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LIZANETS v. UKRAINE - 6725/03 [2007] ECHR 421 (31 May 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/421.html
Cite as:
[2007] ECHR 421
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FIFTH
SECTION
CASE OF LIZANETS v. UKRAINE
(Application no. 6725/03)
JUDGMENT
STRASBOURG
31
May 2007
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 Lizanets v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
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 9 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 6725/03) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Georgiy Ivanovych
Lizanets (“the applicant”), on 22 January 2003.
The
applicant was represented by Mr Volodymyr Dumnych, a lawyer
practising in Mukacheve. The Ukrainian Government (“the
Government”) were represented by their Agents, Ms Valeria
Lutkovska and Mr Yuriy Zaytsev.
On
28 April 2005 the Court decided to communicate the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
1. Proceedings concerning compensation for unlawful
prosecution
The
applicant was born in 1945 and lives in the town of Mukacheve, the
Zakarpatye region.
In February 1997 the Mukacheve City Prosecutor charged
the applicant (a former inspector of the Mukacheve city market) with
corruption, and ordered his detention on remand. In August 1997 the
applicant was released against his undertaking not to abscond. In
December 1997 his case was closed given the lack of any corpus
delicti. This decision was subsequently quashed by the Zakarpatye
Regional Prosecutor's Office and the investigation was reopened. On 8
August 1998 the criminal proceedings against the applicant were
ultimately terminated given the absence of any corpus delicti.
On
3 September 1998 the applicant instituted proceedings against the
Mukacheve District Prosecutor's Office of the Zakarpatye Region,
seeking monetary compensation for unlawful prosecution.
On
30 September 1998 the Mukacheve City Court (hereafter “the City
Court”) granted this claim and awarded the applicant UAH
60,000.
In assessing the amount of moral compensation, the court took account
of medical certificates attesting to the fact that subsequent to his
release the applicant had suffered a nervous breakdown. On 10 October
1998 this judgment became final and binding.
On
18 November 1999 the Zakarpatye Regional Prosecutor lodged an
supervisory appeal with the Presidium of the Zakarpatye Regional
Court against the judgment of 30 September 1998. On 29 November 1999
the court, sitting in a closed session in the presence of a
prosecutor, quashed this judgment and remitted the case for a new
consideration.
On
17 May 2001 the City Court, in the resumed proceedings, allowed the
applicant's claim. Having regard to the medical documents, the
forensic psychological report and statements from a number of
witnesses, the court found, inter alia, that the applicant's
nervous breakdown had been caused by his detention, and ordered the
Prosecutor's Office to pay the applicant UAH 80,000
in moral and material damages. On 27 May 2001 this judgment acquired
legal force.
On
4 September 2001 the Zakarpatye Regional Prosecutor's Office
challenged this judgment under the new cassation procedure (see
“Relevant domestic law”, paragraph 24 below).
On
3 October 2001 the Constitutional Court declared unconstitutional
Article 25 of the Law on the State Budget 2001, which provided that
compensation for unlawful criminal prosecutions was to be deducted
from the funds allocated to the relevant law-enforcement agencies.
The Constitutional Court decided that the relevant amounts should be
paid directly from the State Budget held by the State Treasury.
On
10 December 2001 a judge of the Supreme Court returned the
prosecutor's appeal to the City Court, indicating that it had to
examine the issue of the reopening of the proceedings on the ground
of new circumstances.
On
24 January 2002 the City Court, on a request from the Zakarpatye
Regional Prosecutor, reopened the proceedings in the case due to new
circumstances, namely the annulment of the Article 25 of the Law on
the State Budget 2001 by the aforementioned decision of the
Constitutional Court.
On
5 April 2002 the City Court partly allowed the applicant's claim,
ordering the State Treasury to pay him UAH 10,000
in compensation for unlawful prosecution. The court held that the
criminal proceedings against the applicant had been unlawful but
found the claim for moral damages excessive:
“With respect to the remainder of the claims [the
court notes that] the claimant has failed ...to provide any
corroborating evidence; nor did he submit to the court any
calculation of the amount of compensation for moral damage.
No reliable link could be seen between the claimant's
nervous breakdown and his criminal prosecution and arrest.”
The
applicant appealed.
