FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 28780/02
by Irina Anatolyevna FARAFONOVA
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 27 November 2006 as a Chamber composed of:
MrP. Lorenzen, President,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 19 October 2000,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Irina Anatolyevna Farafonova, is a Ukrainian national who was born in 1965 and lives in the city of Kharkiv, Ukraine.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The criminal proceedings against the applicant for alleged hooliganism
On 27 June 2001 the investigator of the Chervonozavodskiy Department of the Ministry of Interior in Kharkiv instituted criminal proceedings against the applicant for malicious hooliganism.
On 31 July 2001 the pre-trial investigations were completed and the case was referred to the Chervonozavodskiy District Court of Kharkiv.
On 7 September 2001 the court found the case ready for examination and scheduled the hearing for 29 September 2001.
On 24 September 2001 the President of the court allowed the applicant’s request to replace the judge in her case.
On an unspecified date the President of the Kharkiv Regional Court of Appeal (hereinafter – the Court of Appeal) changed the case’s territorial jurisdiction and referred the case to the Zhovtnevy District Court of Kharkiv.
On 27 December 2001 the court remitted the case to the Chervonozavodskiy District Prosecutor’s Office for additional investigation.
On 12 June 2002 the Court of Appeal upheld this ruling with minor changes.
On 5 August 2002 the additional investigation was completed and the case was referred to the Zhovtnevy District Court.
On 30 September 2002 the court remitted the case to the Chervonozavodskiy District Prosecutor’s Office.
On 19 February 2003 the Court of Appeal quashed this decision and remitted the case for renewed consideration to the first instance court.
On 27 March 2003 the Supreme Court upheld this ruling.
On 29 April 2003 the Zhovtnevy District Court found the case ready for examination and scheduled the hearing for 29 May 2003.
On 29-30 May 2003 the court examined the applicant’s motions and adjourned the hearing till 27 June 2003. The next hearing was scheduled for 26 August 2003.
On 22 August, 9 and 29 December 2003 the applicant unsuccessfully challenged Judge B. who was the Presiding Judge in her case.
On 11 December 2003 the court allowed the applicant’s refusal of the officially appointed counsel M.
On 17 December 2003 the court rejected the applicant’s motion to appoint Mr R. as her defence counsel for lack of necessary qualification and power of attorney.
On 18 December 2003 the court rejected the applicant’s motion to appoint Mr N. as her defence counsel for lack of necessary qualification and power of attorney.
On 15 and 16 January 2004 and on 18 June 2004 the applicant again unsuccessfully challenged Judge B, alleging his bias.
On 2 February 2004 Judge B. requested the President of the Kharkiv Regional Bar Association to appoint defence counsel for the applicant.
On 1 March 2005 Judge B. was replaced by Judge I.
The case was heard on merits on 6, 11, 12, 14 and 22 April, 18, 20, 25 and 31 May, 6, 8, 9 and 14 June, 7 and 15 July 2005.
On 27 December 2005 the applicant unsuccessfully challenged prosecutor Y. in her case.
The proceedings are still pending before the first instance court.
2. Other proceedings
(a) Criminal proceedings against the applicant for alleged theft
On 27 September 2000 the Chervonozavodskiy Department of the Ministry of Interior instituted criminal proceedings against the applicant for theft.
On an unspecified date these proceedings were terminated by the Ministry of Interior for lack of a corpus delicti in the applicant’s actions.
(b) First set of proceedings initiated by the applicant
On 20 March 2001 the Chervonozavodskiy District Prosecutor’s Office refused to institute criminal proceedings against Mr D., an official of the Chervonozavodskiy Department of the Ministry of Interior, for allegedly unlawful search of the applicant’s house and abuse of power. The applicant’s complaint against this decision, lodged in May 2004, was rejected as it became time-barred.
On 18 July 202 the court allowed the applicant’s civil claim against Mr D. The court found that the latter unlawfully searched the applicant’s house.
(c) Second set of proceedings initiated by the applicant
On unspecified dates the applicant requested the Chervonozavodskiy District Court of Kharkiv to institute criminal proceedings against Messrs B., M., Z., N., K, V., K, and A, and Mesdames B., L., and Zh. for different reasons.
On 16, 17 and 19 July 2002 the court refused to institute criminal proceedings against the above persons.
On 10 and 16 September and 1 October 2002 the Court of Appeal upheld these rulings.
On 8 January 2003 the Supreme Court rejected the applicant’s appeals in cassation against above decisions.
(d) Third set of proceedings initiated by the applicant
In August 2001 the applicant lodged a claim with the Chervonozavodskiy District Court of Kharkiv against Mr E., the Head of the Chervonozavodskiy Department of the Ministry of Interior, challenging his inactivity.
