EUROPEAN COURT OF HUMAN RIGHTS IN ACTION / Alla Tymofeyeva (ed.)

On the same day the police officer in question established the applicant’s identity and reported the incident to his superiors. 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. 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. 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. 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. The applicant complained that the delayed examination of her appeal, although being in accordance with the established procedure, undermined her right of appeal because it took place only after she had served her sentence in full.

Questions: 1. Was the application admissible?

2. Did the applicant have a possibility to appeal? 3. What would be your legal advice to the applicant? 4. If you were a judge of the Court how would you rule on the case?

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EUROPEAN COURT OF HUMAN RIGHTS IN ACTION