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FIFTH SECTION

CASE OF BOLDYREV v. UKRAINE

(Application no. 27889/03)

JUDGMENT

STRASBOURG

20 January 2011

This judgment is final but it may be subject to editorial revision.

In the case of Boldyrev v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Rait Maruste, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 14 December 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 27889/03) 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 Oleg Petrovich Boldyrev (“the applicant”), on 15 August 2003.

The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.

On 1 December 2008 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1952 and lives in Kharkiv.

1. Background to the case

At the material time the applicant was a head of the structural unit of a joint stock company, “G.”, and the head of a limited liability company, “U.” (hereinafter “the U. company”). He was also a major shareholder in the last-mentioned company.

On 17 September 1997 the U. company, concluded a sale contract with the local department of the State Property Fund of Ukraine within the privatization procedure, acquiring thereby a property right over non residential premises in Kharkiv.

2. Criminal proceedings against the applicant

On 15 September 1998 criminal proceedings were instituted against the applicant in connection with several counts of abuse of power, financial fraud and forgery concerning the aforesaid companies. A substantial part of the charges was related to acquiring of the above-mentioned premises. Later, criminal proceedings were instituted against Mrs G., Mrs Ga. and Mrs Sh. on account of the same charges.

On 18 November 1998 the District Prosecutor ordered the applicant’s detention on remand relying on the seriousness of the charges against him. In his decision he also noted that the applicant had failed to appear before the investigator and that he could not be found at his permanent residence. The applicant was put on the wanted list. Following this event, the proceedings were suspended. On 15 June 1999 the disputed premises, being evidence in the criminal proceedings against the applicant, were attached. In the period prior to 22 October 1999 they were resumed in order to perform certain investigative actions and then, on several further occasions they were suspended again. On 22 October 1999 the applicant was arrested. He was remanded in custody.

On 11 December 1999 and 18 January 2000 the District Prosecutor extended the duration of the applicant’s pre-trial detention since the investigation had not been yet completed. In his decisions the prosecutor advanced the severity of the penalty to which the applicant was liable and the risk of his absconding.

In the course of the pre-trial investigation the law-enforcement authorities carried out, inter alia, some eighty interviews, thirty-three confrontations, and four forensic examinations.

Several persons and the District Prosecutor brought civil actions against the accused within these criminal proceedings, seeking salary arrears, rescission of a number of contracts, in particular, the sale contract of 17 September 1997, and compensation for non-pecuniary damage.

On 17 April 2000 and 12 June 2000 the proceedings against Sh. and Ga., respectively, were terminated.

According to the applicant, by 20 April 2000 when he was officially charged, he had already hired a lawyer. However on that date the investigator refused to notify his lawyer regardless of the applicant’s respective requests to be legally represented while being served with his indictment. For this reason the applicant refused to familiarise himself with the bill of indictment and the investigator drew up a report about this.

By June 2000 the pre-trial investigation was completed and the case was transferred to the Leninsky District Court of Kharkiv (hereinafter “the District Court”).

On 11 February 2002 the District Court dismissed the applicant’s request for release relying on the seriousness of the charges against him. The District Court further pointed out that not all the evidence had been yet examined. It found no medical reasons for the applicant’s release.

Between June 2000 and June 2002 the District Court scheduled some forty-two hearings, four of them were adjourned since the applicant’s lawyer failed to appear or at his request. On two occasions the hearings were adjourned because the applicant was ill. On two other occasions the hearings were adjourned since Mrs G.’s lawyer failed to appear. Two hearings were adjourned since the aggrieved parties or witnesses failed to appear. One hearing was adjourned due to the change of the prosecutor. According to the records provided by the Government, the District Court questioned forty-one persons.

On 19 June 2002 the District Court found the applicant guilty of several counts of abuse of power, financial fraud, forgery, and labour law breaches and sentenced him to four years and six months’ imprisonment. Mrs G. was sentenced to five years’ imprisonment; however the court decided to exempt her from serving the sentence. The court declined to consider the civil claims in respect of salary arrears and non-pecuniary damage, holding that they should be brought in separate civil proceedings. It considered the remainder of the civil claims and partly allowed them. In particular, the court declared the sale contract of 17 September 1997 invalid. It also lifted the attachment from the disputed premises and ordered the property right over them to be transferred back to the State.

