BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF BOLDYREV v. UKRAINE
(Application
no. 27889/03)
JUDGMENT
STRASBOURG
20 January
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Boldyrev v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Rait Maruste, President,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 14 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 27889/03) 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 Oleg Petrovich Boldyrev (“the
applicant”), on 15 August 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
1 December 2008 the
President of the Fifth Section decided to give notice of the
application to the Government. In accordance
with Protocol No. 14, the application was allocated to a Committee of
three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Kharkiv.
1. Background to the case
- At
the material time the applicant was a head of the structural unit of
a joint stock company, “G.”, and the head of a limited
liability company, “U.” (hereinafter “the U.
company”). He was also a major shareholder in the
last-mentioned company.
- On
17 September 1997 the U. company, concluded a sale contract with the
local department of the State Property Fund of Ukraine within the
privatization procedure, acquiring thereby a property right over
non residential premises in Kharkiv.
2. Criminal proceedings against the applicant
- On
15 September 1998 criminal proceedings were instituted against the
applicant in connection with several counts of abuse of power,
financial fraud and forgery concerning the aforesaid companies. A
substantial part of the charges was related to acquiring of the
above-mentioned premises. Later, criminal proceedings were instituted
against Mrs G., Mrs Ga. and Mrs Sh. on account of the same charges.
- On
18 November 1998 the District Prosecutor ordered the applicant’s
detention on remand relying on the seriousness of the charges against
him. In his decision he also noted that the applicant had failed to
appear before the investigator and that he could not be found at his
permanent residence. The applicant was put on the wanted list.
Following this event, the proceedings were suspended. On 15 June 1999
the disputed premises, being evidence in the criminal proceedings
against the applicant, were attached. In the period prior to 22
October 1999 they were resumed in order to perform certain
investigative actions and then, on several further occasions they
were suspended again. On 22 October 1999 the applicant was arrested.
He was remanded in custody.
- On
11 December 1999 and 18 January 2000 the District Prosecutor extended
the duration of the applicant’s pre-trial detention since the
investigation had not been yet completed. In his decisions the
prosecutor advanced the severity of the penalty to which the
applicant was liable and the risk of his absconding.
- In the course of the pre-trial investigation the
law-enforcement authorities carried out, inter alia, some
eighty interviews, thirty-three confrontations, and four forensic
examinations.
- Several
persons and the District Prosecutor brought civil actions against the
accused within these criminal proceedings, seeking salary arrears,
rescission of a number of contracts, in particular, the sale contract
of 17 September 1997, and compensation for non-pecuniary damage.
- On
17 April 2000 and 12 June 2000 the proceedings against Sh. and Ga.,
respectively, were terminated.
- According
to the applicant, by 20 April 2000 when he was officially charged, he
had already hired a lawyer. However on that date the investigator
refused to notify his lawyer regardless of the applicant’s
respective requests to be legally represented while being served with
his indictment. For this reason the applicant refused to familiarise
himself with the bill of indictment and the investigator drew up a
report about this.
- By
June 2000 the pre-trial investigation was completed and the case was
transferred to the Leninsky District Court of Kharkiv (hereinafter
“the District Court”).
- On
11 February 2002 the District Court dismissed the applicant’s
request for release relying on the seriousness of the charges against
him. The District Court further pointed out that not all the evidence
had been yet examined. It found no medical reasons for the
applicant’s release.
- Between
June 2000 and June 2002 the District Court scheduled some forty-two
hearings, four of them were adjourned since the applicant’s
lawyer failed to appear or at his request. On two occasions the
hearings were adjourned because the applicant was ill. On two other
occasions the hearings were adjourned since Mrs G.’s lawyer
failed to appear. Two hearings were adjourned since the aggrieved
parties or witnesses failed to appear. One hearing was adjourned due
to the change of the prosecutor. According to the records provided by
the Government, the District Court questioned forty-one persons.
- On
19 June 2002 the District Court found the applicant guilty of several
counts of abuse of power, financial fraud, forgery, and labour law
breaches and sentenced him to four years and six months’
imprisonment. Mrs G. was sentenced to five years’ imprisonment;
however the court decided to exempt her from serving the sentence.
The court declined to consider the civil claims in respect of salary
arrears and non-pecuniary damage, holding that they should be brought
in separate civil proceedings. It considered the remainder of the
civil claims and partly allowed them. In particular, the court
declared the sale contract of 17 September 1997 invalid. It also
lifted the attachment from the disputed premises and ordered the
property right over them to be transferred back to the State.
