(Application no. 8599/02)
21 September 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Grabchuk v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mr P. Lorenzen,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having deliberated in private on 30 August 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Criminal proceedings against the applicant
“In the actions of Ms Mariya Mykhaylivna Grabchuk there are corpus delicti (є склад злочину), provided for in Article 167 of the CCU [the Criminal Code of Ukraine], that is negligence, of which she herself confessed to be guilty. Nevertheless, taking into account that from the moment when she had committed that crime (час скоєння нею даного злочину) the time-limits had expired... the institution of a criminal case under Article 167 of the CCU should be rejected for being time-barred...”
“As it appears from the materials of the criminal case against M.M. Grabchuk and the decision of the head of the investigating unit of the Volodymyr-Volynsky Department of Interior of 4 December 2000, the actions of M.M. Grabchuk disclose signs of the corpus delicti (ознаки складу злочину) provided for in Article 167 of the CCU [the Criminal Code of Ukraine] and she had acknowledged her guilt of having committed this offence.
According to Article 167 of the CCU, in the wording of 1993-1994, ... this crime was punishable by imprisonment for a period of up to two years.
Under Article 48 § I (2) of the CCU, a person cannot be charged with an offence if three years have elapsed from the date when a criminal offence punishable under the law by imprisonment for a period of up to two years was committed.
Under Article 6 § I (3) [of the Code of Criminal Procedure] no criminal proceedings could be initiated and any proceedings which had been started should be terminated as time-barred.
Therefore, in the above circumstances, no criminal case charging M.M. Grabchuk with an offence under Article 167 of the CCU could be instituted because prosecution against her was time-barred.”
This decision was not subject to appeal.
B. Civil proceedings for compensation
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine
“A person is presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved through legal procedure and established by a court verdict of guilty.
No one is obliged to prove his or her innocence of committing a crime.
An accusation shall not be based on illegally obtained evidence as well as on assumptions. All doubts in regard to the proof of guilt of a person are interpreted in his or her favour.
In the event that a court verdict is revoked as unjust, the State compensates the material and moral damages inflicted by the groundless conviction.”
B. Criminal Code of Ukraine of 28 December 1960 (repealed as of 1 September 2001)
The statute of time-bar for instituting criminal proceedings
“1. A person cannot be charged with an offence, if the following periods have elapsed from the date of the criminal offence:
... 2. three years from the date of offence for committing a crime punishable under the law by imprisonment for the period of up to two years;...”
Plundering the State or collective property through misappropriation, embezzlement or malversation
“1. Misappropriation or embezzlement the State or collective property by a person to whom it was entrusted shall be punishable by imprisonment for a term of two to four years, or a fine in the amount of ten to fifteen non-taxable incomes, with or without deprivation of the right to occupy certain posts or to practice certain activities for the term of three years...
3. Any such actions as provided for by paragraph 1 or 2 of this Article, if repeated or committed by a group of person upon their prior conspiracy shall be punishable by imprisonment for a term of five to eight years with or without a confiscation of property, with deprivation of the right to occupy certain posts or to practice certain activities for the term of three years...”
Plundering State or collective property in particular large quantities
“Plundering State or collective property, performed in particularly large quantities, regardless of the manner of plundering (Articles 81-84, and 86) shall be punishable by imprisonment for a term of ten to fifteen years with the forfeiture of property.”
Article 167 of the Code prior to 11 July 1995 provided for a sanction of imprisonment of up to two years for negligence, that was “the failure to perform or improper performance, by an official, of his or her official duties due to careless or inaccurate attitude, which caused significant damage to the state or public interests or to the legally protected rights and interests of individual physical or legal persons”.
C. Code of Criminal Procedure
D. The Law of Ukraine “on the procedure for compensation of damage caused to the citizen by unlawful actions of bodies of inquiry, pre-trial investigation, prosecutors and courts” of 1 December 1994
“The right to compensation for damages in the amount and in accordance with the procedure established by this Law shall arise in the cases of:
acquittal by a court;
termination of a criminal case on grounds of absence of proof of commission of a crime, absence of corpus delicti, or lack of evidence of the accused’s participation in the commission of the crime;
refusal to initiate criminal proceedings or termination of criminal proceedings on the grounds stipulated in sub-paragraph 2 of paragraph 1 of this Article;
termination of proceedings for an administrative offence.”
I. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION
Article 6 § 2
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
The Government contested this argument
1. Preliminary objection of the Government
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable;
(b) that the above amounts shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 21 September 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer