[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF ZHUPNIK v. UKRAINE
(Application
no. 20792/05)
JUDGMENT
STRASBOURG
9 December
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 Zhupnik v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Rait Maruste,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva,
Ganna
Yudkivska, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 16 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20792/05) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Mikhail Petrovich
Zhupnik (“the applicant”), on 20 May 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- The
applicant alleged, in particular, that the length of criminal
proceedings against him was unreasonable and that he had been
deprived of the possibility to properly prepare his defence on
account of the trial court’s legal re-characterisation of the
charge against him.
- On
23 November 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1944 and lives in Odessa.
- In
1993 the applicant was responsible for the privatisation of a State
company “A.” by way of a buyout of A. by its employees.
- On
26 August 1995 criminal proceedings were initiated against the
applicant on suspicion of having defrauded A.’s employees in
the privatisation process.
- On
several occasions between September 1995 and March 1999 the
proceedings were suspended (in particular, between 9 July 1997 and 3
April 1997; 25 March and 1 September 1999; and 5 September and 1
December 1999).
- On
26 January 1999 the applicant was placed under an obligation not to
abscond.
- On
15 December 1999, in response to a complaint by the applicant’s
advocate, the Odessa Prosecutors’ Office acknowledged that the
proceedings had suffered unnecessary delays and inactivity on the
part of the investigative authorities and informed him that
disciplinary measures had been taken against the investigator in
charge.
- In
April 2000 the Malinovskiy District Prosecutors’ Office of
Odessa approved the final indictment and committed the applicant for
trial. According to the indictment, the applicant was accused of
fraud and an attempt to misappropriate State property by way of abuse
of his position (Articles 17, 84 § 2 and 172 § 1 of the
Criminal Code in force at the material time).
- Between
September 2000 and October 2003 the Primorskiy District Court of
Odessa scheduled some thirty-three hearings in the applicant’s
case. Twenty-four of these hearings were adjourned: nine on account
of the absence of the prosecution or at the prosecution’s
requests; five on account of the absence of one of the injured
parties; six on account of other court business; and four on account
of the applicant’s absences.
- On
3 October 2003 the Primorskiy District Court of Odessa ruled that the
applicant’s actions did not fall within the ambit of the
provisions of the Criminal Code relied upon by the prosecution. His
actions did, however, qualify as abuse of position punishable by
Article 165 § 1 of the Criminal Code in force at the material
time. Consequently, the court convicted the applicant of abuse of
position and sentenced him to one year’s imprisonment, but
absolved him from punishment, granting him an amnesty.
- The
applicant appealed, contending that the prosecution had never charged
him with violating Article 165 § 1 of the Criminal Code.
Consequently, the trial court had acted ultra
vires in convicting him of the
crime punishable by that statute. The applicant next presented
various arguments in his appeal against the charge of abuse of
position under Article 165 of the Criminal Code.
- On
19 August 2004 the applicant complained to the Odessa Regional Court
of Appeal of unreasonable delays in the proceedings against him, in
particular, a protracted failure by the trial court to submit the
case file to the Odessa Regional Court of Appeal.
- On
21 August 2004 the Primorskiy District Court informed the applicant
that his case had been transferred to the Odessa Regional Court of
Appeal on 27 July 2004.
- On
9 December 2004 the Odessa Regional Court of Appeal held an oral
hearing in the applicant’s presence and upheld the applicant’s
conviction. It found, in particular, that by re-qualifying the
applicant’s charges under a different Article of the Criminal
Code, the first-instance court had correctly assessed the facts and
had in no way increased the burden on the applicant. It had therefore
not exceeded the scope of its competence.
- The
applicant appealed on points of law, raising essentially the same
arguments as in his ordinary appeal.
- On
25 May 2006 the Supreme Court rejected the applicant’s appeal
on points of law.
II. RELEVANT DOMESTIC LAW
A. Criminal Code of 1960 (repealed with effect from 1
September 2001)
- Pertinent
provisions of the Criminal Code of 1960 (in force at the material
time) read as follows:
Article 84. Misappropriation of State or collective
property by way of appropriation, depletion or abuse of position
“... Misappropriation of State or collective
property by an official by way of abuse of his position -
Shall be punishable by deprivation of liberty from three
to five years with or without confiscation of property and by
deprivation of the right to occupy certain positions or carry out
certain activities for a term of up to three years ...”
Article 165. Abuse of power or position
“Abuse of power or position, i.e. intentional,
promiscuous, or based on other personal interests or interests of
third parties, use by an officer of his power or position contrary to
the interests of the service, which causes significant damage to
State or public interests or the rights and interests of certain
physical or juridical persons protected by law, -
Shall be punishable by deprivation of liberty from two
to five years or correctional labour for up to two years, with
deprivation of the right to occupy certain positions or carry out
certain activities for up to three years ...”
B. Code of Criminal Procedure
- Pertinent
provisions of the Criminal Code of 1960 (as worded at the material
time) read as follows:
Article 275. Scope of judicial examination
“Examination of a case shall be only in respect of
the defendants and within the scope of the indictment announced to
them ...”
