CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 23 août 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sBF964C40 { width:8.54pt; display:inline-block } .s9E304268 { width:190.42pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt }     FIFTH SECTION DECISION Application no. 64953/14 Leonid Yuriyovych KHOLODOV against Ukraine The European Court of Human Rights (Fifth Section), sitting on 23   August 2016 as a Chamber composed of:   Angelika Nußberger, President,   Ganna Yudkivska,   Khanlar Hajiyev,   André Potocki,   Faris Vehabović,   Yonko Grozev,   Carlo Ranzoni, judges, and Milan Blaško, Deputy Section Registrar , Having regard to the above application lodged on 16 September 2014, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Leonid Yuriyovych Kholodov, is a Ukrainian national who was born in 1964 and lives in Kharkiv. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     The applicant participated in the clean-up operations following the Chernobyl disaster and has special status as a “first category liquidator”. He is a second-degree disabled person as a result of his participation in the clean-up operations. In 2012 a commission of medical experts found that the applicant had lost 80% of his working ability. 4.     The applicant suffers from multiple ailments of his joints. He has been diagnosed with polyarticular rheumatoid arthritis of his feet joints; arthritis of the left knee joint and the right ankle joint; and rheumatoid arthritis of the right elbow joint. 5.     The applicant is a practising lawyer. He supports two daughters who were born in 2008. Owing to his condition the applicant is only able to walk for short distances and can hardly move during periods of exacerbation. The applicant uses his car extensively for personal, family and professional purposes. He has had a driving licence since 1986. 6.     On 27 December 2013 the applicant caused a traffic accident after his negligent driving led to his car being hit by another car. Both cars were damaged, with that of the applicant being damaged in several places, including in the steering mechanism. The applicant admitted his fault. 7.     On 18 February 2014 the Dzerzhynskyy District Court of Kharkiv found the applicant liable for a breach of traffic regulations resulting in damage to vehicles. When determining the penalty the court had regard to the nature of the offence and decided to suspend the applicant’s driving licence for one year. 8.     The applicant appealed, arguing that the suspension of his driving licence was an excessively severe punishment in his case. He asked for the penalty to be converted into a fine. The applicant contended that in view of his disability a car was indispensable for his professional activities and a driving ban would eventually worsen his financial position and ability to support his family. Moreover, he also used the car for personal and family purposes on a daily basis. The applicant submitted that he had had a driving licence since 1986 and that he had not committed any other administrative offences. He asked the Kharkiv Regional Court of Appeal (“the Court of Appeal”) to take into account the fact he had admitted being at fault in the accident and that his car had been badly damaged. 9.     By a final decision of 19 March 2014 the Court of Appeal amended the penalty and reduced the term of suspension of the licence to nine months. In its reasons the Court of Appeal first stated that there had been no evidence to suggest that the applicant’s disability was the sole reason for his using a car. Nor was a car the sole source of his income given that the applicant had a lawyer’s licence. The Court of Appeal then had regard to the facts that the applicant was a disabled person and that he had participated in the Chernobyl clean-up operation. It also noted that the applicant had admitted his fault but he had not expressed remorse. In addition, the applicant had not reimbursed the other party for the damage. B.     Relevant domestic law 10.     Article 124 of the Code of Administrative Offences of 1984 provides for administrative liability for breaches of traffic regulations which result in damage to vehicles, goods, roads, streets, railway level crossings, road construction equipment or other objects. It provides for a fine or a suspension of the offender’s driving licence for a period of six months to one year as a penalty for such an offence. COMPLAINTS 11.     The applicant complained that he had been subjected to punishment incompatible with Article 3 of the Convention when his driving licence had been suspended. 12.     He complained under Article 6 § 1 of the Convention that the courts had not been impartial and that they had failed to apply the law correctly. THE LAW A.     Articles 3 and 8 of the Convention 13.     The applicant complained that the penalty imposed on him had been disproportionate. He insisted that in view of his illness and the need to use a car on a daily basis the suspension of his driving licence had prevented him from the proper performance of his profession as a lawyer and from supporting himself and his family. The applicant alleged that the measure had constituted a punishment prohibited by Article 3 of the Convention. 14.     Having regard to the nature and the substance of the applicant’s complaint, the Court finds it appropriate to examine it under Articles 3 and 8 of the Convention. 15.     The relevant provisions of the Convention provide as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 1.     As to compliance with Article 3 of the Convention 16.     The Court reiterates that in order for a punishment to be “degrading” and in breach of Article 3, the humiliation or debasement involved must attain a particular level of severity and must in any event go beyond the usual element of humiliation inherent in any punishment. Indeed, Article 3, by expressly prohibiting “inhuman” and “degrading” punishment, implies that there is a distinction between such punishment and punishment more generally (see Costello-Roberts v. the United Kingdom , 25 March 1993, §   30, Series A no. 247 ‑ C). The assessment of this minimum level of severity depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. Further factors include the purpose for which the ill-treatment was inflicted, together with the intention or motivation behind it, although the absence of an intention to humiliate or debase the victim cannot conclusively rule out a finding of a violation of Article 3 (see   Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015, with further references). 17.     The Court recalls that in previous cases the questions arose whether the withdrawal of the right to practise medicine as a disciplinary measure and, most relevant to the present case, whether the suspension of a driving licence contradicted Article 3 of the Convention (see, respectively, Albert and Le Compte v. Belgium , 10 February 1983, §§ 21-23, Series A no. 58, and Incal v. Turkey , no. 22678/93, Commission decision of 16 October 1995, unreported). In both cases the Court found that the measures did not attain the level of severity required by Article 3. 18.     In the present case the applicant emphasised that he suffered from multiple ailments of the joints, could walk for short distances only and that the suspension of his driving licence was a serious disruption to his everyday life, in which he used his car on a regular basis. 19.     