Last Updated on November 22, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no. 35432/10
Tetyana Oleksandrivna BONDARENKO
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 17 September 2019 as a Committee composed of:
Síofra O’Leary, President,
Ganna Yudkivska,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 5 June 2010,
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, Ms Tetyana Oleksandrivna Bondarenko, is a Ukrainian national who was born in 1986 and lives in Mashivka, Poltava region. She was represented before the Court by Mr Y. Boychenko, a lawyer practising in Strasbourg.
The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.
On 27 November 2018 notice of the complaint concerning the alleged unfairness of the proceedings against the applicant was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 September 2009 the Kremenchuk transport prosecutor’s office drew up a report stating that the applicant, a civil servant, had committed a corruption-related administrative (minor) offence under section 5(1)(d) of the Anti-Corruption Act (see “Relevant domestic law” below). More specifically, she was suspected of having knowingly reported untrue information in her capacity as a civil servant.
On 17 November 2009 the Kremenchuk Kryukivskyy District Court (“the Kryukivskyy Court”) discontinued the proceedings on the grounds that there was no indication of an administrative offence in the applicant’s actions.
On 27 November 2009 the Kremenchuk transport prosecutor’s office lodged an appeal (“a protest” – протест) against the above-mentioned decision with the Poltava Regional Court of Appeal (“the Court of Appeal”).
According to the Government, which relied, in turn, on information provided by the Kryukivskyy Court, on 14 December 2009 the Court of Appeal sent the following notification to the Kremenchuk transport prosecutor’s office and to the applicant:
“I hereby inform you that the hearing for examination of the prosecutor’s protest against the ruling of the [Kryukivskyy Court] of 17 November 2009 is scheduled before the appellate court at 2 p.m. on 21 December 2009.”
The Kryukivskyy Court informed the Government, however, that the case-file materials contained no evidence proving that the above-mentioned notification had been served on the applicant.
According to the applicant, she did not receive that notification and was not aware of the hearing at the Court of Appeal. As proof, she submitted a certificate from the local post office stating that there had been no registered correspondence for her during the period from 1 to 29 December 2009.
On 21 December 2009, following a hearing conducted with the prosecutor’s participation but in the absence of the applicant or her lawyer, the Court of Appeal quashed the decision of 17 November 2009. It found the applicant guilty of the administrative offence concerned and fined her 225 Ukrainian hryvnias (UAH) (equivalent to 22 euros (EUR) at the time). The appellate court’s ruling was final.
According to the applicant, she was not eligible for promotion for a year after the Court of Appeal’s decision.
B. Relevant domestic law
Section 5(1)(d) of the Anti-Corruption Act 1995 (п. «г» ч. 1 ст. 5 Закону України «Про боротьбу з корупцією») (as worded at the material time) prohibited civil servants from, inter alia, reporting information which they knew to be untrue. Section 8 provided that a breach of the above-mentioned provision was punishable by an administrative fine of between fifteen and twenty-five times the non-taxable income (UAH 17, equivalent to about EUR 1.5).
COMPLAINT
The applicant complained under Article 6 of the Convention that the administrative offence proceedings against her had been unfair.
THE LAW
The applicant complained under Article 6 § 1 of the Convention that the hearing of the appellate court had been in breach of the “equality of arms” principle, given that neither she nor her lawyer had been able to participate in it, whereas the prosecutor had had the advantage of being present and making submissions before the judges. The provision relied on reads as follows in the relevant part:
“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …”
A. The parties’ submissions
The Government argued that the applicant had not sustained any significant disadvantage. They observed that the impugned proceedings had not led to a criminal record in respect of her and that their only consequence had been a derisory fine. The Government emphasised that there was no evidence showing that the obligation to pay the amount equivalent to EUR 22 had adversely affected the applicant’s situation.
The applicant contested those arguments. While accepting that the amount of the fine was insignificant, she submitted that the outcome of the administrative offence proceedings in question had adversely affected her reputation and had undermined the prospects of her professional progression. She observed in that connection that at the time of the events she had been at the beginning of her civil service career and that, as a result of the impugned proceedings, she had not been eligible for promotion for a year. The applicant also contended that her grievance concerned an important matter of principle. Lastly, she submitted that her case could not be regarded as having been duly considered by a domestic tribunal, given that the appellate court had held its hearing in her absence.
