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
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
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
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
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
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.
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
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..."
57. The Court notes that these complaints are not
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
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.
pointed out that by the judgment of 18 February
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).
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.