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FIFTH
SECTION
CASE OF SOLAZ v. UKRAINE
(Application
no. 35184/02)
JUDGMENT
STRASBOURG
12 June
2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In
the case of Solaz v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Volodymyr Butkevych,
Renate
Jaeger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar.
Having
deliberated in private on 20 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 35184/02) 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
Russian limited liability company Solaz (“the applicant”),
on 13 June 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev, from the Ministry of Justice.
- On
29 May 2007 the Court
decided to give notice of the application to the Government. Applying
Article 29 § 3 of the Convention, it decided to rule on the
admissibility and merits of the application at the same time.
- In
accordance with Article 36 § 1 of the Convention, the
Russian Government were invited to exercise their right to intervene
in the proceedings, but they declined to do so.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant is a limited liability company registered in Moscow.
- On
2 September 1992 the applicant company purchased an aircraft from the
Kharkiv State Aviation Industrial Enterprise (Харківське
державне авіаційне
підприємство,
hereafter “the Enterprise”) for 5 million United States
dollars (USD). By February 1993 this amount had been paid in full to
the Enterprise. On 19 April 1993 the applicant company and the
Enterprise signed an aircraft acceptance certificate, entailing,
according to the applicant company, the transfer of ownership. On
20 April 1993 a Ukrainian crew – including the chief
pilot Mr I. – flew the aircraft to Russia.
- Until
April 1994 the aircraft underwent test flights at the Ramenskoye
airfield, located in the Moscow region. On 5 April 1994 and for
unspecified reasons, the aircraft was flown back to Ukraine where it
landed at the Enterprise’s airfield.
- In
the meantime, namely on 30 March 1994, a Ukrainian Customs officer
had drawn up a report that customs rules had been violated. According
to this report, when the aircraft had crossed the Ukrainian-Russian
border in April 1993, it had been declared by officials of the
Enterprise as temporarily exported for test flights whereas it had in
fact been exported by way of sale to the applicant company.
- On
27 May 1994 the Ukrainian Customs authorities instituted criminal
proceedings for the attempted smuggling of the aircraft to Russia. On
an unspecified date the case was transmitted to the Kharkiv Regional
Department of the Security Service (Управління
Служби Безпеки
України по
Харківській
області,
hereafter “the USBU”).
- By
rulings of 3 December 1994 and 13 November 1995, the USBU
investigator decided to classify the aircraft as material evidence
(визнав
речовим доказом)
and attached it to the case file pending the outcome of the criminal
proceedings.
- On
14 December 1995 the Deputy Head of the Investigative Unit of the
USBU decided to put the aircraft up for sale by issuing a formal
order to this effect (ухвала
про долю речового
доказу).
- By
letter of 17 January 1995 the Acting Head of the Investigative Unit
of the USBU informed the applicant company that the aircraft had been
acquired by the Ministry of the Interior (hereafter “the
Ministry”) for amount of USD 25,000.
- On
an unspecified date the USBU investigator charged Mr I. with
smuggling. In August 1996, the same charge was brought against the
Enterprise’s Deputy Director General Mr N. and – in July
1997 – also against the Enterprise’s Director General.
The charge against the latter was subsequently dropped for lack of
any corpus delicti.
- By
letter of 6 September 1997, the Deputy Prime Minister of the Russian
Federation requested the Prime Minister of Ukraine to expedite the
criminal proceedings relating to the aircraft at issue.
- On
16 August 1997 the case was sent to the Kyivsky District Court of
Kharkiv (hereafter “the Kyivsky Court”) for trial
proceedings. On 16 October 1997 the Kyivsky Court allowed the
applicant company to join the criminal proceedings as a civil
claimant. On an unspecified subsequent date the Ministry joined the
proceedings as a civil respondent.
- At
a preparatory hearing on 1 December 1997 the Kyivsky Court held that
further investigations were required and remitted the case to the
Kharkiv Regional Prosecutor’s Office (hereafter “the
Prosecutor’s Office”), which filed an appeal against this
decision.
- On
20 January 1998 the Kharkiv Regional Court dismissed the
prosecution’s appeal, holding inter alia:
“The AN-72 aircraft, which constitutes material
evidence, was unlawfully sold at the pre-trial stage of the
proceedings, thereby prejudging any subsequent court decision.
