AS TO THE ADMISSIBILITY OF
by Yelena Ivanovna MALKOVA
The European Court of Human Rights (Fifth Section), sitting on 27 January 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska, judges,
Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 30 July 2004,
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 applicant, Ms Yelena Ivanovna Malkova, is a Ukrainian national who was born in 1943 and lives in Cherkasy. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s son was the victim of a crime which, in her opinion, was ineffectively investigated by the domestic authorities.
On 20 February 2002 the applicant notified the Cherkassy City Council that as from 25 February 2002 onwards she would hold a one-person protest demonstration in front of the building of the Cherkassy Regional Prosecutor’s Office (hereafter “the Prosecutor’s Office”).
On 21 February 2002 the Cherkassy City Council confirmed to the applicant she was entitled to hold a protest demonstration at the place and time specified.
First set of proceedings
On 22 February 2002 the Prosecutor’s Office instituted proceedings in the Prydniprovsky District Court of the Chekassy (hereafter “the District Court”) seeking to prohibit the applicant’s protest demonstration.
On the same day Mr L. and Mr G., who were the officials of the Prosecutor’s Office, arrived at the applicant’s home, handed her the summons to the hearing and proposed to give her a lift to the District Court as the hearing had been scheduled for that day. The officials allegedly also promised that they would bring her back home after the hearing. The applicant agreed.
The same day the District Court, having considered the case, prohibited the applicant’s protest demonstration. The District Court held, in particular, that the applicant’s demonstration, in the course of which she was planning to use a loudspeaker, would have a negative effect on the work of the officials in the building of the Prosecutor’s Office, who were investigating serious offences, questioning witnesses, suspects and the accused, including those who were detained and escorted to the building. Moreover, the demonstration would divert the police officers from their duties in other parts of the city which might result in jeopardising public order and infringing the rights and freedoms of other citizens.
On 28 May 2002 the Chekassy Regional Court of Appeal (hereafter “the Court of Appeal”), following the applicant’s appeal, upheld the judgment of the District Court.
On 16 April 2003 the Supreme Court allowed the applicant’s appeal in cassation, quashed the decisions of the lower courts and rejected the claim of the Prosecutor’s Office. The Supreme Court stated, in particular, that it was for the other competent authorities, but not for the Prosecutor’s Office, to institute the proceedings at issue.
Second set of proceedings
On 18 August 2003 the applicant instituted proceedings in the District Court, seeking compensation for the non-pecuniary damage incurred as a result of the allegedly unlawful actions of the Prosecutor’s Office. She claimed that on 22 February 2002 Mr L. and Mr G. had taken her to the District Court and had promised to take her back home. However, after the hearing they had not kept their promise, despite her poor health, and she had had to go home by public transport which had aggravated her illness. The applicant enclosed with her claim, among other documents, the decision of 16 April 2003 taken by the Supreme Court.
On 14 November 2003 the District Court rejected the applicant’s claim as unsubstantiated, holding, in particular, that the applicant had not been physically or psychologically forced by Mr L. and Mr G. to go with them to the court hearing and no unlawful actions on the part of Mr L. and Mr G. could be discerned. These findings were based, inter alia, on the submissions of the applicant who confirmed at the court hearing that she had not quarrelled with Mr L. and Mr G. and had voluntarily agreed to go with them to the District Court.
On 23 February 2004, following the applicant’s appeal, the Court of Appeal upheld the judgment of the District Court, finding that the officials of the Prosecutor’s Office had not violated any legislation when they, upon the applicant’s consent, had helped her go to the District Court.
On 16 May 2005 the Supreme Court dismissed the applicant’s appeal in cassation as unsubstantiated.
B. Relevant domestic law
Constitution of Ukraine of 28 June 1996
The relevant extract of the Constitution provides as follows:
Citizens have the right to assemble peacefully without arms and to hold meetings, rallies, processions and demonstrations, upon notifying in advance the bodies of executive power or bodies of local self-government.
Restrictions on the exercise of this right may be established by a court in accordance with the law and only in the interests of national security and public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, or protecting the rights and freedoms of other persons.”
The applicant complained under Article 5 § 1 of the Convention of a violation of her right to liberty, alleging that she had been forced by the officials of the Prosecutor’s Office to visit the court hearing.
Without invoking any Convention provision she further complained that her right to hold a demonstration and to express her opinions had been violated by the District Court’s decision of 22 February 2002.
Invoking Article 6 and 13 of the Convention the applicant complained that during the first set of proceedings she had not had a chance to be properly represented by legal counsel. She further complained under the same provisions of the Convention about the unfairness of the second set of the proceedings.
Article 5 § 1 of the Convention provides, as relevant:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; ”
The Government maintained that the applicant’s right to a liberty had not been violated in so far as she had voluntarily agreed to follow the officials of the Prosecutor’s Office and there was nothing in the case file to suggest the contrary.
The applicant disagreed.
The Court recalls that Article 5 of the Convention is concerned with deprivation of liberty and not with the mere restrictions on freedom of movement. In determining whether the level of restraint involved amounted to detention, regard should be had to a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question (see, mutatis mutandis, Guzzardi v. Italy, 6 November 1980, § 92, Series A no. 39; Iliya Stefanov v. Bulgaria, no. 65755/01, § 71, 22 May 2008).
In the present case the Court notes that the officials of the Prosecutor’s Office, when visiting the applicant, did not pursue the aim of detaining her. Their intention was to give her the summons and to take her to the court hearing on the lawfulness of the applicant’s demonstration. The Court further notes that, as appears from the case file, the applicant was taken to the District Court only after she gave her consent. Likewise, there is nothing to the effect that she had been held in the District Court by force and that she had been prevented from leaving it once she wished to do so.
It appears that the matter of the applicant’s concern was mostly the fact that after the hearing she had to go home by public transport since the officials of the Prosecutor’s Office, having promised to give her a lift, allegedly had not done so. However, this issue does not bring the complaint into the scope Article 5 § 1 of the Convention.
The Court therefore concludes that the applicant’s delivery to the District Court, her stay there and her return home be public transport did not raise any issue under Article 5 § 1 of the Convention. It thus rejects the applicant’s complaint as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The Government admitted that the impugned decision of the District Court constituted an interference with the applicant’s freedom of expression. They maintained, however, that the applicant had lost her victim status in respect of this complaint as the impugned decision had been quashed on 16 April 2003 by the Supreme Court and no further legal obstacles to hold the impugned demonstration existed. In any event the interference had been proportionate for the purpose of the Convention.
The applicant disagreed with those submissions.
The Court notes that it is not disputed by the parties that there had been an interference with the applicant’s freedom of expression as a result of the decision taken by the District Court on 22 February 2002. The Court further notes that on 16 April 2003 the impugned decision was quashed by the Supreme Court upon which the applicant had no longer been prevented from holding the demonstration in front of the Prosecutor’s Office. She has not substantiated any specific disadvantages from the temporal impediment to impart information by means of a one person protest demonstration.
The Court observes that the applicant became aware of the Supreme Court’s decision at the latest on 18 August 2003 (see under “The facts”) while her first letter to the Court was dated 30 July 2004. It follows that the complaint falls outside the six-month rule and should be rejected in accordance with Article 35 § 1 and 4 of the Convention.
The Court therefore rejects this complaint as inadmissible in accordance with Article 35 § 1, 3, and 4 of the Convention.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen