SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 66561/01 
by Sam MERIT 
against Ukraine

The European Court of Human Rights (Second Section), sitting on 22 October 2002 as a Chamber composed of

Mr J.-P. Costa, President
 Mr L. Loucaides
 Mr C. Bîrsan
 Mr K. Jungwiert
 Mr V. Butkevych
 Mrs W. Thomassen
 Mrs A. Mularoni, judges
and    Mrs   S. Dollé, Section Registrar,

Having regard to the above application introduced on 13 November 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Sam Merit, is an Israeli national, who was born in 1939 and lives in Poland. He also owns ninety-nine per cent of the shares in the company Jason Development Enterprises Ltd (hereafter the “JDE”).

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The criminal investigation against the applicant

On 29 September 1997 the Vadul-Syretska Customs Service of the State Customs Department of Ukraine conducted a customs check of the coffee-tilling goods supplied by the Jason Industries company as a contributory to the statutory fund of the joint-stock company, JDE. The customs check showed that a cargo-customs declaration had been made by the representatives of JDE on the basis of false documents. On the same date the Vadul-Syretska Customs Service initiated a criminal investigation into alleged smuggling and fraud offences. On 29 September 1997 the case was transferred to the Prosecution Service of Chernivtsi Region (hereafter “the prosecution”) for further investigation. On the basis of resolutions of the prosecution of 10 October 1997, 20 October 1997, 18 November 1997 and 19 January 1998, the Vadul-Syretska Customs Service seized documents pertaining to the financial and commercial activities of the Jason Industries company. On 13 October 1997 the prosecution seized the property of JDE as evidence, and on 16 October 1997 it froze JDE’s accounts.

On 28 January 1998 the prosecution brought formal charges against the applicant based on a violation of Article 70 of the Criminal Code (smuggling), Article 148-2 (tax evasion), Article 148-5 (financial fraud), Article 172(2) (fraud committed by an official) and Article 194(2) (use of a forged document). On the same date the prosecution adopted a resolution detaining the applicant on remand in view of the pending criminal investigation.

On 29 June 1999 the Leninsky District Court of Chernivtsi ordered the prosecution to conduct an additional investigation into the circumstances of the case. In the course of the proceedings the applicant lodged a motion with the Leninsky District Court of Chernivtsi seeking his release. His motion was rejected by the Leninsky District Court of Chernivtsi since there was a risk that he might abscond. In July 1999 the prosecution sought the annulment of the remittal decision before the Chernivtsi Regional Court on the grounds that there was already sufficient corroborating evidence. On 10 August 1999 the Chernivtsi Regional Court rejected the prosecution application and specified that it was necessary to undertake additional investigations in order to reconstruct the crime.

On 25 August 1999 the applicant was released from detention by the prosecution.

In May 2000 the applicant instituted proceedings against the prosecution, demanding the termination of the criminal investigation against him. On 2 June 2000 the Leninsky District Court rejected his claims as being outside the court’s jurisdiction under Article 248-3 of the Code of Criminal Procedure, due to the existence of a special procedure for lodging claims against the actions of the prosecution, pursuant to the Law of 1 December 1994 on Compensation for Damage Caused by Illegal Actions of a Court, Prosecution or Law-Enforcement Bodies, in respect of measures which lead to the mental or physical harm of an individual.

On 7 July 2000 the criminal investigation was terminated for lack of corroborating evidence. On 19 September 2000 the prosecution transferred the case for additional investigations. On 7 December 2001 the prosecution informed the applicant that the criminal charges against him were still being investigated.

2. Proceedings instituted by the company owned by the applicant

In December 1999 JDE instituted proceedings in the Leninsky District Court of Chernivtsi against the Government of Ukraine, the Chernivtsi Regional Administration and the Prosecution of the Chernivtsi Region seeking the return of its property and documents. On 25 April 2000 the Leninsky District Court of Chernivtsi rejected the claims as being unsubstantiated. On 31 May 2000 the Chernivtsi Regional Court upheld this decision.

B.  Relevant domestic law and practice

1. Constitution of Ukraine of 28 June 1996

Article 29

“Every person has the right to freedom and personal inviolability.

No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law.

In the event of an urgent need to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours.  The detained person shall be released immediately if, within seventy-two hours from the time of detention, he or she has not been provided with a substantiated court decision relating to the custody.  

Everyone arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the time of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of a defender.

Everyone detained has the right to challenge his or her detention in court at any time. 

Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.”

2. Code of Criminal Procedure of 28 December 1960 (as amended on 21 June 2001)

Article 78

Material evidence

“Material evidence consists of objects used to commit the crime, objects bearing traces of the crime or which were the subject of a criminal act: money, valuables and other objects acquired by illegal means and all other objects that may constitute a means of solving the crime and finding the guilty parties or refuting the charges, or proving the absence of guilt or mitigation for the punishment.“

Article 80

Terms for preserving material evidence

“Material evidence shall be preserved until the enforcement of a judgment or expiry of the period for appealing against the resolution or ruling terminating the proceedings in a criminal case.

Documentary evidence shall be stored in connection with the case and provided to persons, enterprises, institutions and organisations concerned at their request.

In the event of a dispute with regard to the ownership of objects constituting material evidence, they shall be preserved until the enforcement of the judgment of the court delivered in the case of civil proceedings.

Perishable material evidence that cannot be returned to the owner shall be immediately transferred to the relevant State and co-operative organisations for sale. In the event that a need arises for such evidence to be returned, the organisations that have received it shall return the objects or refund their cost in accordance with the price existing at the time of return.”

