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FIFTH
SECTION
CASE OF YUSHCHENKO AND OTHERS v. UKRAINE
(Applications
nos. 73990/01, 7364/02, 15185/02 and 11117/05)
JUDGMENT
STRASBOURG
15 July
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Yushchenko and
Others v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva,
Ganna Yudkivska, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 22 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in four applications (nos. 73990/01, 7364/02,
15185/02 and 11117/05) against Ukraine lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by three
Ukrainian nationals, Mr Vladimir Mikhaylovich Yushchenko (“the
first applicant”), Mr Vladimir Vladimirovich Yushchenko (“the
second applicant”) and Mr Pavel
Vladimirovich Yushchenko (“the third applicant”) and a
private transport enterprise, YUVM-Avtoservis (ПП
«ЮВМ-Автосервіс»)
(“the applicant company”). Application no. 73990/01 was
lodged on 28 September 2000 by all applicants. Application no.
7364/02 was lodged on 10 May 2001 by the third applicant. Application
no. 15185/02 was lodged on 4 April 2002 by the first applicant and
application no. 11117/05 was lodged on 13 March 2005 by the second
applicant.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev, of the Ministry of Justice of Ukraine.
- On
27 March 2007 the Court declared the applications partly inadmissible
and decided to communicate to the Government the complaints of the
first applicant under Article 6 § 1 of the Convention, that the
civil claim against him had been allowed although there was already a
final decision on this claim; that the length of proceedings in the
fraud and libel criminal cases against him had been excessive; his
claim for compensation for damage caused by the search of his
apartment in May 1998 in his civil case; and under Article 1 of
Protocol No. 1 that his property rights had been violated during the
enforcement of the judgment of 18 February 1999 against him; and the
complaints of the third applicant under Article 6 §§ 1 and
2 of the Convention that the presumption of innocence had been
violated and that the proceedings in a criminal case against him had
been excessively long. It also decided to join the applications (Rule
42 § 1 of the Rules of Court) and to examine the merits of the
applications at the same time as their admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
individual applicants were born in 1934, 1967 and 1976 respectively
and live in Yevpatoriya, Ukraine.
A. Civil proceedings on the return of a photocopier
- In August 1998 L. instituted proceedings against the
first applicant in the Yevpatoriya Town Court requesting the return
of a photocopier, forty packets of paper and twelve toner cartridges.
He alleged that in May 1998 the first applicant, together with the
third applicant, had come to the office of L. and asked Z., the
secretary of L., to lend him a photocopier. At the material time L.
was in pre-trial detention in the course of criminal proceedings
against him. Z., knowing that there were friendly relations between
L. and the first applicant, had allowed him to take the photocopier
and other materials. Later L. also claimed compensation for
non-pecuniary damage.
- On 6 November 1998 the court found for L. and ordered
the first applicant to return the photocopier and related materials
to L. or to pay him 6,446.92 Ukrainian hryvnias (UAH) in pecuniary
damages. In the text of the judgment the court also mentioned that
the first applicant was to pay UAH 6,000 in compensation for
non-pecuniary damage, but made no reference to this sum in the
operative part of the judgment. On the same date the court also
adopted an interim decision by which it froze the accounts of the
applicant company and banned any transactions with the first
applicant’s property and apartment over UAH 12,446.92.
- On 4 January 1999 the Supreme Court of the Autonomous
Republic of Crimea (“the ARC”) quashed the judgment of 6
November 1998 and remitted the case for fresh consideration. The
court however upheld the decision of 6 November 1998 concerning the
interim measures.
- On 18 February 1999 the Yevpatoriya Town Court found
for L. and ordered the first applicant to return the photocopier to
L. or to pay him its value of UAH 5,480. The court also ordered the
first applicant to pay UAH 274 in court fees. The remainder of
L.’s claims were rejected as unsubstantiated. The court found
in particular, that there was no evidence that the first applicant
had taken paper and toner. The first applicant appealed against this
judgment, but his appeal was not accepted for failure to comply with
procedural formalities. L. did not appeal against the judgment in
question.
- The first applicant further tried to have the judgment
of 18 February 1999 reviewed under the new cassation procedure, in
the light of new circumstances and under the extraordinary review
procedure, but to no avail.
- In August 1999 L. instituted another set of
proceedings in the Yevpatoriya Town Court against the first
applicant, claiming additional payments, since the amount awarded to
L. by the court decision of 18 February 1999 did not correspond
to the current price of a photocopier, which, according to L., was
UAH 8,177.40. On 17 January 2000 the court found against L. It held
that in the judgment of 18 February 1999 the court had found that the
photocopier cost UAH 5,480. On 20 March 2000 the Supreme Court of the
ARC upheld the judgment of 17 January 2000.
B. Enforcement proceedings and related issues
- As the first applicant did not honour the judgment of
18 February 1999, on an unidentified date the Bailiffs’ Service
instituted enforcement proceedings.
- On 15 May 1999 the State Auto-Transport Inspection
informed the President of the Yevpatoriya Town Court, following his
request, that certain petrol tankers (a МАZ-5334,
registration number 7561 KРТ and a MAZ 5334,
registration number 1403 KPT) belonged to the first applicant.
- On 5 August 1999 the Yevpatoriya Town Court ordered
the seizure of one of the petrol tankers (7561 KPT). The court also
entitled the K. trade enterprise to sell it. The first applicant
stated that his appeal against the decision of 5 August 1999 had been
returned to him by a court letter of 27 August 1999. The letter
stated, without mentioning any dates, that “the court returned
your appeal because there was no such decision as the one against
which you appealed”.
- On 10 August 1999 the State Bailiffs’ Service
allegedly gave the petrol tanker to L., who sold it to the
joint-stock enterprise B. for UAH 19,250. UAH 9,161 were
transferred to the Bailiffs’ Service’s account and L.
allegedly took the rest of the amount.
- On 6 September 1999 the Yevpatoriya Town Court lifted
the seizure of the first applicant’s property and apartment and
of the accounts of the applicant company. The first applicant states
that the seizure of his apartment was only lifted in June 2001.
- The first applicant’s wife, Y., a co-owner of
the petrol tanker which had been sold, instituted court proceedings
seeking to have it excluded from the inventory of the seized
property. On 13 September 1999 the Yevpatoriya Town Court found that
Y. owned half of the petrol tanker and ordered the State Bailiffs’
Service to pay her half of the sum received after the sale of the
tanker. By an additional decision of 10 January 2000 the court stated
that that amount was equivalent to UAH 4,351.84. On 10 April 2000 the
Supreme Court of the ARC quashed these decisions and remitted the
case for fresh consideration. On 13 November 2000 the Yevpatoriya
Town Court decided to exclude the petrol tanker 7561 KРТ
from the list of seized property.
- The first applicant instituted several sets of
proceedings in the Yevpatoriya Town Court against the Bailiffs’
Service, alleging improper enforcement of the judgment of 18 February
1999. On 17 March and 22 May 2000 the court found that when
enforcing this judgment the State Bailiffs’ Service had not
acted in compliance with the procedure prescribed by law. On 30
August 2000 the Supreme Court of the ARC upheld the judgment of 22
May 2000. On 6 June 2000 the court found that the first applicant had
not been present when the value of the petrol tankers was being
assessed and had not had an opportunity to make a complaint. On
30 August 2000 the Supreme Court of the ARC upheld this
judgment.
- On 7 September 2000 the prosecutor instituted criminal
proceedings against L. for unlawful sale of the petrol tanker. There
is no further information about these proceedings.
- On an unidentified date the first applicant instituted
proceedings in the Tsentralnyy District Court of Simferopol against
the Yevpatoriya Bailiffs’ Service and the B. and K. trading
companies seeking to have invalidated the sales agreement of the
petrol tanker (7561 KPT). On 1 November 2001 the Tsentralnyy
District Court of Simferopol found the sales agreement invalid. On 27
March 2002 the Court of Appeal of the ARC (former Supreme Court of
the ARC) quashed this judgment and found the sales agreement valid.
On 10 December 2007 the Zaporizhzhya Regional Court of Appeal quashed
the decision of 27 March 2002 and remitted the case for fresh
consideration by the court of appeal. On 5 March 2008 the Court of
Appeal of the ARC upheld the decision of 1 November 2001.
- On an unidentified date the first applicant instituted
proceedings in the Kyivskyy District Court of Simferopol against the
traffic police, complaining about the cancellation of the State
registration of the petrol tanker (7561 KРТ). On 11
December 2000 the court found that the police officers had acted in
compliance with the court decision of 5 August 1999. On 14 March 2001
the Supreme Court of the ARC upheld this judgment. On 10 October 2001
the Supreme Court of Ukraine returned the first applicant’s
appeal under the new cassation procedure for failure to pay a court
fee. Between 2004 and 2006 the courts rejected the first applicant’s
requests for the proceedings to be reopened in the light of new
circumstances.
- On 31 May 2001, following the first applicant’s
complaint, the Tsentralnyy District Court of Simferopol found that
the K. enterprise had had no right to sell the petrol tanker.
- On 18 March 2003 the prosecutor’s office, while
stating that there was enough evidence of crime, refused to institute
criminal proceedings for negligence against the employees of the
State Bailiffs’ Service “because of an act of amnesty”.
- On an unidentified date the first applicant instituted
proceedings in the Saki Town Court, claiming compensation for
pecuniary and non-pecuniary damage caused by improper enforcement of
the judgment of 18 February 1999, to be paid from the State
budget of Ukraine. On 4 February 2003 the court dismissed the
first applicant’s claim as unsubstantiated.
- In March 2003 the first applicant instituted
proceedings in the Tsentralnyy District Court of Simferopol against
the K. enterprise, the Ministry of Trade of the ARC and the State
Treasury of Ukraine, claiming compensation for pecuniary and
non-pecuniary damage as a result of the sale of the petrol tanker. On
13 August 2003 the court found against the first applicant, since
there was no evidence that the alleged damage had been inflicted by
K.’s actions. On 23 July 2008 the Court of Appeal of the ARC
upheld this decision.
- On an unidentified date the first applicant instituted
proceedings in the Yevpatoriya Town Court against the State Treasury
of Ukraine, the Bailiffs’ Service and the Yevpatoriya
Department of Justice, claiming compensation for pecuniary and
non-pecuniary damage inflicted on him by improper enforcement of the
judgment of 18 February 1999. On 23 March 2004 the court awarded the
first applicant UAH 150,000 from the State budget of Ukraine in
compensation for pecuniary and non-pecuniary damage. On 20 September
2004 the Court of Appeal of the ARC quashed this judgment and
remitted the case for renewed examination. The first applicant
appealed against it in cassation. While the cassation appeal was
still pending, on 14 December 2004 the Yevpatoriya Town Court found
against the first applicant. There is no evidence that the applicant
has appealed against this judgment. On 15 October 2007 the
Zaporizhzhya Regional Court of Appeal, sitting as a cassation
instance, upheld the judgment of 20 September 2004.
- In 2009 criminal proceedings for abuse of power were
instituted against the bailiff N. The first applicant lodged a civil
claim for damages within these proceedings, which are currently
pending.
C. Criminal proceedings for fraud against the first and
third applicants
- In April 1999 L. requested the Yevpatoriya Town Police
Office to institute criminal proceedings against the first applicant
for fraud and blackmail, as the first applicant, with the third
applicant, had allegedly removed a photocopier from L.’s office
and not returned it. Between April and June 1999 the police several
times refused to institute such proceedings on the ground that the
issue in question had been already considered by the court under the
civil procedure (see paragraphs 5-9). These decisions were
subsequently quashed by the prosecutor, who remitted the material for
additional investigation.
- On 3 March 2000 the police eventually instituted a
criminal case against the first applicant for fraud. Subsequently L.
lodged a civil claim for UAH 10,310 in compensation for pecuniary
damage and UAH 50,000 in compensation for non-pecuniary damage.
- In May 2000 the investigation officer of the
Yevpatoriya Town Police Department requested that the third
applicant, who had previously been questioned as a witness, be
summoned, since there was enough evidence to charge him with fraud
and he had failed to appear at the police station. On 24 May 2000 the
police officers visited the third applicant’s apartment but he
was allegedly absent and his neighbour told them that the third
applicant would be away for a couple of weeks.
- On 6 June 2000 the first and third applicants were
charged with fraud. On the same day the proceedings against the third
applicant were separated and stayed, as his whereabouts were
allegedly unknown and he had been put on a wanted list.
- In September 2000 the investigation officer requested
the Yevpatoriya Town Police Office to search for the third applicant.
There is no evidence as to whether any searches were carried out
between 2000 and 2004.
- On 7 October 2000 the investigating officer terminated
the criminal proceedings against the first applicant for lack of
proof of a crime. On 27 October 2000 the prosecutor quashed this
decision and reopened the criminal proceedings. On 26 October 2001
the Yevpatoriya Town Court rejected the first applicant’s
complaint against the decision of 27 October 2000.
- On 5 April 2002 the criminal case was transferred to
the court. On 29 October 2002 the court returned the case for an
additional investigation. On 11 February 2003 the Court of Appeal of
the ARC quashed this decision and remitted the case for renewed
examination.
- During the consideration of the case in the
first-instance court from 5 April 2002 until 12 January 2004,
thirty-two court hearings were scheduled. Six of these were postponed
because L., witnesses or the prosecutor failed to appear. On four
more occasions both the prosecution and the defence had failed to
appear and on three occasions the first applicant had failed to
appear. The first applicant lodged twenty-five requests for the
withdrawal of the presiding judge and some judges of higher courts
from his case. All of his requests were rejected as unsubstantiated.
One hearing was postponed at the first applicant’s request and
on one occasion he refused to participate in the hearing. On 1 August
2002 the parties started fighting and the hearing was postponed.
Twice the first applicant was reprimanded for contempt of court and
from 5 December 2003 he was not allowed to participate in the court
hearings until the beginning of final pleadings between the parties.
However, the first applicant apparently took place in the next
hearing which was the last one.
- On 12 January 2004 the court sentenced the first
applicant conditionally to two years’ imprisonment for a fraud
committed previously in concert with another person(s). Judge K., who
considered the case, found that the first applicant together with
“another person” had abused the trust of L.’s
secretary and removed a photocopier worth UAH 8,350 and related
materials (paper and toner) worth UAH 1,960, the overall value thus
being UAH 10,310. In finding so the court stated that:
“On 6 May 1998 in the afternoon, [the first
applicant], by a prior arrangement with another person [...]
misappropriated a photocopier which belonged to L.”
