FIFTH SECTIONCASE OF SLOBODYAN v. UKRAINE(Application no. 2511/16)    JUDGMENT STRASBOURG9 December 2021 This judgment is final but it may be subject to editorial revision.In the case of Slobodyan v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Mārtiņš Mits, President, Jovan Ilievski, Ivana Jelić, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the application (no. 2511/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Petro Romanovych Slobodyan (“the applicant”), on 24 December 2015;the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Article 6 §§ 1 and 3 (d) of the Convention, and to declare inadmissible the remainder of the application;the parties’ observations;Having deliberated in private on 18 November 2021,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. The applicant was convicted of a violation of traffic rules and failure to undergo an alcohol test. Under Article 6 §§ 1 and 3 (d) he complained that he had been unable to examine the driver of the other car involved in the incident because under the relevant Ukrainian law the courts could not order the police to escort witnesses to the court.THE FACTS2. The applicant was born in 1962 and lives in Lutsk. He was represented by Mr V. Krasun, a lawyer practising in Lutsk.3. The Government were represented by their Agent, Mr I. Lishchyna.4. The facts of the case, as submitted by the parties, may be summarised as follows.5. On 3 April 2015 the applicant, a judge, was in a car (an SUV) with Mr M. and Mr K. The car collided with a car driven by Mr B., who was in the car with his relative Mr P. B.’s car was damaged. It was not contested that the SUV’s driver had caused the collision by driving too fast and failing to maintain a safe distance between the cars.6. When the traffic police arrived on the scene, B. identified the applicant as the SUV’s driver. The police requested the applicant to undergo a breathalyser test but he refused, arguing that K., and not him, had been driving. K confirmed this.7. The police drew up administrative offence reports charging the applicant with the administrative offences of breaching the traffic rules and refusing to undergo an alcohol test. The police also collected statements from B. and P. (see paragraph 10 below).8. The applicant stood trial before the Lutsk Court. He maintained his position that K. and not him had been driving. K. and M. gave evidence to the same effect.9. The court summoned B. three times but he failed to appear. He sent a letter to the court informing it that, due to family circumstances, he was constantly out of town but that he wished to reaffirm the statement he had given to the police.10. On 20 May 2015 the trial court convicted the applicant as charged and suspended his driving licence for two years. The court relied on:(i)  the administrative offence reports;(ii)  P.’s testimony in court to the effect that the incident had been caused by the SUV driver. In court P. was not able to identify the driver with certainty. The court noted, however, that in P.’s statement to the police, which he had reaffirmed in court, he had given a physical description of the driver which corresponded to the applicant and not at all to K., who according to the applicant had supposedly been driving;(iii)  B.’s statement to the police to the effect that the applicant had been the SUV driver and had caused the incident;(iv)  the evidence of the traffic police officer who drew up the relevant reports and a civil activist who observed the drawing-up of the report. They stated that when they had arrived on the scene, B. had identified the applicant as the SUV’s driver and the applicant had been showing signs of intoxication; and(v)  a medical report from a substance-abuse institution where the applicant had been examined a couple of hours after the incident according to which the applicant had displayed certain neurological and other signs which, the author of the report had stated in court, could be indicative of intoxication.11. The court stated that it distrusted the evidence of the applicant and his acquaintances K. and M. as to which of them had been driving, considering that it contained a number of inconsistences. The court considered the applicant’s acquaintances’ statements to be an attempt to exonerate the applicant.12. The applicant appealed. He contested the trial court’s assessment of the evidence. He argued, in particular, that the trial court could not rely on B.’s evidence because B. had not been examined in court.13. On 1 July 2015 the Volyn Regional Court of Appeal upheld the applicant’s conviction, finding the trial court’s assessment of the evidence correct. The court noted in particular B.’s letter to the trial court (see paragraph 9 above) and observed that the trial court could not order the police to escort B. to court. Therefore, the trial court was justified in relying on his pre-trial statement.RELEVANT LEGAL FRAMEWORK AND PRACTICE14. Article 185-3 of the 1984 Code of Administrative Offences provides for fines for contempt of court, including malicious failure of witnesses or victims to appear when summoned.15. The 2004 Code of Civil Procedure and 2012 Code of Criminal Procedure contain rules according to which courts may instruct the police to escort to court witnesses who fail to appear when summoned. The Code of Administrative Offences does not contain any such provision.THE LAWALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION16. The applicant complained of a violation of Article 6 §§ 1 and 3 (d) of the Convention, which reads as follows:“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ......3. Everyone charged with a criminal offence has the following minimum rights:...(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;”Admissibility17. The Government did not contest the applicability of Article 6 under its criminal limb in the present case. The Court has already held that proceedings leading to the withdrawal of points from a driving licence were “criminal” within the meaning of Article 6 of the Convention (see Malige v. France, 23 September 1998, §§ 35-40, Reports of Judgments and Decisions 1998‑VII, and Varadinov v. Bulgaria, no. 15347/08, §§ 39-40, 5 October 2017). It has also made the same findings in respect of administrative offence proceedings under Ukrainian law (see, for example, Gurepka v. Ukraine, no. 61406/00, § 55, 6 September 2005, and Mikhaylova v. Ukraine, no. 10644/08, § 46, 6 March 2018). The Court does not see any reason to reach a different conclusion in the present case.

Article of the Convention at issue: Article 6
Outcome: violation