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FIFTH
SECTION
CASE OF
GAVRYLYAK v. UKRAINE
(Application
no. 39447/03)
JUDGMENT
STRASBOURG
18
June 2009
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 Gavrylyak v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Renate
Jaeger,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
Stanislav
Shevchuk, ad
hoc judge,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 26 May 2009,
Delivers
the following judgment, which was adopted on the above date:
PROCEDURE
- The
case originated in an application (no. 39447/03) 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 Ukrainian national, Mr Bogdan Stepanovych
Gavrylyak (“the applicant”), on 24 April 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
23 January 2008 the Court decided to communicate to the Government
the complaint concerning the length of the criminal proceedings
against the applicant. Under the provisions of Article 29 § 3 of
the Convention it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lives in Lviv.
A. The facts concerning the companies owned by the
applicant
- The applicant owns 99% of shares in a limited liability
company “Sykhiv” (“the Sykhiv company”) and
is the sole owner of a private company “Sykhiv-MB” (“the
Sykhiv-MB company”).
- In February 1997 the “Ukrsotsbank”
bank (“the U. bank”) granted the Sykhiv-MB company a sum
in credit that had to be paid back within a year. The credit was
secured by the company's real estate.
- In
September 1997 the “Prominvestbank” (“the P.
bank”), granted credit to the Sykhiv company, also with the
latter's property as security. The criminal proceedings against the
applicant would later establish that this contract was provided on
the basis of fictitious transactions and in fact was aimed at raising
funds for repayment of the Sykhiv-MB company's debt vis-à-vis
the U. bank (see paragraph 11 below).
- In
October-November 1997, according to the applicant, the State Tax
Administration and the police seized certain financial documents of
both the Sykhiv and Sykhiv-MB companies.
- The
Sykhiv-MB company failed to pay back the debt owed to the U. bank
in a timely manner. Therefore, in March 1998 the notary who had
certified the pledge contract securing the credit issued a writ of
execution for the sale of the pledged property. In May 1998 the
Galytskyy District Court of Lviv (“the Galytskyy court”)
ordered the seizure of that property, which in June 1998 was sold at
a public auction.
B. The criminal proceedings against the applicant
- On
18 March 1997 the Lychakivskyy District Department of the Ministry of
the Interior in Lviv opened a criminal investigation against the
applicant on suspicion of embezzlement of State (or collective)
property. On 9 May 1997 the proceedings were
discontinued as the action in question had ceased to be a criminal
offence.
- On
12 February 1999 the Lviv Regional Prosecutor opened a new criminal
investigation against the applicant on a charge of financial fraud.
He was suspected of having provided a bank with false information
regarding his company's financial situation in order to obtain
credit, which had allegedly caused considerable damage to the bank.
1. The pre-trial investigations
(a) From February 1999 to August 2003
- The
parties' versions of events during this period varied.
- According
to the applicant, he was not aware of the investigation opened
against him on 12 February 1999 until August 2003. He
alleged, however, that in early May 2000 he had discovered from
a letter of the Lviv Regional State Administration that a criminal
investigation against him on a financial fraud charge had been opened
on 24 February 1999 and subsequently discontinued on 15 October 1999.
This was not disputed by the Government.
- In
May-July 2000 the applicant complained to the Lviv Town Prosecutor,
Regional Prosecutor and Prosecutor General that the criminal
investigation against him had been improper, and that he had not been
informed of the grounds for its opening and closure, nor had been
involved in any investigative activities. The outcome of the
applicant's complaints is unknown.
- According
to the Government (see also paragraph 13 above), following
the opening of the criminal investigation on 12 February 1999, he was
summoned several times by the investigating officer for questioning,
but failed to appear.
- According
to the documents submitted by the Government, on 29 May 1999 the
“criminal case against the applicant on a charge of fraud
... [was] ... stayed pending identification of the persons who
had committed the crime”; in August-December 2000 the
investigator issued three warrants to the police to ensure the
applicant's appearance for questioning as a witness; and on 12 March
2001 the investigator issued another warrant for the applicant's
obligatory appearance, but that time as an accused.
- On
14 March 2001 the investigator found the applicant to be absconding
and put him on a wanted list.
- The
Government submitted that the preliminary investigation was stayed
four times pending establishment of the applicant's whereabouts.
The applicant maintained that he had been permanently staying at
his ordinary residential address at which he had not received any
summons. In support of that argument he referred to the fact
that in May 2000 he had filed a number of complaints with the
prosecution authorities, some of those in the course of his personal
meetings with their officials.
- On
12 June 2003 the Galytskyy court authorised a search of the
applicant's dwelling.
- On
5 August 2003 the police apprehended the applicant and conducted a
search in his flat. As a preventive measure pending trial, he was
placed under an undertaking not to abscond.
(b) From August to November 2003
- On
17 November 2003 the applicant was notified about completion of the
pre-trial investigation and was provided with access to the case
file.
- On
24 November 2003 he was officially indicted and his case file was
sent to the court.
2. The trial
- On
8 December 2003 the Galytskyy court held a preliminary hearing. On 19
December 2003 the next hearing was adjourned owing to the applicant's
and the witnesses' failure to appear.
- On
19 January 2004 the applicant sought the withdrawal of the bench
dealing with his case.
- On
21 January 2004 the hearing was adjourned pending a decision on that
matter. The case was referred to the Sykhivskyy District Court of
Lviv (“the Sykhivskyy court”), which held a preliminary
hearing on 1 March 2004. Another eleven hearings then
followed. There were some seven adjournments, including three because
of failures on the part of the witnesses and the prosecutor to appear
and one because the judge was ill. Another adjournment was caused by
a motion of the applicant on the summoning of witnesses.
- On
20 May 2005 the Sykhivskyy court ruled that the case be returned for
additional investigation, having found that the one already conducted
had been flawed and superficial. Both the prosecutor and the
applicant appealed: the former held that the case file already
contained conclusive evidence of the applicant's guilt, while the
applicant maintained that he was clearly innocent and that no further
investigation was required. On 11 October 2005 the
Lviv Regional Court of Appeal upheld the above ruling in the main.
On 26 January 2006 the Supreme Court rejected as
unsubstantiated the applicant's request for leave to appeal in
cassation.
3. The additional investigation ordered by the court
- According
to the Government, in December 2005 and later on in April-September
2006, the investigation was stayed five times on account of the
applicant's illness. The applicant denied this.
- In
March 2006 the applicant complained to the Regional Prosecutor about
a lack of any visible progress in the additional investigation
ordered by the court. In response, he was informed that the
investigating officer in charge had been disciplined for some
procedural violations.
- On
29 August 2006 a warrant was issued for seizure from the bank of
certain classified financial documents relevant for the
investigation, and in September 2006 the seizure took place.
- On
30 August 2006 the investigator issued a ruling on finding the
whereabouts of some witnesses.
- On
19 October 2006 the applicant was notified about the completion of
the pre-trial investigation and was provided with access to the case
file.
- On
30 October 2006 the case was referred to the Galytskyy court.
4. The trial following the additional investigation
- On
10 November 2006 the court held a preliminary hearing, for which the
applicant and the plaintiff failed to appear.
- The
case was subsequently referred to the Sykhivskyy court, which held
some ten hearings. According to the information provided by the
Government, there were nine adjournments: three owing to the
prosecutor's failure to appear, three caused by the applicant's
motions, and three for other reasons. The applicant submitted that
the prosecutor had failed to appear for hearings more than ten times.
- On
17 April 2008 the applicant unsuccessfully sought the withdrawal of
the bench of the Sykhivskyy court.
- On
18 April 2008 he also unsuccessfully complained about the bench of
the Regional Court of Appeal before the Supreme Court, alleging that
it had been involved in a “robbery” against him.
- On
22 April 2008 the Sykhivskyy court found the applicant guilty of
financial fraud and sentenced him to two years' imprisonment and to a
one-year disqualification from holding certain administrative and
commercial positions. He was, however, released from serving the
sentence under the statute of limitations. The court also found
unsubstantiated the prosecution's statement about the applicant's
absconding during the pre-trial investigation, having noted that he
had been addressing various authorities with complaints during that
time and that there were thus no reasons to consider him to have been
avoiding the investigation.
