FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 13404/02
by Aleksandr Petrovich YEFANOV AND OTHERS
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 28 August 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar.
Having regard to the above application lodged on 30 March 2001,
Having deliberated, decides as follows:
THE FACTS
The first applicant, Mr Aleksandr Petrovich Yefanov was born in 1951. The second applicant, his wife, Mrs Irina Ivanovna Yefanova was born in 1959. The third applicant, Mr Yuriy Ivanovich Boyev, was born in 1952, and his wife Mrs Boyeva Svetlana Petrovna, the fourth applicant, was born in 1953. All of the applicants are Ukrainian nationals and reside in the town of Smila, Cherkassy region.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Criminal proceedings against the applicants.
On 30 March 1999 the investigator of the Smila Public Prosecutor’s Office instituted criminal proceedings against all of the applicants for smuggling and against the first applicant also for tax evasion. The applicants were obliged not to abscond.
On 8 May 1999 the first, the third and the fourth applicants were arrested and remained in pre-trial detention until 14 July 2000, 7 June 1999 and 5 July 2000, respectively.
On 30 September 1999 the Public Prosecutor of Cherkassy issued the indictment.
On 11 September 2000 the Smila Court acquitted the applicants.
On 17 October 2000 the Cherkassy Regional Court quashed this judgment and remitted the case for a fresh consideration to the Cherkassy District Court. The applicants were obliged not to abscond.
On 2 August 2001 the Cherkassy District Court suspended the proceedings as the fourth applicant had absconded.
According to the first applicant, the fourth applicant informed the court and other authorities that she had to go to Israel for breast cancer treatment and he and his wife had submitted numerous requests to examine their case separately.
By letter of 3 March 2003, the Cherkassy District Court ordered the Public Prosecutor and the officials of the Cherkassy Department of the Interior to issue a separate indictment concerning the first and the second applicants and to take adequate measures for the search of the fourth applicant.
On 23 April 2003 the Public Prosecutor of the Shpola District modified the indictment of the first applicant and terminated the criminal proceedings against him concerning tax evasion.
In May 2003 the fourth applicant returned to Ukraine.
On 14 May 2003 the hearings in the case were resumed.
On 11 November 2003 the Cherkassy District Court acquitted the second applicant and sentenced the other applicants to three years’ imprisonment (suspended). The applicants were obliged not to abscond before the judgment became final.
On 28 November 2003 the same court left without consideration the appeal of the third and the fourth applicants as it had been lodged out of time.
On 13 April 2004 the Cherkassy Regional Court of Appeal rejected the appeal of the public prosecutor and upheld the judgment of 11 November 2003.
On 22 March 2005 the Supreme Court quashed the ruling of 28 November 2003 and returned the case to the Cherkassy District Court.
On 6 September 2005 the Cherkassy Regional Court of Appeal rejected the appeals of the third and the fourth applicants and upheld the judgment of 11 November 2003.
On 17 November 2005 the first, the third and the fourth applicants withdrew their cassation appeals against the judgment of 11 November 2003, and on 24 January 2006 the Supreme Court terminated the proceedings.
2. Other facts and proceedings.
a) Defamation proceedings instituted by the applicants against “Ros” TV‑company
In April 2001 the applicants instituted defamation proceedings against the State-owned TV-company “Ros”, which had reported on criminal proceedings in their respect. On 13 February 2002 the Sosnivsky District Court of Cherkassy found against the applicants.
On 17 May 2002 the Cherkassy Regional Court of Appeal upheld this decision.
On 21 October 2002 the Sosnivsky District Court returned without consideration the applicants’ cassation appeal for failure to comply with the formalities as to its content. The applicants did not appeal against this ruling.
b) Compensation proceedings initiated by the second applicant against the Public Prosecutor, the State Security Service, the State Tax Administration and the State Treasury
In December 2003 Mrs Yefanova instituted civil proceedings in the Smila Court against the Public Prosecutor of Cherkassy, the Cherkassy Department of the State Security Service, the Smila State Tax Inspectorate and the State Treasury seeking compensation for pecuniary and non‑pecuniary damage caused by her criminal prosecution.
On 25 October 2004 the Smila Court suspended the proceedings in the case pending examination of the judgment of 11 November 2003 in cassation. The applicant did not appeal against this ruling.
On 9 June 2006 the Smila Court transferred the case to the Kamyanka Court as the first applicant, representative of the second applicant, on numerous occasions had stated that he did not trust the court.
The case is pending before the Kamyanka Court.
c) Other compensation proceedings instituted by the second applicant
In 2004-2005 the second applicant lodged with the Cherkassy District Court two claims against the Smila State Tax Inspectorate seeking compensation for pecuniary and non-pecuniary damage caused by her criminal prosecution.
