FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 11098/03
by Yevgen Oleksandrovych SHAVROV
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 11 March 2008 as a Chamber composed of:
Peer Lorenzen, President,
Snejana Botoucharova,
Karel Jungwiert,
Volodymyr Butkevych,
Rait Maruste,
Mark Villiger,
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 12 March 2003,
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 observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Yevgen Oleksandrovych Shavrov, is a Ukrainian national who was born in 1964 and lives in the city of Mariupol. He is a former share-holder (40% of shares) and the head of the board of the joint stock company “Donservispak” (hereinafter “Donservispak”).
The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Criminal proceedings against the applicant
On 9 February 1998 the Public Prosecutor of Donetsk (hereinafter “the Public Prosecutor”) instituted criminal proceedings against the applicant on charge of theft of collective property (Article 84 of the Criminal Code of 1960). The allegation was that from October 1996 to December 1997 the applicant’s university studies as well as service charges for his apartment were met by Donservispak, causing it UAH 2,280 (1,079 ECU) damage.
On 8 May 1998 the Public Prosecutor issued an indictment. The applicant was obliged not to leave the place of his permanent residence.
On 5 June 1998 the investigator of the Public Prosecutor’s office ordered the applicant’s dismissal from his position.
On 9 June 1998 the investigation was suspended as the applicant was ill.
On 26 June 1998 the investigation was resumed and a witness was questioned. On the same day the investigator suspended the proceedings as the applicant was in hospital.
On 15 September 1998 the investigator of the Public Prosecutor’s office put the applicant on the list of wanted persons.
On 30 September 1998 the Public Prosecutor quashed this decision as unsubstantiated.
On 12 October 1998 the Deputy Public Prosecutor extended the time-limit for the pre-trial investigation.
On 20 October 1998 the investigator of the Public Prosecutor’s office suspended the proceedings because the applicant could not be found at his permanent residence. The Donetsk Department of the Interior was ordered to find the applicant.
On 10 August 1999 the prosecutor of the Public Prosecutor’s office quashed this decision on the ground that the investigator had not taken all procedural measures that could be accomplished in the applicant’s absence.
On 13 August 1999 the investigator of the Public Prosecutor’s office suspended the proceedings in view of the applicant’s absence.
On 8 October 1999 the applicant presented himself to the Public Prosecutor’s office and the proceedings were resumed.
On 11 October 1999 the applicant was informed that the pre-trial investigation had been completed.
On 15 October 1999 the criminal proceedings against the applicant were terminated as no crime had been committed.
On 30 November 1999 the senior prosecutor of Public Prosecutor’s office quashed this decision and remitted the case for additional investigation.
On 12 January 2000 the investigator ordered an accountant’s report, the results of which were received by the Public Prosecutor’s office on 25 January 2000.
On 25 January 2000 the Public Prosecutor issued a new indictment under Article 165 of the Criminal Code, relating to charges of abuse of position.
On 9 March 2000 the applicant was arrested. He was released the next day. He was obliged not to leave the place of his permanent residence.
On 29 March 2000 the criminal case was transferred to the Voroshylivsky District Court of Donetsk (“the Voroshylivsky Court”).
Between 19 April 2000 and 23 March 2001 two out of nineteen hearings were adjourned due to the applicant’s failure to appear before the court, one due to the applicant’s and witnesses’ failure to appear before the court, two due to the applicant’s illness, and five due to the witnesses and/or the prosecutor’s failure to appear before the court.
On 2 April 2001 the Voroshylivsky Court convicted the applicant and imposed a suspended sentence of five years’ imprisonment.
On 4 April 2001 the applicant lodged a cassation appeal and on 14 April 2001 the case-file was transferred to the Donetsk Regional Court (hereinafter “the Regional Court”).
On 27 April 2001 the Regional Court returned the case-file to the first instance court for rectification of procedural shortcomings (the applicant, his representative and the prosecutor had not been informed about the date of hearing before the Regional Court; the applicant had not been provided with a copy of the judgment).
On 21 May 2001 the case-file was transferred to the Regional Court.
On 15 June 2001 the Regional Court returned the case-file to the first instance court for rectification of procedural shortcomings (the civil party, Donservispak, had not been informed about the date of hearing before the Regional Court and had not been provided with the copy of the cassation appeal).
On 21 June 2001 the case-file was transferred to the Regional Court.
On 27 July 2001 the Donetsk Regional Court of Appeal (former Regional Court, hereinafter “the Court of Appeal”), following the applicant’s request, appointed forensic book-keeping examination, which was terminated on 8 November 2001.
On 14 March 2002 the Court of Appeal returned the case-file to the first instance court for rectification of procedural shortcomings (Donservispak had not been informed about the date of hearing before the Court of Appeal).
On 26 April 2002 the Court of Appeal quashed the judgment of 2 April 2001 and acquitted the applicant.
On 17 June 2002 the Deputy Public Prosecutor lodged a cassation appeal.
On 3 October 2002 the hearings were resumed before the Supreme Court.
On 14 November 2002 the Supreme Court quashed the judgment of 26 April 2002 and remitted the case to the Court of Appeal.