On
12 June 2002 the Zakarpatye Regional Court of Appeal upheld this
judgment, indicating, inter alia, that, according to the
forensic psychological report, the nervous breakdown, suffered by the
applicant in 1997, could result either from his unlawful detention or
from his general poor state of health, thus finding that the amount
of UAH 10,000 constituted sufficient compensation for damages
suffered due to unlawful prosecution.
On
2 December 2002 the Supreme Court rejected the applicant's request
for leave to appeal under the cassation procedure.
2. Enforcement proceedings
On
an unknown date in early 1999 the applicant applied to the Zakarpatye
Regional Department of Justice for compulsory enforcement of the
September 1998 judgment. The warrant of execution was on several
occasions sent to the Zakarpatye Regional Department of the State
Treasure. However on 18 November 1999 the enforcement proceedings
were suspended pending the outcome of the prosecution's extraordinary
appeal (paragraph 8 above).
On
2 December 2005 the City Court refused the applicant's request to
initiate the enforcement proceedings for the judgment of 5 April
2002, ruling that its enforcement was time barred. The court found
that Article 21 of the Law on Enforcement Proceedings envisaged that
the writs of execution should be lodged with the relevant authority
within three years after the judgment acquired legal force. The
judgment in the applicant's case had become final on 12 June 2002
upon the decision of the Zakarpatye Regional Court of Appeal, whereas
the applicant requested the issuance of the writ of execution on 23
November 2005, i.e. after the expiry of the statutory
limitation. The applicant did not appeal against this decision.
The
judgment of 5 April 2002 has not been enforced to date.
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Domestic law related to execution of the court
judgments
The
relevant domestic law is summarised in the judgment of Voytenko
v. Ukraine (no. 18966/02, §§ 20-25, 29 June
2004).
2. Domestic law related to the reopening of the
proceedings
a. Code of Civil Procedure, 1963
Article
347-6 of the Code provides that, having examined the request for
reopening of the case on the ground of new circumstances, the
competent court delivers the ruling, whereby it either quashes the
relevant judgment or rejects the above request. If the judgment is
quashed the case is examined on the merits according to the general
rules contained in this Code.
b. Decision of the Constitutional Court of
Ukraine of 3 October 2001
The
Constitutional Court held:
“ 5... Therefore, Article 25 of
Law of Ukraine “On the State Budget of Ukraine for the Year
2001” ... de facto introduces civil and not public
responsibility of ..., the prosecutor's offices, ... for the material
and moral damage caused to the citizens by unlawful actions of these
bodies. Concurrently, the Constitution of Ukraine guaranties the
right of the citizens for the compensation by the State and not from
the funds allocated for the maintenance of these bodies (Article 56,
62).
...
the Constitutional Court has decided:
1. To consider as contrary
to the Constitution of Ukraine (unconstitutional) provisions of
Article 25 of Law of Ukraine “On the State Budget of Ukraine
for the Year 2001” ... according to which the compensation for
damage inflicted to the citizens by unlawful actions of ..., the
prosecutor's offices, ... is to be provided from the funds
allocated for the maintenance of the courts, the General Prosecutor's
Office, the Security Service of Ukraine, and the Ministry of
Interior.
2. Provisions of Article
25 of Law of Ukraine “On the State Budget of Ukraine for the
Year 2001” ... are considered unconstitutional, and void from
the day this decision is made by the Constitutional Court of
Ukraine.”
c. Law of 21 June 2001 on the Introduction
of Changes to the Code of Civil Procedure Civil Procedure
The
relevant provisions of the Law are read as follows:
Article 320
Persons having the right to lodge a cassation appeal
“Parties and other persons who participate in
court proceedings, and the prosecutor and other persons who have not
participated in the proceedings in which the court has decided on
their rights and obligations, may lodge a cassation appeal against
judgments and rulings adopted by the court of first instance, only in
relation to a violation of the substantive or procedural law and
rulings and judgments of an appeal court.
The basis for such an appeal is the incorrect
application of the norms of substantive law or infringement of the
norms of procedural law.”
Section 321
The deadlines for lodging an application for annulment
“The deadline for lodging an application by the
prosecutor is three months from the date of delivery of the ruling or
judgment of the Court of Appeal, or one year from the date of
delivery of the ruling or judgment of the court of first instance, if
these rulings or decisions have not been appealed against.”
Chapter II. Transitional Provisions
“1. This Law shall enter into force as from 29
June 2001.