Article 362. Examination of a case by the
appellate-instance court
“Having completed preparatory actions ... the
presiding judge shall explain to the participants of the hearing
their rights, including the right to give explanations concerning the
appeals presented and to speak during judicial deliberations ...
After this, the presiding judge or one of the judges
shall report the essence of the conviction or a ruling, shall inform
who had appealed against it and to what extent, shall state the main
arguments of the appeals and objections by other participants of the
proceedings, if they had been submitted. The presiding judge shall
verify whether the persons who have lodged the appeals support them.
...
If the court of appeal has not carried out a judicial
investigation upon completion of the [above] actions ... the
presiding judge shall familiarise the participants of the hearing
with any additional materials, if they were submitted, materials that
arrived from the first-instance court by way of fulfilment of
assignment, shall hear their arguments with respect to the appeal
submitted ... and shall proceed to judicial deliberations.
...
Before the court retires to the judges’
deliberation chamber (нарадча
кімната)
for preparation of the ruling ... the defendant, if he participated
in the appeal hearing, shall be given an opportunity to give a final
speech.
...”
Article 366. Results of examination of a case by
the court of appeal
“As a result of the examination of an appeal ...
the court of appeal may:
1) make a ruling upholding the conviction or
the decision and reject the appeal; quash the conviction or the
decision and return the case to the prosecutor for additional
investigation or for a new trial by the first-instance court; quash
the conviction or the decision and terminate the proceedings; modify
the conviction or the decision;
2) pronounce its own conviction, having
quashed the conviction of the first-instance court in full or in
part;
3) pronounce its own decision, having quashed
the decision of the first-instance court in full or in part.
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION WITH
RESPECT TO THE LENGTH OF THE PROCEEDINGS
- The
applicant complained that the length of the criminal proceedings
against him was unreasonable. He referred to Article 6 § 1 of
the Convention, which, in so far as relevant, provides as follows:
“1. In the determination ... of any
criminal charge against him, everyone is entitled to a fair ...
hearing within a reasonable time by an independent and impartial
tribunal established by law ...”
- The
Government contested this view.
- The
Court notes that the criminal proceedings against the applicant in
the present case were initiated on 26 August 1995. Nevertheless, the
period to be taken into consideration began only on 11 September
1997, when the recognition by Ukraine of the right of individual
petition took effect. However, in assessing the reasonableness of the
time that elapsed after that date, account must be taken of the state
of proceedings at the time.
- The
period in question ended on 25 May 2006. It thus lasted eight years
and eight months at three levels of jurisdiction.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The Court observes 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 conduct of the relevant authorities (see, among many other
authorities, Pélissier and Sassi v. France [GC],
no. 25444/94, § 67, ECHR 1999-II).
- The
Court finds that the overall length of the proceedings in the present
case can be explained neither by the complexity of the criminal case,
nor by the applicant’s conduct. It considers that a number of
delays were attributable to the domestic authorities (see, in
particular, paragraphs 10, 12 and 15 above).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Kobtsev v. Ukraine, no. 7324/02, § 71, 4
April 2006; Antonenkov and Others v. Ukraine, no. 14183/02, §
46, 22 November 2005; and Mazurenko v. Ukraine, no. 14809/03,
§ 47, 11 January 2007).
- Having
regard to the material submitted to it and to its case-law on the
subject, 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 in this respect.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION WITH RESPECT TO FAIRNESS OF THE PROCEEDINGS
- The
applicant also complained that the proceedings against him were
unfair. In particular, the trial court had acted outside its
competence as defined by Article 275 of the Code of Criminal
Procedure in re-characterising the charge against him.
Moreover, as he was not informed about this new charge until his
sentence was pronounced, he had been denied an opportunity for
properly preparing his defence against it. The applicant relied on
Article 6 §§ 1 and 3 (a) and (b) of the Convention in
respect of the above complaints. Paragraph 3 (a) and (b) of the
Convention read as follows:
“...
3. Everyone charged with a criminal offence
has the following minimum rights:
(a) to be informed promptly, in a language
which he understands and in detail, of the nature and cause of the
accusation against him;
(b) to have adequate time and facilities for
the preparation of his defence ...”
A. Admissibility
- The
Government presented no comments concerning admissibility of the
applicant’s complaints concerning fairness of the criminal
proceedings against him.
- The
Court considers that the above complaints are closely linked and
should be examined jointly in light of the guarantees provided by
Article 6 paragraph 3 (a) and (b) of the Convention. It further
considers that they are not manifestly ill-founded and not
inadmissible on any other grounds. They must therefore be declared
admissible.
B. Merits
- The
applicant alleged that offences punishable under Articles 84 and 165
of the Criminal Code of 1960 differed considerably and that the
requalification of his actions by the trial court had been in breach
of the fairness requirement of Article 6 of the Convention.