...
“The court has doubts as to the statements by the
accused, V.M. Yushchenko, and a witness, P.V. Yushchenko [the third
applicant], who deny the fraud..., since their statements are
contradicted by the following evidence...”
- The court has further referred to the statements of L.
and the witnesses in the case, Z., B. and K., who maintained that the
first applicant had been assisted by his son. They also recognised
the third applicant at the face-to-face identification. The court
further stated that:
“The
court has doubts as to the statement of [the third applicant] who
maintains that on 6 May 1998 he was not in the office of L. and
did not steal the property of the latter. This statement is contested
by the statements of the witnesses Z., K. and B. who have recognised
him as the person who together with [the first applicant] was in the
office and loaded the property, which belonged to the victim, into a
Moskvich car”.
- Concerning the civil claim introduced by L., the court
mentioned that by the judgment of 18 February 1999 the first
applicant had already been ordered to pay L. UAH 5,480 as the value
of the photocopier. The court, however, ordered the first applicant
to pay L. the remaining UAH 4,830 in compensation for pecuniary
damage and UAH 5,000 in compensation for non-pecuniary damage. On 16
March 2004 and 1 July 2004 the Court of Appeal of the ARC and the
Supreme Court of Ukraine, respectively, upheld the sentence.
- On 1 June 2004 criminal proceedings were resumed in
respect of the third applicant and on 10 June 2004 the third
applicant was again charged with fraud. On 21 December 2005 Judge K.,
who had heard the criminal case against the first applicant,
sentenced the third applicant to one year and six months’
imprisonment for fraud, without actual enforcement of the sentence as
it had become time-barred. On 21 March 2006 the Court of Appeal
of the ARC upheld this judgment. On 12 August 2006 the Supreme
Court of Ukraine rejected an appeal in cassation by the third
applicant.
D. Libel case
- On 21 April 1999 the Yevpatoriya Town Court instituted
criminal proceedings against the first applicant as he, as a witness
in a civil case brought by K. against a hospital, had allegedly said
in a court hearing that “all this had been organised by the
criminal group of L. and K.”. On 12 November 1999 the
criminal case against the first applicant was closed. On 6 January
2000 the Yevpatoriya Town Court upheld this decision.
- On 16 June 2000 the Presidium of the Supreme Court of
the ARC, upon the protest of its President, quashed this
decision under the extraordinary review procedure and remitted the
case for renewed examination.
- On 19 October 2000 the Yevpatoriya Town Court quashed
the decision of 12 November 1999 and remitted the case for additional
investigation. On 10 December 2000 the Yevpatoriya Town Police Office
closed the criminal case for libel for lack of evidence of a crime.
- On 1 September 2001 the new Criminal Code came into
force and the offence of libel was decriminalised.
- On 26 November 2001, following L.’s
complaint, the Yevpatoriya Town Court quashed the decision of
10 December 2000 since the investigation had failed to comply
with the decision of 19 October 2000. The case was then supposed to
be transferred to the court to be closed in accordance with the
transitional provisions of the new Criminal Code.
- On 17 December 2001 the Police Office closed the
criminal case because the new Criminal Code did not envisage criminal
responsibility for libel. On 10 October 2002, following L.’s
complaint, the court quashed this decision and remitted the case to
the prosecutor. In doing so the court referred to its decision of 26
November 2001.
- On 12 August 2003 the Court of Appeal of the ARC
closed the criminal case against the first applicant. It held that
the offence of libel was decriminalised and the relevant law was
applied retrospectively.
- On 3 October 2003 the Supreme Court of Ukraine
allegedly reopened the proceedings upon an appeal in cassation by the
first applicant. In his letter of 24 April 2006 the first applicant
stated that the Supreme Court had returned his appeal because the
first-instance court had allegedly not provided it with a copy of an
appealed decision. There is no further information about these
proceedings.
E. The search of the first and second applicants’
apartments in the course of criminal proceedings against L.
- In
May 1998, in the course of criminal proceedings against L., the
apartments of the first and the second applicants were searched.
- In January 2001 (allegedly on 12 January 2001) the
first and second applicant instituted two separate sets of
proceedings in the Yevpatoriya Town Court against the State Treasury
of Ukraine, claiming compensation for non-pecuniary damage caused by
an allegedly unlawful search.
- On 17 June 2002 the court refused to examine the
second applicant’s claim as according to the Law “on the
procedure for compensation of damage caused to the citizen by
unlawful actions of bodies of inquiry, pre-trial investigation,
prosecutors and courts” the second applicant should first
address the State institution which had allegedly caused him
non-pecuniary damage with a request to pay him compensation.