- On
17 December 2002 the Kharkiv Regional Court of Appeal (hereinafter
“the Court of Appeal”) pointed out that the applicant’s
right to legal assistance at the pre-trial and trial stages was
impaired and quashed the judgment of 19 June 2002 in the part related
to the charges against the applicant and ordered an additional
investigation. By the same judgment the Court of Appeal upheld the
applicant’s detention on remand without specifying any reasons.
Two hearings scheduled by the Court of Appeal were adjourned since
the applicant’s lawyer failed to appear and one due to the
absence of Mrs G.’s lawyer.
- The
applicant and Mrs G. appealed in cassation against the first-instance
and appellate court decisions. On 29 July 2003 the Supreme Court
rejected those appeals.
- On
13 February and 7 March 2003 the District Prosecutor dismissed the
applicant’s requests for release relying on the seriousness of
the charges against him. He also considered that keeping the
applicant in detention was necessary to secure the proper conduct of
the proceedings given the risk that he might go into hiding.
- By
14 March 2003 the additional investigation was completed and the
criminal case was transferred to the District Court for
consideration.
- On
11 April 2003 the District Court ruled that the preventive measure
was correct and there were no reasons to change it.
- On
25 April 2003, 30 April 2003, 21 May 2003 and 5 August 2003 the
District Court dismissed the applicant’s requests to change the
detention for another preventive measure. The District Court relied
on the seriousness of the charges against the applicant. It also
considered that keeping the applicant in detention was necessary to
secure the proper conduct of the proceedings, given the risk that he
might go into hiding and obstruct the investigation, without,
however, indicating any grounds for such an opinion.
- On
9 September 2003 the District Court found the applicant guilty of
several counts of abuse of power, financial fraud, forgery, and
labour law breaches and sentenced him to three years, ten months and
eighteen days’ imprisonment. The court noted that the applicant
had actually served his sentence while being detained during the
pre-trial investigation and trial and released him. The court also
banned the applicant from holding any financially accountable
position for three years. As to the civil claims, the court declined
to examine them holding that they should be brought in separate civil
and commercial proceedings. He did not appeal against that judgment.
- Between
14 March 2003 and 9 September 2003 the District Court scheduled some
thirteen hearings, two of them were adjourned since the applicant’s
representative failed to appear. One hearing was adjourned since the
District Prosecutor failed to appear.
- On
11 December 2003 the Court of Appeal, upon appeals lodged by the
District Prosecutor and the civil claimants, quashed the judgment of
9 September 2003 in the part related to the civil claims and
remitted that part of the case to the District Court for a new
examination under civil procedure. The Court of Appeal upheld the
remainder of the judgment. On 2 March 2004 and 29 April 2004 the
civil claimants and the applicant, respectively, lodged their appeals
in cassation. On 9 November 2004 the Supreme Court rejected them.
3. Civil and commercial court proceedings
(a) First set of civil proceedings against
the applicant
- On
29 January 2004 the District Court, following the decision of
11 December 2003, declined to examine the claims by the District
Prosecutor and the civil claimants against the applicant as they, in
its view, were within the competence of the commercial courts. On 22
June 2004 and 8 November 2005 the Court of Appeal and the
Supreme Court, respectively, upheld this decision.
(b) Commercial proceedings instituted by
the District Prosecutor on property right over the disputed premises
- On
an unspecified date in July-September 2004 the District Prosecutor
instituted proceedings in the Kharkiv Commercial Court against the U.
company and other persons, seeking to have a number of contracts
related to the disputed premises, including the sale contract of 17
September 1997, declared null and void. The applicant took part in
these proceeding as a third party.
- On
23 April 2008, following a number of rounds in the proceedings, the
Kharkiv Commercial Court found in part for the prosecutor and
declared a number of contracts related to the disputed premises,
including the sale contract of 17 September 1997, null and void;
however it discontinued the proceedings against the U. company
because it had been liquidated. On 18 June 2008 the Kharkiv
Commercial Court of Appeal quashed this judgment in the part related
to the granted claims of the prosecutor and rendered a new one,
rejecting those claims. On 23 October 2008 the Higher Commercial
Court quashed the part of the decision of 18 June 2008 by which the
claims by the prosecutor were rejected. On 15 January 2009 the
Supreme Court dismissed the applicant’s request for leave to
appeal in cassation against the decision of 23 October 2008.