- On
30 April 2008 the applicant challenged the verdict by a complaint,
which he considered to be a cassation appeal, while the Court of
Appeal regarded it as an ordinary appeal. As the applicant insisted
that it was a cassation appeal to be considered by the Supreme Court,
on 8 July 2008 the Court of Appeal ruled to leave it
without consideration.
- On
26 February 2009 the Supreme Court rejected the applicant's request
for leave to appeal in cassation as unsubstantiated.
C. The proceedings instituted by the Sykhiv-MB company
1. Before the commercial courts
- In July 1998
the Sykhiv-MB company lodged a claim with the Lviv Regional
Arbitration Court against the U. bank, seeking the return of part of
its property allegedly in excess of the collected debt (see paragraph
9 above).
- In
August 2002 the company made some modifications to its claims.
- On
26 September 2002 the Regional Commercial Court ruled to discontinue
the proceedings, having found the modified claims to be beyond the
scope of the commercial procedure.
- On
14 October 2002 the Lviv Commercial Court of Appeal rejected the
company's request for leave to appeal on account of procedural flaws
which had not been rectified.
- On
14 January 2003 the Higher Commercial Court ruled that the company's
cassation appeal be left without consideration for having been lodged
out of time.
- On
10 April 2003 the Supreme Court rejected the company's request for
leave to appeal in cassation as unsubstantiated.
2. Before the civil courts
- The
Sykhiv-MB company complained to the Galytskyy court about the bailiff
in charge of the auction at which its property had been sold.
- On
4 March 1999 the court ruled to leave that complaint without
consideration, having found that it had to be considered within a
contentious civil procedure, which the company could initiate by
lodging an appropriate claim. On 29 March 1999 the Lviv Regional
Court upheld the above ruling. Apparently, the Sykhiv-MB company did
not lodge such a claim.
D. The inheritance-related dispute
- On
26 July 2004 the applicant's father died. In a judgment of
27 August 2004 the Rogatyn Town Court recognised the
entitlement of the applicant's brother D. to a house bequeathed to
him by his – and the applicant's – deceased father.
- On
14 September 2004 the applicant requested the court to review the
above judgment under newly discovered circumstances.
- On
17 November 2004 the court found against the applicant.
- On
8 February 2005 the Ivano-Frankivsk Regional Court of Appeal upheld
the judgment.
- The
applicant lodged an appeal in cassation which apparently remains
undecided.
E. The criminal complaints by the applicant
- The
applicant complained several times to the police and prosecution
authorities about arson attempts on his flat, threats to his and his
family's life by “state officials”, alleged misconduct of
the police during his apprehension in August 2003, and the fact that
he had been “robbed” by the court which had passed the
judgment against him.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE CRIMINAL
PROCEEDINGS
- The
applicant complained that the criminal proceedings against him had
been excessively long. He relied on Articles 6 § 1
and 13 of the Convention, which provide, in so far as relevant, as
follows:
Article 6 § 1
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal ...”
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
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
1. Period to be taken into consideration
- The
Government submitted that the period at issue started on
12 February 1999 when the criminal proceedings were brought
against the applicant for suspected financial fraud and ended on
8 July 2008 with a decision of the Lviv Regional Court of
Appeal to leave his appeal without consideration (see paragraphs 11
and 38 above).
- The
applicant considered the period concerned to have commenced on
18 March 1997, when the criminal case was opened against
him for embezzlement (see paragraph 10 above).
- The Court reiterates that the period to be taken into
consideration in determining the length of criminal proceedings
begins with the day on which a person is “charged” within
the autonomous and substantive meaning to be given to that term (see,
for example, Fedko v. Ukraine, no. 17277/03,
§ 22, 12 June 2008). “Charge”, for the
purposes of Article 6 § 1 of the Convention, may
be defined as “the official notification given to an individual
by the competent authority of an allegation that he has committed a
criminal offence”, a definition that also corresponds to the
test whether “the situation of the [suspect] has been
substantially affected” (see Eckle v. Germany,
judgment of 15 July 1982, Series A no. 51, p. 33, § 73).
The relevant period ends with the day on which a charge is finally
determined or the proceedings are discontinued (see Rokhlina
v. Russia, no. 54071/00, § 81, 7 April 2005).
- The
Court notes at the outset that the criminal investigations against
the applicant opened on 18 March 1997 constituted separate
proceedings that were discontinued as soon as 9 May 1997.
It thus finds no reason to include their duration in the period to be
taken into consideration for the present purposes.
- Applying
the above principles of its case-law to determine the dies a quo
in the present case, the Court observes that the investigating
authorities apparently failed to promptly notify the applicant about
the opening of a criminal case against him on 12 February 1999 for
reasons disputed by the parties (the Government alleged that the
applicant was absconding, while the latter insisted on his
involuntary ignorance). As submitted by the applicant and not
contested by the Government, at the beginning of May 2000 the
applicant found out from an indirect source about the criminal
investigation against him, albeit with a different date of opening
and with the information that it had been discontinued by that time.
- Having
regard to all the circumstances of the case before it, including the
applicant's numerous complaints to the prosecution authorities in
2000 (see paragraph 14 above), which undoubtedly
demonstrated his anxiety about the grounds and status of the charge
against him, the Court will calculate the period to be taken into
consideration from the beginning of May 2000 (see, mutatis
mutandis, Totchev v. Bulgaria, no. 58925/00, §§ 75-76,
30 November 2006).
- The
period to be considered thus lasted from early May 2000 to
26 February 2009, that is eight years and ten months for
the investigation and two levels of jurisdiction.
2. The reasonableness of the length of the proceedings
- The
Court reiterates that the reasonableness of the length of these
proceedings must be assessed in the light of the circumstances of the
case and with reference to the criteria laid down in the Court's
case-law, in particular the complexity of the case, the applicant's
conduct and the conduct of the competent authorities (see, among many
other authorities, Pélissier and Sassi v. France [GC],
no. 25444/94, § 67, ECHR 1999-II, and Lugovoy v.
Ukraine, no. 25821/02, § 33,
12 June 2008).
- The
Government opined that the criminal proceedings had concerned complex
financial issues and involved numerous participants. They further
submitted that a number of delays were attributable to the applicant,
referring to the latter's absconding and illness. To be precise, the
Government submitted that the applicant had been avoiding the
investigation for about three and a half years, and that the
investigation was stayed because of his illness for a total of nine
months.
- The
applicant disagreed. He contested the Government's statements on both
his absconding and his illness as unsubstantiated.
- Having
regard to its finding in paragraph 62 above, the Court notes that the
criminal proceedings at issue lasted for a total of eight years and
ten months, of which: the pre-trial investigation – including
the additional investigation ordered by the court – took about
four years and four months; the first-instance court examined the
case in substance for about two years and eleven months; the
appellate and cassation courts considered the parties' appeal against
the remittal of the case for additional investigation for about eight
months; and the Supreme Court considered the applicant's cassation
appeal during ten months.
- The
Court considers that there is a certain degree of complexity inherent
in the economic nature of the charges laid against the applicant (see
Antonenkov and Others v.
Ukraine, no. 14183/02,
§ 42, 22 November 2005). It notes, in particular, that
the investigation concerned the activities of two companies owned by
the applicant and necessitated the assessment of numerous financial
documents. Nevertheless, the Court does not regard these factors as
justifying the duration of the proceedings for over eight years.
- As
regards the conduct of the applicant and the relevant authorities,
the Court observes that the Government alleged the applicant's
absconding, which, according to them, was the major reason for the
delay, whilst the applicant denied this and attributed the delay to
the inadequacy of the investigation efforts. The domestic courts,
which are definitely better placed than the European Court to assess
the facts, considered the prosecution's submission about the
applicant's alleged absconding during the pre-trial investigation
and, in the verdict of 22 April 2008, found it to have been
unsubstantiated (see paragraph 37 above). The Court finds nothing in
the case file to warrant a different conclusion. It notes at the same
time that on 20 May 2005 the Sykhivskyy court declared
superficial and flawed the pre-trial investigation, which had lasted
for three years and seven months, that being equal to almost half of
the overall duration of the criminal proceedings.