- It
follows from the materials submitted by the parties that the first
and second applicant’s cases were mixed up and the first
applicant’s claim was allegedly lost. However, on 9 October
2003 the court considered the first applicant’s claim and
awarded him UAH 20,000. It is impossible to tell whether the court
had considered the original claim or whether the first applicant had
submitted a new one.
- On 24 December 2003 the Court of Appeal of the ARC
reduced the amount of the compensation to UAH 2,000. On 23 January
2004 the first applicant appealed against this decision in cassation.
On 15 March 2006 the Supreme Court of Ukraine quashed the judgment of
24 December 2003 and remitted the case for renewed examination to the
second-instance court. On 3 July 2006 the Court of Appeal of the ARC
awarded the first applicant UAH 3,000 in compensation for
non-pecuniary damage. On 15 September 2006 the Supreme Court of
Ukraine dismissed the applicant’s appeal in cassation.
II. RELEVANT DOMESTIC LAW
Res judicata under Ukrainian civil procedure law
- In
accordance with Article 136 of the Civil Procedure Code of 1963, in
force at the material time, the judge shall refuse to accept the
claim if there is a final court decision between the same parties in
the case on the same matter and the same grounds.
THE LAW
I. SCOPE OF THE CASE
- The
Court notes that, after the communication of the case to the
respondent Government, the applicants introduced a large number of
new complaints related to numerous civil proceedings instituted by
and against the applicants. In the Court’s view, the
new complaints are not an elaboration of the applicants’
original complaints to the Court. The applicants were advised to
lodge a new application form, which they have failed to do. The Court
considers, therefore, that it is not appropriate to consider the
applicants’ new complaints now (see Piryanik v. Ukraine,
no. 75788/01, § 20, 19 April 2005).
- The
Court further notes that the applicants reiterated some of their
original complaints. In its partial decision on
admissibility of 27 March 2007, the Court adjourned its examination
of the complaints of the first applicant under Article 6 §
1 of the Convention about the civil claim against him being allowed
when there had already been a final decision on this claim; about the
length of proceedings in the fraud and libel criminal cases against
him and in his civil case for compensation for the damage inflicted
by the search of his apartment in May 1998; and under Article 1 of
Protocol No. 1 of a violation of his property rights during the
enforcement of the judgment of 18 February 1999 against him; and the
complaints of the third applicant under Article 6 §§ 1 and
2 of the Convention of a violation of the presumption of innocence
and about the length of proceedings in a criminal case against him.
The remainder of the complaints were declared inadmissible. To the
extent that the applicants now repeat those complaints which have
already been declared inadmissible, the complaints are “substantially
the same” as those already declared inadmissible, and they must
now be rejected pursuant to Article 35 §§ 2 (b) and 4 of
the Convention.
- The scope of the case now before the Court is limited
to those complaints which were adjourned on 27 March 2007.
II. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT TO THE FIRST APPLICANT
- The
first applicant complained under Article 6 § 1 of the Convention
that the court had allowed a civil claim within the criminal
proceedings against him for fraud when there had already been a final
decision on this claim. The applicant further complained about the
length of proceedings in the fraud and libel criminal cases against
him and in his civil case for compensation for the damage inflicted
by the search of his apartment in May 1998. The invoked Article, in
so far as relevant, provides as follows:
Article 6 § 1
“1. In the determination of his civil rights
and obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law...”
A. Admissibility
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. Allowance of the civil claim against the applicant
- The
first applicant reiterated his previous submissions.
- The
Government pointed out that by the judgment of 18 February 1999 L.’s
claims had been allowed only in part. The court rejected as
unsubstantiated his claims for the return of the paper and toner, and
for compensation for non-pecuniary damage. However, during
investigation of the criminal case against the first applicant there
was established an exact amount of materials taken. Moreover, in its
judgment of 12 January 2004 the court took into consideration the
previous decision on the matter. Therefore, in the Government’s
view, the two court decisions had been taken in different
circumstances (before and after the criminal investigation during
which the value of the photocopier and related materials was
established).
- As
the Court has stated in previous cases, the right to a fair hearing
under Article 6 § 1 of the Convention, interpreted in the light
of the principles of rule of law and legal certainty, encompasses the
requirement that where the courts have finally determined an issue,
their ruling should not be called into question (see Brumarescu v.
Romania [GC], no. 28342/95, § 61, ECHR 1999 VII).
- The
Court notes that on 18 February 1999 in the course of civil
proceedings the court found that the first applicant had taken the
photocopying machine but held that there was no evidence in support
of L.’s claim that the first applicant had taken paper and
toner. In particular, the witness B. had failed to specify how many
packets of paper and toner had been taken by the first applicant and
the witness K. had not seen it at all. Therefore, the court,
providing a forum for deciding a dispute between two individuals,
rejected L.’s claims for paper and toner as unsubstantiated.
- In
its decision of 12 January 2004, taken within the criminal
proceedings, while deciding on the applicant’s guilt as to
fraudulous misappropriation of L.’s property, the court
referred to numerous face-to-face confrontations between the first
applicant, L. and the witnesses and found that the applicant had
taken the photocopying machine, paper and toner. Under the civil head
of the criminal proceedings, the court further awarded L. the value
of the misappropriated items.
- The
Court notes that the national court in the first proceedings rejected
L.’s claims against the first applicant related to the return
of the paper and toner, though it later found that these items had
been taken by the first applicant and his son. The Court accepts that
the criminal proceedings against the applicant determined issues of
criminal law which were separate from those already decided in the
civil proceedings. Although it may appear that in both proceedings
the courts examined the same factual situation and came to different
conclusions, the Court notes that the civil court did not
conclusively establish that the first applicant did not take the
paper and toner.
64. However,
the civil aspect of the criminal case covered precisely the
same ground as that in the earlier civil proceedings – namely,
civil liability for the removal of the photocopier and the related
materials, and their value. In the absence of any indication that the
civil proceedings were flawed, the Court finds that the
re-determination of the same matters set at nought the proceedings
which had already ended, and was not compatible with the principle of
legal certainty.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
2. Length of proceedings
- In respect of the examinations of the complaints
mentioned below about the length of proceedings, the Court reiterates
that the reasonableness of the length of proceedings must be assessed
in the light of the circumstances of the case and with reference to
the following criteria: the complexity of the case, the conduct of
the applicant and the relevant authorities (see, among many other
authorities, Pélissier and Sassi v. France [GC],
no. 25444/94, § 67, ECHR 1999-II).
a) Fraud
- The
first applicant reiterated his previous submissions. He insisted that
the criminal case against him was unlawful, that the State
authorities had breached his right to a fair trial and that the
proceedings in his case had lasted too long.
- The
Government pointed out that the criminal case against the first
applicant was quite complicated and therefore required time for
proper consideration. In particular, two forensic examinations were
held and five witnesses questioned. The first applicant was suspected
of committing two crimes and he frequently changed his statements,
which required additional investigation. Moreover, the first
applicant lodged more than fifty complaints seeking different
information and additional documents, requesting that hearings be
postponed, proceedings terminated, criminal proceedings initiated
against witnesses and judges, and so on.
- The
Government drew the Court’s attention to the behaviour of the
first applicant during the proceedings in his case. In particular, on
1 August 2002 the parties started fighting in court and the hearing
had to be postponed. On one occasion the first applicant refused to
participate in the hearing and persistently used offensive language
to the judge, the witnesses and the opposite party. Consequently, on
5 December 2003 the court forbade the first applicant to be present
in some court hearings. The applicant also twice damaged the
documents in his case file.
- The
Government believed that in the above circumstances the length of
proceedings in the criminal case for fraud against the first
applicant could not be considered unreasonable.
- The
Court notes that the proceedings in question lasted for four years,
three months and twenty-nine days (from 3 March 2000 until 1 July
2004) and included an investigation stage and three court instances.
The Court does not accept the Government’s submissions that the
first applicant’s case was complicated, but given the
applicant’s behaviour and the lack of significant periods of
inactivity caused by the State authorities, the Court finds that
there is no breach of Article 6 § 1 of the Convention in respect
of the length of fraud proceedings against the first applicant.
b) Libel
72. The first applicant reiterated his previous submissions and
stated that the proceedings in his case had lasted too long.
- The Government considered that the proceedings in the
present case had been protracted by the lodging of numerous
complaints and requests by the first applicant. They noted that the
first instance court has had to deal with more than twenty
interrelated cases between the first applicant and L. since 1998 more
than twenty cases between the first applicant and L. have been
considered by the first-instance court, and this history also
complicated the consideration of the libel case.
- The Court notes that the proceedings in question were
instituted on 21 April 1999 and allegedly discontinued after 3
October 2003. They lasted for at least four years. The time between 6
January and 16 June 2000 should not be taken into consideration since
the proceedings were not pending during this period. Therefore, the
proceedings had already lasted for one year and eleven months when
the offence in question was decriminalised in September 2001. It is
true that from that date, less must have been at stake for the
applicant than previously, as he would be acquitted if the new law
applied to the applicant’s case, and if it did not, the
legislator had given a clear sign that libel was not regarded as very
serious. The proceedings, however, continued for at least two more
years and one month, and it is unclear when exactly did they end or
what was under consideration. Indeed, the domestic courts on two
occasions remitted the case for additional investigation, which meant
the applicant’s further involvement in different investigatory
activities, which could have brought even more uncertainty for the
applicant as to whether the decriminalisation provision would apply
to him. Given that the case has never been considered on the merits,
the Court considers that in the instant case the length of the
proceedings was excessive and failed to meet the “reasonable
time” requirement.
There has accordingly been a breach of Article 6 § 1.
c) Civil proceedings
- The
first applicant reiterated his submissions and stated that the
proceedings in his case had lasted too long.
- The
Government submitted that the first applicant’s claim of
12January 2001 had been rejected on 17 June 2002 for the first
applicant’s failure to comply with procedural formalities. On
26 June 2002 he submitted another claim and the proceedings were
terminated on 3 July 2006. The Government believed that during the
consideration of the first applicant’s claim there had been no
periods of inactivity which could be attributable to the State.
- The
Court notes that there is no evidence that the applicant’s
claim was rejected on 17 June 2002. The copy of the decision of 17
June 2002, submitted by the first applicant, concerns consideration
of a similar claim lodged by the second applicant. Moreover, the
claim of 26 June 2002 referred to by the Government concerns the
first applicant’s civil case against Judge L., therefore, in
the absence of any other information, the Court considers that the
proceedings in question were initiated in January 2001 and ended on
15 September 2006 (see paragraphs 48-51)
- The overall length of proceedings is, therefore,
around five years and eight months at three levels of jurisdiction.
Although that length could still be considered reasonable, the Court
notes that there were two significant periods of inactivity. First,
the applicant’s claim and/or case file were lost and the court
decided on the merits of the case only two years and nine months
later. Secondly, the applicant’s appeal in cassation was
pending for two years and nearly two months in the Supreme Court of
Ukraine (from 23 January 2004 to 15 March 2006, see paragraph
51). In such circumstances the Court finds that the length of
proceedings was excessive and failed to meet the “reasonable
time” requirement.
There has accordingly been a breach of Article 6 § 1.
III. ALLEGED VIOLATIONS OF ARTICLE 6 §§ 1 AND 2
OF THE CONVENTION IN RESPECT TO THE THIRD APPLICANT
- The third applicant complained under Article 6 §
1 of the Convention of an unfair trial and about the length of
proceedings in the criminal case against him. In particular, he
complained that he had not been presumed innocent according to
Article 6 § 2 as during consideration of the criminal case
against the first applicant, that court in its judgment had referred
to the third applicant as an accomplice although the third applicant
had participated in the consideration of the case as a witness.
- The
invoked Article, in so far as relevant, provides as follows:
Article 6
“1. In the determination of his civil
rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law
2. Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.”
A. Admissibility
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. Length of proceedings
- The
third applicant reiterated that the length of the criminal
proceedings in his case had not been reasonable. He submitted that he
had a permanent place of residence and was employed, therefore there
had been no grounds to put him on the wanted list and to stay the
proceedings.
- The
Government stated that the third applicant had protracted the
pre-trial investigation and court examination of his criminal case by
lodging numerous complaints and requests. In particular, he had
challenged the judge in his case on sixteen occasions and,
furthermore, requested that the hearings be postponed, the
proceedings be terminated, criminal proceedings against the witnesses
and judges be initiated, and so on. The Government further indicated
that the criminal proceedings in the third applicant’s case had
been stayed for three years and seven months because his whereabouts
were unknown. Moreover, on fifteen occasions the court hearings in
the third applicant’s case were postponed because the witnesses
in the case had failed to appear. In conclusion the Government stated
that, given the complexity of the case and the third applicant’s
behaviour, the length of proceedings in the criminal case against him
had been reasonable.
- The
Court notes that the criminal proceedings against the third applicant
lasted for around six years and two months (from 6 June 2000 to 12
August 2006) and included a pre-trial investigation and three court
instances.
- The
Court further notes that these proceedings were stayed for four years
(from 6 June 2000 until 1 June 2004). There is no evidence in support
of the statement that the third applicant was in hiding during all or
part of that period or that any search was carried out. In
particular, the third applicant took part in a court hearing in the
criminal proceedings against his father as a witness (see paragraph
35).
- In
such circumstances, the Court finds that the length of proceedings in
the present case does not comply with the “reasonable time”
requirement and there is accordingly a violation of Article 6 §
1 of the Convention.
2. Presumption of innocence
- The
third applicant reiterated his previous submissions.
- The
Government stated that during the investigation of the criminal case
against the first applicant it had been revealed that he had been
assisted by another person. Since the witnesses recognised the third
applicant as this person, on 6 June 2000 the third applicant was
charged with fraud. However, since the third applicant was missing,
the criminal proceedings against him were stayed and on 21 January
2004 the court considered only the criminal case against the first
applicant. The Government insisted that the court’s findings
were limited only to the fact that the first applicant was assisted
by his son, without determining of the latter’s guilt. In the
Government’s view the court had referred to the witnesses’
statements about the third applicant assisting his father in
committing “unlawful actions”, but these findings could
not breach the principle of the presumption of innocence in respect
to the third applicant.
- The
Court reiterates that the presumption of innocence enshrined in
Article 6 § 2 of the Convention is one of the elements of a fair
trial. The presumption of innocence will be violated if a judicial
decision or a statement by a public official concerning a person
charged with a criminal offence reflects an opinion that he is guilty
before he has been proved guilty according to law. It suffices, even
in the absence of any formal finding, that there is some reasoning
suggesting that the court or the official regards the accused as
guilty (see, among other authorities, Deweer
v. Belgium, judgment of 27 February
1980, Series A no. 35, p. 30, § 56; Minelli
v. Switzerland, judgment of
25 March 1983, Series A no. 62,
§§ 27, 30 and 37; Allenet
de Ribemont v. France, judgment
of 10 February 1995, Series A no. 308, p. 16, §§ 35-36;
Daktaras v. Lithuania, no. 42095/98, §§ 41-44,
ECHR 2000 X; and Matijašević
v. Serbia, no. 23037/04, § 45, ECHR 2006 ...).
Whether a statement by a public official is in breach of the
principle of the presumption of innocence must be determined in the
context of the particular circumstances in which the impugned
statement was made (see Daktaras, cited above, § 43).
- In
the present case the first and the third applicants were both charged
with fraud, however, the proceedings in respect to the third
applicant were separated and stayed as he was allegedly in hiding.
- In
the judgment of 12 January 2004 in the criminal case against the
first applicant the court stated that “on 6 May 1998 in the
afternoon, [the first applicant], by a prior arrangement with another
person [...] misappropriated a photocopier which belonged to L.”.
Referring to the witnesses’ statements, the court found that
the first applicant had come with his son (the third applicant) to
L.’s office and the third applicant had helped his father to
put the photocopier into the car. Although these findings could
create an impression that the third applicant was considered an
accomplice, the Court notes that the national court’s findings
were limited to establishing the circumstances of the crime committed
by the first applicant, namely whether the third applicant was
physically present in L.’s office, without examining whether
the third applicant had any fraudulent intent to take L.’s
photocopier or was just helping his father. The court judgment of 12
January 2004 did not contain any express or even indirect statements
about the third applicant’s guilt in respect of fraud or any
other offence.
- In
such circumstances, the Court finds that there is no violation of
Article 6 § 2 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
first applicant complained under Article 1 of Protocol No. 1 that
during the enforcement of the judgment of 18 February 1999 his
property rights had been violated. In particular, he complained that
the value of the petrol tanker seized in enforcement of the court
judgment of 18 February 1999 exceeded the amount awarded to L. by the
court. The invoked Article provides as follows:
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.”
Admissibility
- The
Government indicated that the first applicant could have returned the
photocopier or paid the amount awarded voluntarily but he had failed
to do so, therefore, L. had been forced to initiate enforcement
proceedings. The Government further contended that the national
courts had recognised breaches in the enforcement proceedings and the
seizure orders for the first applicant’s and his company’s
property had been removed. Furthermore, the first applicant has
failed to appeal in cassation against the decision of 20 September
2004 and against the decision of 14 December 2004, therefore his
complaint should be rejected for failure to exhaust effective
domestic remedies.
- The
first applicant disagreed and indicated that he had appealed against
the decision of 20 September 2004 in cassation.
- The
Court notes that the applicant’s complaint concerns
irregularities which occurred in the course of enforcement
proceedings. Where complaint is made about the organisation and
conduct of enforcement proceedings, Ukrainian legislation provides
for the possibility of a challenge before the courts as regards the
lawfulness of actions and omissions on the part of the State
Bailiffs’ Service in enforcement proceedings and also for a
claim for damages from that Service (see, mutatis mutandis,
Dzizin v. Ukraine (dec.), no. 1086/02, 24 June
2003, and Kukta v. Ukraine (dec.), no. 19443/03,
22 November 2005).
- In
the present case the first applicant and other persons whose rights
were allegedly infringed during the enforcement of the judgment of 18
February 1999 instituted numerous proceedings against the State
Bailiffs’ Service and other defendants, challenging different
actions and claiming damages. While the courts have recognised that
on some occasions the actions of the Bailiffs’ Service during
the enforcement of the judgment of 18 February 1999 were unlawful,
the first applicant’s claims for damages were unsuccessful.
- The
Court notes however that while the applicant has indeed appealed
against the judgment of 20 September 2004, there is no evidence that
he has appealed against the judgment of 14 December 2004 (see
paragraph 25). Accordingly, he cannot be regarded as having exhausted
the domestic remedies available to him under Ukrainian law.
- It
follows that this complaint must be rejected pursuant to
Article 35 §§ 1, 3 and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicants did not submit a claim for just satisfaction within the
relevant time-limits. Accordingly, the Court considers that there is
no call to award them any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 1 of
Protocol No. 1 inadmissible and the remainder of the applications
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect to the allowance of the civil
claim within the criminal proceedings against the first applicant;
- Holds that there has been no violation of
Article 6 § 1 of the Convention in respect to the length of
fraud criminal proceedings against the first applicant;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect to the remaining complaints
about the length of proceedings;
5. Holds that there has been no violation of Article 6 §
2 of the Convention.
Done in English, and notified in writing on 15 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