© Applicant’s entitlement to
the disputed premises
- Meanwhile,
in July 2004 the applicant instituted proceedings in the Kharkiv
Commercial Court against the U. company, seeking to have his property
right over the disputed premises acknowledged. On 20 September 2004
the court allowed his claim.
- On
28 February 2005 the applicant sold the premises to a third person.
Later the premises were resold on several occasions.
- On
an unknown date the Higher Commercial Court quashed the decision of
20 September 2004 and remitted the case for a fresh examination.
- On
23 May 2006 the Kharkiv Commercial Court attached the premises in
question.
- On
26 July 2006 the U. company was liquidated following a decision by
its shareholders. Subsequently, on 20 September 2006 the Kharkiv
Commercial Court discontinued the proceedings.
(d) Second set of civil proceedings
against the applicant
- In
October 2005 the civil claimants instituted civil proceedings in the
Zhovtnevy District Court of Kharkiv against the applicant and the
successive owners of the disputed premises, seeking rescission of the
pertinent sale contracts.
- On
14 February 2007 the court found against the claimants. In
particular, it found the last owner of the disputed premises to be a
bona fide purchaser. On 16 May and 29 November 2007 the Court of
Appeal and the Supreme Court, respectively, upheld that decision.
(e) Other related proceedings
- Since 15 June 1999 the disputed premises have been
occupied by the limited liability company, “P.”
- On
26May 2005 the Kharkiv Commercial Court held that the “P.”
company was occupying the premises unlawfully and ordered its
eviction. On 5 July and 13 October 2005 the Kharkiv Commercial Court
of Appeal and the Higher Commercial Court, respectively, upheld that
judgment. On 27 December 2005 the Supreme Court quashed the
judgment and remitted the case for a fresh examination. The applicant
provided no information about the further decisions adopted in the
case.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his detention on remand had
been excessive. He relied on Article 5 § 3 of the Convention,
which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
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
applicant’s detention started on 22 October 1999, when he was
arrested on suspicion of having committed the above-mentioned crimes.
On 19 June 2002 the District Court convicted the applicant. As from
that date he was detained “after conviction by a competent
court”, within the meaning of Article 5 § 1 (a) and,
consequently, that period of his detention falls outside the scope of
Article 5 § 3 (cf. Kudla v. Poland [GC], no. 30210/96,
§ 104, ECHR 2000 XI).
- On
17 December 2002 the Court of Appeal quashed the applicant’s
conviction. Following that date his detention was again covered by
Article 5 § 3. It continued until 9 September 2003 when the
applicant was again convicted.
- Accordingly,
the total period to be taken into consideration amounts to three
years, four months, and nineteen days.
2. Reasonableness of the length of the applicant’s
detention on remand
- The
Government maintained that the domestic authorities had grounds for
holding the applicant in custody, given that he was suspected of
serious crimes and could abscond from justice and obstruct
investigation. They considered that the domestic authorities
conducted the investigation with due diligence given the complexity
of the case.
- The
applicant disagreed.
- The Court reiterates that it is necessary, when
examining the question whether Article 5 § 3 has been observed,
to consider and assess the reasonableness of the grounds which
persuaded the judicial authorities to decide, in the case brought
before the Court, on this serious departure from the rules of respect
for individual liberty and of the presumption of innocence which is
involved in every detention without a conviction (see Stogmüller
v. Austria, judgment of 10 November 1969, Series A no. 9,
§ 4).
- The Court notes that, although the fact that the
applicant went into hiding appears to have given the authorities a
reason for keeping him imprisoned during the pre-trial investigation,
the seriousness of the charges against him and the risk of his
absconding and obstructing the justice remained the only reasons for
the domestic authorities not to change the preventive measure imposed
on him. However, Article 5 § 3 requires that after a certain
lapse of time the persistence of reasonable suspicion does not in
itself justify deprivation of liberty and the judicial authorities
should give other grounds for continued detention (see Jabłoński
v. Poland, no. 33492/96, § 80, 21 December 2000,
and I.A. v. France, no. 28213/95, Reports of Judgments and
Decisions 1998-VII, § 102). Those grounds, moreover, should
be expressly mentioned by the domestic courts (see Iłowiecki
v. Poland, cited above, § 61). From the materials available
to the Court, it does not appear that the domestic courts gave any
such reasons or seriously considered any alternative preventive
measures instead of detention - by relying essentially on the gravity
of the charges, the authorities prolonged the applicant’s
detention on grounds which cannot be regarded as “relevant and
sufficient”. Furthermore the Court notes that in its decisions
of 17 December 2002 and 11 April 2003 the domestic courts did not
advance any grounds whatsoever for maintaining the applicant’s
detention.
