CEDH · CASELAW;COMMUNICATEDCASES;ENG — 21 juin 2010

.s800EAC49 { font-size:12pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s989F0F87 { width:312.5pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .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 } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4BAE41EE { font-family:Arial; font-size:11pt } .s673A384F { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   June 2010     FIFTH SECTION Application no. 42419/04 by Borys Oleksandrovych POGREBNYY and others against Ukraine lodged on 15 November 2004 STATEMENT OF FACTS THE FACTS The first applicant, Mr Borys Oleksandrovych Pogrebnyy, is a Ukrainian national who was born in 1955 and lives in Vasylkiv, Kyiv region, Ukraine. The second, third and fourth applicants, are non-governmental organisations called 1) Rodyna, 2) Myloserdya and 3) the Kyiv Large Families' Union which were all established under the laws of Ukraine and headed by the first applicant. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. 1.     Criminal proceedings against the first applicant a.     First set of criminal proceedings On 15 April 1999 the local police instituted criminal proceedings (case no.   08-6086) against the first applicant allegedly for the misappropriation of humanitarian aid. On the same day his apartment was searched and some of his property was seized. The police also seized some statutory and financial documents of non-governmental organisations set up by him. The next day (according to the first applicant, on the same day) the first applicant was arrested. He was released on 20 September 1999 subject to a written undertaking not to abscond. On 16 July 1999 the investigator ordered attachment of the first applicant's property, including two apartments; in fact the property was attached on 9 March 2000. On 31 July 2002, after several decisions to terminate and resume the criminal proceedings, the charges against the first applicant were dropped and the criminal proceedings were terminated for lack of corpus delicti . The first applicant's written undertaking not to abscond was cancelled by the same decision. On the same day the investigator decided to return to the first applicant his seized property. According to the first applicant, some of the property seized during those criminal proceedings had been destroyed by the police and the rest had disappeared. According to the first applicant, on several occasions he and his lawyer asked the domestic authorities to lift the attachment from his property but to no avail. According to a letter of the local notary, on 16 July 2004 the attachment was still valid. The first applicant challenged the investigator's decision of 31   July 2002 before higher police authorities. On 19 January 2006 the decision was quashed and the criminal proceedings against the first applicant were resumed. On 29 May 2006 the criminal proceedings against the first applicant were terminated because of insufficient evidence, his written undertaking not to abscond was cancelled and on 8 June 2006 the attachment of the first applicant's property was lifted. By letter of 21 June 2007, according to the prosecutor, the investigation into the misappropriation of humanitarian aid was still pending and, apparently, no suspect had yet been identified. b.     Second set of criminal proceedings On 12 April 2000 the local police instituted another set of criminal proceedings against the first applicant (case no.   08-7003), charging him with the same crimes as mentioned above. Apparently, that set of proceedings was concurrently pending until 18   May 2006 when it was joined to case no.   08-6086. 2.     Compensation in respect of non-pecuniary damage caused to the first applicant as a result of unlawful criminal persecution By a decision of 19 December 2002 the Vasylkiv District Court, having regard to the length of the impugned proceedings and other factors, awarded the first applicant 10,000 Ukrainian hryvnias   (UAH) [1] . The first applicant appealed; however, his appeal was rejected for procedural shortcomings. On 24 November 2006 the Supreme Court of Ukraine rejected the applicant's appeal in cassation against the decision of 19 December 2002 as it had not been examined by a court of appeal. The decision of 19 December 2002 was enforced on 23 April 2003. 3.     Compensation in respect of pecuniary damage caused to the first applicant as a result of unlawful criminal persecution a.     First set of proceedings In January 2003 the first applicant instituted civil proceedings in the Vasylkiv District Court against the local police and the State Treasury of Ukraine, asking the court to order the first defendant to return his property which had been seized during the criminal proceedings against him. He also sought compensation. Eventually, on 23 December 2003 the Fastiv District Court, to which the case had subsequently been transferred, found in part for the first applicant. In particular, it ordered the local police to provide the first applicant with the financial documentation which related to the activities of the second applicant and which had been seized during the criminal proceedings against the first applicant. The court also awarded the first applicant UAH   33,440 [2] in compensation for some property items (namely, a fax machine, scales and lifts) because it had become impossible to have them returned to him. This judgment was upheld by the Kyiv Regional Court of Appeal and the Supreme Court of Ukraine on 8 June 2004 and 18   December   2006, respectively. On 14 September 2004 the State Bailiffs' Service instituted proceedings to enforce the judgment of 23 December 2003. In November 2004 the bailiff fined the debtor's head and in December   2004 unsuccessfully sought to have criminal proceedings instituted against him. In April 2005, because that judgment had still not been enforced in its non-pecuniary part, the first applicant asked the Fastiv District Court to award him compensation instead of giving him the financial documentation pertaining to the second applicant. On 16 June 2005 the court rejected that request. On 28   October 2005 the Kyiv Regional Court of Appeal upheld that decision. According to the first applicant, he did not appeal against those decisions to the Supreme Court of Ukraine. By 31 October 2005 the enforcement proceedings had been terminated because the judgment of 23 December 2003 was deemed to have been enforced in full. The first applicant, however, insists that neither the pecuniary nor the non-pecuniary part of that judgment had been enforced in full, as he had not received all the documents under that judgment and, furthermore, had been paid only UAH   33,106.04. Apparently, he did not challenge the bailiff's decision to terminate the enforcement proceedings before the domestic courts. It appears that on 6 August 2009 the enforcement proceedings were resumed for unknown reasons and they are still pending. b.     