- 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, for example, Lugovoy v. Ukraine, §§
36-37, and Antonenkov and Others v. Ukraine, § 47,
both 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 of the
Convention.
- The
Court does not find it necessary in the circumstances to examine
under Article 13 of the Convention the same complaint as under
Article 6 § 1 (see Inkovtsova v. Ukraine,
no. 39946/03, § 34, 26 July 2007).
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF UNFAIRNESS IN THE CRIMINAL PROCEEDINGS
- The
applicant complained that he had been wrongly convicted of fraud and
that the investigators and the judges involved in his case had been
biased and corrupt.
- The
Court notes that the applicant failed to challenge the verdict before
a court of the appellate instance. Therefore, it considers that the
domestic remedies have not been exhausted in this case.
- Accordingly,
the Court rejects this part of the application as inadmissible under
Article 35 §§ 1 and 4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained that the Ukrainian authorities had violated
Article 1 of the Convention, that the inheritance-related proceedings
had lasted an unreasonably long time and that he and his wife had
been unlawfully deprived of their possessions.
- However,
in the light of all the material before it, and in so far as the
matters complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
- Relying
on the European Agreement Relating to Persons Participating in
Proceedings, the applicant alleged that he had been persecuted and
pressurised by the State authorities with a view to forcing him to
withdraw his application from the Court.
- The
Court notes that this complaint also falls to be examined in
substance under Article 34 of the Convention which reads as follows:
“The Court may receive applications from any
person ... claiming to be the victim of a violation by one of the
High Contracting Parties of the rights set forth in the Convention or
the Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
- The Court reiterates that it is of the utmost
importance for the effective operation of the system of individual
petition instituted by Article 34 that applicants should be able
to communicate freely with the Convention organs without being
subjected to any form of pressure from the authorities to withdraw or
modify their complaints. The expression “any form of pressure”
must be taken to cover not only direct coercion and flagrant acts of
intimidation of applicants or their legal representatives but also
other improper indirect acts or contacts designed to dissuade or
discourage them from pursuing a Convention remedy (see Kurt v.
Turkey, 25 May 1998, § 160, Reports of Judgments and
Decisions 1998-III, and Tanrıkulu v. Turkey [GC], no.
23763/94, § 130, ECHR 1999-IV).
- Turning
to the circumstances of the present case, the Court notes that the
applicant's allegation that pressure was put on him by the State
authorities on account of his application before the Court is wholly
unsubstantiated: he did not provide any evidence either of the
existence of such pressure or of its link with his application before
the Court.
- Therefore,
this part of the application is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
V. 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.”
A. Damage
- The
applicant claimed 24,470,065 euros (EUR) in respect of pecuniary
damage and EUR 154,059 in compensation for non-pecuniary damage.
- The
Government contested the claims as exorbitant and unsubstantiated.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged by the applicant. It makes no award
in this respect. However, the Court considers that the applicant must
have sustained non-pecuniary damage. Ruling on an equitable basis, it
awards him EUR 1,600 under this head.
B. Costs and expenses
- The applicant also claimed EUR 8,053 for the
costs and expenses incurred before the domestic courts and before the
Court. He confirmed with receipts his postal costs for his
correspondence with the Court for the amount of 327.85 Ukrainian
hryvnias.
- The
Government maintained that the applicant had failed to show that the
costs allegedly incurred had been related to the alleged violation
and were reasonable or necessary.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court awards the applicant
EUR 41 for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the applicant's complaint concerning
the length of the criminal proceedings admissible and the remainder
of the application inadmissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the length of
the criminal proceedings;
- Holds that there is no need to examine
separately the applicant's complaint under Article 13 of the
Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,600 (one
thousand six hundred euros) in respect of non-pecuniary damage and
EUR 41 (forty one euros) in costs and expenses, to be converted into
the national currency of the respondent State at the rate applicable
at the date of settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 18 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
