FIFTH SECTION
Application no. 17888/12
Galyna Mykolayivna SHVYDKA
against Ukraine
lodged on 21 March 2012
STATEMENT OF FACTS
The applicant, Ms Galyna Mykolayivna Shvydka, is a Ukrainian national, who was born in 1948 and lives in Kyiv. She is represented before the Court by Mr D. O. Ilchenko, a lawyer practising in Kyiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 24 August 2011, as part of the Independence Day festivities, there was a wreath-laying ceremony at a monument to Taras Shevchenko, a famous Ukrainian poet and public figure, with the participation of the President of Ukraine Mr Yanukovych.
The applicant, as a member of the “Batkivshchyna” opposition party, took part in its public gathering organised on the occasion of the Independence Day. According to her, the beginning of the meeting was delayed because of the aforementioned wreath-laying ceremony.
After the ceremony the applicant approached the wreath laid by Mr Yanukovych and tore off a piece from its ribbon with the words “the President of Ukraine”, without damaging the wreath itself. This was meant to express her position that Mr Yanukovych could not be called the President of Ukraine for a number of reasons.
The applicant’s action was video-recorded by one of the police officers in charge of maintaining public order.
On the same day the police officer in question established the applicant’s identity and reported the incident to his superiors.
On 25 August 2011 the applicant was apprehended (for less than three hours – see “Relevant domestic law” below) and taken to the Shevchenkivskyy District Police Department, where a report was drawn up indicating that her actions amounted to petty hooliganism in breach of Article 173 of the Code of Administrative Offences. The applicant, who was not allowed to consult a lawyer, refused signing the aforementioned report.
On 30 August 2011 the Shevchenkivskyy District Court of Kyiv, at a hearing with the participation of the lawyer contracted by the applicant on an unspecified date, found the applicant guilty of petty hooliganism on account of the incident of 24 August 2011 and sentenced her to ten days’ administrative detention. As specified in the court decision, it was to be enforced immediately. According to the applicant, her lawyer was provided with access to the case file only on the day of the hearing.
On 6 September 2011 the applicant’s lawyer lodged an appeal on her behalf. He argued that the applicant’s action had been an expression of her civil position and that it had not been driven by any hooligan motives nor aimed at disturbance of public peace and order. Referring to paragraph 16 of Resolution of the Plenary Supreme Court no. 10 of 22 December 2006, he also submitted that the penalty imposed had been excessively severe.
On 21 September 2011 the Kyiv City Court of Appeal, at a hearing with the participation of the applicant’s two lawyers, upheld the first-instance court’s decision with a final ruling.
B. Relevant domestic law and practice
The relevant provisions of the Code of Administrative Offences (1984, with the amendments of 24 September 2008) (further referred to as “the Code”) read as follows:
“Article 32. Administrative detention.
Administrative detention shall be applied only in exceptional cases in respect of specific types of administrative offences for a term up to fifteen days. [...]
Article 173. Petty hooliganism.
Petty hooliganism – that is swearing in public, offensive annoyance and other similar actions breaching public peace and order – shall be punishable with a fine from three to seven times the non-taxable minimum income, or correctional works for one to two months, with retention of twenty per cent of the earnings. Where in the circumstances of a particular case the above measures are deemed insufficient having regard to the character of the perpetrator, the penalty shall be administrative arrest for up to fifteen days.
Article 263. Administrative apprehension tim-limits.
Administrative apprehension of a person [suspected of] an administrative offence may last no longer than three hours.
Article 287. The right to challenge a ruling on an administrative offence.
A ruling on an administrative offence may be challenged by the person in respect of whom it was issued and the victim.
A [court] ruling imposing an administrative sanction may be challenged under the procedure envisaged by this Code.
Article 289. Time-limits for challenging a ruling on an administrative offence.
An appeal against a ruling on an administrative offence may be lodged within ten days from the day of the pronouncement of the ruling.
Article 294. Entry into force of a court ruling on an administrative offence and its revision.
A court ruling on an administrative offence shall enter into force after the expiry of the time-limit for lodging an appeal, except for a ruling imposing a sanction envisaged by Article 32 of this Code [...]
The appeal shall be examined by a judge of the appellate court within twenty days from its receipt. [...]
A ruling of the appellate court shall be final. [...]
Article 296. Consequences of quashing a ruling [of the first-instance court] and termination of the administrative offence proceedings.
... The damage caused to a person by unlawful imposition of administrative arrest [...] as a sanction shall be compensated under the procedure established by law.”
According to the Scientific and Practical Commentary to the Code (Р.А.Калюжний, А.Т.Комзюк, О.О.Погрібний та ін.; К.: Всеукраїнська асоціація видавців «Правова єдність», 2008, стор. 404-405), “other similar actions” in the meaning of Article 173 may be extremely different. They include, but are not limited to, violent breaking into certain public places in spite of an official prohibition, disturbing people by unjustified or insulting telephone calls, singing indecent songs, exclamations or whistling during a film in a cinema, making noise at night time, using as toilet places not designated for that purpose, appearing naked in public, unjustified stopping of means of public transport, drawing indecent graffiti, giving untruthful notification of the death of a relative not having led to serious consequences, brutal violation of a queue order, destruction or damaging, for hooligan motives, of property in insignificant amount, and so on.
Pursuant to paragraph 16 of Resolution of the Plenary Supreme Court of Ukraine no. 10 of 22 December 2006 on the judicial practice in hooliganism-related cases, when deciding on an applicable sanction under Article 173 of the Code of Administrative Offences, the judge must in each particular case take into account the nature of the offence committed, the character of the offender, the degree of his/her guilt, his/her property situation, as well as any mitigating or aggravating circumstances. As a rule, not the arrest, but other administrative sanctions and measures of social influence should be applied to persons involved in socially useful activity and enjoying positive character references at their place of work, study or residence.
COMPLAINTS
The applicant complains that her right to freedom of expression under Article 10 was violated.
She also complains that her appeal against the first-instance court’s ruling was examined only after the sentence had been served in full.
QUESTIONS TO THE PARTIES
1. 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 prescribed by law and necessary in terms of Article 10 § 2?
2. Was the applicant afforded the right of appeal envisaged by Article 2 § 1 of Protocol No. 7 given that her appeal was examined after she served her sentence in full?
3. Does the timing envisaged by the Code of Administrative Offences for lodging and examining an appeal against a court ruling on an administrative offence, where detention is imposed as sanction, comply with the principles of Article 2 of Protocol No. 7, in particular, as regards accessibility of the appeal procedure?
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