European Court of Human Rights

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URL: http://www.bailii.org/eu/cases/ECHR/2007/309.html
Cite as: [2007] ECHR 309

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FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 73990/01, 7364/02, 15185/02 and 11117/05
by Vladimir Mikhaylovich YUSHCHENKO and Others
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 27 March 2007 as a Chamber composed of:

Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above applications lodged on 28 September 2000, 10 May 2001, 4 April 2002 and 13 March 2005,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Mr Vladimir Mikhaylovich Yushchenko, is a Ukrainian national who was born in 1934. The second and third applicants, Messrs Vladimir Vladimirovich Yushchenko and Pavel Vladimirovich Yushchenko, are also the Ukrainian nationals and sons of the first applicant. They were born in 1967 and 1976, respectively. The first applicant is one of the owners and a director of a private transport enterprise “YUVM-Avtoservis” (ПП «ЮВМ-Автосервіс») (“the applicant company”). All of the applicants reside in Yevpatoriya, Ukraine.

The circumstances of the case

1. Civil proceedings initiated by Mr L.

In August 1998 Mr L. instituted proceedings against the first applicant in the Yevpatoriya Town Court requesting the return of a photocopying machine and related materials (paper etc.). He alleged that in May 1998 the first applicant, allegedly together with the third applicant, had come to the office of Mr L. and asked Ms Z., the secretary of Mr L., to lend him a photocopying machine. At the material time Mr L. was in detention in the course of criminal proceedings against him. Ms Z., knowing about the friendly relations between Mr L. and the first applicant, had allowed him to take the photocopying machine.

In order to secure this claim, on 17 August 1998 the court stayed the account of the applicant company. On 19 August 1998 the court cancelled this decision and arrested the property of the applicant company within the limits of UAH 4,400.

In October 1998 Mr L. introduced an additional complaint claiming UAH 15,000 in compensation for non-pecuniary damage.

On 6 November 1998 the court found for Mr L. and ordered the first applicant to return the photocopying machine and related materials to Mr L. or to pay him UAH 6,446.92 in pecuniary damage. In the text of the judgment the court also mentioned that the first applicant had to pay UAH 6,000 in compensation for non-pecuniary damage but made no reference to this sum in the operative part of the judgment. On the same date the court also adopted a decision by which it stayed the accounts of the applicant company and seized the first applicant’s property and apartment within the limits of UAH 12,446.92. On 11 December 1998 the Bailiffs’ Service seized the property of the applicant company within the limits of UAH 15,000.

On 4 January 1999 the Supreme Court of the Autonomous Republic of Crimea (ARC) quashed the judgment of 6 November 1998 and remitted the case for a fresh consideration. The court, however, upheld the decision of 6 November 1998 concerning the provisional measures.

On 18 February 1999 the Yevpatoriya Town Court found for Mr L. and ordered the first applicant to return the photocopying machine to Mr L. or to pay him its value of UAH 5,480. The court also ordered the first applicant to pay UAH 274 in court fees. The remainder of the Mr L.’s claims was rejected. The first applicant appealed against this judgment.

On 3 March 1999 the court provided the first applicant with a 12 days’ time-limit to pay a court fee of UAH 137¹ for lodging an appeal. On 29 March 1999 the Supreme Court of the ARC upheld this decision. On 3 June 1999 the Yevpatoriya Town Court rejected the first applicant’s appeal against the judgment of 18 February 1999, as the first applicant had failed to pay the court fees. On 15 June 1999 the first applicant paid the requested court fees. On 19 July 1999 the Supreme Court of the ARC upheld the decision of 3 June 1999. All of the first applicant’s requests to review these decisions under the extraordinary review procedure were rejected.

In August 1999 Mr L. instituted other proceedings in the Yevpatoriya Town Court against the first applicant claiming additional payments since the amount awarded to Mr L. by the court decision of 18 February 1999 did not correspond to the current price of a photocopying machine. On 17 January 2000 the court found against Mr L. On 20 March 2000 the Supreme Court of the ARC upheld this decision.

On 17 July 2002 the Supreme Court of Ukraine rejected the first applicant’s appeal against the judgment of 18 February 1999 under the new cassation procedure.

On 17 July 2006 the Supreme Court of Ukraine opened cassation proceedings following the first applicant’s request to have the judgment of 18 February 1999 reviewed in the light of new circumstances.

