Communicated on 16 October 2012 and 12 June 2018
FOURTH SECTION
Application no. 25531/12
Mykola Vasylyovych GUSEV
against Ukraine
lodged on 10 October 2011
STATEMENT OF FACTS
The applicant, Mr Mykola Vasylyovych Gusev, is a Ukrainian national who was born in 1945 and lives in Kremenchuk. The facts of the case, as submitted by the applicant, may be summarised as follows.
In July 1998 four private individuals kidnapped the applicant’s son. After they demanded from the applicant a ransom in the amount of 350,000 United States dollars (USD), he sought assistance from the local police. The police officers invited him to find the money himself and assured him that at the moment that he would give the money to the kidnappers they would arrest them and return the money to him. Having managed to find only USD 287,000 from various sources, the applicant gave the money to the police, who made an inventory and returned it to the applicant, who was then to give it to the kidnappers under the surveillance of the police. The applicant also provided three cars and two helicopters to be used in the police operation.
On 11 July 1998, on the kidnappers’ instructions, the applicant took a train. He was accompanied by seven police officers. At a place appointed by the kidnappers, and with police approval, he threw out from the train a bag containing the money. The police operation to arrest the kidnappers failed, and the latter took the bag (which contained USD 277,000 – another USD 10,000 had fallen out of the bag when it had been thrown from the train; it was subsequently collected by the police and returned to the applicant), hid it in another place in the same area and ran away. A few days later, they came back to the hiding place and took the money, which they subsequently spent on their own needs. In 2004 they were arrested and, by a judgment of the Avtozavodskyy District Court of Kremenchuk (“the Avtozavodskyy Court”) of 26 April 2004, convicted and sentenced to different terms of imprisonment. According to the applicant, the kidnappers were insolvent and did not compensate him for any damage.
In March 2005 the applicant lodged a claim with the Avtozavodskyy Court against the local police and the State Treasury, seeking compensation for the damage caused to him owing to mistakes made by the police in the organisation and conduct of operation on arrest of the kidnappers, as a result of which they had run away with his money.
On 17 November 2010 the court allowed the claim. In particular, it referred to its judgment of 26 April 2004 (which had been upheld on 3 December 2004 by the Poltava Regional Court of Appeal – “the Court of Appeal”), in which it had been established that, as a result of the negligently and imprecisely planned police operation aimed at arresting the kidnappers and of the uncoordinated actions of the policemen, the kidnappers had taken possession of the applicant’s money. The court concluded that having first given the money to the police and then, on their instructions, to the kidnappers, the applicant had had a right to expect that the police would preserve his property. However, given that the police operation – the purpose of which was the arrest of the kidnappers (rather than giving the money to them) – had failed through the fault of the police, the applicant had the right to claim from the State compensation for damage, because had the police operation been successful, the money would have remained in his ownership.
The court also stated that the police had not rebutted the arguments regarding their responsibility for the failure of the operation to arrest the kidnappers and for the preservation of the applicant’s money. It referred to Article 440 of the 1963 Civil Code, under which damage caused to a person or to his or her property was to be compensated for in full by the person who had caused it. It furthermore referred to a similar provision of the 2003 Civil Code (Article 1166), under which damage caused to a person’s property by unlawful decisions, action or inaction has to be compensated in full by the person who caused it. Lastly, the court referred to Article 56 of the Constitution, pursuant to which everyone is entitled to compensation for damage caused by decisions, actions or inaction on the part of the State or local authorities and their officials during the exercise of their powers.
The court thus concluded that the applicant had proved that the police had displayed inaction and unprofessionalism during the preparation and conduct of the operation to arrest the kidnappers and retain his money. Therefore, the applicant was entitled to compensation at the expense of the State for the damage that he had suffered; the court accordingly awarded him 2,198,188.90 Ukrainian hryvnias (UAH) (equivalent of USD 277,000) in compensation for the pecuniary damage suffered and UAH 150,000 (equivalent of USD 13,886) for the non-pecuniary damage, to be paid by the State Treasury.
On 21 February 2011, following an appeal by the respondents, the Court of Appeal upheld the factual findings of the first-instance court. It also referred to Article 440 of the 1963 Civil Code and, furthermore, to Article 1177 of the 2003 Civil Code, under which damage caused to a person’s property as a result of a crime was to be compensated for by the State if the person who committed the crime was not identified or was insolvent. It then held that the Avtozavodskyy Court had not taken into account the fact that the persons who had taken possession of the applicant’s money had been identified and that their insolvency had not been proved. It held that there had therefore been “no causal link between the actions of the police officers and the damage caused by the kidnappers” and thus no grounds for allowing the applicant’s claim. Accordingly, it quashed the judgment of 17 November 2010 and rejected the claim.
In a summary ruling of 25 July 2011, the Higher Specialised Civil and Criminal Court of Ukraine upheld the judgment of 21 February 2011.
COMPLAINTS
1. The applicant complains under Articles 6 § 1 and 13 of the Convention of the excessive length of the proceedings in his case and of the lack of effective remedies in this respect.
2. He also complains under Article 6 § 1 of the Convention (in substance), stating that the court decisions of 21 February and 25 July 2011 were unlawful. The applicant furthermore complains under Article 1 of Protocol No. 1 that his property rights were breached as a result of the courts’ refusal to grant his claim.
QUESTIONS TO THE PARTIES
1. Were the proceedings in the present case fair for the purposes of Article 6 § 1 of the Convention? In particular, did the Court of Appeal comply with its obligation under the above provision to give reasons for its judgment of 21 February 2011 (which was further upheld on 25 July 2011 by the Higher Specialised Civil and Criminal Court)?
2. Is Article 1 of Protocol No. 1 applicable in the present case (see, mutatis mutandis, Petlyovanyy v. Ukraine (dec.), no. 54904/08, 30 September 2014)? If so, do the facts of the case give rise to a violation of Article 1 of Protocol No. 1?
The parties are furthermore requested to provide copies of the courts’ decisions of 26 April and 3 December 2004, together with copies of the applicant’s claim and the appeals lodged by the parties within the proceedings instituted by him.
Full & Egal Universal Law Academy