FIFTH SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 35157/02
by Lyudmila Vladimirovna KOSITSINA
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 15 January 2008 as a Chamber composed of:
Peer Lorenzen, President,
Snejana Botoucharova,
Volodymyr Butkevych,
Margarita Tsatsa-Nikolovska,
Rait Maruste,
Javier Borrego Borrego,
Renate Jaeger, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 24 March 2001,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the partial decision of 22 May 2006,
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, Mrs Lyudmila Vladimirovna Kositsina, is a Ukrainian national who was born in 1936 and lives in Odessa, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
From 27 February to 2 March 1995 the applicant’s son, G., was allegedly detained in the village of Balka, Odessa Region, by T. and Tr. (relatives of G.’s former wife), who extorted payment of a obligation of 10,300 US dollars (USD) from G. by subjecting him to ill-treatment.
On 3 March 1995 the Illichevsk Department of the Ministry of the Interior was informed by a medical clinic, to which G. came for medical treatment after being released, that he was suffering from head injuries.
On 17 April 1995 the Illichevsk District Prosecutor’s Office of Odessa (прокуратура Ілічевського району м. Одеси) instituted criminal proceedings against T. and Tr. for unlawfully depriving G. of his liberty.
Between 1995 and 1998 the criminal proceedings were several times terminated and subsequently reinstituted.
On 12 February 1998 G. died.
On 21 November 1998 the criminal case against T. and Tr. was closed for lack of evidence of crime. It was established that G. had borrowed money from T. and Tr., and that his physical injuries had occurred as a result of an epileptic fit. Following a complaint by the applicant about this decision, on 25 January 1999 the Illichevsk District Court of Odessa upheld it, finding no irregularities in the prosecutor’s decision to terminate the criminal proceedings.
On 7 April 1999 the Presidium of the Odessa Regional Court, acting upon a protest lodged by the Deputy Prosecutor of the Odessa Region, quashed the decision of 25 January 1999 because the applicant had not been informed about the court hearing of 25 January 1999 and the court decision had not been reasoned. It remitted the case for a fresh examination to a different judge.
On 19 July 1999 the Illichevsk District Court remitted the case for further investigation. In particular, it found a number of deficiencies in the investigation of the case and ordered the prosecution to rectify them.
On 28 August 1999 the Illichevsk District Prosecutor’s Office again terminated the criminal proceedings against T. and Tr. for lack of evidence of crime.
On 2 December 1999 the same prosecutor’s office quashed its own decision and reinstituted criminal proceedings.
On 29 January 2000 the applicant was granted victim status.
On 30 May 2000 the Illichevsk District Prosecutor’s Office terminated criminal proceedings against T. and Tr. for lack of evidence of crime. G.’s former wife, her mother and T. testified that the applicant had borrowed money from T. and that he had suffered from epilepsy.
On 29 September 2000 the Malinovskyy District Court of Odessa, on a complaint by the applicant, quashed the prosecutor’s decision and remitted the case for further investigation.
On 13 December 2000 the prosecutor quashed the decision of 29 January 2000 granting the applicant victim status, as contrary to Article 49 of the Code of Criminal Procedure.
On 22 February 2001 the prosecutor terminated the criminal proceedings for absence of evidence of crime and as time-barred.
On 27 November 2001 the Illichevsk District Court, on a complaint by the applicant, quashed the prosecutor’s decision and remitted the case for further investigation. In particular, it ordered that the deficiencies in the investigation of the case be rectified. However, the court underlined that the applicant had no victim status in the case. On 21 February and 25 June 2002 the Odessa Regional Court of Appeal and the Supreme Court of Ukraine upheld this decision.
Between August 2003 and February 2004 the criminal proceedings were several times terminated and subsequently reinstituted.
On 25 June 2004 the Malinovskyy District Court, by a separate decision, ordered the prosecutor to inform the court about the investigative actions which the prosecution had taken in the case. It emphasised the failure of the prosecution to abide by the courts’ previous decisions. On the same date, on a complaint by the applicant, the court remitted the case for a new investigation.
On 21 September 2004 the Odessa Regional Court of Appeal upheld the decision of 25 June 2004, by which the case had been remitted for a new investigation.
Between November 2004 and June 2005 the criminal proceedings were several times terminated and subsequently reinstituted.
On 23 June 2005 the case was transferred to the court in order to terminate proceedings as time-barred.
On 3 October 2005 the Malinovskyy District Court of Odessa refused to terminate the criminal proceedings against T. and Tr. and remitted the case for a new investigation. On 6 December 2005 the Odessa Regional Court of Appeal quashed this decision and remitted the case for a fresh judicial examination. The applicant was recognised by the court as her late son G.’s representative.