2. Enforcement proceedings and related issues

On 13 May 1999 the Bailiffs’ Service seized the property of the applicant company within the limits of UAH 1,000. On 15 May 1999 the State Auto-Transport Inspection informed the President of the Yevpatoriya Town Court, following his request, that certain petrol-tank trucks (МАZ-5334, plate No.7561 КРТ and MAZ-5334, plate No. 1403 KPT) belonged to the first applicant. On 18 May 1999 the court ordered the seizure of these trucks. On 20 May 1999 the Bailiffs’ Service seized one of the petrol-tank trucks. On 27 May 1999 the seizure of another truck was lifted. On 5 August 1999 the Yevpatoriya Town Court ordered the seizure of one of the petrol-tank trucks (МАZ-5334, plate No. 7561 KPT). The court also entitled the “Krymtorg” trade enterprise to sell it.

The first applicant stated that his appeal against this decision was returned to him by a court letter of 27 August 1999. The letter stated without mentioning any dates that “the court returned your appeal because there was no such decision against which you appealed”. On 10 August 1999 the State Bailiffs’ Service gave the petrol-tank truck to Mr L., who sold it to the joint-stock enterprise “Korporatsiya Boris” for allegedly UAH 19,250. UAH 9,161 were transferred to the Bailiffs’ Service’s account and Mr L. allegedly took the rest of the amount.

On 6 September 1999 the Yevpatoriya Town Court lifted the seizure of the first applicant’s property and apartment and of the account of the applicant company. The first applicant states that the seizure of his apartment was only lifted in June 2001.

The first applicant’s wife, Mrs Y., a co-owner of the sold petrol truck, instituted court proceedings requesting to exclude it from the inventory of the seized property. On 13 September 1999 the Yevpatoriya Town Court found that Mrs Y. owned half of the petrol truck and ordered the State Bailiffs’ Service to pay her half of the sum received after the sale of the truck. By an additional decision of 10 January 2000 the court stated that that amount was equivalent to UAH 4,351.84. On 10 April 2000 the Supreme Court of the ARC quashed these decisions and remitted the case for a fresh consideration. On 13 November 2000 the Yevpatoriya Town Court decided to exclude the petrol truck (МАZ-5334, plate No. 7561 КРТ) from the list of seized property.

The first applicant instituted several sets of proceedings in the Yevpatoriya Town Court against the Bailiffs’ Service alleging an improper enforcement of the judgment of 18 February 1999. On 17 March and 22 May 2000 the court found that when enforcing this judgment the State Bailiffs’ Service had not acted in compliance with the procedure prescribed by law. On 30 August 2000 the Supreme Court of the ARC upheld the judgment of 22 May 2000. On 6 June 2000 the court found that the first applicant had not been present when the value of the petrol-tank trucks was being assessed and had not had an opportunity to complain thereof. On 30 August 2000 the Supreme Court of the ARC upheld this judgment.

On 7 September 2000 the prosecutor instituted criminal proceedings against Mr L. for the unlawful sale of the petrol truck. Further information about these proceedings is lacking.

On an unidentified date the first applicant instituted proceedings in the Tsentralnyy District Court of Simferopol against the Yevpatoriya Bailiffs’ Service, the “Korporatsiya Boris” and “Krymtorg” trade enterprises requesting to invalidate the sales agreement of the petrol-tank truck (МАZ-5334, plate No. 7561 KPT). On 28 November 2000 the court found the sales agreement invalid. On 14 February 2001 the Supreme Court of the ARC quashed the judgment of 28 November 2000 and remitted the case for fresh consideration. On 1 November 2001 the Tsentralnyy District Court of Simferopol found the sales agreement to be invalid. On 27 March 2002 the Court of Appeal of the ARC (former Supreme Court of the ARC) quashed this judgment and found the sales agreement to be valid. On 10, 13 and 17 November 2003 the Court of Appeal of the ARC rejected the first applicant’s request to review his case in the light of new circumstances. On 20 September 2005 the Supreme Court of Ukraine rejected the first applicant’s appeal in cassation as submitted out of time.

On an unidentified date the first applicant instituted proceedings in the Kyivskyy District Court of Simferopol against the traffic police office complaining about the cancellation of the State registration of the petrol-tank truck (МАZ-5334, plate No. 7561 КРТ). On 11 December 2000 the court found that the police officers had acted in compliance with the court decision of 5 August 1999. On 14 March 2001 the Supreme Court of the ARC upheld this judgment. On 10 October 2001 the Supreme Court of Ukraine returned the first applicant’s appeal under the new cassation procedure for failure to pay a court fee. Between 2004 and 2006 the courts rejected the first applicant’s requests to reopen the proceedings in the light of new circumstances.