On 10 October 2001 the court rejected her claim as unsubstantiated.
On 18 December 2001 the Court of Appeal quashed this decision and terminated the proceedings for lack of jurisdiction. The court established that the applicant’s claim concerned the criminal proceedings against her, and thus the law provided for another procedure for such a claim.
On 27 March 2002 the first instance court returned the applicant’s appeal in cassation against these decisions for her failure to comply with the procedural requirements.
On 13 May 2002 the Court of Appeal quashed this ruling and remitted the case to the first instance court.
On 17 May 2002 the applicant filed comments on the minutes of the trial of 13 May 2002.
On 27 May 2002 the Court of Appeal partly agreed with the applicant’s comments and ordered the necessary changes in the minutes of the trial.
On 30 September 2002 the Supreme Court rejected the applicant’s appeal against the decisions of 27 March 2002, 13 May 2002 and 27 May 2002.
(e) Fourth set of proceedings initiated by the applicant
On 24 December 2001 the Chervonozavodskiy District Court of Kharkiv rejected the applicant’s complaint against Mr N., investigator of the Chervonozavodskiy Department of the Ministry of Interior, on account of the applicant’s failure to comply with procedural requirements. This ruling was upheld by the Court of Appeal and Supreme Court on 2 April 2002 and 23 November 2004, respectively.
(f) Fifth set of proceedings initiated by the applicant
On unspecified dates the applicant requested the Chervonozavodskiy District Court of Kharkiv to institute criminal proceedings against Judge A. of that court, the President of that court, investigators of the Chervonozavodskiy Department of the Ministry of Interior in Kharkiv, the President and Chamber of the Court of Appeal, and the investigators and prosecutors of the Chervonozavodskiy District Prosecutor’s Office.
On 8 August 2002 the Chervonozavodskiy District Court of Kharkiv instituted criminal proceedings against the applicant for unlawful interference with an activity of judicial body, and referred the case to the Kharkiv Prosecutor’s Office for investigation.
On 27 December 2002 the investigator of the Kharkiv Prosecutor’s Office terminated these proceedings for lack of a corpus delicti in the applicant’s actions.
(g) Sixth set of proceedings initiated by the applicant
In June 2002 the applicant lodged a complaint with the Moskovskiy District Court of Kharkiv against the local Electoral Committee, challenging her dismissal and seeking compensation for salary arrears.
On 12 August 2002 the court, having regard to the procedural shortcomings of the applicant’s claim, gave her five days to rectify them. As the applicant failed to do so within the given time-limit, on 21 August 2002 the court considered the claim as not having been lodged and returned it to the applicant. This ruling was upheld by the Court of Appeal and Supreme Court on 9 October 2002 and 27 February 2003, respectively.
(h) Seventh set of proceedings initiated by the applicant
On 31 October and 18 November 2004 the applicant’s claims about a violation of her electoral rights were considered as not having been lodged and returned to her on account of the procedural shortcomings and the failure to rectify them within the given time-limit.
B. Relevant domestic law
The texts of Article 120 of the Code of Criminal Procedure of 1960 (terms of pre-trial investigation) and Article 281 (remittal of a case for additional investigation) are summarised in the judgment Merit v. Ukraine (no. 66561/01, judgment of 30 March 2004, Relevant domestic law and practice).
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings against her. She also complained under Article 13 about the lack of effective remedies for her complaints in respect of the length of criminal proceedings.
The applicant further invoked Articles 1, 3, 5, 6, and 14, and Article 2 of Protocol No. 7, complaining about the unfair trial, the erroneous assessment of evidence, a discriminative attitude, and the lack of hearing at the Supreme Court. She further complained under the same provisions that her attempts to have criminal proceedings taken against the judges, prosecutors, investigators and other persons who had been involved in the above criminal proceedings, had remained unsuccessful.
THE LAW
1. The applicant complained that the criminal proceedings which were instituted on 27 June 2001 against her had lasted unreasonably long. She relied on Article 6 § 1 of the Convention, which provides so far as relevant as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The applicant further complained of the alleged lack of an effective remedy in respect of her complaint about a violation of Article 6 § 1 of the Convention. She invoked Article 13 of the Convention, which reads as follows:
“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.”
The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicant further complained about the unfairness of the criminal proceedings, the erroneous assessment of evidence and a discriminative attitude. She also complained about the lack of an oral hearing before the Supreme Court and her unsuccessful attempts to institute criminal proceedings against judges, prosecutors, investigators and other persons involved in her case.
In the light of all the material in its possession, and insofar 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 the remainder 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
Decides to adjourn the examination of the applicant’s complaints under Articles 6 § 1 and 13 of the Convention concerning the excessive length of the proceedings and lack of effective remedies;
Declares the remainder of the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy