Oleksandr Borysovych OMELCHUK v Ukraine - 42195/04 [2011] ECHR 548 (15 March 2011)

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The European Court of Human Rights (Fifth Section), sitting on 15 March 2011 as a Chamber composed of:

Elisabet Fura, President,
Boštjan M. Zupančič,
Mark Villiger,
Isabelle Berro-Lefèvre,
Ann Power,
Ganna Yudkivska,
Angelika Nußberger,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

The applicant, Mr Oleksandr Borysovych Omelchuk, is a Ukrainian national who was born in 1977 and lives in Kozyatyn. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 6 May 2004 the applicant participated in a hearing before the Zhytomyr Regional Court of Appeal (“the Regional Court”) as a legal representative. The judge dealing with the case found him to be in contempt of court. The applicant, in turn, approached the police officers in charge of keeping order on the court’s premises and told them that the judge had committed a crime. A dispute followed, as a result of which the applicant was arrested for disobeying the police.

Later on 6 May 2004 the applicant was taken to the Zhytomyr City Police Department, where he was allegedly placed in a cage for several hours without any food or access to toilet facilities.

On 7 May 2004 the Korolyovskyy District Court of Zhytomyr (“the Korolyovskyy Court”), by a final ruling delivered following a hearing at which the applicant was present, found him guilty of disobeying police orders and sentenced him to ten days’ administrative detention. On 15 May 2004 it issued another final ruling, again doing so after a hearing at which the applicant was present, by which it found him guilty of contempt of court and sentenced him to fifteen days’ administrative detention. While waiting for the hearing on that date, the applicant was allegedly held in a cage in the court’s basement without food.

On 11 April 2006 the Supreme Court quashed both rulings of the Korolyovskyy Court under the extraordinary review procedure sought by the applicant and remitted the case for fresh examination. It noted, in particular, that the first-instance court had failed to duly establish the facts of the case, to indicate in a clear manner exactly what had amounted to contempt of court and disobeying police orders, to give adequate reasons for its treatment of the applicant’s arguments or to consider applying less restrictive sanctions.

On 3 May 2006 the Korolyovskyy Court examined the case in the applicant’s absence and issued two final rulings, by which it terminated the administrative offence proceedings against him as time-barred.

On 5 July 2004 the applicant introduced with the Bogunskyy District Court of Zhytomyr (“the Bogunskyy Court”) and with the Korolyovskyy Court two identical complaints against the Zhytomyr Regional Police Department, alleging, in particular, that they had subjected him to ill treatment during his arrest on 6 May 2004.

On 30 September 2004 the Bogunskyy Court forwarded the complaint to the Korolyovskyy Court in accordance with the rules of territorial jurisdiction.

According to the applicant, the Korolyovskyy Court handled both of his complaints separately. By a ruling of 5 October 2004 it stayed the examination of one of the complaints and invited the applicant to specify his complaint and substantiate the violations he was complaining of by 20 October 2004. As this was not done, on 21 October 2004 the court decided to deem the complaint as having not been lodged and to return it to the applicant. On 8 December 2004 the Regional Court upheld that ruling. As to the second complaint, on 28 December 2004 the Korolyovskyy Court refused to accept it for examination, having noted that it contained allegations of criminal offences and therefore had to be submitted to the prosecution authorities for criminal investigation. On 21 April 2005 and 26 July 2007 the Regional Court and the Higher Administrative Court respectively upheld that ruling.

The applicant acted as the legal representative of Ms B. and Ms K. in civil proceedings. He also represented a private company, L., before the domestic tax authorities. Following a refusal by the local tax office to register the aforementioned company as a taxpayer, the applicant unsuccessfully sought the initiation of criminal proceedings against the officials involved.

On 25 November 2004 the Court received the first letter from the applicant expressing his intention to introduce an application and outlining the substance of his complaints. The letter, which was dated 14 October 2004, had among its enclosures copies of certain newspapers issued on 21 October and 12 November 2004. Its envelope was postmarked 17 November 2004.

The provisions of the Administrative Offences Code (“the AOC”) concerning administrative arrest as punishment for an administrative offence and the lack of an ordinary appeal procedure are summarised in the judgment in the case of Gurepka v. Ukraine, no. 61406/00, §§ 28-32, 6 September 2005.

Article 267 of the AOC provided, inter alia, that an arrest on grounds of an administrative offence could be challenged by the arrestee before the supervising authority, a prosecutor or the courts.

By virtue of the Amendment Act enacted on 17 November 2008, a second level of jurisdiction was introduced into the administrative offence procedure (Article 287 of the AOC).

The applicant complained under Article 2 of Protocol No. 7 to the Convention that he had had no ordinary appeal procedure at his disposal in the administrative offence proceedings against him. He also complained under Article 5 § 1 of the Convention of the alleged unlawfulness of his administrative detention in May 2004. The applicant further complained under Article 3 of the Convention that he had been ill-treated by the police. He also complained under the same provision about the conditions of his detention on 6 and 15 May 2004. Furthermore, relying on Article 6 § 1, he complained that: the hearings before the Korolyovskyy Court on 7 and 15 May 2004 had been unfair; the hearing on 3 May 2006 had taken place in his absence; the civil proceedings initiated by Ms K. and Ms B. had been unfair and excessively lengthy; and the Supreme Court had reopened the administrative offence proceedings with delay. Relying on Articles 6 § 1 and 13 of the Convention, the applicant further complained that he had had no access to court in respect of his complaints against the police. Relying upon Articles 6 § 1, 13 and 10, he complained of the failed registration of company L. with the tax authorities. Lastly, he referred to Articles 9, 10, 13 and 14 of the Convention without being any more specific.