In view of the fact that [the applicant company’s]
ownership of the AN-72 aircraft is not disputed by anyone and that
this company has been admitted as a civil claimant in the
proceedings, the investigating authorities should take measures, as
provided by law, in order to fulfil the claim in kind or to secure an
equivalent amount of money.”
- The
Deputy Prosecutor of the Kharkiv Region filed a protest
(extraordinary appeal) against the Kyivsky Court’s decisions of
16 October 1997 and 1 December 1997. On 24 June 1998 the Presidium of
the Kharkiv Regional Court dismissed this protest. As regards
the decision of 16 October 1997, it found no reason to deny the
applicant company the status of civil claimant in this criminal case.
- On
1 July 1999, the Prosecutor’s Office submitted the case to the
Kyivsky Court, which committed Mr I and Mr N for trial.
- On
17 November 2000 the applicant company requested the Kyivsky Court to
quash the investigator’s order of 14 December 1995 to put the
aircraft up for sale or, alternatively, to impound the aircraft
pending trial. On the same day, the Kyivsky Court dismissed the first
request and – accepting the applicant company’s argument
that operating the airplane would entail wear and tear and depreciate
its value – accepted the request to impound the aircraft for
the duration of the criminal proceedings.
- On
20 February 2001 the Zaliznychny District Bailiffs’ Service of
Kyiv arrested the aircraft which, at that time, was parked at Kyiv
airport. However, according to a letter dated 30 March 2001 by the
Head of this Bailiffs’ Service, the arrest could not be
maintained as the aircraft had disappeared from its parking place at
this airport.
- On
2 April 2001 the Kyivsky Court ordered the Ministry of the Interior
to inform the court of the whereabouts of the aircraft and to
implement its seizure order of 17 November 2000.
- On
3 April 2001 the Ministry of International Affairs of the Russian
Federation filed a note with the Ministry of International Affairs of
Ukraine, stating that it “would be grateful for the return as
soon as practically possible of the AN-72 aircraft to [the applicant
company]”.
- On
22 May 2001 the Ministry of the Interior appealed against the seizure
order of 17 November 2000 to the President of the Kharkiv Regional
Court and requested its suspension pending the determination of the
appeal. On 28 May 2001 the Kyivsky Court granted this request and
suspended the enforcement of the seizure order. No further
information about these appeal proceedings has been submitted by the
applicant company. Apparently, the seizure order has never been
implemented.
- On
22 June 2001 the Kyivsky Court decided to disjoin the applicant
company’s civil claim from the criminal case, considering that
it would be more appropriate to determine it in civil proceedings.
The applicant company appealed.
- On
6 July 2001 the Kyivsky Court found that the pre-trial investigations
were insufficient and remitted the case to the Prosecutor’s
Office. The accused Mr N. appealed.
- On
22 January 2002 the Kharkiv Regional Court examined both appeals. It
upheld the Kyivsky Court’s decision to remit the case for
additional investigations, but quashed the impugned decision of 22
June 2001 and reinstated the applicant company’s status as
civil claimant in the criminal proceedings.
- On
30 July 2002 the Kharkiv Regional Prosecutor forwarded the case to
the Chervonozavodsky District Court of Kharkiv (hereafter “the
Chervonozavodsky Court”) for trial proceedings.
- On
13 March 2003 the Chervonozavodsky Court accepted a request filed by
the applicant company to seize the aircraft pending the trial
proceedings.
- In
the course of a hearing held on 17 July 2003, the Ministry challenged
the above seizure order on the ground that the law did not entitle a
court to order a general seizure of State property, but only to order
the owner to refrain from specified actions. The Chervonozavodsky
Court held that there was no proof that the Ministry owned the
impugned aircraft. In particular the sales contract was said to be
lost and the license to operate the plane, issued by the Ministry of
Defence, authorised a certain Ministry’s unit to use it,
without any reference being made as to who was its owner. However,
the court decided to quash its ruling of 13 March 2003 and prohibited
the Ministry from disposing of the aircraft in any form whatsoever
and from moving it outside the Zhuliany airport, where it was
stationed at the material time.
- In
the meantime Mr I. died and the charge against him was dropped.