The Court considers that the suspension of a driving licence in the circumstances of the present case cannot be regarded as an assault on the applicant’s dignity and is in principle far from the minimum threshold required by Article 3 of the Convention. Even if the applicant experienced a certain amount of inconvenience by being obliged to change his normal way of life and might have had to undertake journeys which were complicated, the Court considers that the need to modify his everyday life in the way mentioned could not produce effects which attained the level of severity prohibited by Article 3 of the Convention. Furthermore, there is no indication that the measure imposed on the applicant was aimed at humiliating him or debasing him, rather than punishing him for a violation of traffic regulations. In sum, the suspension of his driving licence cannot be regarded as degrading or inhuman punishment within the meaning of Article 3 of the Convention. 2.     As to the compliance with Article 8 of the Convention (a)     Whether there was an interference 20.     It appears from the applicant’s submissions that owing to his joint ailments, which made it painful for him to walk long distances, he used his car extensively for his personal, professional and family needs. Accordingly, the nine-month driving ban had repercussions on the applicant’s everyday life. In that sense it could be admitted that such a penalty constituted an interference with the applicant’s right to respect for his private and family life. (b)     Lawfulness and legitimate aim 21.     The interference was based on Article 124 of the Code of Administrative Offences of 1984 and the applicant did not contest the application of that domestic provision in his case. The Court finds that the interference was “in accordance with the law” within the meaning of Article   8 of the Convention. It further considers that the penalty imposed pursued some of the legitimate aims provided in the second paragraph of that provision, in particular “public safety” and “prevention of crime”. The question remains if the interference was “necessary in a democratic society”. (c)     “Necessary in a democratic society” (i)     General principles 22.     In determining whether the impugned measure was “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify it were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention. Whilst Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Article 8 (see T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, §§ 70 and 72, ECHR 2001 ‑ V (extracts)). 23.     The national authorities have the benefit of direct contact with all the persons concerned. Accordingly, the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see Elsholz v.   Germany [GC], no. 25735/94, §   48, ECHR 2000 ‑ VIII). The margin of appreciation to be accorded to the competent national authorities will first vary in accordance with the nature of the issues and the importance of the interests at stake (see Sommerfeld v. Germany [GC], no. 31871/96, §   63, ECHR 2003 ‑ VIII (extracts)). Second, the extent of the State’s margin of appreciation depends on the quality of the decision-making process. In particular, if the procedure was seriously deficient in some respect, the conclusions of the domestic authorities are more open to criticism (see   Sýkora v. the Czech Republic , no. 23419/07, §   102, 22 November 2012, and Ivinović v. Croatia , no. 13006/13, § 36, 18 September 2014, with further references). (ii)     Application of these principles to the present case 24.     The Court notes that the applicant caused a traffic accident when he was driving his car, which resulted in damage to his own car and the car of another driver. He did not deny his responsibility for the accident and did not challenge the findings of the domestic courts on the merits of the case. His disagreement concerned the penalty, which in his opinion was excessive. 25.     The Court observes that matters of appropriate sentencing largely fall outside the scope of the Convention (see Müller v. Austria , no.     12555/03, § 28, 5 October 2006). In assessing the proportionality of the penalty that was chosen the Court considers, first of all, that the suspension of the driving licence could be regarded as an appropriate measure in response to the applicant’s offence. The measure was capable of achieving the legitimate aims identified above, more specifically, ensuring traffic safety and preventing traffic offences. 26.     Secondly, there are no grounds to assume that the suspension of the driving licence was an unnecessarily stringent or excessive measure to achieve those aims. In that context the domestic courts provided an analysis of the necessity of the penalty and weighed up the relevant public and private interests. In particular, the first-instance court suspended the applicant’s licence, having regard to the nature of the offence. That finding was endorsed in substance by the Court of Appeal which found it possible, however, to reduce the driving ban from one year to nine months. 27.     As concerns the applicant’s argument that he could not walk for long distances and needed a car to exercise his profession and to meet his everyday private and family needs, the Court notes that the Court of Appeal proceeded from the premise that, contrary to other types and degrees of disability, the applicant’s ailment did not as such prevent the imposition of a driving ban. That finding was made following an assessment of the available material, including medical evidence. Furthermore, in the Court of Appeal’s opinion, the car was not a principal source of income for the applicant given that he was a lawyer by profession. Additionally, much consideration was given to his disability in reducing the overall term of the driving ban. In fact, in reducing the term of the suspension, the Court of Appeal took into account a variety of factors: the applicant’s disability, his participation in the Chernobyl clean-up operation, his admission of fault, his attitude to the accident and the consequences it had caused. 28.     Lastly, the Court does not find any issue of procedural unfairness which might put in question the decision-making process relating to the determination of the penalty. The applicant was given sufficient opportunities to present his position and was not prevented from submitting evidence, including medical evidence, in support of his contentions. There is no indication of any other procedural shortcomings, including in relation to guarantees of the independence and impartiality of the domestic tribunals. 29.     Bearing in mind the scope and permissible limits of its own review in the present case, the Court does not discern any manifest failure by the domestic courts to assess the circumstances which were of significance for the choice of the penalty and its proportionality. It finds that the domestic courts provided “relevant and sufficient reasons” when deciding to impose the impugned measure for the given duration. 3.     Conclusion 30.     In view of the above considerations, the complaint does not raise any issue under Articles 3 and 8 of the Convention. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. B.     Article 6 § 1 of the Convention 31.     The applicant further complained under Article 6 § 1 of the Convention that the courts in his case had lacked impartiality and that they had failed to apply the law correctly. 32.     The Court has examined these complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible.   Done in English and notified in writing on 15 September 2016.   Milan Blaško   Angelika Nußberger Deputy Registrar   President