On 31 May 2001, following the first applicant’s complaint, the Tsentralnyy District Court of Simferopol found that the “Krymtorg” enterprise had no right to sell the petrol truck (see paragraph 17).

On 18 March 2003 the prosecutor’s office, while stating that there was enough evidence of crime, refused to institute criminal proceedings for negligence against the employees of the State Bailiffs’ Service “because of an act of amnesty”.

On an unidentified date the first applicant instituted proceedings in the Saki Town Court claiming compensation for pecuniary and non-pecuniary damage caused by an improper enforcement of the judgment of 18 February 1999 to be paid from the State Budget of Ukraine. On 4 February 2003 the court dismissed the first applicant’s claim as unsubstantiated.

In March 2003 the first applicant instituted proceedings in the Tsentralnyy District Court of Simferopol against the “Krymtorg” enterprise, the Ministry of Trade of the ARC, the State Treasury of Ukraine claiming compensation for pecuniary and non-pecuniary damage as a result of the sale of the petrol-tank truck. On 13 August 2003 the court found against the first applicant. On 17 October 2003 the Court of Appeal of the ARC rejected the first applicant’s appeal as he had not paid the court fees. The first applicant appealed against the decision of 17 October 2003 in cassation. In his letter of 24 April 2006 the first applicant submitted that his cassation appeal had been transferred to the High Administrative Court of Ukraine and that the proceedings were still pending.

On an unidentified date the first applicant instituted proceedings in the Yevpatoriya Town Court against the State Treasury of Ukraine, the Bailiffs’ Service and the Yevpatoriya Department of Justice, claiming compensation for pecuniary and non-pecuniary damage as a result of the improper enforcement of the judgment of 18 February 1999. On 23 March 2004 the court awarded the first applicant UAH 150,000 from the State Budget of Ukraine in compensation for pecuniary and non-pecuniary damage. On 20 September 2004 the Court of Appeal of the ARC quashed this judgment and remitted the case for renewed examination. On 14 December 2004 the Yevpatoriya Town Court found against the first applicant.

3. Criminal proceedings against the first and the third applicants

In April 1999 Mr L. requested the Yevpatoriya Town Police Office to institute criminal proceedings against the first applicant on account of fraud and blackmailing, as the first applicant had allegedly fraudulently removed a photocopying machine from Mr L.’s office and not returned it. Between April and June 1999 the police several times refused to institute such proceedings on the ground that the issue in question had been already considered by the court under the civil procedure (see paragraphs 1-7). These decisions were subsequently quashed by the prosecutor who remitted the material for additional investigation.

On 3 March 2000 the police eventually instituted a criminal case against the first applicant on account of fraud.

On 6 June 2000 the first and the third applicants were charged with fraud. On the same day the proceedings against the third applicant were separated and stayed, as his whereabouts were allegedly unknown and he had been put on a wanted list. On 7 October 2000 the investigation officer of the prosecutor’s office closed the criminal case against the first applicant for lack of proof of a crime. On 27 October 2000 the prosecutor quashed this decision and reopened the criminal proceedings. On 26 October 2001 the Yevpatoriya Town Court rejected the first applicant’s complaint against the decision of 27 October 2000.

On 27 March 2002 the criminal case was transferred to the court. On 29 October 2002 the court returned the case for an additional investigation. On 11 February 2003 the Court of Appeal of the ARC quashed this decision and remitted the case for renewed examination. According to the first applicant, since 5 December 2003 he was not allowed to participate in the court hearings following the decision of the judge to sanction him for contempt of court.

On 12 January 2004 the court sentenced the first applicant conditionally to two years’ imprisonment for a fraud. Judge K., who considered the case, found that the first applicant together with “another person” had abused the confidence of Mr L.’s secretary and fraudulently removed a photocopying machine worth UAH 8,350 and related materials worth UAH 1,960, the overall value being thus UAH 10,310. Mr L. and the witnesses in the case, Ms Z., Ms B. and Mr K., in their statements maintained that the first applicant had been assisted by his son. They also recognised the third applicant at the face-to-face identification. Though the third applicant was referred to in the court judgment as a witness, the court stated that:

“The court has doubts as to the statement of [the third applicant] who maintains that on 6 May 1998 he was not in the office of Mr L. and did not steal the property of the latter. This statement is contested by the statements of the witnesses Z., K. and B. who have recognised him as the person who together with [the first applicant] was in the office and loaded the property, which belonged to the victim, into a Moskvich car”.

