. On 24 October 2006 the court rejected the applicant’s claim. It found that the applicant had been offered another position but she had rejected this proposal, and that a more experienced person had been appointed as the head of the Centre. On 7 December 2006 the Zaporizhzhya Regional Court of Appeal upheld the decision of 24 October 2006. On 22 August 2007 the Supreme Court of Ukraine quashed these decisions and remitted the case to a first instance court for a fresh consideration. It held that the case was to be considered under the administrative justice procedure since it concerned a public service dispute.
On 21 February 2008 the Melitopolskyy Court again found against the applicant for the reasons similar to the ones invoked in its decision of 24 October 2006. On 16 July 2008 the Dnipropetrovsk Administrative Court of Appeal quashed this decision and terminated the proceedings in the case on the ground that it fell to be examined under the civil justice procedure as the applicant was not a public servant. On 2 March 2011 the Higher Administrative Court of Ukraine upheld this decision. On 14 April 2011 the same court rejected the applicant’s request for leave to appeal to the Supreme Court of Ukraine against the decision of 2 March 2011.
B. Criminal proceedings against the applicant
In July 2006 the police instituted criminal proceedings against the applicant for bribery. She was also obliged not to abscond.
On 17 April 2007 the Melitopolskyy Court found the applicant guilty of bribery and sentenced her to five years’ imprisonment with a two years’ ban on holding managerial positions. It was established that Ch. and S., who had been serving their alternative military service in the Centre, had given the applicant their credit cards so she had withdrawn from their accounts the salary received by them in the Centre in return for positive reports about their alternative service. According to the applicant, she asked for Messrs K. and A. to be called as witnesses but to no avail. By the same judgment the court replaced the applicant’s imprisonment by two years’ probation.
On 27 June 2007 the Zaporizhzhya Regional Court of Appeal upheld the judgment of 17 April 2007.
After several refusals to examine the applicant’s appeal on the points of law, on 3 June 2008 the Supreme Court of Ukraine rejected the applicant’s appeal on points of law.
C. Other proceedings
According to the applicant, in March 2007 she instituted proceedings against a private bank “P.” claiming compensation for non-pecuniary damage since photos submitted by the bank had been used as evidence in the applicant’s criminal proceedings. The applicant claimed that taking photos of persons withdrawing money from the cash machines was unlawful and breached her right for respect to her private life. According to the applicant, this claim was never examined.
The applicant also stated that the court had failed to examine a complaint lodged in 2007 against the Melitopol Prosecutor’s Office challenging the decision to institute criminal proceedings against the applicant.
In 2007 the applicant also instituted proceedings against the State Penitentiary Department for failure to clarify whether the applicant could be employed as an accountant. On 1 November 2007 the Melitopolskyy Court returned her complaint as issues related to the enforcement of sentence were to be clarified by the court. On 2 October 2008 the Dnipropetrovsk Administrative Court of Appeal upheld this decision. The applicant appealed on points of law.
In 2007 the applicant also instituted proceedings against the Welfare Department, claiming that certain information provided by it to the court in the course of criminal proceedings against her was untrue. On 4 May 2007 the Melitopolskyy Court returned the claim to the applicant for the failure to comply with procedural requirements. On 11 June 2008 the Zaporizhzhya Regional Court of Appeal instructed the applicant to correct her appeal against the above decision by 25 June 2008. In reply the applicant submitted that she was not going to correct her appeal.
COMPLAINTS
Referring to Article 6 § 1 of the Convention, the applicant complained of the courts’ assessment of evidence and interpretation of law and challenged the outcome of her proceedings. In particular, the applicant complained about the failure of the courts to examine on the merits her reinstatement claim. The applicant also complained of the length of the proceedings.
The applicant complained about a breach of Article 6 §§ 2 and 3 (c and d) of the Convention in the criminal proceedings against her. The applicant further invoked Article 2 of Protocol No. 4 with regard to her undertaking not to abscond and Article 2 of Protocol No. 7 with regard to the Supreme Court’s refusals to entertain her appeals in cassation.
The applicant finally cited Articles 3 and 13 of the Convention and stated that she had been treated by the State authorities in an inhuman and degrading manner.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right of access to a court under Article 6 § 1 of the Convention in respect of the termination of the applicant’s proceedings in her reinstatement case on 16 July 2008 by the Dnipropetrovsk Administrative Court of Appeal and confirmed by the Higher Administrative Court of Ukraine on 2 March 2011 in view of the previous decision of 22 August 2007 of the Supreme Court of Ukraine that the applicant’s case had to be examined under the administrative justice procedure?
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