2. Laws and other normative acts adopted before this Law
entered into force are effective in so far as their provisions do not
conflict with the Constitution of Ukraine and this Law.
3. Appeals in civil cases lodged before 29 June 2001
shall be considered in accordance with the procedure adopted for the
examination of appeals against local courts' decisions.
4. Protests against judicial decisions lodged before 29
June 2001 shall be sent to the Supreme Court of Ukraine for
consideration in accordance with the procedure for consideration of
cassation appeals (касаційних
скарг).
5. Decisions that have been adopted and have entered
into force before 29 June 2001 can be appealed against within three
months in accordance with the procedure for consideration of
cassation appeals (to the Supreme Court of Ukraine).”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant complained that in the proceedings for compensation for
unlawful prosecution he did not have a fair hearing. The applicant
submitted that as a result of the quashing of final judgments in his
favour in extraordinary judicial proceedings, the domestic courts
eventually did not fully allow his claim for moral damages relating
to the deterioration of his health. He also challenged the length of
the proceedings and the non-execution of the judgments given in his
favour. He invoked Article 6 § 1 of the Convention, which,
insofar as relevant provides 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...”
A. Legal certainty
1. Admissibility
The Government alleged that the applicant's complaint
about a violation of his right to a fair hearing in the compensation
proceedings had been lodged out of time as the decisions reversing
the final judgments of the September 1998 and May 2001 judgments were
taken on 29 November 1999 and 24 January 2002
respectively, i.e. more than six months before the date on which the
application was submitted to the Court. The applicant disagreed.
As regards the decision taken on 29 November 1999,
the Court observes that it was not challenged separately by the
applicant and in any case falls outside the six-month time-limit (see
Sardin v. Russia (dec.), no. 69582/01, ECHR 2004 II).
As
to the decision of 24 January 2002, the Court notes that the
Government's objection is closely linked to the applicant's complaint
under Article 6 § 1 of the Convention about the unfairness of
the proceedings leading to the April 2002 judgment as confirmed upon
appeal on 12 June and 2 December 2002. In these circumstances, it
considers that the objection should be joined to the merits of the
applicant's complaint.
The Court considers that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that it is not inadmissible on any
other grounds.
2. Merits
The
Government maintained that there was no violation of the applicant's
right to a fair trial in that his claims were considered in a public
hearing by a competent tribunal established by law. The reversal of
the May 2001 judgment gave the City Court a power to review the
case in its totality, including the assessment of evidence and
determination of the amount of the award. The domestic court
considered the case properly and gave a reasoned judgment.
The
applicant disagreed, stating that after two final judgments in his
case with essentially similar outcomes the judgment of 5 April 2002
was unreasonable.
The
Court reiterates that the right to a fair hearing before a tribunal
as guaranteed by Article 6 § 1 of the Convention must be
interpreted in the light of the Preamble to the Convention, which
declares, among other things, the rule of law to be part of the
common heritage of the Contracting States. One of the fundamental
aspects of the rule of law is the principle of legal certainty, which
requires, inter alia, that where the courts have finally
determined an issue, their ruling should not be called into question
(see Brumărescu v. Romania [GC], no. 28342/95, § 61,
ECHR 1999 VII).
In
assessing the domestic judicial practices against their compatibility
with the principle of legal certainty the Court primarily focused on
the extraordinary review proceedings susceptible to undermine the
finality of court judgments (cf., Popov v. Moldova (no. 2),
no. 19960/04, § 52, 6 December 2005, Tregubenko v.
Ukraine, no. 61333/00, § 36, 2 November 2004,
Ryabykh v. Russia, no. 52854/99, § 57, ECHR
2003 IX and Svetlana Naumenko v. Ukraine, no.
41984/98, § 92, 9 November 2004). The present case,
however, differs from the above instances, in that it was not the
very fact of the reversal of a final judgment, but rather its
combination with the subsequent treatment of the case by the trial
court that raises an issue as regards the applicant's “right to
a court”.
The
Court notes that the decision of 24 January 2002 was based on
the changes in the legislation brought about by the 2001 decision of
the Constitutional Court. The Court, on the one hand, should be
especially mindful of the dangers inherent in the use of
retrospective legislation which has the effect of influencing the
judicial determination of a dispute to which the State is a party
(see The National & Provincial Building Society, the Leeds
Permanent Building Society and the Yorkshire Building Society v. the
United Kingdom, judgment of 23 October 1997, Reports
1997-VII, § 112; Zielinski and Pradal & Gonzalez and
Others v. France [GC], nos. 24846/94 and 34165/96 to
34173/96, § 57, ECHR 1999 VII). On the other hand, the
initial objective of the procedure in issue being the clarification
of the source of payment of the applicant's award, this decision does
not seem to be an “appeal in disguise” per se
(compare and contrast Pravednaya v. Russia, no. 69529/01,
§ 32, 18 November 2004). In this context the Court observes
that in similar proceedings which were triggered by the
above-mentioned decision of the Constitutional Court, domestic courts
normally abstained from a fresh determination of the merits of the
claims (see, for example, Volosyuk v. Ukraine, no.
60712/00, § 14, 6 June 2006). However, the Court observes
that the domestic law did not provide any safeguards against a
possible infringement of the principle of legal certainty, giving the
relevant court an unfettered power to reconsider the case on the
merits regardless of the original aim of the reopening of the
proceedings (see paragraph 21 above).
In
the present case the City Court went beyond the determination of the
mode of execution of the May 2001 judgment following the judgment of
the Constitutional Court of 3 October 2001 (see paragraph 11) in that
it reassessed the evidence and gave a new judgment covering the
entire case. As it was mentioned above, such decision was in
compliance with the domestic law, which, however, cannot exempt the
domestic authorities from the requirement of Article 6 § 1 of
the Convention to respect the principle of legal certainty. The Court
considers that the City Court's outright dismissal of the evidence on
which the judgment of 17 May 2001 was based and the consequent
rejection of the applicant's argument relating to his nervous
breakdown (see paragraph 13 above), which led to a substantial
decrease of his award, infringed the principle of legal certainty and
the applicant's “right to a court” under Article 6 §
1 of the Convention.
The
Court, therefore, rejects the preliminary objection of the Government
as regards the alleged non-compliance with the six-month rule and
finds that there has been a violation of Article 6 § 1 of the
Convention.
B. Non-execution of court judgments
1. Admissibility
The
Court notes that the non-execution of the September 1998 and May 2001
judgments was mainly due to the extraordinary judicial proceedings
for review of these judgments.
The
Court recalls that the applicant's complaint concerning the first set
of supervisory review proceedings has been rejected for
non-compliance with the six-month requirement under Article 35 §
1 of the Convention (see paragraph 26 above). The Court cannot,
therefore, examine the applicant's complaint about delays concerning
this part of the proceedings.
Concerning
the second re-opening, the Court finds that the applicant's complaint
under this head overlaps with the issues of legal certainty and
fairness which have been considered in paragraphs 27-28 above.
Furthermore,
the aspect of the applicant's complaint relating to the
non-enforcement of the judgment given on 5 April 2002, is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that it is not inadmissible on any
other grounds.
2. Merits
The
Court observes at the outset that it has found a violation of the
principle of legal certainty as a result of the supervisory review
proceedings concerning the judgment of May 2001 (see paragraph 35
above) and does not, therefore, consider necessary to examine the
issue of non-enforcement from another angle of Article 6 § 1 of
the Convention.
Concerning
the judgment of 5 April 2002, the Court turns first to the
Government's argument that the applicant had failed to apply for the
compulsory enforcement within the statutory time-limit, for which the
State bore no responsibility.
The
Court notes that by judgment of 5 April 2002 which was upheld on
appeal by the decision of 12 June 2002 the applicant was awarded a
compensation for material and moral damage to be paid by the State.
This judgment has not been enforced to date, i.e. for four years and
eleven months (see, Volosyuk v. Ukraine, no. 60712/00,
§ 33, 29 June 2006).
The
Court reiterates that it is inappropriate to require an individual
who has obtained judgment against the State at the end of legal
proceedings to then bring enforcement proceedings to obtain
satisfaction (see, for example, Metaxas v. Greece,
no. 8415/02, § 19, 27 May 2004; Karahalios v. Greece,
no. 62503/00, § 23, 11 December 2003 and Scordino v. Italy
(no. 1) [GC], no. 36813/97, § 198, ECHR
2006 ...)..
The
Court further recalls that it has already found a violation of
Article 6 § 1 of the Convention on account of the
lengthy non-enforcement of a final judgment in numerous similar cases
(see, Volosyuk, cited above, § 33-38; Voytenko v.
