CASE OF SHVYDKA v. UKRAINE
Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters (Article 2 of Protocol No. 7 - Review of conviction);Non-pecuniary damage - award
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano
5. The applicant was born in 1948 and lives in Kyiv. 6. On 24 August 2011, as part of the Independence Day festivities, there was a wreath-laying ceremony at a monument to Taras Shevchenko, a famous Ukrainian poet and public figure, with the participation of the then President of Ukraine Mr Yanukovych. 7. The applicant, as a member of the opposition party Batkivshchyna, took part in a public gathering organised by it on the occasion of Independence Day. According to her, the beginning of the meeting was delayed because of the aforementioned wreath-laying ceremony. 8. After the ceremony the applicant approached the wreath laid by Mr Yanukovych and detached part of the ribbon bearing the words “the President of Ukraine V.F.Yanukovych” without damaging the wreath itself. This was meant to express her opinion that Mr Yanukovych could not be called the President of Ukraine for a number of reasons. 9. The case file contains several copies of photos of the applicant in the aforementioned setting. In four of them she is seen near the wreath detaching the ribbon from it in a careful and concentrated manner, without changing the position of the wreath. In another photo the applicant holds the already detached ribbon in front of her and seems to be either laughing or saying something. There are many people next to her. In the last photo the applicant seems to be trying to tear the ribbon apart. Her face expresses either effort or contempt. 10. The applicant’s action was video recorded by one of the police officers in charge of maintaining public order. The aforementioned photos may also have been taken by the police. 11. On the same day the police officer in question established the applicant’s identity and reported the incident to his superiors. 12. On 25 August 2011 the applicant was apprehended (for less than three hours – see paragraph 16 below) and taken to the Shevchenkivskyy district police station, where a report was drawn up indicating that her actions amounted to petty hooliganism in breach of Article 173 of the Code of Administrative Offences. The applicant, who was not allowed to consult a lawyer, refused to sign that report. 13. On 30 August 2011 the Shevchenkivskyy District Court of Kyiv, at a hearing attended by the applicant and the lawyer retained by her in the meantime, found the applicant guilty of petty hooliganism on account of the incident of 24 August 2011 and sentenced her to ten days’ administrative detention. The court explained that it had decided to apply such a penalty given the nature of the offence, the applicant’s cynical attitude towards it and her failure of admit her guilt. The applicant submitted at the hearing that she had been expressing her civil position and that she had not damaged the wreath, but had merely taken a piece of the ribbon to show her children and grandchildren and also her acquaintances who had voted for Mr Yanukovych. 14. On the same day the applicant’s lawyer lodged an appeal on her behalf. He argued that the applicant’s action had been an expression of her civil position and that it had been neither prompted by hooligan motives nor aimed at disturbing public order or breaching the peace. The appeal further referred to Article 10 of the Convention and the Court’s case-law, according to which the notion of “expression” concerned not only words, but also actions intended to convey a certain message or information. Referring to paragraph 16 of Resolution of the Plenary Supreme Court no. 10 of 22 December 2006 (see paragraph 18 below), the lawyer also submitted that the penalty imposed was excessively severe. 15. On 21 September 2011 the Kyiv City Court of Appeal, at a hearing attended by the applicant’s two lawyers, upheld the first-instance court’s decision in a final ruling. By that time the applicant had served her sentence in full.