On 28 February 2003 the Court of Appeal rejected the applicant’s appeal and partially modified the judgment of 2 April 2001. The applicant was convicted and a suspended sentence of three years’ imprisonment was imposed under Article 364 of the Criminal Code of 2001.
On 27 January 2004 the Supreme Court rejected the applicant’s cassation appeal against this ruling.
2. Civil proceedings instituted by the applicant against the Public Prosecutor’s office and courts
On 7 July 2002 the applicant addressed the Voroshylivsky Court with a request to calculate the pecuniary and non-pecuniary damage caused by his criminal prosecution and by alleged violations of the law committed by officials of the Public Prosecutor’s office and courts.
On 22 July 2002 the court decided not to deal with the request because the applicant had failed to comply with the formal requirements. It allowed the applicant time to rectify the shortcomings.
On 30 August 2002 the applicant’s request was returned as had not lodged a rectified version. The applicant did not appeal against this ruling.
On 2 August 2002 the applicant lodged a claim with the Court of Appeal asking for compensation for pecuniary and non-pecuniary damage caused by his criminal prosecution and the alleged violations of the law.
On 7 August 2002 the court found that the claim fell outside its jurisdiction. The applicant lodged a cassation appeal against this ruling. There is no information about the outcome of the proceedings.
In September 2002 the applicant instituted proceedings against the Public Prosecutor’s office and the Voroshylivsky Court for compensation for pecuniary and non-pecuniary damage caused by the prosecution.
The Voroshylivsky Court decided not to deal with the claim because the applicant had failed to comply with the formal requirements. It allowed the applicant until 7 October 2002 to rectify the shortcomings.
On 14 October 2002 the same court returned without examination the applicant’s claim for failure to rectify the mistakes. The applicant did not appeal against this ruling.
3. Civil proceedings and bankruptcy proceedings against Donservispak
On 16 December 1997 the Donetsk Commercial Court, upon the claim of the public prosecutor in the interest of the Kuibyshevsky Department of the Communal Property, annulled the rent contract of Donservispak’s office and ordered its eviction.
On 26 February 1998 the Deputy President of the Donetsk Commercial Court upheld this decision.
On 5 October 2000 the Donetsk Commercial Court, upon the motion of the Voroshylivsky Office of the State Tax Inspectorate in Donetsk, declared Donserviskpak bankrupt.
On 27 March 2002 the same court terminated the bankruptcy proceedings and ordered the liquidation of Donservispak
On 22 April 2002 the applicant’s appeal against this ruling was returned without examination for failure to comply with the formalities. The applicant did not pursue the proceedings.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention about the unreasonable length of the criminal proceedings instituted against him. He also complained under Article 5 of the Convention about the unlawfulness of his apprehension. The applicant alleged, referring to Article 8 of the Convention, that during the pre-trial investigation the police twice conducted searches at his home and unlawfully attached his belongings. He further alleged, relying to Article 1 of Protocol No. 1, that the JSC was declared bankrupt unlawfully and that its property and documents were stolen by the bailiffs during the eviction. The applicant finally complained under Articles 6 § 1 and 7 of the Convention about the unlawfulness of his conviction.
THE LAW
1. The applicant’s first complaint relates to the length of the criminal proceedings against him. Article 6 § 1 of the Convention invoked as far as relevant provides as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government maintained that the length of the proceedings was not in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.
The applicant objected and stated that the proceedings had not been conducted with sufficient diligence.
The Court notes that these proceedings began on 9 February 1998 and ended on 27 January 2004. They therefore lasted five years nineteen months and eleven days for three levels of jurisdiction after the preliminary investigation.
The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).
Turning to the facts of the present case, the Court considers that, having regard to the nature of the crime with which the applicant was charged, the present case cannot be considered as particularly complicated.
The Court further notes that though some periods of delay in the course of the pre-trial investigation were due to the applicant’s illness, however they have not significantly contributed to the overall length of the proceedings. As to the length of the proceedings before the domestic courts, the Court notes that though the examination of the case before the Voroshylivsky Court was to certain extent delayed due to the applicant’s repeated absence, the hearings were on numerous occasions postponed also due to the witnesses’ and the prosecutor’s failure to appear before the court.
At the same time, the Court notes that all the domestic courts examined the case as well as the applicant’s appeals and cassation appeals without any delays which would be in breach of “reasonable time” requirement, laid down in Article 6 § 1 of the Convention.
Regard being had to all the circumstances, the Court concludes that in the present case the overall length of the proceedings was not excessive and cannot be considered unreasonable (see, for example Smirnov v. Ukraine (dec.), no. 1409/03 , 10 July 2007) .
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant complained under Article 5 of the Convention about the unlawfulness of his apprehension. He alleged, referring to Article 8 of the Convention, that during the pre-trial investigation the police twice conducted searches at his home and unlawfully attached his belongings. He complained under Article 1 of Protocol No. 1, that the JSC was declared bankrupt unlawfully and that its property and documents were stolen by the bailiffs during the eviction. The applicant finally complained under Articles 6 § 1 and 7 of the Convention about the unlawfulness of his conviction.
However, in the light of all the materials in its possession, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of the Convention.
3. In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy