CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 17 novembre 2009

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s2EF16B1D { width:35.4pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s5CD26361 { font-family:Arial; color:#008000 } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sDB6B63EE { width:176.94pt; display:inline-block } FIFTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 3943/04 by Volodymyr Sergiyovych SHAPOVAL against Ukraine The European Court of Human Rights (Fifth Section), sitting on 17   November 2009 as a Chamber composed of:   Peer Lorenzen, President,   Renate Jaeger,   Karel Jungwiert,   Rait Maruste,   Mark Villiger,   Mirjana Lazarova Trajkovska, judges,   Mykhaylo Buromenskiy, ad hoc judge, and Claudia Westerdiek, Registrar . Having regard to the above application lodged on 9 December 2003, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Volodymyr Sergiyovych Shapoval, is a Ukrainian national who was born in 1962 and currently lives in Hannover, Germany. The respondent Government were represented by their Agent, Mr   Y.   Zaytsev. A.     Civil proceedings The applicant signed a sales contract with Mr K. on behalf of the open joint stock company, Servis. According to the contract, the company transferred title to its premises to Mr K. On 31 October 1997 Mr K. died. On 4 August 1998 the company instituted civil proceedings against Mr   K.’s successors seeking to have the contract declared null and void. By a ruling of 12 November 1998 the judge of the Velykomykhaylivsky Court ordered that the claim and the relevant documents from the case file be transferred to the Velykomykhaylivsky District Prosecutor (“the Prosecutor”) in order to establish whether criminal proceedings should be instituted against the applicant. On 31 August 1999 the Odessa Regional Court upheld the ruling of the first-instance court. On 28 July 2001 the applicant lodged a cassation appeal with the Supreme Court of Ukraine in accordance with the procedure prescribed by the Law of 21   June 2001 on the Introduction of Changes to the Code of Civil Procedure. On 14 September 2001 a panel of three judges of the Supreme Court of Ukraine refused to transfer the applicant’s appeal to a chamber of the Supreme Court of Ukraine for consideration on its merits. The applicant alleges that he received the final decision of the Supreme Court on 7 August 2003. B.     Criminal proceedings Following the above events, on 28 April 1999 the Prosecutor instituted criminal proceedings against the applicant on charges of fraud, abuse of power and embezzlement of collective property. On 2, 10 and 21 June 1999 the applicant failed to appear before the investigator. On 21 June 1999 a pre-trial investigation was suspended in order to establish the applicant’s whereabouts. On 13 July 1999 it was resumed. On 15 July 1999 the Prosecutor’s Assistant issued an arrest warrant against the applicant. On 30 July 1999 the applicant was arrested. He was released on 4   November 1999 having given a written undertaking not to abscond. On 8   November 1999 the case was transferred to the Velykomykhaylivsky Court. On 20 January 2000 the case was transferred to the Frunzivsky Court. On 10 February 2000 the applicant challenged the judge sitting in his case. On 29 February 2000 the case was transferred to the Rozdilyansky Court. On 31 July 2000 the Rozdilyansky Court remitted the case to the Prosecutor for an additional pre-trial investigation on the ground that it had not been completed. On 18 and 29 September 2000 the applicant failed to appear before the investigator. On 30 September 2000 the pre-trial investigation was suspended in order to establish the applicant’s whereabouts. On 8 November 2000 the proceedings were resumed. The applicant challenged the investigator. On 15 November 2000 the applicant failed to appear before the investigator. The proceedings were suspended. On 12 January 2001 the Frunzivsky Court rejected an appeal by the applicant against the Prosecutor’s resolution of 28 April 1999. On 27   February 2001 the Odessa Regional Court of Appeal quashed that ruling and terminated the proceedings in that respect since the first-instance court had no jurisdiction to consider the applicant’s complaint. On 27   September   2001 the Supreme Court upheld the ruling of the Court of Appeal. Between 6 and 23 March 2001 the applicant acquainted himself with his case file. On 3 May 2001 the Prosecutor issued an indictment. On 8 May 2001 the case was transferred to the Velykomykhaylivsky Court. On 24 May 2001 the case was transferred to the Shyryayevsky Court . On 31 July 2001 the Shyryayevsky Court remitted the case to the Prosecutor for an additional pre-trial investigation on the ground that it had not been completed and there had been some procedural omissions. On 17 August 2001 the applicant went to Germany, where he currently resides. On 19 October 2001 the Prosecutor put the applicant on the list of wanted persons. Following the above events, the criminal proceedings against the applicant were suspended. In the period prior to 29 October 2007 the proceedings in the applicant’s case were resumed in order to perform certain investigative actions and then, on several further occasions they were suspended again. The applicant, on his own or with the assistance of his counsel, challenged the suspension of the criminal proceedings, the resolution of 28 April 1999 and the regular inactivity of the domestic authorities throughout the investigations of his criminal case. Some of his complaints and appeals were successful. In particular, on 17 July 2002, the investigator of the Velykomykhaylivsky Prosecutor’s Office ordered that the head of the local police office seize the original of the notary’s documents concerning the sale of the company’s premises. On 13   April 2004 the Velykomykhaylivsky Court, following the applicant’s complaint, found that the above action had not been performed. The court ordered it to be performed. By the same ruling the court ordered that the value of the company’s premises also be established. On 30 October 2007 the Odessa Regional Prosecutor’s Service quashed the ruling of 2 August 2004 of the investigator of the Velykomykhaylivsky Prosecutor’s Service, under which the criminal proceedings had been again suspended, and ordered that the pre-trial investigation be resumed. On 21 March 2008 the Frunzivsky Court ordered the applicant’s pre-trial detention. On 26 March 2008 the Odessa Regional Court of Appeal quashed that ruling. The pre-trial investigation is still pending. C.     