The case concerns the applicant\u2019s complaint under Article\u00a02 of Protocol\u00a0No.\u00a07 that she was denied the right of appeal in administrative offence proceedings.<\/p>\n
FIFTH SECTION This judgment is final but it may be subject to editorial revision.<\/p>\n In the case of Malynovska v. Ukraine,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:<\/p>\n Ivana Jeli\u0107, President, Having regard to:<\/p>\n the application (no.\u00a074576\/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 15 November 2013 by a Ukrainian national, Ms Ella Stanislavivna Malynovska, born in 1967 and living in Kyiv (\u201cthe applicant\u201d), who was granted leave to present her own case in the proceedings before the Court;<\/p>\n the decision to give notice of the complaint under Article\u00a02 of Protocol\u00a0No.\u00a07 to the Ukrainian Government (\u201cthe Government\u201d), represented by their then Agent, Mr I. Lishchyna, and to declare inadmissible the remainder of the application;<\/p>\n the parties\u2019 observations;<\/p>\n Having deliberated in private on 13 January 2022,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n SUBJECT-MATTER OF THE CASE<\/strong><\/p>\n 1. The case concerns the applicant\u2019s complaint under Article\u00a02 of Protocol\u00a0No.\u00a07 that she was denied the right of appeal in administrative offence proceedings.<\/p>\n 2. On 16 May 2013 a judge of the Kyiv Shevchenkivskyy District Court found the applicant guilty of petty hooliganism (an administrative offence) and sentenced her to five days\u2019 administrative detention. It was noted in the\u00a0ruling that it could be appealed within ten days after its pronouncement, whereas the sentence was subject to immediate enforcement.<\/p>\n 3. The applicant was immediately placed in detention. She lodged an appeal and requested, without success, that the enforcement of her sentence be suspended pending the examination of her appeal.<\/p>\n 4. On 21 May 2013 the applicant was released having served the\u00a0administrative detention in full.<\/p>\n 5. On 11 June 2013 the Kyiv City Court of Appeal returned her appeal without examination. It held that it was competent to examine appeals only in respect of local courts\u2019 rulings which had not entered into force, whereas the ruling in the applicant\u2019s case had entered into force and had been subject to enforcement immediately after its pronouncement. Accordingly, there were no legal grounds for appellate review.<\/p>\n THE COURT\u2019S ASSESSMENT<\/strong><\/p>\n 6. The applicant complained that there had been a violation of her right of appeal in criminal matters under Article 2 of Protocol No. 7, given that her appeal had not had a suspensive effect in respect of the custodial sentence imposed on her and that even thereafter it had not been examined.<\/p>\n 7. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 8. The Government submitted that the applicant\u2019s rights had not been breached. At the same time, they drew the Court\u2019s attention to the decision of the Constitutional Court of 23 November 2018, by which the provisions of the Code on Administrative Offences on the immediate enforcement of custodial sentences in administrative offence proceedings had been declared \u201cunconstitutional\u201d and had been repealed on those grounds.<\/p>\n 9. The relevant provisions of the domestic legislation in force at the\u00a0material time, as well as the general principles enshrined in the Court\u2019s case-law regarding Article 2 of Protocol No. 7, can be found in Shvydka v.\u00a0Ukraine (no. 17888\/12, \u00a7\u00a7 16 and 48-52, 30 October 2014).<\/p>\n 10. The circumstances of the present case are somewhat similar to those in the case of Shvydka (cited above, \u00a7\u00a7 46-55). Like in the present case, the\u00a0applicant in the cited case was found guilty of petty hooliganism under the Code on Administrative Offences and was sentenced to administrative detention. While the applicable legal provisions regarding the appellate review were the same, in the case of Shvydka the applicant\u2019s appeal was examined on the merits, whereas in the present case the appellate court refused to examine the applicant\u2019s appeal.<\/p>\n 11. The Court noted in Shvydka that the applicant\u2019s appeal had had no suspensive effect and, by the time it had been examined, the applicant had already served her sentence in full. The Court found it inconceivable how that appellate review would have been able to effectively cure the defects of the lower court\u2019s decision at such a belated stage. That was the key consideration that led the Court to finding a violation of Article\u00a02 of Protocol\u00a0No. 7 (see Shvydka, cited above, \u00a7 53).<\/p>\n 12. The situation in the present case was even worse: not only the applicant\u2019s appeal had no suspensive effect in respect of her immediately enforceable custodial sentence, but it was never examined on the merits.<\/p>\n 13. While the Court takes note of the improvements in the domestic legislation referred to by the Government (see paragraph 8 above), they took place about five years after the events in the present case and are not relevant for the applicant\u2019s complaint.<\/p>\n 14. It follows that there has been a violation of Article 2 of Protocol No.\u00a07.<\/p>\n APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n 15. The applicant did not submit a claim for just satisfaction when invited to do so after the notice of the application had been given to the Government. Instead, she referred to her claim earlier formulated in the application form.<\/p>\n 16. The applicant was informed at the communication stage of the proceedings that the indication given by her at an earlier stage of her wishes regarding\u00a0just satisfaction\u00a0would not compensate for any failure to make such a \u201cclaim\u201d in her observations. Consequently, in the light of the general principles set out in the Court\u2019s case-law, and its established practice in such matters, the Court takes the view that the applicant did not submit a \u201cclaim\u201d within the meaning of Rule 60 of the Rules of Court (see\u00a0Nagmetov v. Russia [GC], no. 35589\/08, \u00a7\u00a7 57-62, 30\u00a0March 2017 and Emina\u011fao\u011flu v. Turkey, no. 76521\/12, \u00a7 167, 9 March 2021. Accordingly, there is no \u201cclaim\u201d to be examined.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Declares the application admissible;<\/p>\n 2. Holds that there has been a violation of Article 2 of Protocol No. 7.<\/p>\n Done in English, and notified in writing on 3 February 2022, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Martina Keller \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0\u00a0 \u00a0 \u00a0Ivana Jeli\u0107
\nCASE OF MALYNOVSKA v. UKRAINE<\/strong>
\n(Application no. 74576\/13)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n3 February 2022<\/p>\n
\nGanna Yudkivska,
\nArnfinn B\u00e5rdsen, judges,
\nand Martina Keller, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n