Second set of proceedings On 4 April 2003 the investigator awarded the first applicant compensation for the unlawful criminal persecution (case no.   08-6086). The first applicant challenged that decision before the Shevchenkivsky District Court of Kyiv. On 28 August 2003 the court quashed the decision at issue and remitted the case to the investigator for fresh examination of the matter of compensation to the first applicant. The court noted that the investigator should have taken into account the requirements of the Compensation Act. On 17   December 2003 the Kyiv City Court of Appeal partly allowed the first applicant's appeal and amended the decision, clarifying that the investigation unit of the Kyiv Regional Department of the Ministry of the Interior of Ukraine (“the investigation unit”) was in charge of the matter. On 17   May 2004 the Supreme Court of Ukraine rejected a request by the first applicant for leave to appeal in cassation. Because the decision of 28 August 2003, as amended by the decision of 17   December 2003, had not yet been enforced, on 22   November 2005 the first applicant instituted proceedings in the Shevchenkivsky District Court of Kyiv against C., the head of the investigation unit, seeking to get him to acknowledge his failure to comply with the decisions of 28 August and 17   December 2003, and to order him to enforce those decisions. On 21   March 2006 the court found that the property seized during the criminal proceedings (namely, the second applicant's financial documentation, the first applicant's medicine and accounting diplomas, foreign language certificate, military service record card ( військовий квиток ), driving license, foreign passport and other personal belongings) had not yet been returned to the first applicant and the attachment on his property was still valid. It further noted that the first applicant could not restore the above-mentioned property (for instance, by getting duplicates of the documents). Referring to Article 5 § 5 of the Convention and the Compensation Act it allowed the first applicant's claims and ordered C. to enforce the decisions at issue within one month from the date on which its decision became final. On 13 June 2006 the Kyiv City Court of Appeal upheld that decision. On 12 July 2006 the investigator refused to issue a decision on compensation to the applicant. In doing so he stated that pecuniary and non-pecuniary damage had already been awarded to the first applicant by the decisions of 19 December 2002 and 23 December 2003. The applicant challenged the investigator's decision before the Shevchenkivsky District Court of Kyiv. On 2 August 2006 that court rejected the applicant's complaint for procedural shortcomings, finding, in particular, that the applicant should have lodged his complaint under civil, not criminal, procedure. On 16 August 2006 the investigator again refused to issue a decision on compensation to the first applicant for the same reasons. The first applicant challenged that decision before the Shevchenkivsky District Court of Kyiv. On 7 September 2006 that court rejected the applicant's complaint for procedural shortcomings, finding, in particular, that the applicant should have lodged his complaint under the administrative procedure. An appeal by the first applicant against the last-mentioned decision was rejected on 1   November 2006 as lodged out of time. On 23 August 2006 the State Bailiffs' Service instituted proceedings to enforce the decision of 21 March 2006. In the course of the enforcement proceedings the first applicant and the bailiff asked the court several times to interpret its decision of 21   March   2006, to change the means of its enforcement, and to take an additional decision, but to no avail. The first applicant also unsuccessfully challenged the bailiffs' omissions and inactivity in the course of the enforcement proceedings and claimed damages. In so far as C. was avoiding enforcement of the decision of 21   March   2006, the bailiff fined him several times and eventually, on 14   November 2007, asked the Shevchenkivsky District Court of Kyiv to institute criminal proceedings against C. It is not clear whether that request was granted. On 19 November 2007 the bailiff, referring to sections 37 and 76 of the Enforcement Proceedings Act, terminated the enforcement proceedings because further enforcement had become impossible owing to C.'s lack of cooperation. The first applicant challenged that decision before higher bailiff authorities and on 4 December 2007 his complaint was rejected. It is not clear whether the first applicant challenged that decision before the domestic courts. According to the applicant, the decision of 21   March 2006 has still not been enforced. c.     