Ukraine, cited above, §§ 26-55; Nosal v. Ukraine,
no. 18378/03, §§ 33-47, 29 November 2005).
Having examined all the material submitted to it, the
Court considers that the Government have not put forward any fact or
argument capable of persuading it to reach a different conclusion in
the present case.
There
has, accordingly, also been a violation of Article 6 § 1 of the
Convention in this respect.
C. Length of the proceedings
Having
regard to the Court's case-law in civil length-of-proceedings cases
that the enforcement proceedings are the second stage of the
proceedings and that the right asserted does not actually become
effective until enforcement (see, among other authorities, Di Pede
v. Italy and Zappia v. Italy, judgments of 26 September
1996, Reports 1996-IV, p. 1384, §§ 22, 24 and
26, and pp. 1411-12, §§ 18, 20, 22, and, mutatis
mutandis, Silva Pontes v. Portugal, judgment of 23 March
1994, Series A no. 286-A, p. 14, § 33), the applicant's
complaint about the length of the proceedings which is closely linked
to the one about the lengthy non-enforcement of the final judgments
in his favour, must likewise be declared admissible.
However, having regard to its findings of violations
of Article 6 § 1 (see paragraphs 35 and 46 above), the Court
does not consider it appropriate to examine this complaint
separately.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant complained that his unlawful detention violated Article 5 §
1 of the Convention and that the insufficient compensation for it was
contrary to Article 5 § 5. He also invoked Article 12 of the
Convention.
The
Court, in the light of all material before it, finds that these
matters do not disclose any appearance of an
unjustified interference or breach of these provisions and rejects
this part of the application in accordance with Article 35 §§
3 and 4 of the Convention as being manifestly ill-founded.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“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.”
A. Damage
The
applicant claimed 30,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
The
Government considered this amount exorbitant and unreasonable.
As
regards the pecuniary damage claimed, the Court considers that in
respect of the non-enforcement of the court decision of 12 June 2002,
the full and final settlement of the applicant's claim would be the
payment of the judgment debt owed to him. The Court further
notes that although the applicant has not claimed a
violation of his rights under Article 1 of Protocol No. 1 to the
Convention, it has found a breach of the principle of legal
certainty and the applicant's “right to a court” under
Article 6 § 1 of the Convention on account of the quashing of a
final judgment in his favour. Accordingly, it awards the
applicant EUR 11,380, representing the amount of which he was
deprived as a result of the quashing of the final judgment of 17
May 2001 (EUR 13,000), less the amount of EUR 1,620 which has
been awarded to him by the judgment of 12 June 2002 (see Braga v.
Moldova, no. 74154/01, § 30, 14 November 2006).
In
so far as non-pecuniary claims are concerned, the Court finds that
the applicant may be considered to have suffered some degree of
frustration and distress as a result of the violations found.
Deciding on an equitable basis, it awards the applicant EUR 3,000
in respect of non-pecuniary damage.
B. Costs and expenses
The
applicant did not submit any claim under this head within the set
time-limit; the Court therefore makes no award in this respect.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Joins to the merits the Government's preliminary
objection that the applicant failed to respect the six-month
time-limit concerning his complaint about the reversal, in
supervisory review proceedings, of the judgment of 17 May 2001, and
dismisses it after considering the merits;
Declares the complaints under Article 6 § 1
of the Convention about the alleged unfairness of the proceedings
reopened on 24 January 2002, the non-enforcement of the judgment of
5 April 2002 and the length of the proceedings admissible and
the remainder of the application inadmissible;
Holds that there has been a violation of the
right to a fair hearing, as guaranteed by Article 6 § 1 of the
Convention, in respect of the proceedings reopened on 24 January
2002 and of the non-enforcement of the judgment of 5 April 2002;
Holds that there is no need to examine the
complaint about the overall length of proceedings under Article 6 of
the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following
sums, to be converted into the national currency of the respondent
State at the rate applicable at the date of settlement:
(i)
EUR 11,380 (eleven thousand three hundred and eighty euros) and the
judgment debt of 12 June 2002 still
owed to him in respect of pecuniary damage,
(ii)
EUR 3,000 (three thousand euros) in respect of non-pecuniary damage;
(iii)
plus any tax that may be chargeable on these amounts;
(b) 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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 31 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
