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Благотворительный фонд "Ющенко Крым"

Продолжение

                                                                                           nos. 2-3500/2001 Simferopol



21.On 31 May 2001, following the first applicant’s complaint, the Tsentralnyy District Court of Simferopol found that the K. enterprise had had no right to sell the petrol tanker.

nos.200|2003 prosecutor’s Yevpatoriya

22.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”.

23.On an unidentified date the first applicant instituted proceedings in the Saki Town Court, claiming compensation for pecuniary and non-pecuniary damage caused by 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.

nos. 2-1219/2001 Simferopol

24.In March 2003 the first applicant instituted proceedings in the Tsentralnyy District Court of Simferopol against the K. enterprise, the Ministry of Trade of the ARC and the State Treasury of Ukraine, claiming compensation for pecuniary and non-pecuniary damage as a result of the sale of the petrol tanker. On 13 August 2003 the court found against the first applicant, since there was no evidence that the alleged damage had been inflicted by K.’s actions. On 23 July 2008 the Court of Appeal of the ARC upheld this decision.

nos.2-28/2004 Yevpatoriya

25.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 inflicted on him by 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. The first applicant appealed against it in cassation. While the cassation appeal was still pending, on 14 December 2004 the Yevpatoriya Town Court found against the first applicant. There is no evidence that the applicant has appealed against this judgment. On 15 October 2007 the Zaporizhzhya Regional Court of Appeal, sitting as a cassation instance, upheld the judgment of 20 September 2004.

 

26.In 2009 criminal proceedings for abuse of power were instituted against the bailiff N. The first applicant lodged a civil claim for damages within these proceedings, which are currently pending.


 nos.182354, 1-28/04

27.In April 1999 L. requested the Yevpatoriya Town Police Office to institute criminal proceedings against the first applicant for fraud and blackmail, as the first applicant, with the third applicant, had allegedly removed a photocopier from 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 5-9). These decisions were subsequently quashed by the prosecutor, who remitted the material for additional investigation.

28.On 3 March 2000 the police eventually instituted a criminal case against the first applicant for fraud. Subsequently L. lodged a civil claim for UAH 10,310 in compensation for pecuniary damage and UAH 50,000 in compensation for non-pecuniary damage.

 

29.In May 2000 the investigation officer of the Yevpatoriya Town Police Department requested that the third applicant, who had previously been questioned as a witness, be summoned, since there was enough evidence to charge him with fraud and he had failed to appear at the police station. On 24 May 2000 the police officers visited the third applicant's apartment but he was allegedly absent and his neighbour told them that the third applicant would be away for a couple of weeks.

 

30.On 6 June 2000 the first and 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.

 

31.In September 2000 the investigation officer requested the Yevpatoriya Town Police Office to search for the third applicant. There is no evidence as to whether any searches were carried out between 2000 and 2004.

 

32.On 7 October 2000 the investigating officer terminated the criminal proceedings 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.

 

33.On 5 April 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.

nos.1-28/04

 

34.During the consideration of the case in the first-instance court from 5 April 2002 until 12 January 2004, thirty-two court hearings were scheduled.  Six of these were postponed because L., witnesses or the


prosecutor failed to appear. On four more occasions both the prosecution and the defence had failed to appear and on three occasions the first applicant had failed to appear. The first applicant lodged twenty-five requests for the withdrawal of the presiding judge and some judges of higher courts from his case. All of his requests were rejected as unsubstantiated. One hearing was postponed at the first applicant's request and on one occasion he refused to participate in the hearing. On 1 August

35. On 12 January 2004 the court sentenced the first applicant conditionally to two years' imprisonment for a fraud committed previously in concert with another person(s). Judge K., who considered the case, found that the first applicant together with "another person" had abused the trust of L.'s secretary and removed a photocopier worth UAH 8,350 and related materials (paper and toner) worth UAH 1,960, the overall value thus being UAH 10,310. In finding so the court stated that:

"On 6 May 1998 in the afternoon, [the first applicant], by a prior arrangement with another person [...] misappropriated a photocopier which belonged to L."

"The court has doubts as to the statements by the accused, V.M. Yushchenko, and a witness, P.V. Yushchenko [the third applicant], who deny the fraud..., since their statements are contradicted by the following evidence..."

36.   The court has further referred to the statements of L. and the
witnesses in the case, Z., B. and K., who maintained that the first applicant
had been assisted by his son. They also recognised the third applicant at the
face-to-face identification. The court further 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 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".

37.   Concerning the civil claim introduced by L., the court mentioned
that by the judgment of 18 February 1999 the first applicant had already
been ordered to pay L. UAH 5,480 as the value of the photocopier. The
court, however, ordered the first applicant to pay 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.