On 8 November 2004 and 12 October 2005 the court left the applicant’s claim without consideration as the case upon similar applicant’s claim was pending before the Smila Court.
On 13 January and 9 February 2006 the Smila Court and on 26 June 2006 the Prydniprovsky District Court of Cherkassy left without consideration the applicant’s claims against the Smila State Tax Inspectorate, the Public Prosecutor and the Cherkassy Department of the Interior for failure to comply with the formalities as to their content and to provide the copies of supporting documents. The applicant did not appeal against these rulings.
In March 2006 the second applicant instituted proceedings against the Smila Court seeking compensation for damage caused by the alleged protracting of compensation proceedings instituted by her. Later on, she lodged an additional claim against the State Bailiffs Service seeking compensation for the allegedly unlawful attachment of her property in the course of criminal proceedings against the applicants.
On 24 October 2006 the Cherkassy District Court found against the applicant. On 11 January 2007 the Cherkassy Regional Court of Appeal upheld this decision. The applicant did not appeal in cassation.
d) The proceedings relating to the company of “Kalyna”
The second applicant is an owner of the company “Kalyna” (K.).
In the course of criminal proceedings against the applicants, K.’s property was attached.
On 30 September 2003 the Cherkassy Commercial Court declared K. insolvent and ordered its liquidation.
On 16 November 2004 the same court quashed this ruling and the registration of K. was restored.
By the judgment of 11 November 2003 the Cherkassy District Court, when acquitting the second applicant, ordered to return to K. the attached property, in particular, UAH 195,000 (EUR 30,000). The execution writ was issued on 28 April 2004, after the judgment became final.
On 20 January 2005 the same court, upon request of the second applicant, issued a new execution writ as K. had changed its bank account.
The judgment of 11 November 2003 was enforced in March 2005.
e) As to the refusal to institute criminal proceedings upon requests of the first and second applicants
In 2000-2001 the applicants lodged numerous requests with the Smila Department of the Interior to institute the criminal concerning bodily injuries allegedly caused to them. The investigators and the Deputy Head of the Smila Department of the Interior rejected these requests for lack of evidence of a crime. The applicant did not challenge these decisions before the domestic courts.
In 2006 the first and second applicants on several occasions requested the Public Prosecutor to institute criminal proceedings alleging theft of K.’s property in the course of criminal proceedings against the applicants.
On 17 March 2006 the Smila Court upheld the decision of the Public Prosecutor of 13 February 2006 about the refusal to institute criminal proceedings. The applicants did not appeal against these rulings.
On 24 July 2006 the investigator of the Smila Department of the Interior rejected a similar applicants’ request. The applicants did not challenge this refusal before the domestic courts.
COMPLAINTS
The applicants complained under Article 6 of the Convention about the outcome and alleged unfairness of the proceedings in criminal case against them. They also complained under Articles 6 and 8 of the Convention about the outcome and alleged unfairness of defamation proceedings against the TV-company “Ros”.
Moreover, the first applicant complained under Article 5 of the Convention about the alleged unlawfulness of his arrested and pre-trial detention. He complained about a violation of Article 1 of Protocol No. 1 and Article 1 of Protocol No. 4 in the course of the criminal proceedings instituted against him and the other applicants. He further complained under Article 2 of the Convention about the alleged inefficiency of investigation into the criminal complaints about bodily injuries to him and his wife.
The second applicant complained about alleged breaches of Articles 6 §§ 1 and 2, 7 and 8 of the Convention and Article 1 of Protocol No. 1 in the course of criminal proceedings instituted against her and during liquidation of her company. She also complained under Article 6 § 1 of the Convention about the unfairness of compensation proceedings instituted by her. She further complained under Article 1 of Protocol No. 1 about an infringement of her property rights in this respect.
THE LAW
A. Article 6 § 1 of the Convention
The applicants complained about the length of the criminal proceedings against them under Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair... hearing within a reasonable time by [a] ... tribunal...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.
B. As to the complaint of the second applicant on compensation proceedings against the Public Prosecutor of Cherkassy, the Cherkassy Department of the State Security Service, the Smila State Tax Inspectorate and the State Treasury
The applicant complained under Article 6 § 1 of the Convention about the unfairness of the proceedings. She further invoked Article 1 of Protocol No. 1, complaining about an infringement of her property rights.
The Court notes that the proceedings in this case are still pending. This part of the application must therefore be rejected as premature under Article 35 §§ 1 and 4 of the Convention.
C. Other complaints
The Court has examined the remainder of the applicants’ complaints and considers that, in the light of all the materials in its possession and in so far as the matters complained of were within its competence, they did 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 rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants’ complaint concerning the length of the criminal proceedings against them;
Declares the remainder of the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy