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Благотворительный фонд "Ющенко Крым"

Продолжение

 nos. 1-33/05


38.  On 1 June 2004 criminal proceedings were resumed in respect of the
third applicant and on 10 June 2004 the third applicant was again charged
with fraud. On 21 December 2005 Judge K., who had heard 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 an appeal in cassation by the third applicant.

D. Libel case, nos. 1-440/99, 2-452/2005

39.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 K. against a hospital, had allegedly said in a court hearing that "all this had been organised by the criminal group of L. and 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.

 

40.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.

41.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 Yevpatoriya Town Police Office closed the criminal case for libel for lack of evidence of a crime.

 

42.On 1 September 2001 the new Criminal Code came into force and the offence of libel was decriminalised.

 

43.On 26 November 2001, following L.'s complaint, the Yevpatoriya Town Court quashed the decision of 10 December 2000 since the investigation had failed to comply with the decision of 19 October 2000. The case was then supposed to be transferred to the court to be closed in accordance with the transitional provisions of the new Criminal Code.

 

44.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, following L.'s complaint, the court quashed this decision and remitted the case to the prosecutor. In doing so the court referred to its decision of 26 November 2001.

 

45.On 12 August 2003 the Court of Appeal of the ARC closed the criminal case against the first applicant. It held that the offence of libel was decriminalised and the relevant law was applied retrospectively.

 

46.On 3 October 2003 the Supreme Court of Ukraine allegedly reopened the proceedings upon an appeal in cassation by the first applicant. In his letter of 24 April 2006 the first applicant stated that the Supreme Court had returned his appeal because the first-instance court had allegedly

not provided it with a copy of an appealed decision. There is no further information about these proceedings.

 

E. The search of the first and second applicants' apartments in the course of criminal proceedings against L. nos.2-187/2003, 2-319/2001 Yevpatoriya

47.In May 1998, in the course of criminal proceedings against L., the apartments of the first and the second applicants were searched.

 

48.In January 2001 (allegedly on 12 January 2001) the first and second applicant instituted two separate sets of proceedings in the Yevpatoriya Town Court against the State Treasury of Ukraine, claiming compensation for non-pecuniary damage caused by an allegedly unlawful search.

 

49.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, pre­trial investigation, prosecutors and courts" the second applicant should first address the State institution which had allegedly caused him non-pecuniary damage with a request to pay him compensation.

 

50.It follows from the materials submitted by the parties that the first and second applicant's cases were mixed up and the first applicant's claim was allegedly lost. However, on 9 October 2003 the court considered the first applicant's claim and awarded him UAH 20,000. It is impossible to tell whether the court had considered the original claim or whether the first applicant had submitted a new one.

 

51.On 24 December 2003 the Court of Appeal of the ARC reduced the amount of the compensation to UAH 2,000. On 23 January 2004 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.

II. RELEVANT DOMESTIC LAW

Res judicata under Ukrainian civil procedure law

52. In accordance with Article 136 of the Civil Procedure Code of 1963, in force at the material time, the judge shall refuse to accept the claim if there is a final court decision between the same parties in the case on the same matter and the same grounds.

THE LAW

I.  SCOPE OF THE CASE

53.The Court notes that, after the communication of the case to the respondent Government, the applicants introduced a large number of new complaints related to numerous civil proceedings instituted by and against the applicants. In the Court's view, the new complaints are not an elaboration of the applicants' original complaints to the Court. The applicants were advised to lodge a new application form, which they have failed to do. The Court considers, therefore, that it is not appropriate to consider the applicants' new complaints now (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).

 

54.The Court further notes that the applicants reiterated some of their original complaints. In its partial decision on admissibility of 27 March 2007, the Court adjourned its examination of the complaints of the first applicant under Article 6 § 1 of the Convention about the civil claim against him being allowed when there had already been 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 of his apartment in May 1998; and under Article 1 of Protocol No. 1 of a 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 of a violation of the presumption of innocence and about the length of proceedings in a criminal case against him. The remainder of the complaints were declared inadmissible. To the extent that the applicants now repeat those complaints which have already been declared inadmissible, the complaints are "substantially the same" as those already declared inadmissible, and they must now be rejected pursuant to Article 35 §§ 2 (b) and 4 of the Convention.

 

55.The scope of the case now before the Court is limited to those complaints which were adjourned on 27 March 2007.

II. ALLEGED    VIOLATIONS    OF    ARTICLE    6    §    1    OF    THE

CONVENTION IN RESPECT TO THE FIRST APPLICANT

56.  The first applicant complained under Article 6 § 1 of the Convention
that the court had allowed a civil claim within the criminal proceedings
against him for fraud when there had already been a final decision on this
claim. The applicant further complained 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 of his apartment in May 1998. The invoked Article, in so far as relevant, provides as follows:

Article 6 § 1

"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..."

A.   Admissibility

57.   The Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It further notes that
they are not inadmissible on any other grounds. They must therefore be
declared admissible.

B.   Merits

1. Allowance of the civil claim against the applicant nos.1-28/04, 1-33/2005 Yevpatoriya

58.The first applicant reiterated his previous submissions.

 

59.The Government pointed out that by the judgment of 18 February 1999 L.'s claims had been allowed only in part. The court rejected as unsubstantiated his claims for the return of the paper and toner, and for compensation for non-pecuniary damage. However, during investigation of the criminal case against the first applicant there was established an exact amount of materials taken. Moreover, in its judgment of 12 January 2004 the court took into consideration the previous decision on the matter. Therefore, in the Government's view, the two court decisions had been taken in different circumstances (before and after the criminal investigation during which the value of the photocopier and related materials was established).

 

60.As the Court has stated in previous cases, the right to a fair hearing under Article 6 § 1 of the Convention, interpreted in the light of the principles of rule of law and legal certainty, encompasses the requirement that where the courts have finally determined an issue, their ruling should not be called into question (see Brumarescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII).

 

61.The Court notes that on 18 February 1999 in the course of civil proceedings the court found that the first applicant had taken the photocopying machine but held that there was no evidence in support of L.'s claim that the first applicant had taken paper and toner. In particular, the witness B. had failed to specify how many packets of paper and toner had been taken by the first applicant and the witness K. had not seen it at all.

Therefore, the court, providing a forum for deciding a dispute between two individuals, rejected L.'s claims for paper and toner as unsubstantiated.

62.In its decision of 12 January 2004, taken within the criminal proceedings, while deciding on the applicant's guilt as to fraudulous misappropriation of L.'s property, the court referred to numerous face-to-face confrontations between the first applicant, L. and the witnesses and found that the applicant had taken the photocopying machine, paper and toner. Under the civil head of the criminal proceedings, the court further awarded L. the value of the misappropriated items.

 

63.The Court notes that the national court in the first proceedings rejected L.'s claims against the first applicant related to the return of the paper and toner, though it later found that these items had been taken by the first applicant and his son. The Court accepts that the criminal proceedings against the applicant determined issues of criminal law which were separate from those already decided in the civil proceedings. Although it may appear that in both proceedings the courts examined the same factual situation and came to different conclusions, the Court notes that the civil court did not conclusively establish that the first applicant did not take the paper and toner.

 

64.However, the civil aspect of the criminal case covered precisely the same ground as that in the earlier civil proceedings - namely, civil liability for the removal of the photocopier and the related materials, and their value. In the absence of any indication that the civil proceedings were flawed, the Court finds that the re-determination of the same matters set at nought the proceedings which had already ended, and was not compatible with the principle of legal certainty.

 

65.There has accordingly been a violation of Article 6 § 1 of the Convention.

2. Length of proceedings

66.  In respect of the examinations of the complaints mentioned below
about the length of proceedings, 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, Pelissier and Sassi
v. France
[GC], no. 25444/94, § 67, ECHR 1999-11).

a) Fraud

67.   The first applicant reiterated his previous submissions. He insisted
that the criminal case against him was unlawful, that the State authorities
had breached his right to a fair trial and that the proceedings in his case had
lasted too long.