FIFTH SECTION
DECISION
Application no. 30944/12
Gennadiy Opanasovych TYMOSHENKO and Antonina Volodymyrivna BOLYURA
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 26 November 2019 as a Committee composed of:
Síofra O’Leary, President,
Ganna Yudkivska,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 17 May 2012,
Having deliberated, decides as follows:
THE FACTS
The first applicant, Mr Gennadiy Opanasovych Tymoshenko, was a Ukrainian national who was born in 1935 and lived in Dnipropetrovsk (renamed Dnipro in May 2016). The second applicant, Ms Antonina Volodymyrivna Bolyura, is a Ukrainian national who was born in 1949 and also lives in Dnipro. The applicants were represented before the Court by Mr L. Drozdovskyy, a lawyer practising in Kyiv.
The facts of the case, as submitted by the applicants, may be summarised as follows.
In 1996-1997 the applicants were officials of the “United Energy Systems of Ukraine” corporation founded by Ms Y. Tymoshenko (the Prime Minister of Ukraine in 2005 and 2007-2010). The first applicant, who was also Ms Tymoshenko’s father-in-law, was the head of the board of directors. The second applicant was the chief accountant.
In 2001-2003 several sets of criminal proceedings were instituted against the applicants, in particular, on suspicion of public funds embezzlement, abuse of office, forgery of official documents and tax evasion. The first set of criminal proceedings against the second applicant was instituted on 1 June 2001.
On 30 and 31 December 2004 the Kyiv Shevchenkivskyy District Court (“the Shevchenkivskyy Court”) closed those proceedings for lack of constituent elements of a crime. Those decisions became final.
On 21 October 2011 the Prosecutor General’s Office (“the PGO”) requested the Shevchenkivskyy Court to renew the time-limit to appeal on points of law against the above-mentioned decisions. On 28 October 2011 that request was granted. The applicants’ appeal against it was unsuccessful.
On 17 November 2011 the Higher Specialised Court for Civil and Criminal Matters (“the Higher Specialised Court”), by a final ruling, quashed the decisions of 30 and 31 December 2004 in allowing the PGO’s appeal on points of law. It discontinued the criminal proceedings against the applicants, but this time on the grounds that the charges against them had become time-barred.
On 24 May 2012 the first applicant died. His representative, Mr Drozdovskyy, wrote to the Court that he had not been able to contact the first applicant’s heirs with a view to finding out whether they would wish to pursue the application.
On 17 June 2015 the Higher Specialised Court quashed its ruling of 17 November 2011 under newly-discovered circumstances, upon the second applicant’s request. It also upheld the Shevchenkivskyy Court’s decision of 30 December 2004 closing the criminal proceedings against the second applicant for lack of constituent elements of a crime.
COMPLAINTS
The applicants complained under Article 6 of the Convention that the criminal proceedings against them had been unfair and unduly lengthy.
THE LAWThe first applicant’s complaints
The Court notes that the first applicant has died and that no request has been submitted by his heirs to pursue the examination of the case. In these circumstances the Court concludes that it is no longer justified to continue the examination of the application within the meaning of Article 37 § 1 (c) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.
In view of the above, it is appropriate to strike this part of the case out of the list.The second applicant’s complaintsRegarding the fairness of proceedings
The second applicant complained that the Higher Specialised Court had examined the PGO’s appeal on points of law on 17 November 2011 in spite of her then pending appeal against the time-limit renewal and that she had not been notified of that hearing. She also complained that, by changing the grounds for the discontinuation of the criminal proceedings from rehabilitating (lack of constituent elements of a crime) to non-rehabilitating (limitation statute), the decision of the Higher Specialised Court of 17 November 2011 had de facto found her guilty of criminal offences. The second applicant argued that the ruling of the Higher Specialised Court of 17 June 2015 had remedied the alleged violations of her rights only in part.
The Court observes that in the present case the criminal proceedings complained of have eventually been discontinued on the grounds that there were no constituent elements of a crime in the second applicant’s actions. She cannot therefore claim to be a victim within the meaning of Article 34 of the Convention (see Blagoy v. Ukraine (dec.), no. 18949/04, § 30, with further references).
The Court therefore declares this part of the application inadmissible as being incompatible ratione personae with the Convention provisions, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.Regarding the length of proceedings
The second applicant also complained that the length of the criminal proceedings against her had been excessive.
In the light of the material in its possession and in so far as the matters complained of are within its competence, the Court finds that this complaint does 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 is manifestly ill-founded and must be rejected in accordance with the Article 35 § 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases as regards the first applicant’s complaints;
Declares the remainder of the application (the second applicant’s complaints) inadmissible.
Milan BlaškoSíofra O’Leary
Deputy RegistrarPresident
Full & Egal Universal Law Academy