CASE OF LUCHANINOVA v. UKRAINE
(Application no. 16347/02)
9 June 2011
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Luchaninova v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Boštjan M. Zupančič,
Angelika Nußberger, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 10 May 2011,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Proceedings against the applicant
“... the first-instance court had not taken into due account the requirements of Articles 33 and 34 [of the Code on Administrative Offences of 1984], in particular [it had failed to take into due account] the small value of the stolen objects ... the offender’s age, the actual absence of harm to the company, and that Ms Luchaninova was being brought to criminal liability for the first time.
In these circumstances, and because the offence was not a serious one, Ms Luchaninova should not be fined, but verbally reprimanded [for the offence]...”
B. The applicant’s dismissal and the ensuing court proceedings
II. RELEVANT DOMESTIC LAW
A. Relevant provisions of the Code on Administrative Offences of 1984, as worded at the material time
B. Amendments to the Code on Administrative Offences of 1984, introduced on 24 September 2008
I. ALLEGATIONS OF UNFAIR TRIAL AND LACK OF AN APPEAL
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by a ... tribunal ... Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
3. Everyone charged with a criminal offence has the following minimum rights:
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ...”
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.
2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.”
1. The Government’s objection as to applicability ratione materiae
2. The Government’s objection as to the applicant’s victim status
3. Whether the applicant has suffered a significant disadvantage
“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 de-fined 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.”
Accordingly, the Court must examine first whether the applicant has suffered a “significant disadvantage” warranting the consideration of her complaints on the merits.
4. Conclusion as to the admissibility of the applicant’s complaints
1. Alleged unfairness of the proceedings
a. Public hearing
b. Article 6 § 3 (b) and (c)
2. Alleged lack of appeal against the applicant’s conviction
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable on the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 9 June 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
1. About 0.09 euros (EUR).
2. About EUR 10.
1. About EUR 10.