On 17 December 2002 the Kharkiv Regional Court of Appeal (hereinafter “the Court of Appeal”) pointed out that the applicant’s right to legal assistance at the pre-trial and trial stages was impaired and quashed the judgment of 19 June 2002 in the part related to the charges against the applicant and ordered an additional investigation. By the same judgment the Court of Appeal upheld the applicant’s detention on remand without specifying any reasons. Two hearings scheduled by the Court of Appeal were adjourned since the applicant’s lawyer failed to appear and one due to the absence of Mrs G.’s lawyer.

The applicant and Mrs G. appealed in cassation against the first-instance and appellate court decisions. On 29 July 2003 the Supreme Court rejected those appeals.

On 13 February and 7 March 2003 the District Prosecutor dismissed the applicant’s requests for release relying on the seriousness of the charges against him. He also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings given the risk that he might go into hiding.

By 14 March 2003 the additional investigation was completed and the criminal case was transferred to the District Court for consideration.

On 11 April 2003 the District Court ruled that the preventive measure was correct and there were no reasons to change it.

On 25 April 2003, 30 April 2003, 21 May 2003 and 5 August 2003 the District Court dismissed the applicant’s requests to change the detention for another preventive measure. The District Court relied on the seriousness of the charges against the applicant. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might go into hiding and obstruct the investigation, without, however, indicating any grounds for such an opinion.

On 9 September 2003 the District Court found the applicant guilty of several counts of abuse of power, financial fraud, forgery, and labour law breaches and sentenced him to three years, ten months and eighteen days’ imprisonment. The court noted that the applicant had actually served his sentence while being detained during the pre-trial investigation and trial and released him. The court also banned the applicant from holding any financially accountable position for three years. As to the civil claims, the court declined to examine them holding that they should be brought in separate civil and commercial proceedings. He did not appeal against that judgment.

Between 14 March 2003 and 9 September 2003 the District Court scheduled some thirteen hearings, two of them were adjourned since the applicant’s representative failed to appear. One hearing was adjourned since the District Prosecutor failed to appear.

On 11 December 2003 the Court of Appeal, upon appeals lodged by the District Prosecutor and the civil claimants, quashed the judgment of 9 September 2003 in the part related to the civil claims and remitted that part of the case to the District Court for a new examination under civil procedure. The Court of Appeal upheld the remainder of the judgment. On 2 March 2004 and 29 April 2004 the civil claimants and the applicant, respectively, lodged their appeals in cassation. On 9 November 2004 the Supreme Court rejected them.

3. Civil and commercial court proceedings

(a) First set of civil proceedings against the applicant

On 29 January 2004 the District Court, following the decision of 11 December 2003, declined to examine the claims by the District Prosecutor and the civil claimants against the applicant as they, in its view, were within the competence of the commercial courts. On 22 June 2004 and 8 November 2005 the Court of Appeal and the Supreme Court, respectively, upheld this decision.

(b) Commercial proceedings instituted by the District Prosecutor on property right over the disputed premises

On an unspecified date in July-September 2004 the District Prosecutor instituted proceedings in the Kharkiv Commercial Court against the U. company and other persons, seeking to have a number of contracts related to the disputed premises, including the sale contract of 17 September 1997, declared null and void. The applicant took part in these proceeding as a third party.

On 23 April 2008, following a number of rounds in the proceedings, the Kharkiv Commercial Court found in part for the prosecutor and declared a number of contracts related to the disputed premises, including the sale contract of 17 September 1997, null and void; however it discontinued the proceedings against the U. company because it had been liquidated. On 18 June 2008 the Kharkiv Commercial Court of Appeal quashed this judgment in the part related to the granted claims of the prosecutor and rendered a new one, rejecting those claims. On 23 October 2008 the Higher Commercial Court quashed the part of the decision of 18 June 2008 by which the claims by the prosecutor were rejected. On 15 January 2009 the Supreme Court dismissed the applicant’s request for leave to appeal in cassation against the decision of 23 October 2008.

© Applicant’s entitlement to the disputed premises

Meanwhile, in July 2004 the applicant instituted proceedings in the Kharkiv Commercial Court against the U. company, seeking to have his property right over the disputed premises acknowledged. On 20 September 2004 the court allowed his claim.

On 28 February 2005 the applicant sold the premises to a third person. Later the premises were resold on several occasions.

On an unknown date the Higher Commercial Court quashed the decision of 20 September 2004 and remitted the case for a fresh examination.

On 23 May 2006 the Kharkiv Commercial Court attached the premises in question.

On 26 July 2006 the U. company was liquidated following a decision by its shareholders. Subsequently, on 20 September 2006 the Kharkiv Commercial Court discontinued the proceedings.

(d) Second set of civil proceedings against the applicant

In October 2005 the civil claimants instituted civil proceedings in the Zhovtnevy District Court of Kharkiv against the applicant and the successive owners of the disputed premises, seeking rescission of the pertinent sale contracts.

On 14 February 2007 the court found against the claimants. In particular, it found the last owner of the disputed premises to be a bona fide purchaser. On 16 May and 29 November 2007 the Court of Appeal and the Supreme Court, respectively, upheld that decision.

(e) Other related proceedings

Since 15 June 1999 the disputed premises have been occupied by the limited liability company, “P.”

On 26May 2005 the Kharkiv Commercial Court held that the “P.” company was occupying the premises unlawfully and ordered its eviction. On 5 July and 13 October 2005 the Kharkiv Commercial Court of Appeal and the Higher Commercial Court, respectively, upheld that judgment. On 27 December 2005 the Supreme Court quashed the judgment and remitted the case for a fresh examination. The applicant provided no information about the further decisions adopted in the case.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

The applicant complained that the length of his detention on remand had been excessive. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

A. Admissibility

The Court notes 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. It must therefore be declared admissible.

B. Merits

1. Period to be taken into consideration

The applicant’s detention started on 22 October 1999, when he was arrested on suspicion of having committed the above-mentioned crimes. On 19 June 2002 the District Court convicted the applicant. As from that date he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and, consequently, that period of his detention falls outside the scope of Article 5 § 3 (cf. Kudla v. Poland [GC], no. 30210/96, § 104, ECHR 2000 XI).

On 17 December 2002 the Court of Appeal quashed the applicant’s conviction. Following that date his detention was again covered by Article 5 § 3. It continued until 9 September 2003 when the applicant was again convicted.

Accordingly, the total period to be taken into consideration amounts to three years, four months, and nineteen days.

2. Reasonableness of the length of the applicant’s detention on remand

The Government maintained that the domestic authorities had grounds for holding the applicant in custody, given that he was suspected of serious crimes and could abscond from justice and obstruct investigation. They considered that the domestic authorities conducted the investigation with due diligence given the complexity of the case.

The applicant disagreed.

The Court reiterates that it is necessary, when examining the question whether Article 5 § 3 has been observed, to consider and assess the reasonableness of the grounds which persuaded the judicial authorities to decide, in the case brought before the Court, on this serious departure from the rules of respect for individual liberty and of the presumption of innocence which is involved in every detention without a conviction (see Stogmüller v. Austria, judgment of 10 November 1969, Series A no. 9, § 4).

The Court notes that, although the fact that the applicant went into hiding appears to have given the authorities a reason for keeping him imprisoned during the pre-trial investigation, the seriousness of the charges against him and the risk of his absconding and obstructing the justice remained the only reasons for the domestic authorities not to change the preventive measure imposed on him. However, Article 5 § 3 requires that after a certain lapse of time the persistence of reasonable suspicion does not in itself justify deprivation of liberty and the judicial authorities should give other grounds for continued detention (see Jabłoński v. Poland, no. 33492/96, § 80, 21 December 2000, and I.A. v. France, no. 28213/95, Reports of Judgments and Decisions 1998-VII, § 102). Those grounds, moreover, should be expressly mentioned by the domestic courts (see Iłowiecki v. Poland, cited above, § 61). From the materials available to the Court, it does not appear that the domestic courts gave any such reasons or seriously considered any alternative preventive measures instead of detention - by relying essentially on the gravity of the charges, the authorities prolonged the applicant’s detention on grounds which cannot be regarded as “relevant and sufficient”. Furthermore the Court notes that in its decisions of 17 December 2002 and 11 April 2003 the domestic courts did not advance any grounds whatsoever for maintaining the applicant’s detention.