Concerning the civil claim introduced by Mr L., the court mentioned that by judgment of 18 February 1999 the first applicant had already been ordered to pay Mr L. UAH 5,480 in value of the photocopying machine. The court, however, ordered the first applicant to pay Mr L. the remaining UAH 4,830 in compensation for pecuniary damage and UAH 5,000 in compensation for non-pecuniary damage. On 16 March 2004 and 1 July 2004 the Court of Appeal of the ARC and the Supreme Court of Ukraine, respectively, upheld the sentence.

On 10 June 2004 the third applicant was again charged with fraud. On 21 December 2005 Judge K., who considered the criminal case against the first applicant, sentenced the third applicant to one year and six months’ imprisonment for fraud without actual enforcement of the sentence as it had become time barred. On 21 March 2006 the Court of Appeal of the ARC upheld this judgment. On 12 August 2006 the Supreme Court of Ukraine rejected the third applicant’s appeal in cassation.

4. Search in the first and the second applicants’ apartments in the course of criminal proceedings against Mr L.

In May 1998 in the course of criminal proceedings against Mr L. the apartments of the first and the second applicants were searched. In January 2001 the second applicant instituted proceedings in the Yevpatoriya Town Court against the State Treasury of Ukraine claiming compensation for non-pecuniary damage caused by an allegedly unlawful search. On 17 June 2002 the court refused to examine the second applicant’s claim as according to the Law “on the procedure for compensation of damage caused to the citizen by unlawful actions of bodies of inquiry, pre-trial investigation, prosecutors and courts” the second applicant should first address the State institution which had allegedly caused non-pecuniary damage to him with a request to pay him compensation.

In January 2001 the first applicant instituted similar proceedings in the same court. On 9 October 2003 the court awarded him UAH 20,000. On 24 December 2003 the Court of Appeal of the ARC reduced the amount of the compensation to UAH 2,000. The first applicant appealed against this decision in cassation. On 15 March 2006 the Supreme Court of Ukraine quashed the judgment of 24 December 2003 and remitted the case for renewed examination to the second instance court. On 3 July 2006 the Court of Appeal of the ARC awarded the first applicant UAH 3,000 in compensation for non-pecuniary damage. On 15 September 2006 the Supreme Court of Ukraine dismissed the applicant’s appeal in cassation.

5. Other criminal proceedings

a) Alleged bodily injuries to Mrs K.

In January 1999 Mr K. requested the Yevpatoriya Town Police Office to institute criminal proceedings against the first applicant as the latter had allegedly injured Mr K.’s pregnant wife. On 19 January 1999 the Police Office refused to institute criminal proceedings, though it opened administrative proceedings against the first applicant on account of hooliganism. On 8 February 1999 the Yevpatoriya Town Court closed the administrative case against the first applicant as there was no evidence that the applicant had committed an administrative offence. On 23 September 1999 the Supreme Court of the ARC quashed the decision of 8 February 1999 and remitted the case for renewed examination. On 27 April 1999 the decision of 19 January 1999 was quashed and the case was remitted for additional investigation. On 8 June 1999 the Police Office closed the criminal proceedings for lack of evidence of a crime.

In March 1999 Mrs K. attempted to institute criminal proceedings against the first applicant before the Yevpatoriya Town Court. On 20 April 1999 the Yevpatoriya Town Court did so as the first applicant had inflicted light bodily injuries to Mrs K. and on account of insult. On 12 November 1999 the criminal case instituted by the court was closed for lack of evidence of a crime.

On 15 May 2002 the Yevpatoriya Town Court awarded the applicant UAH 3,000 from the State Budget in compensation for non-pecuniary damage which he had suffered in the administrative proceedings (paragraph 33).

In 2003 the first applicant instituted proceedings in the Saki Local Court claiming compensation in respect to the allegedly unlawful criminal proceedings against him. On 11 November 2003 the court found against the first applicant. In various decisions the Saki Town Court returned the first applicant’s appeals against this judgment for failure to comply with procedural requirements. The first applicant appealed against these decisions. Proceedings are still pending.

b) Libel case and related issues

On 21 April 1999 the Yevpatoriya Town Court instituted criminal proceedings against the first applicant as he, as a witness in a civil case brought by Mrs K. against a hospital, had allegedly said in a court hearing that “all this had been organised by the criminal group of Mr L. and Mr K.”. On 12 November 1999 the criminal case against the first applicant was closed. On 6 January 2000 the Yevpatoriya Town Court upheld this decision. On 16 June 2000 the Presidium of the Supreme Court of the ARC, upon the protest of its President, quashed this decision under the extraordinary review procedure and remitted the case for renewed examination. On 19 October 2000 the Yevpatoriya Town Court quashed the decision of 12 November 1999 and remitted the case for additional investigation. On 10 December 2000 the Police Office closed the criminal case for libel for lack of evidence of a crime. On 1 September 2001 the new Criminal Code came into force and the offence of libel was decriminalised. On 26 November 2001 the Yevpatoriya Town Court quashed the decision of 10 December 2000. On 17 December 2001 the Police Office closed the criminal case because the new Criminal Code did not envisage criminal responsibility for libel. On 10 October 2002 the court quashed this decision and remitted the case for additional investigation. On 12 August 2003 the Court of Appeal of the ARC closed the criminal case against the first applicant On 3 October 2003 the Supreme Court of Ukraine opened the proceedings upon the first applicant’s cassation appeal. In his letter of 24 April 2006 the first applicant stated that the Supreme Court had returned his appeal because the first instance court allegedly had not provided it with a copy of an appealed decision. Further information about these proceedings is lacking.

In July 2004 Mr L. instituted civil proceedings in the Yevpatoriya Town Court against the first applicant claiming compensation for non-pecuniary damage inflicted on him by the first applicant’s statements that Mr L. was a member of a criminal group (see paragraph 37). On 26 January 2005 the court found for Mr L. and awarded him UAH 5,000 in compensation for non-pecuniary damage. On 11 October 2005 the Court of Appeal of the ARC upheld this judgment. The first applicant appealed in cassation. Proceedings are still pending.

c) Forgery and related proceedings

On 24 February 2000 the traffic police stopped one of the petrol tank trucks which belonged to the first applicant and allegedly seized the truck documents. On 1 March 2000 the criminal proceedings against the driver of the truck, Mr K., were initiated as the confiscated documents had been allegedly forged. On 3 March 2000 the prosecutor authorised a search in the homes of the first applicant, his wife and his son in law, and in the premises of the applicant company. On 9 March 2000 the above premises were searched and office equipment was seized (a photocopying machine, two printers, computer etc.). On 15 April 2000 criminal proceedings on account of forgery were instituted against the first applicant On 27 April 2000 the two cases were joined. On 6 and 7 October 2000 both criminal cases were closed for a lack of proof of a crime.

The first applicant instituted proceedings in the Yevpatoriya Town Court against the Main Department of the Ministry of Interior of the ARC claiming the return of the confiscated documents. He further complained that the owners of the petrol-tank trucks had been forced to pay for a copy of the “Regulations on transportation of dangerous goods” and that such payment was not prescribed by the legislation in force. Moreover, according to the first applicant, the account on which the payment had been made belonged to a private company. On 7 July 2000 the court found against the first applicant. In particular, the court stated that the truck documents had been returned to the driver on 5 April 2000. On 28 August 2000 the Supreme Court of the ARC quashed this judgment and closed the case on the ground that such disputes should be decided by a commercial court.

The first applicant instituted several sets of proceedings in the Yevpatoriya Town Court against the police office requesting the return of the office equipment seized on 9 March 2000. On 11 May 2004 the court found against the first applicant. In particular, the court stated that the above equipment was seized in order to secure the civil claim introduced in the context of the criminal proceedings on the suspicion of fraud (see paragraphs 24-30 above). By a number of decisions the Saki Town Court rejected the first applicant’s appeals against this judgment for failure to comply with procedural requirements. The first applicant appealed against these decisions. Proceedings are still pending.

6. Administrative proceedings for unlawful trade operations

On 4 June 1999 the first applicant was allegedly unlawfully selling petrol. After a control performed by the Yevpatoriya Tax Police, it seized the petrol and documents of the applicant company. Administrative proceedings were instituted against the first applicant on account of unlawful trade operations. On 19 August 1999 the Yevpatoriya Town Court closed the administrative case against the first applicant as being time-barred.

In March 2001 the first applicant instituted civil proceedings in the Yevpatoriya Town Court against the State of Ukraine, represented by the Yevpatoriya Department of the State Treasury, claiming compensation for pecuniary and non-pecuniary damage which he had suffered in the administrative proceedings. On 23 May 2001 the court found against the first applicant. In particular, it held that the police was not responsible for the fact that the first applicant had received 61 litres of petrol less than had been confiscated because the confiscated petrol had not been kept by the police but by the petrol station No. 21 and that the first applicant could introduce civil proceedings against the station. On 20 August 2001 the Court of Appeal of the ARC rejected the first applicant’s appeal as the first applicant had failed to pay the court fees. On 30 November 2001 the Supreme Court of Ukraine rejected the first applicant’s appeal in cassation against the decision of 23 May 2001.

