CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 20 juin 2024

.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 } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9F46BEC9 { margin-top:14pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .sBD1BE8CC { width:33.89pt; display:inline-block } .s562DAB76 { width:148.76pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIFTH SECTION DECISION Application no. 37785/17 Sorin Gabriel DUMBRAVA against Ukraine   The European Court of Human Rights (Fifth Section), sitting on 20 June 2024 as a Committee composed of:   Lado Chanturia , President ,   Stéphanie Mourou-Vikström,   Mykola Gnatovskyy , judges , and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.   37785/17) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 May 2017 by a Romanian national, Mr Sorin Gabriel Dumbrava, who was born in 1978 and lives in Succava (“the applicant”), and who was represented by Mr A.G. Vivchar, a lawyer practising in Novoselytsa; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The case concerns a complaint under Article 6 § 3 (c) of the Convention of a failure by the first-instance court to inform the applicant of a hearing held in administrative-offence proceedings against him. In particular, he complained that he had not been able to defend himself in person or through a lawyer. 2.     The applicant is a Romanian national, who, on 17 April 2016, crossed the border into Ukraine without declaring 162 cartons of cigarettes, which were hidden in his car. Customs officers found the cigarettes and issued an administrative-offence report. 3.     On 8 August 2016 the Pershotravnevyi District Court of Chernivtsi heard the case in the absence of both the applicant and his lawyer and found the applicant guilty of breaching the Customs Code. He was fined 2,430   Ukrainian hryvnias and the cartons of cigarettes and the car used to transport them to Ukraine were confiscated. The applicant appealed, complaining that the first-instance court had failed to inform him of the hearing. He also asked to extend the time-limit for submitting an appeal. 4 .     On 1 December 2016 the Chernivtsi Regional Court of Appeal extended the time-limit for submitting an appeal, as the applicant had not been informed of the hearing before the first-instance court or of its decision. It examined the case in the presence of the applicant’s lawyer, who made submissions on his behalf. The appellate court upheld the decision of 8   August 2016. THE COURT’S ASSESSMENT 5.     The applicant complained under Article 6 § 3 (c) of the Convention that he had not been informed of the hearing before the first-instance court and that, as such, he had been unable to defend himself either in person or through his lawyer. 6.     The Court has previously established that customs-related administrative offences are in fact of a criminal character attracting the full guarantees of Article 6 of the Convention (see Nadtochiy v.   Ukraine , no.   7460/03, §§   20-22, 15 May 2008). It reiterates that an oral and public hearing constitutes a fundamental principle enshrined in Article 6 § 1, which is particularly important in the criminal context where, generally, there must be, at first instance, a tribunal which fully meets the requirements of Article   6 (see Findlay v. the United Kingdom , 25 February 1997, § 79, Reports of Judgments and Decisions 1997-I). Furthermore, the Court’s task in connection with Article 6 of the Convention is to examine whether the proceedings as a whole were conducted in accordance with the requirements of a fair hearing (see, for instance, De Tommaso v. Italy [GC], no. 43395/09, §§ 171-172, 23 February 2017). In particular the proceedings as a whole may be said to have been fair if the defendant was allowed to appeal against the conviction   in absentia   and entitled to attend the hearing in the court of appeal entailing the possibility of a fresh factual and legal determination of the criminal charge (see, mutatis mutandis , Petrina v. Croatia , no. 31379/10, §   44, 13 February 2014). 7.     In the present case, neither the applicant nor his representative were present at the hearing of 8 August 2016 of the Pershotravnevyi District Court of Chernivtsi, as the applicant had not been informed (see paragraphs 3 and 4 above). However, the applicant’s representative was present at the hearing of 1 December 2016 of the Chernivtsi Regional Court of Appeal and made submissions on his behalf (see paragraph 4 above). 8.     The Court recalls that it has already concluded in a number of cases against Ukraine that the courts of appeal have full jurisdiction to examine a case (see, for instance, Azyukovska v. Ukraine [Committee] (dec.), no.   26293/18, §   25, 9   October 2018, and Gemu v Ukraine [Committee], no.   16025/06, §   25, 22   September 2022). There is no need to depart from that conclusion in the present case. 9.     Given that the Chernivtsi Regional Court of Appeal had full jurisdiction to hear the case and in view of the fact that the applicant’s representative attended the hearing of 1 December 2016 and was able to make submissions on his behalf, the Court concludes that the appellate court has remedied the procedural shortcoming before the first-instance court. 10.     Accordingly, the Court finds that the proceedings were not, taken as a whole, unfair and that the application is manifestly ill-founded. 11.     It follows that the application must be rejected in accordance with Article   35 §§ 3 and   4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 11 July 2024.     Martina Keller   Lado Chanturia   Deputy Registrar   President