On 3 April 2006 G.’s daughter was granted victim status in the proceedings.
On 26 April 2006 the Malinovsky District Court terminated the criminal proceedings as time-barred.
On 25 May 2006 the Malinovskyy District Court dismissed the applicant’s appeal against the decision of 26 April 2006 since the applicant was not a party to the proceedings. On 12 September and 5 December 2006 the Odessa Regional Court of Appeal quashed the decisions of 25 May and 26 April 2006 respectively and remitted the case to the Malinovskyy District Court for fresh consideration.
On 16 February 2007 the Malinovskyy District Court granted the applicant victim status and remitted the case to the prosecutor for an additional investigation.
On 26 April 2007 the Malinovskyy District Prosecutor’s Office terminated the criminal proceedings for the absence of the event of crime. On 12 July 2007 the Malinovskyy District Court upheld this decision. The applicant appealed against it and the proceedings are still pending.
B. Relevant domestic law
Code of Criminal Procedure, 1961
According to Article 28 of the Code, a person who has sustained pecuniary damage as a result of a crime can lodge a civil claim against an accused at any stage of the criminal proceedings before the beginning of the consideration of the case on the merits by a court.
Article 49 of the Code provides in so far as relevant:
“A person who has suffered moral, physical or property damage from the crime can be recognised as an aggrieved party. ...
A citizen, who has been recognised as an aggrieved party from the crime, shall be entitled to give evidence in the case. An aggrieved party, or his or her representative, shall be entitled to: ... make requests; to study all the materials of the case-file when the pre-trial investigation is completed, ... to lodge complaints against the actions of inquirer, investigator, prosecutor and court, ...
In cases where the crime caused the death of the victim, the rights provided for in this Article shall be conferred upon the deceased’s next kin.”
COMPLAINTS
The applicant complained that the criminal investigation into her son’s unlawful deprivation of liberty and ill-treatment had exceeded the “reasonable time” requirement in Article 6 § 1 of the Convention, and that she had no effective remedies for this complaint, as required by Article 13 of the Convention.
THE LAW
In their observations of 15 September 2006, the Government submitted that the applicant could not be considered a victim of an alleged violation. In particular, no criminal proceedings had been instituted against her and she had not lodged any civil claim within the framework of the criminal proceedings. Moreover, the right of access to a court afforded by Article 6 of the Convention does not guarantee as such a right to have criminal proceedings instituted against a third person. Therefore, the Government contended that the applicant’s complaints in this respect were inadmissible ratione personae and ratione materiae.
The applicant maintained that she had not lodged any civil claim since the assaulters of her son had never been charged with any crime and according to the procedural requirements a civil claim could be lodged only against the accused in the case.
The Court notes at the outset that its competence ratione temporis concerning the proceedings in question is limited to the period after 11 September 1997, the date when the Convention entered into force in respect of Ukraine.
The Court further observes that in the present case the applicant was not the accused but the next of kin of the injured party. Thus, the criminal limb of Article 6 § 1 does not apply. Article 6 § 1 under its “civil head” applies only to proceedings concerning the “determination” of a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law (see, among other authorities, Acquaviva v. France, judgment of 21 November 1995, Series A no. 333, p. 14, § 46). The Convention does not confer any right to “private revenge” or to an actio popularis. Thus, the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently: it must be indissociable from the victim’s exercise of a right to bring civil proceedings in domestic law, even if only to secure symbolic reparation or to protect a civil right such as the right to a “good reputation” (see, inter alia, Perez v. France [GC], no. 47287/99, § 70, ECHR 2004‑I).
The Court notes that the applicant has not been a party to the majority of the proceedings. Although the domestic courts have occasionally considered the applicant’s complaints of defects in the investigation of the case, the applicant’s status in the proceedings was unclear and it appears that she acted as a victim’s representative. The applicant was only granted victim status during the period of 29 January to 13 December 2000 and after 16 February 2007.
The Court further notes that, even when the applicant was granted victim status, the national law on this stage of the proceedings did not provide the applicant with a possibility to lodge a civil claim. Therefore, the Court cannot conclude that the proceedings in question concerned the determination of the applicant’s civil rights and obligations. Accordingly, Article 6 of the Convention is not applicable to those proceedings. Therefore, no issue arises under Article 13 of the Convention either.
It follows that the remainder of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekPeer LorenzenRegistrar President
Full & Egal Universal Law Academy