FIFTH SECTION
Three applications against Ukraine
Application no.
Name of the applicant
Lodged on
34154/07
Lyubov Petrivna RYBACHENKO
10 July 2007
54904/08
Petro Yakovych PETLYOVANYY
31 October 2008
13369/08
Tetyana Stepanivna BUZINSKA
5 March 2008
STATEMENT OF FACTS
The applicant in the first case, Ms Lyubov Petrivna Rybachenko, is a Ukrainian national, who was born in 1922 and lives in S. Velyka Korinykha.
The applicant in the second case, Mr Petro Yakovych Petlyovanyy, is a Ukrainian national, who was born in 1960 and lives in Kolodribka.
The applicant in the third case, Ms Tetyana Stepanivna Buzinska, is a Ukrainian national, who was born in 1956 and lives in Martynivka.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Case of Ms Rybachenko
On 29 December 2003 the applicant was seriously injured in a traffic accident.
On 30 April 2004 the Mykolayiv Tsentralnyy District Court convicted Mr D for inflicting medium bodily harm on the applicant during the above accident, sentenced him to two years’ restriction of liberty suspended on probation and ordered him to pay the applicant UAH 6,800 in compensation for pecuniary damage and UAH 10,000 in compensation for non-pecuniary damage. The enforcement proceedings were started on 17 May 2004 and were discontinued on 2 March 2005 on the ground that the defendant had no funds or property which could be used for enforcement of the judgment of 30 April 2004.
On 22 November 2005, the applicant lodged a claim with the Mykolayiv Tsentralnyy District Court against the Ukrainian State sued as the State Treasury seeking recovery under Article 1207 of the Civil Code of the damages awarded by the judgment of 30 April 2004.
By decision of 31 November 2006, the court rejected the applicant’s claim on the ground that a special law, which would have established a mechanism for enforcing the provisions of Article 1207 of the Civil Code, had not been adopted.
On 23 January and 28 April 2007, respectively, the Mykolayiv Regional Court of Appeal and the Supreme Court upheld the decision of the first instance court.
2. Case of Mr Petlyovanyy
In December 2006 the applicant made a deposit in a private entity “Sidney Plus Credit Union” and could not receive the money back.
On 20 April 2007 criminal proceedings were instituted against officials of the above entity for financial fraud and the applicant was recognised as an aggrieved party in those proceedings in June 2007 in the amount of UAH 55,476.99 (equivalent of EUR 9,124.60).
On 5 May 2008 the Ternopil Regional Commercial Court declared the Credit Union bankrupt.
The founder of the Credit Union, Ms L., was placed on the list of wanted persons.
In February 2008 the applicant lodged a claim with the Zalishchytskyy District Court against the Ministry of Finance and the State Treasury seeking recovery under Article 1177 of the Civil Code of the damages caused by the crime.
By decision of 25 March 2008, the court rejected the applicant’s claim on the ground that a special law, which would have established a mechanism for enforcing the provisions of Article 1177 of the Civil Code, had not been adopted. Furthermore, the court noted that the person who caused the damage to the applicant was established but her whereabouts were unknown and the insolvency of the accused person had not been established.
On 22 May and 23 July 2008, respectively, the Ternopil Regional Court of Appeal and the Supreme Court upheld the decision of the first instance court.
3. Case of Ms Buzinska
In October 2005 the applicant became a victim of burglary.
On 25 October 2005 the Zhmerynka Police Department initiated criminal investigation into the theft from the applicant’s apartment.
On 7 March 2006 the investigation was suspended as the perpetrator was not established.
On 20 April 2007 the applicant lodged a claim with the Zhmerynka Local Court against the State Treasury seeking recovery under Article 1177 of the Civil Code of the damages caused by the crime in the amount of UAH 2,740 (equivalent of EUR 450).
By decision of 25 March 2008, the court rejected the applicant’s claim on the ground that the investigation into the crime was not yet terminated and there was still a chance that the perpetrator would be found. Therefore the claim was rejected as unsubstantiated.
On 4 October 2007 and 26 January 2008, respectively, the Vinnytsya Regional Court of Appeal and the Supreme Court upheld the decision of the first instance court.
B. Relevant domestic law
Civil Code
Article 1177
Compensation of pecuniary damage to a natural person that was a victim of a crime
“1. Pecuniary damage caused in consequence of a crime to a property of a natural person shall be compensated by the State, if the person who committed the crime is not identified or is insolvent.
2. Conditions and procedure of compensation of pecuniary damage caused to the property of a natural person that was a victim of a crime shall be established by law.”
Article 1207
Obligation of the State to compensate damage caused by mutilation, other health injury or by the death in consequence of a crime.
“1. Damage caused by mutilation, health injury or death in consequence of a crime, shall be compensated to a victim or to other persons defined in Article 1200 of this Code by the State, if the person who committed the crime is not identified or is insolvent.
2. Conditions and procedure of the State compensation for the damage caused by mutilation, other health injury or death shall be established by law.”
COMPLAINTS
Ms Rybachenko complains under Article 1 of Protocol No. 1 to the Convention that the State, in absence of funds of the offender, failed to enforce the judgment debt in her favour at its own expense in accordance with Article 1207 of the Civil Code. Referring to Article 6 of the Convention, the applicant maintains that the domestic courts breached procedural and substantive law, they were not independent and fair, and that the length of the civil proceedings was excessive.
Mr Petlyovanyy complains under Article 13 that the domestic proceedings were unfair and the domestic courts refused his claim for compensation. He further complains under Article 1 of Protocol No. 1 that he cannot receive back his money and that the State has not compensated him for the amount in question.
Ms Buzinska complains under Articles 6 and 13 of the Convention that she had no fair hearing and therefore no effective remedy concerning her claim for compensation of damages caused by the crime. She further invokes Article 1 of Protocol No. 1 and complains that her property rights were violated. She also maintains that by failing to adopt a special law, the State made the provisions of Article 1177 of the Civil Code inoperative and violated her right to receive compensation from the State.
QUESTIONS
1. Do the applicants in the present case have a “possession” or “a legitimate expectation” in terms of Article 1 of Protocol No. 1?
2. If so, has there been a violation of Article 1 of Protocol No. 1 on account of the failure on the part of the State to adopt a statutory mechanism necessary for the implementation of the relevant legal provisions (see Klaus and Iouri Kiladze v Georgia, 7975/06, §§55-85, 2 February 2010)?
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