CYIL vol. 15 (2024)

JIŘÍ MULÁK police officer who had humiliatingly and unlawfully deprived her of her personal liberty. Her application was rejected. The applicant applied for a judicial review of the incident, which was refused by the court of first instance and its decision was subsequently confirmed by the Regional Court. The applicant, Svetlov, was stopped by the police and charged with an administrative offence for not having a valid driving licence. In response, he was immediately placed in administrative detention and subsequently brought before a judge, where he requested a lawyer. Although the hearing was interrupted so that he could contact his attorney, the court security guard did not allow him access to a telephone. According to the Government’s argument, the applicant had waived his right to a defence, which he denied. The trial court found the applicant guilty and imposed a sentence of five days’ administrative detention. The applicant appealed against this decision, but the Court of Appeal upheld the judgment against him. The Supreme Court dismissed the application for review. Therefore, the applicant subsequently lodged a constitutional complaint, but the Constitutional Court stated in its decision that the immediate execution of the administrative detention did not violate the Constitution. In the proceedings before the ECtHR, the applicant argued that he had not been given sufficient time and resources to prepare his defence, argued that the appeal against the sentence of administrative detention lacked suspensive effect and claimed that Russia had violated his right to the presumption of innocence. He stated that the appeal hearing took place after he had served his full sentence of 5 days’ administrative detention. The ECtHR found that the basic factual findings in the present case were similar to those at the heart of the ECtHR’s findings in Shvydka . The ECtHR stated that Article 2 of Protocol No. 7 to the ECHR allows for limitations on the right of appeal provided that they pursue a legitimate aim and do not undermine the very essence of that right. The Government did not put forward any argument to the ECtHR concerning the legitimate aim or whether, in the circumstances of the case, the very essence of the right of appeal was adversely affected. Under Russian law, sentences are normally served after the expiry of the time-limit for appeal or after the decision on appeal. Thus, the ECtHR concluded that the applicant’s appeal was not in fact dealt with expediently, but was reviewed after his sentence had been served. This conduct by Russia violated Article 2 of Protocol No. 7 to the ECHR. 33 In case of Martynyuk v. Russia , 34 the applicant claimed that he had not been heard at all in the proceedings before the court and that the immediate execution of his sentence, consisting of restrictions on his personal liberty, violated his right to appeal. On the facts, the applicant was arrested on suspicion of minor disorder. The administrative authority made a record of an administrative offence with him; it was a misdemeanour. In a subsequent hearing in the District Court, the applicant was found guilty and was sentenced to 10 days imprisonment. The applicant commenced serving his sentence on the same day on which the sentence was pronounced. The applicant’s lawyer appealed to the Regional Court on his behalf, which, although it reviewed the merits of the case, upheld the applicant’s guilt, including the sentence imposed by the first instance court. In the proceedings before the ECtHR, the Government argued that the applicant had not exhausted his remedies, but the ECtHR did not accept the Government’s argument. The applicant argued that the lack of suspensive effect in his appeal against the sentence of administrative detention undermined 33 ECtHR decision in Tsvetkova and others v. Russia , of 10 April 2018, application no. 54381/08, §§ 179–191. 34 ECtHR decision in Martynyuk v. Russia , of 8 October 2019, application no. 13764/15.

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