CYIL vol. 15 (2024)

JIŘÍ MULÁK were initiated against the applicant, and she was found guilty and sentenced to 5 days’ administrative detention. The applicant served this 5-day detention. Although this decision of the court was subsequently reviewed by the Regional Court, the first instance judgment was nevertheless upheld, despite the applicant’s claim that she had been deprived of the right to appeal against the judgment in her criminal case. It should be noted that at the relevant time there was no proper appeal procedure for administrative offences. However, according to the applicant, the other appeal procedure that did exist did not meet the requirements of Article 2 of Protocol No. 7 to the ECHR. According to the ECtHR, because of the severity of the sanction, administrative proceedings such as those brought against the applicant in the present case must be regarded as criminal for the purposes of the ECHR and its Protocols No. 7 ECHR because: (i) Ukrainian law, prior to the amendments adopted in 2008, did not provide for a right of appeal within the meaning of Article 2(1) of Protocol No. 7 ECHR in cases of administrative offences; and (ii) the administrative offence of contempt of court cannot be considered a “minor offence” within the meaning of Article 2(2) of Protocol No. 7 ECHR. The domestic law procedure relied on by the Government did not, at the relevant time, provide a right of appeal within the meaning of Article 2 of Protocol No. 7 ECHR. Accordingly, the ECtHR found a violation of Article 2 of Protocol No. 7 ECHR. 21 This is again a case of the absence of an appeal mechanism in Ukrainian law, which was then resolved by an amendment. The relevance for Czech law is minimal, however, it is important to note that even when it comes to deprivations of liberty of several days, the ECtHR judges very strictly and always insist on the existence of proper remedial mechanisms. In Malynovska v. Ukraine , 22 the main issue was the applicant’s objection that she had been denied the right to appeal in administrative offence proceedings. Her argument is again based on a violation of Article 2 of Protocol No. 7 to the ECHR. At first instance, the Kyiv District Court sentenced her to five days’ administrative detention, as the court held that she had committed an administrative offence of disorderly conduct. Although there was a 10-day time limit for appeal, the sentence issued was subject to immediate execution. In practice, this meant that the applicant was immediately placed in custody and, although she lodged an appeal, she unsuccessfully applied for a stay of execution. The applicant was subsequently released after serving her sentence. In the proceedings on her appeal, the Court of Appeal in Kiev returned her appeal without a hearing, i.e., without review, as it decided that it did not have jurisdiction to rule on appeals which had already become final. The applicant therefore alleged a violation of Article 2 of Protocol No. 7 to the ECHR, i.e., a violation of her right to appeal in criminal cases. The reason given was the absence of review of the decision depriving her of her personal liberty. It may be noted that the facts of the present case are somewhat similar to those in Shvydka . The ECtHR has reviewed the case and considered it inconceivable how the Ukrainian appellate review procedure would ever be able to effectively remedy the defects of the lower court’s decision at such a late stage. This was a key consideration leading to the finding of a violation of Article 2 of Protocol No. 7 to the ECHR. Returning to the Malynovska case, the situation in the present case was even worse: not only did the applicant’s appeal not have

21 ECtHR decision in Mikhaylova v. Ukraine , of 6 March 2018, application no. 10644/08, §§ 99–103. 22 ECtHR decision in Malynovska v. Ukraine , of 9 December 2021, application No. 74576/13.

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