- On
13 October 2004 the Chervonozavodsky Court acquitted Mr N, who by
that time had become the sole defendant in the proceedings, on the
ground of lack of corpus delicti (відсутність
складу злочину).
The court further held that that the investigating authorities’
decision to sell the aircraft was unlawful. Moreover, there was no
cogent proof of the Ministry’s ownership of the aircraft. The
aircraft, which thus remained the applicant’s property and an
item of material evidence, could be disposed of by a court in a
judgment on the criminal case. Based on these findings the
Chervonozavodsky Court ordered that the aircraft be handed over to
the applicant. It, however, found that it had no jurisdiction, in the
criminal case, to entertain the applicant company’s claims for
damages against the Ministry, the Enterprise, the USBU and the
Customs. The prosecutor, the applicant company, the Ministry and
Mr N. (who considered that he should have been acquitted for
lack of any offence – відсутність
події) filed appeals against
this judgment.
- On
31 March 2005 the Kharkiv Regional Court of Appeal (hereafter “the
Court of Appeal”) decided not to entertain the prosecution’s
appeal on the ground that it was not signed by the prosecutor who had
participated in the proceedings before the first instance court. The
appeals of the Ministry, the applicant and Mr N. were rejected as
unsubstantiated. The same parties made cassation appeals.
- On
11 April 2006 the Supreme Court quashed the decision of 31 March
2005 and remitted the case for fresh appellate hearing on the ground
that the Court of Appeal’s refusal to entertain the
prosecutor’s appeal had not been reasonable.
- On
1 August 2006 the Court of Appeal granted the appeal of the
prosecutor, quashed the judgment of 13 October 2004 and remitted the
case to the Prosecutor’s Office for further pre-trial
investigations.
- The
investigation in the case is still pending.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the 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 his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 16 October 1997, when
the applicant company joined the proceedings as a civil claimant. The
period in question has not yet ended. It has thus lasted ten years
and seven months to date, and there has not been a first instance
judgment on the merits of the applicant company’s claim,
although a series of procedural issues have been discussed by the
domestic courts at three levels of jurisdiction.
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
- 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 and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- 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 Frydlender, 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.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant further complained under Article 1 of Protocol No. 1 about
unlawful interference with its property rights.
- The
Government considered that the applicant could not claim to be a
victim of the alleged violation of Article 1 of Protocol No. 1 as the
proceedings are still pending. They considered this complaint being
incompatible ratione personae. The applicant agreed with the
Government that its complaint under Article 1 of Protocol No. 1
depended on the final resolution of the case at the domestic level
and invited the Court to await such resolution.
- The Court notes in this connection that the criminal
proceedings underlying the applicant company’s civil claim are
still pending, as mentioned above. The Court notes that the applicant
company has two civil claims which have not been resolved to date:
the claim concerning the aircraft itself, and the claim for damages.
The claim relating to the aircraft itself is being considered in the
criminal proceedings, and, as the Government contend and the
applicant company agrees, it is therefore premature to consider it
while the criminal proceedings are still pending. The domestic courts
declined to deal with the damages claim in the context of the
criminal proceedings, but it remains open to the applicant company to
bring ordinary civil proceedings in this respect either now or once
the criminal proceedings have ended. Complaints in this regard are
therefore also premature. The Court would point out that, after the
respective final rulings are given, it will be open to the applicant
to re-submit its complaints to the Court if it still considers itself
a victim of an alleged violation of Article 1 of Protocol No. 1
(see Merit v. Ukraine, no. 66561/01, § 48,
30 March 2004). It follows that this part of the application
must be rejected under Article 35 §§ 1 and 4
of the Convention.
III. OTHER COMPLAINTS
- The
applicant further complained under Article 6 §§ 1 and 3 of
the Convention about unfairness of the proceedings with respect to it
and the accused in the criminal case, about lack of impartiality of
the domestic courts and undue consideration of its arguments.
- The
Court, in the light of all material before it, finds that in so far
as the matters complained of are within its competence, they do not
disclose any appearance of an unjustified interference or breach of
these provisions and rejects this part of the application in
accordance with Article 35 §§ 1, 3, and 4 of the
Convention as being manifestly ill-founded.
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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award it any sum on that
account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
Done in English, and notified in writing on 12 June 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
