VASYLKOV proti Ukrajině

FIFTH SECTION

CASE OF VASYLKOV v. UKRAINE

(Application no. 77801/13)

JUDGMENT

STRASBOURG

22 September 2022

This judgment is final but it may be subject to editorial revision.

In the case of Vasylkov v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Lado Chanturia, President,
Ganna Yudkivska,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 77801/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 27 November 2013 by a Ukrainian national, Mr Valeriy Oleksandrovych Vasylkov, born in 1956 and living in Kyiv (“the applicant”), who was represented before the Court by Mr A.O. Ivanov, a lawyer practising in Kyiv;

the decision to give notice of the complaint concerning the alleged failure to inform the applicant about an appellate court hearing in a timely manner, raised under Article 6 of the Convention, to the Ukrainian Government (“the Government”), represented by their then acting Agent, Ms O. Davydchuk, of the Ministry of Justice, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 28 April 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. The application concerns an issue of fair trial raised under Article 6 of the Convention in relation to administrative-offence proceedings against the applicant, who was charged with driving under the influence of alcohol.

2. On 15 July 2013 the Svyatoshynskyy District Court of Kyiv convicted the applicant of breaching road traffic rules and suspended his driving licence for one year. The applicant appealed.

3. On 15 August 2013 the registry of the Kyiv Court of Appeal drafted a summons to the appellate court hearing, to be held on 21 August 2013.

4. The Government and the applicant disagree about the date when the above-mentioned summons was sent and received by the applicant. The applicant stated that the document had been sent by ordinary post on 20 August 2013 and he had received it on 22 August 2013. The Government stated that the summons had been “issued” on 15 August 2013 and had been sent by ordinary post, but it was not possible to verify the date of its receipt, as the relevant case file had been destroyed on account of the expiry of the limitation period for its storage.

5. On 21 August 2013 the Kyiv Court of Appeal held the hearing in the applicant’s absence, examined the evidence which he had contested and upheld the first-instance court’s decision. The court re-examined the record of the administrative offence, the statements of two witnesses, the report of a police officer and a written description of the events by Mr A. The appellate court found it to be established that the applicant had not objected to the alcohol test results, whereas he had stated the contrary in his notice of appeal and submitted two written witness statements in that connection. The applicant also contended that the police officers had not observed the relevant rules and had failed to refer him to a hospital for examination. Moreover, he submitted that he had not consumed alcohol on the night in question. Those factual circumstances had been established without the applicant being present. In its decision, the appellate court did not verify whether the applicant had been informed of the hearing; it only observed that he had not appeared at the hearing. That decision was final.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

6. The applicant complained under Article 6 § 1 of the Convention that he had been informed of the appellate court hearing in his case the day after it had taken place.

7. The Court has found that the guarantees enshrined in the criminal limb of Article 6 are applicable in administrative-offence proceedings leading to the suspension of a driving licence (see, for instance, Slobodyan v. Ukraine [Committee], no. 2511/16, § 17, 9 December 2021, and the cases cited therein). There is no reason to depart from that conclusion in the present case.

8. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

9. The general principles concerning the right to participate in a hearing have been summarised in Hermi v. Italy ([GC], no. 18114/02, §§ 58-67, ECHR 2006-XII). Given that the Kyiv Court of Appeal had jurisdiction to review the case both as to the facts and as to the law (see Luchaninova v. Ukraine, no. 16347/02, § 33, 9 June 2011) and that it examined evidence which the applicant contested (see paragraph 5 above), the Court takes the view that the applicant’s participation in the hearing was important for the overall fairness of the proceedings.

10. The Court notes that the national law required the applicant to be notified of the appellate court’s hearing three days in advance. A hearing in the absence of a party is not barred, save in cases where there are valid reasons for the non-appearance or where the court has no information that the person in question was duly notified of the hearing (see Salogub v. Ukraine [Committee] (dec.), no. 21971/10, § 20, 10 December 2019).

11. The applicant and the Government provided conflicting versions of the events. The applicant asserted that he had received the summons sent by ordinary post the day after the appellate court hearing had taken place. He provided a copy of an envelope sent to him by the Kyiv Court of Appeal, bearing a post office stamp with a dispatch date of 20 August 2013, and a letter from the deputy head of the South Department of the Kyiv Post Office dated 23 September 2013 confirming, following an examination of the envelope in question, that the Kyiv Court of Appeal was the sender, the applicant was the recipient and the dispatch date of the letter by ordinary post was 20 August 2013. In addition, the deputy head indicated that the time-limit for the delivery of letters by ordinary post within Kyiv was three days. The Government contended that the summons had been “issued” on the day it was drafted, that is, 15 August 2013. They gave a critical assessment of the contents of the deputy head’s letter, as they had no knowledge of what envelope had been examined. In addition, it was not possible to verify the date of receipt of the summons on account of the destruction of the case file.

12. The Court notes that the Government did not argue that the applicant might have participated in other proceedings pending before the Kyiv Court of Appeal and therefore might have received correspondence from that court which was unrelated to the present case. In the absence of any such argument, the Court finds that the letter sent by the Kyiv Court of Appeal related to the present proceedings and indeed might have contained a summons to the hearing. It appears that the applicant’s version of events is coherent and concordant with the evidence which he produced. The Court therefore finds that the applicant was not duly notified of the appellate court hearing and could not effectively defend his position before that court, a fact which has adversely affected his right to a fair hearing.

13. There has accordingly been a violation of Article 6 § 1 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

14. The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage and EUR 2,720 in respect of costs and expenses incurred before the Court.

15. The Government submitted that the above sums were exorbitant and unsubstantiated.

16. Having regard to the documents in its possession, the Court considers it reasonable to award the applicant EUR 900 in respect of non-pecuniary damage and EUR 850 covering costs and expenses for the proceedings before the Court, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 900 (nine hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 22 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller Lado Chanturia
Deputy Registrar President