The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 5 § 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF CRIMINAL PROCEEDINGS

The applicant complained that the length of criminal proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

A. Admissibility

B. Merits

1. The parties’ submissions

The Government contested the applicants’ submissions, stating that there had been no significant periods of inactivity attributable to the State. They maintained that the criminal case was complex, given, in particular, the number of the participants involved in the criminal proceedings. According to the Government, the applicant and the other participants had been responsible for several delays.

The applicant disagreed.

2. Period to be taken into consideration

The criminal proceedings were instituted on 15 September 1998. The period during which the applicant was on the run (18 November 1998 to 21 October 1999) should be excluded from the overall length of the proceedings (see Girolami v. Italy, judgment of 19 February 1991, Series A no. 196-E, § 13, and Smirnova v. Russia, nos. 46133/99 and 48183/99, § 81, ECHR 2003 IX). The proceedings ended on 9 November 2004. Therefore, the period in question lasted about five years and three months at three levels of jurisdiction.

3. Reasonableness of the length of the proceedings before the domestic courts

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). What is at stake for the applicant has also to be taken into consideration. In this respect the Court recalls that an accused in criminal proceedings should be entitled to have his or her case conducted with special diligence and Article 6 is, in criminal matters, designed to ensure that a person who has been charged does not remain for too long in a state of uncertainty about his or her fate (see Nakhmanovich v. Russia, no. 55669/00, § 89, 2 March 2006).

The Court also notes that the applicant spent more than three years and four months in custody. This fact required particular diligence on the part of the authorities and courts dealing with the case to administer justice expeditiously (see Abdoella v. the Netherlands, 25 November 1992, § 24, Series A no. 248-A).

The Court accedes to the Government’s contention that the number of the persons involved in the proceedings might have increased the complexity of the case to a certain extent and that the conduct of the applicant and other participants caused some delays. However, the Court finds that this alone cannot explain the overall length of the proceedings at issue in the present case.

The Court notes that the major delay was caused by the remittal of the case for an additional investigation. In this respect the Court reiterates that a repetitive re-examination of the case within one set of proceedings can disclose a serious deficiency in the domestic judicial system (see Wierciszewska v. Poland, no. 41431/98, § 46, 25 November2003).

The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Pélissier and Sassi, cited above).

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. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

Referring to Article 5 § 1 of the Convention, the applicant complained that on 22 October 1999 he had been arrested by decision of a prosecutor and not of a court. He further submitted that from 22 October 2002 onwards he had been detained unlawfully in so far as by this date he had already served two thirds of his sentence and therefore should had been granted remission of one third of the sentence.

In his letter to the Court of 13 August 2004 the applicant also invoked Article 5 §§ 2, 4 and 5 of the Convention. The applicant further challenged the outcome of the criminal proceedings relying on Articles 6 § 1 and 13 of the Convention. Relying on Article 6 § 3 (c) of the Convention, the applicant complained of a lack of legal assistance in the period from 20 April 2000 to 17 December 2003. He also invoked Article 6 § 2 of the Convention.

In his submissions of 20 April 2004 the applicant complained under Article 3 of the Convention about the conditions of his detention. In his letter to the Court of 12 August 2005 the applicant complained under Article 1 of Protocol No. 1 that the State authorities had impeded his enjoyment of the disputed premises.

Having carefully examined the applicant’s submissions in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention

IV. 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 100,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.

The Government contested this claim.

The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, ruling on an equitable basis, it awards the applicant EUR 2,700 in respect of non-pecuniary damage.

B. Costs and expenses

The applicant made no separate claim as to costs and expenses. Therefore, the Court makes no award under this head.

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

Declares the complaints concerning the length of pre-trial detention and of criminal proceedings admissible and the remainder of the application inadmissible;

Holds that there has been a violation of Article 5 § 3 of the Convention on account of the length of pre-trial detention;

Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of criminal proceedings;

Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 2,700 (two thousand seven hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;

(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 20 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Rait Maruste
Deputy Registrar President