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Благотворительный фонд "Ющенко Крым"

Продолжение

judgment of 27 February 1980, Series A no. 35, p. 30, § 56; Minelli v. Switzerland, judgment of 25 March 1983, Series A no. 62, §§ 27, 30 and 37; Allenet de Ribemont v. France, judgment of 10 February 1995, Series A no. 308, p. 16, §§ 35-36; Daktaras v. Lithuania, no. 42095/98, §§ 41-44, ECHR 2000-X; and Matijasevic v. Serbia, no. 23037/04, § 45, ECHR 2006-...). Whether a statement by a public official is in breach of the principle of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made (see Daktaras, cited above, § 43).

90.In the present case the first and the third applicants were both charged with fraud, however, the proceedings in respect to the third applicant were separated and stayed as he was allegedly in hiding.

91.In the judgment of 12 January 2004 in the criminal case against the first applicant 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.". Referring to the witnesses' statements, the court found that the first applicant had come with his son (the third applicant) to L.'s office and the third applicant had helped his father to put the photocopier into the car. Although these findings could create an impression that the third applicant was considered an accomplice, the Court notes that the national court's findings were limited to establishing the circumstances of the crime committed by the first applicant, namely whether the third applicant was physically present in L.'s office, without examining whether the third applicant had any fraudulent intent to take L.'s photocopier or was just helping his father. The court judgment of 12 January 2004 did not contain any express or even indirect statements about the third applicant's guilt in respect of fraud or any other offence.

92.In such circumstances, the Court finds that there is no violation of Article 6 § 2 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

93.   The first applicant complained under Article 1 of Protocol No. 1 that
during the enforcement of the judgment of 18 February 1999 his property
rights had been violated. In particular, he complained that the value of the
petrol tanker seized in enforcement of the court judgment of 18 February
1999 exceeded the amount awarded to L. by the court. The invoked Article
provides as follows:

Article 1 of Protocol No. 1

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest

Admissibility

94.The Government indicated that the first applicant could have returned the photocopier or paid the amount awarded voluntarily but he had failed to do so, therefore, L. had been forced to initiate enforcement proceedings. The Government further contended that the national courts had recognised breaches in the enforcement proceedings and the seizure orders for the first applicant's and his company's property had been removed. Furthermore, the first applicant has failed to appeal in cassation against the decision of 20 September 2004 and against the decision of 14 December 2004, therefore his complaint should be rejected for failure to exhaust effective domestic remedies.

 

95.The first applicant disagreed and indicated that he had appealed against the decision of 20 September 2004 in cassation.

 

96.The Court notes that the applicant's complaint concerns irregularities which occurred in the course of enforcement proceedings. Where complaint is made about the organisation and conduct of enforcement proceedings, Ukrainian legislation provides for the possibility of a challenge before the courts as regards the lawfulness of actions and omissions on the part of the State Bailiffs' Service in enforcement proceedings and also for a claim for damages from that Service (see, mutatis mutandis, Dzizin v. Ukraine (dec), no. 1086/02, 24 June 2003, and Kukta v. Ukraine (dec), no. 19443/03, 22 November 2005).

 

97.In the present case the first applicant and other persons whose rights were allegedly infringed during the enforcement of the judgment of 18 February 1999 instituted numerous proceedings against the State Bailiffs' Service and other defendants, challenging different actions and claiming damages. While the courts have recognised that on some occasions the actions of the Bailiffs' Service during the enforcement of the judgment of 18 February 1999 were unlawful, the first applicant's claims for damages were unsuccessful.

 

98.The Court notes however that while the applicant has indeed appealed against the judgment of 20 September 2004, there is no evidence that he has appealed against the judgment of 14 December 2004 (see paragraph 25). Accordingly, he cannot be regarded as having exhausted the domestic remedies available to him under Ukrainian law.

 

99.It follows that this complaint must be rejected pursuant to Article 35 §§ 1,3 and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

100.   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."

101.   The applicants did not submit a claim for just satisfaction within
the relevant time-limits. Accordingly, the Court considers that there is no
call to award them any sum on that account.


FOR THESE REASONS, THE COURT UNANIMOUSLY

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.Declares the complaint under Article 1 of Protocol No. 1 inadmissible and the remainder of the applications admissible;

2.Holds that there has been a violation of Article 6 § 1 of the Convention in respect to the allowance of the civil claim within the criminal proceedings against the first applicant;

3.Holds that there has been no violation of Article 6 § 1 of the Convention in respect to the length of fraud criminal proceedings against the first applicant;

4.Holds that there has been a violation of Article 6 § 1 of the Convention in respect to the remaining complaints about the length of proceedings;

5.Holds that there has been no violation of Article 6 § 2 of the Convention.

Done in English, and notified in writing on 15 July 2010x^pursuant to Rule 77 § § 2 and 3 of the Rules of

    Court.

    Claudia Westerdiek                        Peer  

                                                                                   

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