European Court of Human Rights

Information Note on the Court’s case-law No. 178

November 2014

Shvydka v. Ukraine - 17888/12

Judgment 30.10.2014 [Section V] See: [2014] ECHR 1169

Article 10

Article 10-1

Freedom of expression

Sentence of ten days’ detention for publicly detaching part of a ribbon from wreath laid by the President at a commemorative ceremony: violation

Article 2 of Protocol No. 7

Appellate review only after sentence had been served in full: violation

Facts - The applicant, a member of an opposition party in Ukraine, took part in an Independence Day ceremony in 2011. After the ceremony and in order to express her disagreement with presidential policies, she detached part of a ribbon bearing the words “the President of Ukraine V.F. Yanukovych” from a wreath laid by the President. A district court found her guilty of petty hooliganism and sentenced her to ten days’ detention. Although the applicant lodged an appeal against the judgment on the first day of her detention, it was not heard until three weeks later, by which time she had served her sentence in full.

Law - Article 10: The act which led to the applicant’s conviction had been the detachment of a ribbon from the wreath laid by the President of Ukraine at an Independence Day ceremony attended by many people. The applicant belonged to the opposition party, whose leader was then in prison. Having regard to the applicant’s conduct and its context, the Court accepted that by her act she had sought to convey certain ideas in respect of the President to the people around her. It could therefore be regarded as a form of political expression. Accordingly, penalising her with ten days’ detention amounted to interference with her right to freedom of expression. The measure applied to the applicant was lawful and pursued the legitimate aim of protecting public order and the rights of others. However, the domestic courts had imposed on the applicant, a sixty-three-year-old woman with no criminal record, the harshest penalty for a wrongdoing that involved no violence or danger, on the grounds that she had refused to admit her guilt. This was tantamount to penalising her reluctance to change her political views. There being no justification for such an approach, the measure was disproportionate.

Conclusion: violation (unanimously).

Article 2 of Protocol No. 7: As the applicant’s appeal against the district court’s judgment had no suspensive effect, the sentence had been executed immediately in accordance with the domestic law. In addition, the appellate review had taken place only after the sentence had been served in full. In these circumstances, the review had been unable to effectively redress the mistakes of the lower court. Moreover, the retrospective and purely compensatory remedy available in the event of the court of appeal quashing the district court’s decision could not be regarded as a substitute for the right to a review embedded in Article 2 of Protocol No. 7.

Conclusion: violation (unanimously).

Article 41: EUR 5,000 in respect of non-pecuniary damage.

 

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