Third set of proceedings In November 2006 the first applicant instituted civil proceedings in the Shevchenkivsky District Court of Kyiv against the local police and the State Treasury of Ukraine, asking the court to order the first defendant to return his property which had been seized during the criminal proceedings against him. He also sought compensation. On 17 April 2007 the court found in part for the first applicant and ordered the police to give back to the first applicant within ten days from the date when the judgment becomes final certain documents (for example, medicine and accounting diplomas, a foreign language certificate, military service record card, driving license, foreign passport, etc.) and personal belongings (furniture, carpets, tape recorders, etc.) which had been seized during the criminal proceedings against him. On 20 February 2008 the Kyiv City Court of Appeal upheld the judgment and on 24 March 2008 the State Bailiffs' Service instituted proceedings to enforce it. On 15 May 2008, upon a request by the first defendant, the Supreme Court of Ukraine suspended the enforcement proceedings. On 27   August   2008 it quashed the lower courts' decisions and remitted the case for fresh examination. The proceedings are still pending before the Shevchenkivsky District Court of Kyiv. According to the first applicant, the judgment of 17   April   2007 has not been enforced and the items listed therein have not yet been returned to him. In addition, the first applicant submitted that the State authorities had seized his internal passport and had not yet returned it to him either. Because of the above he could not get a job or provide copies of letters from the employment centre and the Kyiv City Health Protection Department. In the same vein, he could not go abroad (letters from the Ministry of Foreign Affairs of Ukraine and the Frontier Service of Ukraine) and was fined for driving without a license (letter and decision by the State Bailiffs' Service of Ukraine). 4.     Other proceedings The applicants also instituted numerous sets of proceedings against various State authorities and their officials, unsuccessfully seeking, inter alia , compensation for damage incurred as a result of the criminal proceedings against the first applicant. Their claims were dismissed mostly for res judicata reasons or the failure to comply with the procedural requirements. B.     Relevant domestic law Under Article 126 of the Code of Criminal Procedure of Ukraine a property can be attached by the investigator or court to secure civil claims and possible confiscation. This attachment shall be lifted by a relevant decision if it is no longer needed. The relevant extracts from the Compensation for Damage Caused to the Citizen by Unlawful Actions of Bodies of Inquiry, Pre-Trial Investigation, Prosecutors and Courts Act of 1   December 1994 (“the Compensation Act”) are set out in the case of Matsyuk ( Matsyuk v. Ukraine (dec.), no. 1751/03, 15   January 2008). The relevant domestic law on the enforcement proceedings is summarised in the case of Yuriy Nikolayevich Ivanov ( Yuriy Nikolayevich Ivanov v. Ukraine , no.   40450/04, §   24 et seq., ECHR 2009 ‑ ... (extracts)). Under sections 37, 76 and 87 of the Enforcement Proceedings Act, a bailiff, having fined a debtor and having requested a court to institute criminal proceedings against the debtor, can terminate the enforcement proceedings if further enforcement is impossible without the debtor's cooperation. COMPLAINTS The first applicant complains under Article 6 § 1 of the Convention that the length of the criminal proceedings against him was excessively long. He further complains under this provision and Article   1 of Protocol No.   1 that the State authorities failed to enforce in due time the decisions of 23   December 2003, 28   August 2003 (as amended by the decision of 17   December 2003), 21   March 2006 and 17 April 2007. He also asserts that he had no effective remedy in that respect, contrary to Article 13 of the Convention. Given that the State authorities seized his personal documents (for example, medicine and accounting diplomas, foreign language certificate, military service record card, driving license, foreign passport, etc.) and failed to return them pursuant to the last-mentioned decision, they have interfered in his private life in breach of Article 8 of the Convention. The first applicant further complains that he had no enforceable right to compensation following his unlawful criminal persecution in breach of Article 5 § 5 of the Convention and Article   3 of Protocol No.   7. The long-standing effect of the attachment on his property and of the undertaking not to abscond imposed on him violated his rights guaranteed by Article   1 of Protocol No.   1 and Article 2 of Protocol No.   4. The first applicant and, since 17 November 2008, the other applicants also raise other numerous complaints under almost all provisions of the Convention and Protocols thereto . QUESTIONS TO THE PARTIES   1.     Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention? The parties are invited to indicate the dies a quo and dies ad quem dates, having regard to the apparently overlapping sets of proceedings in case nos. 08-6086 and 08-7003. 2.     Does the lengthy non-enforcement of the decisions of 23   December   2003, 28   August 2003 (as amended by the decision of 17   December 2003), 21   March 2006 and 17 April 2007 given in the first applicant's favour disclose a breach of his right of access to a court, as guaranteed by Article   6   §   1 of the Convention, and further constitute an unjustified interference with the first applicant's right to the peaceful enjoyment of his possessions within the meaning of Article 1 of Protocol   No. 1? 3.     Did the first applicant have at his disposal an effective domestic remedy for his complaints under Article 6   §   1 of the Convention and Article   1 of Protocol No.   1, as required by Article   13 of the Convention? 4.     Did the first applicant's continuous impossibility to get back his personal documents seized by the State authorities in 1999 and the lengthy non-enforcement of the decisions of 28   August 2003, 21   March 2006 and 17   April 2007 amount to a violation of his rights guaranteed by Article   8 § 1 of the Convention (see, mutatis mutandis , Smirnova v. Russia , nos.   46133/99 and 48183/99, ECHR 2003 ‑ IX (extracts))? 5.     Has the first applicant exhausted all effective domestic remedies, if any, with respect to his complaint under Article   1 of Protocol No.   1 (long-standing effect of the attachment on his property), as required by Article   35   §   1 of the Convention? If so, has there been a violation of this provision in the present case?       [1] About 1,888.21 euros (EUR) at the material time. [2] About EUR 5,140.04 at the material time.