European Court of Human Rights

FIFTH SECTION

DECISION

Application no. 38508/06
Dmytro Mykhaylovych PLAKHOV
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 27 March 2012 as a Committee composed of:

Mark Villiger, President,
Ganna Yudkivska,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,

Having regard to the above application lodged on 18 September 2006,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Dmitriy Anatolyevich Plakhov, is a German national who was born in 1959 and lives in Dülmen. He was represented before the Court by Mr T. R. Yatsulyak, a lawyer practising in Lviv. The Ukrainian Government (“the Government”) were represented by their Agent, Ms V. Lutkovska, of the Ministry of Justice

The Government of the Federal Republic of Germany, having been informed of their right to intervene in the proceedings as a third party (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), did not reply. The Court therefore assumes that they did not wish to intervene in the case.

The applicant complained under Article 6 of the Convention and Article 2 of Protocol No. 7 about the alleged impossibility to appeal against the ruling of 10 April 2006 by which the Mostyskyy District Court had ordered to confiscate 29,400 US dollars from him as a sanction for a breach of customs rules (an administrative offence). The applicant also complained under Article 6 §§ 1 and 3 (d) of the Convention about the alleged unfairness of the trial and under Article 1 of Protocol No. 1 about the aforementioned confiscation as an allegedly unlawful and disproportionate measure.

THE LAW

After unsuccessful friendly-settlement negociations, by letter dated 21 July 2011, the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“The Government of Ukraine acknowledge the impossibility for the applicant to appeal against the court ruling on bringing him to administrative responsibility, since the national legislation at that time did not provide such possibility within the proceedings in his case.

The Government of Ukraine are ready to pay Mr Dmitriy Anatolyevich Plakhov the just satisfaction in the amount of 1,000 (one thousand) euros.

The Government therefore invite the Court to strike the application out of the list of cases. They suggest that the present declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.

The sum of 1,000 (one thousand) euros is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It is to be converted into the national currency of Ukraine at the rate applicable on the date of settlement and it will be payable within three months from the date of notification of the decision taken by the Court. In the event of failure to pay this amount within the abovementioned period, the Government undertake to pay simple interest on it from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

This payment will constitute the final resolution of the case.”

The applicant objected to the Government’s declaration.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).

The Court has established in a number of cases brought against Ukraine that the Code on Administrative Offences, until its amendments in 2008, did not provide for an ordinary appeal procedure and that the extraordinary appeal procedure did not satisfy requirements of Article 2 of Protocol No. 7 in cases classified as “criminal” within the meaning of the Convention (see Gurepka v. Ukraine, no. 61406/00, §§ 59-61, 6 September 2005, and Gurepka v. Ukraine (no. 2), no. 38789/04, §§ 29-34, 8 April 2010).

Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).

Having carefully examined these complaints in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government’s declaration in respect of the impossibility for the applicant to appeal against the court ruling in the administrative proceedings;

Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Stephen Phillips Mark Villiger
Deputy Registrar President