7. Elections

In 2000 the first and the second applicants participated in elections to the local council. They instituted proceedings in the Yevpatoriya Town Court complaining about different violations of the electoral law. On 27 July 2000 the court found against the applicants.

In 2002 the first applicant participated in mayor’s elections in the town of Yevpatoriya. On an unidentified date the first applicant instituted proceedings in the Yevpatoriya Town Court complaining about a breach of the electoral law by another candidate, Mr D. On 29 March 2002 the court found against the first applicant

In 2002 the second applicant participated in elections to the local council. On 16 April 2002 the Yevpatoriya Town Court, upon the second applicant’s complaints, invalidated the results of the elections. On 8 September 2002 the court rejected another complaint of the second applicant as being time barred. It follows from the second applicant’s submissions that he appealed against this decision but that his appeals were rejected as they had not complied with procedural formalities. On 19 September 2002 the same court rejected the second applicant’s request to invalidate the results of local elections held on 8 September 2002. In 2002 and 2003 the second applicant appealed against this decision though various court decisions rejected his appeals as he had not complied with procedural formalities.

8. Proceedings with the participation of the applicant company

On 28 January 2001 the State Tax Inspection fined the applicant company because its taxi drivers had failed to issue tickets to their passengers. The applicant company challenged this decision in the court. On 15 May 2000 the Commercial Court of the ARC upheld the decision of the Tax Inspection. Following a hearing from 17 to 23 April 2001, the Deputy President of the same court upheld the judgment of 15 May 2000.

In 2000 and 2001 and again in 2005 the applicant company instituted more than fifteen proceedings in the commercial court challenging various decisions of the Tax Inspection. In all cases the court found for the applicant company.

In January 2001 the applicant company instituted proceedings in the Yevpatoriya Town Court against the newspaper “Yuzhnaya nedelya” claiming compensation for non-pecuniary damage. The newspaper published an article of the Head of the Yevpatoriya Tax Inspection, who had stipulated that the applicant company systematically breached trade regulations. On 19 November 2001 the court found against the applicant company. On 8 April 2002 the Court of Appeal of the ARC upheld this judgment. On 27 January 2005 the Supreme Court of Ukraine quashed the judgment of 8 April 2002 and remitted the case for renewed examination to the Court of Appeal. On 25 April 2005 the Court of Appeal of the ARC again upheld the judgment of 19 November 2001.

On 22 June 2004 the Commercial Court of the ARC found against the Yevpatoria Town Council in a land dispute with the applicant company.

In May 2005 the applicant company instituted proceedings in the Commercial Court of the ARC challenging one of the decisions of the Yevpatoriya Town Council. On 19 December 2005 the court found in part for the applicant company. On 16 February 2006 the Sevastopol Commercial Court of Appeal upheld this judgment. The applicant company appealed against the judgment of 16 February 2006 in cassation.

In 2005 the applicant company instituted proceedings in the Commercial Court of the ARC challenging the refusal of the Yevpatoriya Town Council to authorise the use of a bicycle-taxi. Following a hearing of 10 to 28 October 2005, the court found in part for the applicant company. On 14 December 2005 the Sevastopol Commercial Court of Appeal quashed this judgment in part and found against the applicant company. The applicant company appealed against this judgment in cassation; proceedings are still pending.

9. Criminal and civil proceedings against judges

In December 1999 the applicant company requested the General Prosecutor’s Office to institute criminal proceedings against the judges of the Yevpatoriya Town Court on account of different breaches of the law during the consideration of the civil cases. On 20 March 2000 the Prosecutor’s Office of the ARC refused to institute such proceedings. On 20 July 2000 the Supreme Court of the ARC upheld this decision.

The first applicant instituted several proceedings in the Saki Town Court and in the Supreme Court of the ARC against the President of the Yevpatoriya Town Court claiming compensation for non-pecuniary damage inflicted on him by an allegedly unlawful consideration of his cases. On 14 September 2000 the Saki Town Court rejected the first applicant’s claim on the ground that judges bore no civil liability for decisions taken in their official capacity. On 29 January 2001 the Supreme Court of the ARC rejected the first applicant’s claim as it was not competent to consider such claims. The first applicant appealed against this decision. On 15 February 2001 the same court provided the first applicant with a time-limit until 5 March 2001 to submit his appeal in compliance with procedural requirements. The first applicant has not submitted further information about these proceedings.

10. Administrative proceedings against the third applicant

On 13 March 2000, while driving his car, the third applicant was stopped by traffic police officers as he was allegedly under the influence of drugs. The third applicant was taken to the hospital where a medical examination took place. As a result of this examination it was concluded that the third applicant was under the influence of an unknown substance. Following this conclusion the traffic police officer suspended the third applicant’s driving licence for a year.

On 15 March 2000 the traffic police again stopped the third applicant and took him to the same hospital. The medical examination again disclosed that he was under the influence of an unknown substance. The traffic police instituted administrative proceedings against the third applicant and transferred the materials of the case to the court. On 10 May 2000 the Yevpatoriya Town Court closed the administrative case against the third applicant as there was no evidence that he had committed an administrative offence. The court stated that the disposition of Article 130 § 2 of the Code on Administrative Offences foresaw administrative responsibility for driving under the influence of drugs. As the examination had concluded that the third applicant had been under the influence of an unknown substance the court held that there was no proof that the third applicant had driven his car under the influence of drugs. On 2 November 2000 the President of the Supreme Court of Ukraine quashed this decision. He found that according to the protocol of the traffic police of 15 March 2000 the third applicant had been driving under the influence of drugs and the third applicant had signed this protocol. Moreover, in the protocol of the medical examination it was also stated that the third applicant was listed in the drugs dispensary. The proceedings were, however, closed as being time-barred.

11. Compensation proceedings against the police

On 14 April 2001 the third applicant was again stopped by the police officers as he was allegedly driving under the influence of drugs. The medical expertise concluded that the third applicant was not drunk and had not taken any drugs. On 21 April 2001 the third applicant instituted proceedings in the Yevpatoriya Town Court against the State of Ukraine claiming compensation for non-pecuniary damage. On 15 January 2002 the Yevpatoriya Town Court awarded the third applicant UAH 9,000 in compensation. On 3 June 2002 the Court of Appeal of the ARC quashed this judgment and remitted the case for renewed examination. On 15 October 2002 the Yevpatoriya Town Court did not examine the third applicant’s complaint without consideration as he did not appear in a court hearing without a valid reason. On 14 January 2003 the court provided the third applicant with a time-limit to submit his appeal against the decision of 15 October 2002 in compliance with procedural formalities. On 15 April 2003 the court rejected the applicant’s appeal against the decision of 15 October 2002 as “the decisions of the court by which the third applicant is provided with a time-limit for lodging appeals in compliance with procedural formalities were not subjected to appeal”. On 15 August 2003 the court rejected the applicant’s appeal against the decision of 15 April 2003 as he had not complied with procedural formalities. The Yevpatoriya Town Court in various further decisions rejected all his further appeals on the same grounds.

In November 2004 the third applicant instituted proceedings in the Pecherskiy District Court of Kyiv against the State Treasury of Ukraine claiming compensation for non-pecuniary damage caused by the non-enforcement of the judgment of 15 January 2002. On 21 December 2004 the Pecherskiy District Court rejected the third applicant’s complaint because he had failed to comply with procedural formalities. On 22 February 2005 the Kyiv Court of Appeal upheld this decision. On 23 January 2006 the Supreme Court of Ukraine rejected the third applicant’s appeal as he had not complied with procedural formalities.

COMPLAINTS

The first applicant complained under Article 6 § 1 of the Convention of an unfair hearing and of the outcome of the proceedings in his civil case concerning the return of the photocopying machine. He further complained under the same article about a violation of his right of access to court as the court had allegedly prevented him from lodging an appeal against the judgment of 18 February 1999 (see paragraphs 1-10).

The applicant company complained about violations of its property rights under Article 1 of Protocol No. 1 because during the consideration of the civil case about the return of the photocopying machine the court had stayed the bank accounts of the applicant company and seized its property although the applicant company had not been a party to the proceedings (see paragraphs 1-10).

The first applicant complained under Article 1 of Protocol No. 1 that during the consideration of his civil case his property rights had been violated (see paragraphs 1-10).

The first applicant complained under Article 1 of Protocol No. 1 that during the enforcement of the judgment of 18 February 1999 his property rights had been violated. In particular, he complained that the value of the petrol truck seized in enforcement of the court judgment of 18 February 1999 exceeded the amount awarded to Mr L. by the court (see paragraphs 1 10).

The first applicant complained under Article 6 § 1 of the Convention that a criminal case for fraud had been instituted against him. He alleged that as the courts had already decided the case under the civil head there were no legal ground to institute criminal proceedings against him (see paragraphs 1-10 and 24-29).

The first applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings and of an unfair trial in his criminal case on account of fraud. In particular, he complained that his right to defend himself in the court had been violated as he had not participated in the court hearings in the first instance court since 15 December 2003 (see paragraphs 24-29).

The first applicant complained under Article 6 § 1 of the Convention that the court had twice decided on the same civil claim in two judgments of 18 February 1999 and 12 January 2004 (see paragraphs 6 and 28).

The third applicant complained under Article 6 § 1 of the Convention of an unfair trial and of the length of proceedings in the criminal case against him. In particular, he complained that Article 6 § 2 was violated since during consideration of the criminal case against the first applicant the court throughout the text of judgment had referred to the third applicant as an accomplice although the third applicant had participated in the consideration of the case as a witness (see paragraphs 26-30).

The first and the second applicants complained under Article 6 § 1 of the Convention about unfair hearings, the outcome and the length of proceedings in the civil cases concerning their claims for compensation (see paragraphs 31-32).

The first applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings and of an unfair trial in his criminal cases (see paragraphs 33-41).

The first applicant complained under Article 6 § 1 of the Convention about allegedly unlawful administrative proceedings instituted against him. He further complained under Article 1 of Protocol No. 1 about the impossibility to receive in full the amount his property confiscated by the police officers (see paragraphs 42-43).

The first and the second applicants complained about a violation of Article 3 of Protocol No. 1. They further complained about a violation of their right to a fair hearing under Article 6 § 1 of the Convention in the proceedings concerning their complaints about breaches of the electoral law (see paragraphs 44-46).

The applicant company complained about violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 alleging that the court hearings in its cases had not been fair and that the national authorities had impeded the functioning of the applicant company (see paragraphs 47-52).

The first applicant and the applicant company complained under Article 6 § 1 of the Convention of the impossibility to institute civil and criminal proceedings against the judges and other authorities in their cases (see paragraphs 53-54).

The third applicant complained under Article 5 of the Convention that on 13 and 15 March 2000 he had been brought by the police to the hospital for a medical examination. He further complained about the administrative case against him invoking Articles 1, 3, 6 §§ 1 and 2, and 13 of the Convention without any further specification (see paragraphs 55-56).

The third applicant complained under Article 5 of the Convention that on 14 April 2001 he had been stopped by the traffic police and brought to the hospital for a medical examination (see paragraphs 57-58).

The third applicant further complained under Article 6 § 1 of the Convention about a violation of his right of access to court in his civil case about the compensation for unlawful administrative proceedings (see paragraphs 57-58).

The applicants also invoked Articles 1, 3, 6 §§ 2, 3 (c, b and e), 7, 8 and 13 of the Convention, Article 1 of Protocol No. 4, and Articles 3 and 4 of Protocol No. 7 without any further specification.

THE LAW

A.  Article 6 §§ 1 and 2 of the Convention and Article 1 of Protocol No. 1

The first applicant complained under Article 6 § 1 of the Convention that the court had twice allowed the same civil claim against him in the two judgments of 18 February 1999 and 12 January 2004.

The first applicant also complained under Article 6 § 1 of the Convention about the length of the criminal proceedings in the fraud and libel criminal cases against him.

The first applicant further complained under Article 6 § 1 of the Convention about the length of proceedings in his civil case on compensation following the search in his apartment in May 1998.

The third applicant complained under Article 6 § 1 of the Convention of an unfair trial and the length of proceedings in the criminal case against him. In particular, he complained that he was not presumed innocent according to Article 6 § 2 as during consideration of the criminal case against the first applicant, that court in its judgment had referred to the third applicant as an accomplice although the third applicant had participated in the consideration of the case as a witness.

The first applicant finally complained under Article 1 of Protocol No. 1 that during the enforcement of the judgment of 18 February 1999 his property rights had been violated. In particular, he complained that the value of the petrol truck seized in enforcement of the court judgment of 18 February 1999 exceeded the amount awarded to Mr L. by the court.

The articles invoked provide as follows:

Article 6

“1.  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints 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.  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 insofar as the matters complained of are within its competence, 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 rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Decides to adjourn the examination of the complaints of the first applicant under Article 6 § 1 of the Convention about the allowance of the civil claim against him while there was already a final decision on this claim; about the length of proceedings in the fraud and libel criminal cases against him and in his civil case for compensation for the damage inflicted by the search in his apartment in May 1998; and under Article 1 of Protocol No. 1 about the violation of his property rights during the enforcement of the judgment of 18 February 1999 against him; and the complaints of the third applicant under Article 6 §§ 1 and 2 of the Convention about the violation of the presumption of innocence and the length of proceedings in a criminal case against him;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President