- The
Government contested that argument. They noted that the reformulation
of the characterisation in law of the charges against the applicant
had been lawful under domestic law and not in breach of the
Convention. Moreover, the punishment for the offence of which the
applicant was eventually convicted had been lesser than that
associated with the offences as originally characterised. They
further pointed out that the applicant had been able to appeal
against his conviction before the Odessa Regional Court of Appeal,
that that court had been competent under applicable provisions of the
Code of Criminal Procedure to review the case in full and, if
necessary, to acquit the applicant, in addition to examining all the
materials available to the first-instance court and the applicant’s
new submissions, and that the Court of Appeal had held an oral
hearing, during which the applicant had been able to present his
objections to the reformulated charge. The proceedings on the whole
had, therefore, been fair.
- The
Court notes that the scope of Article 6 § 3 (a) must be assessed
in the light of the more general right to a fair hearing guaranteed
by Article 6 § 1 of the Convention. In criminal matters the
provision of full, detailed information concerning the charges
against a defendant, and consequently the legal characterisation that
the court might adopt in the matter, is an essential prerequisite for
ensuring that the proceedings are fair. In this respect it is to be
observed that Article 6 § 3 (a) does not impose any special
formal requirement as to the manner in which the accused is to be
informed of the nature and cause of the accusation against him. The
Court further notes that sub-paragraphs (a) and (b) of Article 6 §
3 are connected and that the right to be informed of the nature and
the cause of the accusation must be considered in the light of the
accused’s right to prepare his defence (Pélissier and
Sassi v. France, cited above, §§ 52-54).
- In
the present case, the Court observes that the applicant was not aware
that the Primorskiy District Court of Odessa might reclassify his
actions as punishable under Article 165 § 1 of the
Criminal Code as in force at the time when they had been committed.
This scenario impaired his chance to defend himself before the
first-instance court from the charge he was eventually convicted of.
- However,
the Court attributes decisive importance to the subsequent
proceedings before the Odessa Regional Court of Appeal, after the
contested re-characterisation, which he addressed in his appeal.
- It
is to be noted that the Court of Appeal reviewed the applicant’s
case in its entirety, both from a procedural and a substantive law
point of view. In addition to having studied the lower court’s
case file and submissions by the applicant and the prosecution, the
court held an oral hearing. Moreover, the Court of Appeal could
itself have reclassified the applicant’s conviction or
acquitted him under Article 366 of the Code of Criminal Procedure.
- The
Court observes that the Court of Appeal rejected the applicant’s
defences led in seeking acquittal of the charges under Article 165 §
1 of the Criminal Code. It held that the applicant’s actions
contained all constituent elements of abuse of position and that by
re-qualifying the charge from “misappropriation of property by
way of abuse of position” to “abuse of position”
the trial court had not increased the burden on the applicant.
- This
judgment was subject to further review on points of law by the
Supreme Court, which found that the lower courts had acted within
their competence and applied the law correctly to the applicant’s
case.
- In
light of the above, the Court considers that the applicant had the
opportunity to advance his defence in respect of the reformulated
charge before the domestic courts. Assessing the fairness of the
proceedings as a whole – and in view of the nature and scope of
the proceedings before the Court of Appeal and the Supreme Court –
the Court considers that any defects in the first-instance
proceedings were cured before the higher courts (see Dallos v.
Hungary, no. 29082/95, §§ 42-53, ECHR 2001 II).
- The
Court is therefore satisfied that the applicant’s rights to be
informed in detail of the nature and cause of the accusation against
him and to have adequate time and facilities for the preparation of
his defence were not infringed.
- It
follows that Article 6 of the Convention was not violated in respect
of the fair trial guarantees.
III. 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.”
A. Damage
- The
applicant claimed 20,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contended that this claim was exorbitant and
unsubstantiated.
- The
Court reiterates that it has found a violation of Article 6 § 1
in respect of the length of the proceedings and has rejected the
applicant’s complaint concerning infringement of the fair trial
guarantees. In light of the above, ruling on an equitable basis the
Court awards the applicant EUR 1,600 in respect of non-pecuniary
damage.
B. Costs and expenses
- The
applicant did not claim any award under this head. The Court
therefore gives no award.
C. Default interest
- The
Court considers it appropriate that default interest should be based
on the marginal lending rate of the European Central Bank, to which
should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the
unreasonable length of the criminal proceedings and alleged
deprivation of the possibility for the applicant to prepare his
defence in view of the re-characterisation in law of the criminal
charge against him by the first-instance court admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the length of the
proceedings;
- Holds that there has been no violation of
Article 6 §§ 1 and 3 (a) and (b) of the Convention on
account of the deprivation of the possibility for the applicant to
prepare his defence in view of re-characterisation of the charge
against him by the first-instance court;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,600 (one thousand
six hundred euros), plus any tax that may be chargeable to the
applicant, in respect of non-pecuniary damage, to be converted into
the national currency of Ukraine at the rate applicable at the date
of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 9 December 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
