CASE OF GUREPKA v. UKRAINE
Violation of P7-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
4. The applicant was born in 1956 and lives in the city of Simferopol, the Autonomous Republic of Crimea, Ukraine. 5. In the course of civil proceedings for defamation brought by a Member of Parliament in which the applicant was a co-defendant, the applicant was summoned to a court hearing in April 1998 (exact date unknown). According to the applicant, the summons was never served on him properly, and the postman later confirmed this. 6. On 18 May 1998 the court imposed a fine of UAH 17 on the applicant for his failure to appear. The court also indicated in its decision that the applicant could appeal within ten days. According to the applicant, he received this decision on 28 May 1998. 7. On 3 June 1998 the applicant lodged an appeal against the decision of 18 May 1998. In his appeal the applicant did not indicate the reasons for lodging it outside the time-limit and did not request its extension. On 5 June 1998 the Kievskiy District Court of Simferopol rejected the appeal as having been submitted too late. 8. On 12 July 1998 the applicant lodged with the Highest Court of the Autonomous Republic of Crimea (hereinafter the “HCARC”) an appeal against the decision of 5 June 1998 together with a request for the composition of the first instance court to be changed. In January 1999 the applicant was informed that the HCARC had only received the request but not the appeal. 9. Within the framework of the same set of civil proceedings, the applicant was summoned to appear before the court on 9 October 1998. The applicant maintains that he informed the court in advance that he would not be able to attend because of his holiday plans. On 8 October 1998 the applicant requested Mr B. to inform the judge that he could not attend the hearings due to his illness. According to Mr B., he did so on 9 October 1998. The court nevertheless decided to institute administrative proceedings against the applicant for his repeated failure to appear before the court. 10. On 1 December 1998 the court decided in the applicant's presence to impose seven days' administrative detention on him for contempt of court, as manifested by his repeated failure to appear. The court found that the applicant was at his place of work on the day of the hearings, as confirmed by his employer – the Prosecutors' Office of the Autonomous Republic of Crimea (hereinafter the “POARC”). The court found no evidence in the case file indicating that the applicant had officially informed the court of any good reason for his absence. It disregarded the sick leave certificate produced by the applicant for the date in question. 11. The same day the applicant was arrested and placed in a cell, which he described as cold. 12. The applicant's arrest was covered by the local press in December 1998. 13. On 2 December 1998 the POARC lodged an extraordinary appeal (protest) with the HCARC. This appeal suspended the enforcement of the decision of 1 December 1998 and the applicant was released after spending 16 hours in detention. 14. In its appeal the POARC did not dispute the fact that the applicant had committed an administrative offence, but considered that the applicant had to be sanctioned under the Disciplinary Statute of the Prosecutor's Office rather than under administrative proceedings. 15. On 3 December 1998 the President of the HCARC rejected this appeal. 16. From 7 to 21 December 1998 the applicant was in hospital suffering from an acute form of chronic urological disease. According to the applicant, this illness was caused by his detention in the cold cell on 1 December 1998. 17. On 10 December 1998 the applicant lodged a request with the HCARC for an extraordinary review of the decisions of 18 May, 5 June and 1 December 1998. This request was rejected on 29 January 1999 by the President of the HCARC. 18. From 25 to 31 December 1998 the applicant served the remainder of the administrative detention. 19. On 4 January 1999 the applicant was dismissed from his position as a prosecutor attached to the POARC. 20. On 21 January 1999 the applicant lodged a further request with the Supreme Court of Ukraine for an extraordinary review of the decisions of 18 May, 5 June and 1 December 1998. This request was rejected on 24 March 1999. 21. In October 2001 the applicant was diagnosed with Hepatitis C, which he believed he could have contracted in the prison or in the hospital in December 1998. 22. In 1996, the former Prosecutor of the Autonomous Republic of Crimea, Mr K., lodged a claim with the Simferopolskiy District Court of the Autonomous Republic of Crimea against the applicant for defamation. On 6 June 2000 the court found against the applicant and ordered him to pay UAH 10,000 in compensation for moral damage. The applicant was not present at the final court hearing. 23. On 20 September 2000 the Simferopolskiy District Court rejected the applicant's cassation appeal as having been submitted too late. 24. In October 2000 the applicant lodged a request for extraordinary review with the President of the HCARC. The Deputy President of the court allowed this request and lodged an extraordinary appeal with the court. 25. On 2 February 2001 the plenary of the HCARC allowed the appeal. The decision of 6 June 2000 was quashed in part on the ground that some of the matters covered by that decision had been finally decided within the framework of other proceedings. The court also reduced the amount of the fine to be paid by the applicant to UAH 1,000. 26. On 6 December 2001 the panel of three judges of the Supreme Court of Ukraine rejected the applicant's request for leave to appeal under the new cassation procedure. 27. Paragraph 4 of Article 172 of the Code foresaw that, in the event of a failure of a party to the proceedings to appear before a court without valid reasons, and if such failure led to the postponement of court hearings, the court could impose on the person a fine of one instalment of the “minimum non-taxable income” (UAH 17). 28. Article 32 of the Code provided that administrative detention could be imposed and applied in exceptional circumstances for certain administrative offences for a maximum period of 15 days. 29. Paragraph 1 of Article 185-3 of the Code foresaw punishment by a fine or administrative detention for up to 15 days for contempt of court, manifested, inter alia, by a repeated failure to comply with a summons to appear. 30. Article 287 of the Code provided that the decision imposing an administrative sanction could be appealed, except for the decisions given by the first instance court. The latter were final and were not subject to the ordinary administrative appeal procedure, unless the legislation provided otherwise. 31. Article 290 of the Code provided that the prosecutor could lodge an extraordinary appeal (a “protest”) against a decision imposing an administrative sanction. 32. Article 294 of the Code provided that a court decision on an administrative offence could be reviewed by the judge of the same court upon an extraordinary appeal lodged by a prosecutor, or by a judge of a higher court on his or her own motion.