B. The Court’s assessment
The Court refers to Article 35 § 3 (b) of the Convention, which reads as follows:
“3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:
…
(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”
The Court will examine whether: (i) the applicant has suffered a significant disadvantage; (ii) whether respect for human rights as defined in the Convention and the Protocols attached thereto requires an examination of the complaint on the merits; and (iii) whether the case was duly considered by a domestic tribunal (see Korolev v. Russia (dec.), no. 25551/05, ECHR 2010).
1. Whether the applicant has suffered a significant disadvantage
The Court has previously held that this criterion applies where, notwithstanding a potential violation of a right from a purely legal point of view, the level of severity attained does not warrant consideration by an international court (see Ionescu v. Romania (dec.), no. 36659/04, 1 June 2010, and Korolev, cited above). The absence of any significant disadvantage can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant (see Ionescu, cited above).
The Court observes that the applicant was subject to an administrative fine of approximately EUR 22. The parties agreed that that was a modest amount and the Court sees no reason to consider otherwise.
The Court is mindful at the same time that the pecuniary sum involved is not the only element that determines whether the applicant has suffered a significant disadvantage. Indeed, a violation of the Convention may concern important questions of principle and thus cause a significant disadvantage without affecting a pecuniary interest (see, for example, Burov v. Moldova (dec.), no. 38875/03, § 30, 14 June 2011).
However, the Court does not consider that any such issues have been raised by the applicant in the instant case.
The Court stresses in this connection that the administrative fine in question was not registered in the applicant’s criminal record (compare Görgün v. Turkey (dec.) [Committee], no. 42978/06, 16 September 2014, and Gulmammadov v. Azerbaijan (dec.) [Committee], no. 33234/08, § 21, 12 December 2017).
In so far as the applicant argued that the impugned proceedings had tainted her reputation and had adversely affected her professional progression, the Court notes that the only negative consequence in this regard, as indicated by the applicant, was her ineligibility for promotion for a year. The Court observes that at the time of the events the applicant was twenty-three years of age and, as she herself indicated, was at the beginning of her civil service career. She has not shown that she could have reasonably expected a promotion in the year following the imposition of the sanction, even in the absence of any administrative offence proceedings against her. Furthermore, in her submissions before the Court lodged in 2019, the applicant did not elaborate on any long-term professional or reputational damage suffered as a result of the imposition of the administrative (minor) offence sanction.
In view of the foregoing, the Court concludes that the applicant has not suffered a significant disadvantage as a result of the alleged violation of the Convention.
2. Whether respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits
The second element set out in Article 35 § 3 (b) compels the Court to examine the case in any event if respect for human rights so requires. This would apply where a case raises questions of a general character affecting the observance of the Convention, for instance where there is a need to clarify the respondent State’s obligation under the Convention or to induce the respondent State to resolve a structural deficiency (see, for example, Zwinkels v. the Netherlands (dec.), no. 16593/10, § 28, 9 October 2012).
Considering the present case from this perspective the Court does not see any compelling reason to warrant its examination on the merits.
3. Whether the case was duly considered by a domestic tribunal
The Court reiterates that the purpose of this safeguard clause is to ensure that every case receives a judicial examination, whether at national or European level, in order to avoid a denial of justice (see Korolev, cited above).
As to the question whether the applicant’s case has been “duly considered”, the Court is of the view that this condition should not be interpreted as strictly as the requirements of a fair trial; otherwise it would be difficult to understand why the wording of Article 35 § 3 (b) did not read “fairly considered” (see, for example, Cecchetti v. San Marino (dec.), no. 40174/08, § 44, 9 April 2013).
As a more general point, the Court would add that, when examining whether the “significant disadvantage” admissibility criterion has been satisfied in cases where the applicant alleges a violation of the Convention by the last-instance judicial authority of the domestic legal system, it may dispense with the requirement laid down in Article 35 § 3 (b) of the Convention whereby no case may be rejected on that ground unless it has been “duly considered by a domestic tribunal”. To construe the contrary would prevent the Court from rejecting any claim, however insignificant, relating to alleged violations imputable to a final national instance. Such an approach would be neither appropriate nor consistent with the object and purpose of Article 35 § 3 (b) of the Convention (see Çelik v. the Netherlands (dec.), no. 12810/13, § 40, 27 August 2013).
The Court does not find that the facts of the present case disclose a denial of justice at domestic level, given that the administrative offence proceedings against the applicant were dealt with by the domestic courts at two levels of jurisdiction.
4. Conclusion
The three conditions of the inadmissibility criterion having been satisfied, the Court considers that the present application is inadmissible pursuant to Article 35 §§ 3 (b) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 10 October 2019.
Milan Blaško Síofra O’Leary
Deputy Registrar President
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