Proceedings concerning the applicant’s arrest On   22   February 2005 the applicant challenged his arrest of 30 July 1999 and his pre-trial detention. On 20 May 2005 the applicant challenged the resolution of 28 April 1999 before the same court. On 8 July 2005 the Prymorsky District Court of Odessa quashed the resolution of 28 April 1999 and found the applicant’s arrest and pre-trial detention to be unlawful. On 24 November 2005 the Odessa Regional Court of Appeal, following an appeal by the Prosecutor, quashed the ruling of 8   July 2005 and terminated the proceedings in that respect on the ground that the Prymorsky Court had no competence to consider the applicant’s complaints. On 12 May 2006 the Supreme Court rejected a request by the applicant for leave to appeal in cassation. COMPLAINTS The applicant complained under Article 6   §   1 of the Convention that the criminal proceedings against him had been unreasonably lengthy and under Article 13 of a lack of effective remedies in that respect. He complained under Article 6 §§ 1, 2 and 3 (a) and (d) of the Convention of various procedural violations in the course of the criminal proceedings and of their unfairness. The applicant alleged a violation of Article 5 §§ 1, 2, 4 and 5 of the Convention in connection with his arrest and pre-trial detention. He further complained under Article 3 of the Convention that, while in detention, he had been subjected to torture and inhuman and degrading treatment. He also complained under the same Article about the conditions of his detention. With respect to the civil proceedings, he complained under Article 6   §   1 that they had been unfair. In particular, he alleged that the court had not been established by law, that he had been absent from the hearings, that the proceedings had not been open, and that the decision had not been announced publicly. He finally alleged that the principle of equality of arms had been violated. With respect to the proceedings concerning his arrest, the applicant complained under Article 6   §   1 of the Convention about the outcome of the proceedings and of their unfairness. In particular, he alleged that the principles of the rule of law and “legal certainty” had been infringed. THE LAW 1.     The applicant complained that the criminal proceedings against him had been unreasonably lengthy and of a lack of an effective remedy in that connection. He relied on Articles 6   §   1 and 13 of the Convention, which, in so far as relevant, read 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 ... hearing within a reasonable time by [a] ... tribunal...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A.     Submissions of the parties The Government submitted that the applicant had contributed to the length of the proceedings and that the State could not be held liable for his behaviour. In particular, they noted the applicant’s failure to appear on several occasions before the domestic authorities between 12   September   2000 and 6 March 2001, and after 14 August 2001. Further, they pointed out that the case had been complex and that the judicial authorities had acted with due diligence. The Government finally maintained that the length of proceedings in the applicant’s case had not been unreasonable. The applicant disagreed. In particular, he submitted that, on several occasions, he had not been properly summoned before the domestic authorities. He also submitted that the period to be taken into consideration should be calculated from 12 November 1998. B.     The Court’s assessment The Court notes that the criminal proceedings against the applicant started at the latest on 28 April 1999. The pre-trial investigation is still pending. Thus, the overall duration of the proceedings has been more than ten years and four months. 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 and 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). The Court reiterates that only delays attributable to the State may justify a finding of failure to comply with the “reasonable time” requirement (see   Humen v. Poland [GC], no.   26614/95, § 66, 15 October 1999). It notes that the remittals of the case   and failure by the investigative authorities to perform certain actions caused certain delays to the proceedings. However, it considers that the relevant State authorities were not the only ones responsible for the length of the proceedings in the instant case. As regards the applicant’s conduct, the Court observes that the failure to pursue the criminal proceedings since August 2001, when the applicant moved abroad, is mainly imputable to the applicant. Assuming that certain delays were attributable to the domestic authorities, the Court considers however that it was primarily the applicant’s behaviour that prolonged the proceedings in his case (see H.M. v. Germany (dec.), no.   62512/00, 9   June 2005; Girolami v. Italy , 19   February 1991, §   13, Series A no. 196 ‑ E; and Smirnova v. Russia , nos.   46133/99 and 48183/99, § 81, ECHR 2003 ‑ IX). In conclusion, regard being had to all the circumstances of the case and in particular to the conduct of the applicant, the length of the proceedings cannot be considered unreasonable. It follows that the applicant’s complaints are manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and 4 of the Convention. 2.     The applicant further complained under Article 6 §§ 1, 2 and 3 (a) and (d) of the Convention of various procedural violations in the course of the criminal proceedings and of their unfairness. He also alleged a violation of Article 5 §§ 1, 2, 4 and 5 of the Convention in connection with his arrest and pre-trial detention. He further complained under Article 3 of the Convention that, while in detention, he had been subjected to torture and inhuman and degrading treatment. He also complained under the same Article about the conditions of his detention. With respect to the civil proceedings, he complained under Article 6   §   1 about the outcome and that the proceedings had been unfair. In particular, he alleged that the court had not been established by law, that he had been absent from the hearings, that the proceedings had not been open, and that the decision had not been announced publicly. He finally alleged that the principle of equality of arms had been violated. With respect to the proceedings concerning his arrest, the applicant complained under Article 6   §   1 of the Convention about their outcome and of unfairness. In particular, he alleged that the principles of the rule of law and “legal certainty” had been infringed. Having carefully examined the applicant’s submissions in the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35   §§   3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Claudia Westerdiek   Peer Lorenzen Registrar President