- The foregoing considerations are sufficient to enable
the Court to conclude that there has been a violation of Article 5 §
3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF CRIMINAL PROCEEDINGS
- The
applicant complained that the length of criminal 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 ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
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. The parties’ submissions
- The
Government contested the applicants’ submissions, stating that
there had been no significant periods of inactivity attributable to
the State. They maintained that the criminal case was complex, given,
in particular, the number of the participants involved in the
criminal proceedings. According to the Government, the applicant and
the other participants had been responsible for several delays.
- The
applicant disagreed.
2. Period to be taken into consideration
- The
criminal proceedings were instituted on 15 September 1998. The period
during which the applicant was on the run (18 November 1998 to
21 October 1999) should be excluded from the overall length of
the proceedings (see Girolami v. Italy, judgment of 19
February 1991, Series A no. 196-E, § 13, and Smirnova v.
Russia, nos. 46133/99 and 48183/99, § 81, ECHR
2003 IX). The proceedings ended on 9 November 2004. Therefore,
the period in question lasted about five years and three months at
three levels of jurisdiction.
3. Reasonableness of the length of the proceedings
before the domestic courts
- 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,
Pélissier and Sassi v. France [GC], no. 25444/94, §
67, ECHR 1999-II). What is at stake for the applicant has also
to be taken into consideration. In this respect the Court recalls
that an accused in criminal proceedings should be entitled to have
his or her case conducted with special diligence and Article 6 is, in
criminal matters, designed to ensure that a person who has been
charged does not remain for too long in a state of uncertainty about
his or her fate (see Nakhmanovich v. Russia, no. 55669/00,
§ 89, 2 March 2006).
- The
Court also notes that the applicant spent more than three years and
four months in custody. This fact required particular diligence on
the part of the authorities and courts dealing with the case to
administer justice expeditiously (see Abdoella v. the Netherlands,
25 November 1992, § 24, Series A no. 248-A).
- The Court accedes to the Government’s contention
that the number of the persons involved in the proceedings might have
increased the complexity of the case to a certain extent and that the
conduct of the applicant and other participants caused some delays.
However, the Court finds that this alone cannot explain the overall
length of the proceedings at issue in the present case.
- The
Court notes that the major delay was caused by the remittal of the
case for an additional investigation. In this respect the Court
reiterates that a repetitive re-examination of the case within one
set of proceedings can disclose a serious deficiency in the domestic
judicial system (see Wierciszewska v. Poland, no. 41431/98, §
46, 25 November2003).
- 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 Pélissier and Sassi,
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.
III. OTHER ALLEGED VIOLATIONS OF
THE CONVENTION
- Referring
to Article 5 § 1 of the Convention, the applicant complained
that on 22 October 1999 he had been arrested by decision of a
prosecutor and not of a court. He further submitted that from 22
October 2002 onwards he had been detained unlawfully in so far as by
this date he had already served two thirds of his sentence and
therefore should had been granted remission of one third of the
sentence.
- In
his letter to the Court of 13 August 2004 the applicant also invoked
Article 5 §§ 2, 4 and 5 of the Convention. The applicant
further challenged the outcome of the criminal proceedings relying on
Articles 6 § 1 and 13 of the Convention. Relying on Article
6 § 3 (c) of the Convention, the applicant complained of a lack
of legal assistance in the period from 20 April 2000 to 17 December
2003. He also invoked Article 6 § 2 of the Convention.
- In
his submissions of 20 April 2004 the applicant complained under
Article 3 of the Convention about the conditions of his detention. In
his letter to the Court of 12 August 2005 the applicant complained
under Article 1 of Protocol No. 1 that the State authorities had
impeded his enjoyment of the disputed premises.
- Having
carefully examined the applicant’s submissions in the light of
all the material in its possession, 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.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 of the Convention
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.”
A. Damage
- The
applicant claimed 100,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government contested this claim.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, ruling on an equitable basis, it awards the applicant
EUR 2,700 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant made no separate claim as to costs and expenses. Therefore,
the Court makes no award under this head.
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 complaints
concerning the length of pre-trial detention and of criminal
proceedings admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention on account of the length of pre-trial
detention;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the length of criminal
proceedings;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
EUR 2,700 (two thousand seven hundred euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage, to be converted
into the national currency of the respondent State at the rate
applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 20 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait
Maruste
Deputy Registrar President