The Government disagreed without making any plea of inadmissibility. In particular, they did not submit any observations on the question of the six-month rule. In this respect the Court reiterates that the six-month rule, in reflecting the wish of the Contracting Parties to prevent past decisions being called into question after an indefinite lapse of time, serves the interests not only of the respondent Government but also of legal certainty as a value in itself. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible. It is therefore not open to the Court to set aside the application of the six-month rule solely because a Government have not made a preliminary objection based on it (see Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I).

The Court observes that, as stated by the applicant, Ukrainian law at the material time provided only for extraordinary review of administrative offence proceedings if such review was initiated by a prosecutor or by a motion of the president of a higher court (follow the reference given in the “Relevant domestic law” section above). The Court has examined this issue in some other cases against Ukraine and concluded that given that the aforementioned review procedure was not directly accessible to a party to the proceedings and did not depend on his or her motion and arguments, it could not be considered a sufficiently effective remedy for Convention purposes (see Gurepka, cited above, § 60).

The Court reiterates that pursuant to Article 35 § 1 of the Convention, it may only deal with a matter within a period of six months from the final decision in the process of exhaustion. If no remedies are available or if they are judged to be ineffective, the six-month period in principle runs from the date of the act complained of (see Hazar and Others v. Turkey (dec.), nos. 62566/00 et seq., 10 January 2002).

Turning to the facts of the present case, the Court notes that the decisions of the Korolyovskyy Court of 7 and 15 May 2004, delivered in the framework of the administrative offence proceedings against the applicant, following hearings at which he was present, were final and not amenable to appeal (which in fact is the subject of the applicant’s complaint to the Court under Article 2 of Protocol No. 7). Accordingly, in order to comply with the six-month time-limit under Article 35 § 1 of the Convention, the applicant was required to introduce his application: by 7 November 2004 in respect of the first set of administrative offence proceedings finalised by the decision of the first-instance court of 7 May 2004; and by 15 November 2004 in respect of the second set of proceedings in question which were finalised on 15 May 2004.

The Court notes that in order for the date featuring on a first communication by an applicant to be considered as the date of introduction of an application, it should be posted at the latest on the day after the date which appears on the communication. If that communication is postmarked more than one day later, it is the date of the postmark − rather than the date featuring on the letter or application form − that will be considered as the date of introduction (see Arslan v. Turkey (dec.), no. 36747/02, ECHR 2002-X (extracts)).

The Court observes that in the present case the applicant’s first letter to the Court was dated 14 October and was postmarked on 17 November 2004. The applicant did not advance any explanations regarding the reasons for such a delay. Moreover, some of the letter’s enclosures were posterior to the date indicated in it. The date of introduction of the application is thus 17 November 2004, which is out of time for the purposes of Article 35 § 1 of the Convention. This conclusion remains unchanged even if assumed that the applicant erred in the letter date and meant to indicate 14 November 2004, which is still more than one day before the postmark date.

It follows that this complaint was introduced too late and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ...”

The Government submitted that, similarly to the case of Nikolay Kucherenko v. Ukraine (no. 16447/04, § 27, 19 February 2009), the applicant had failed to challenge his arrest on 6 May 2004 before the domestic courts in compliance with Article 267 of the AOC. They therefore considered that that part of his application to the Court ought to be rejected for non-exhaustion of domestic remedies, as in the case of Nikolay Kucherenko cited above.

The applicant disagreed. He contended that he had not been able to employ the remedy indicated by the Government for as long as he had remained detained. He further submitted that, as soon as it had become practically possible to do so, he had raised a complaint in that regard before various domestic authorities.

The Court observes that it was indeed open to the applicant to challenge his arrest of 6 May 2004 before the local court under Article 267 of the AOC. Although he did eventually introduce numerous complaints before the domestic prosecution and judicial authorities, they concerned either the alleged unfairness of the administrative offence proceedings or his alleged ill-treatment by the police, but not his pre-trial detention as such. Even if the applicant’s complaints against the police had in fact encompassed the issue of his allegedly unlawful arrest on 6 May 2004, which remains unclear, the Court notes that those complaints were introduced in breach of existing procedure and were dismissed by the domestic courts on that ground without having been examined on merits. Accordingly, the applicant cannot be regarded as having exhausted domestic remedies in the present case.

Even assuming, to his benefit, that the aforementioned remedy was practically ineffective in the particular circumstances of his case, the Court notes that the applicant failed, in that event, to comply with the six-month time-limit under Article 35 § 1 of the Convention.

The Court considers that this complaint falls to be examined under Article 5 § 1 (a) of the Convention (see Gurepka, cited above, § 39, and Galstyan v. Armenia, no. 26986/03, § 47, 15 November 2007). It notes that the applicant was convicted by a “competent court” in compliance with a procedure prescribed by law. The eventual quashing of the respective judicial decisions by the rulings of the Supreme Court of 11 April 2006 does not automatically render the underlying detention unlawful as such for the purposes of Article 5 § 1 of the Convention (see Mooren v. Germany [GC], no. 11364/03, § 74, ECHR 2009 ..., and Kolevi v. Bulgaria, no. 1108/02, § 176, 5 November 2009). The flaws discovered by the Supreme Court in the decisions of the Korolyovskyy Court of 7 and 15 May 2004, by which the applicant had been convicted, mainly concern their reasoning and do not amount to “gross and obvious irregularities” sufficient to undermine the prima facie validity of his detention after conviction under those decisions (ibid, § 75 and § 177 respectively).

The Court therefore rejects this complaint as manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Oleksandr Borysovych OMELCHUK v Ukraine - 42195/04 [2011] ECHR 548 (15 March 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/548.html Cite as: [2011] ECHR 548