Article 81

Determination of the issue of the return of material evidence

“The issue of material evidence shall be decided by a court judgment, ruling or resolution, or a resolution of the body of inquiry, investigator, or prosecutor terminating of the case:

1) instruments of the crime that belong to the accused shall be confiscated;

2) objects withdrawn from circulation shall be transferred to appropriate institutions or [shall be] destroyed;

3) objects that have no value and cannot be used shall be destroyed or, where requested by interested persons, transferred to them;

4) money, valuables and other objects acquired by criminal means shall be returned to their lawful owners: if they cannot be found, the money, valuables and objects shall be credited to the State.

A dispute with regard to the ownership of property that is returned shall be settled in the course of civil litigation.”

Article 148

Purpose and grounds for the application of preventive measures

“Preventive measures shall be imposed on a suspect, accused, defendant, or convicted person in order to prevent his/her attempts to abscond from an inquiry, investigation or the court, to obstruct the establishment of the truth in the criminal case or pursue criminal activities, and to ensure the execution of procedural decisions.

Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect, accused, defendant or convicted person will attempt to abscond from investigation and the court, or fails to comply with procedural decisions, or obstructs the establishment of the truth in the case and continue the criminal activity.

If there are insufficient grounds for the imposition of preventive measures, the suspect, accused or convicted person shall sign a written statement undertaking  to appear upon notification by the inquirer, investigator, prosecutor or the court, and shall also undertake to notify them of any change in his place of residence.

If a preventive measure is applicable to a suspect, he shall be charged within 10 days from the time of imposition of the measure. In the event that the indictment is not issued within that time, the preventive measure shall be annulled.”

Article 149

Preventive measures (запобіжні заходи)

“The preventive measures are as follows:

1) an undertaking not to abscond (підписка про невиїзд);

2) a personal undertaking (персональна порука);

3) an undertaking of a public organisation or labour collective (порука громадської організації або трудового колективу);

3-1) bail (застава);

4) remand in custody (тримання під вартою);

5) supervision by the command of a military unit (нагляд командування війської частини).

As a temporary preventive measure, a suspect can be detained on the grounds and pursuant to the procedure provided for by Articles 106, 115 and 165-2 of this Code.”

Article 150

Circumstances that shall be taken into account in choosing a preventive measure

“In resolving the issue of imposing a preventive measure, in addition to the circumstances specified in Article 148 of this Code, such circumstances as the gravity of the alleged crime, his/her age, state of health, family and financial status, type of activity, place of residence and other circumstances relating to the person, shall be taken into consideration.”

Article 212

Forms of termination of the pre-trial investigation

“The pre-trial investigation is terminated by the drafting of the bill of indictment or the order discontinuing the case or referring the case to the court for termination of the proceedings, or an order transferring the case to the court in order to resolve the issue of imposing coercive measures of a medical nature.”

Article 213 (2)

Grounds for terminating a case

“A criminal case shall be terminated: ...

2) if the participation of the accused in the commission of the offence has not been proved.”

 

Article 214

Procedure for terminating the case

“An investigator terminates the case by a substantiated order, in which, in addition to the data referred to in Article 130 of this Code, he gives:

information about the personality of the accused, the merits of the case, grounds for the termination of the criminal case, a decision on the termination of the preventive measure and measures for securing the civil claim and possible confiscation of property, and also a decision with regard to the material evidence in accordance with Article 81 of this Code.  ...

A copy of the resolution terminating the case shall be sent to the prosecutor, the person against whom the criminal proceedings were brought, the person on the basis of whose application the case was initiated, the victim and the civil plaintiff.”

Article 215

Claims against the resolution terminating a criminal case

“The investigator’s resolution terminating the case can be appealed against to the prosecutor within seven days from the receipt of the notice of termination of the proceedings or a copy of the resolution terminating the case.

A person against whom the criminal investigation was initiated has the right to appeal against the part of the resolution concerning the grounds and reasons for terminating the case...

In the event that an investigator’s resolution terminating the case is appealed against, the prosecutor shall examine the case and, not later than 30 days after receiving the appeal, annul the resolution terminating the case and resume the pre-trial investigation or refuse to allow the appeal and notify the appellant accordingly.”

Article 216

Resumption of the investigation in a case that has been terminated

“A pre-trial investigation in a case that was terminated may be resumed by order of the prosecutor, of the head of the inquiry department and, in the cases provided for by part 3 of Article 236-6 of this Code, by the judge’s resolution, within the established time-limit for instituting criminal proceedings ...”

 

Article 236

Complaints against the prosecutor’s actions

“Complaints about the prosecutor’s actions during the conduct of the pre-trial investigation or other individual investigative actions in the case shall be submitted to the superior prosecutor, who shall consider them in accordance with the procedure and within the terms prescribed by Articles 234 and 235 of this Code.

A complaint about the prosecutor’s actions can be lodged with the court.

Complaints about the prosecutor’s actions shall be considered by the first-instance court in the course of the preliminary consideration of the case or in the course of its consideration on the merits, unless otherwise provided for by this Code.”

Article 281

Remittal of a case for additional investigation

“Remittal of a case for additional investigation in view of an incomplete or incorrect pre-trial investigation can take place only where this incompleteness or incorrectness cannot be rectified during the court session.

In the event that an issue of remittal of the case for additional investigation arises upon hearing the opinion of the prosecutor and other participants in the trial, the court shall resolve this issue by a reasoned ruling, and the judge by a resolution in the deliberations room.

After the additional investigation, the case is referred to the court in accordance with the procedure envisaged by law.

The parties to the case can appeal against the ruling or resolution within seven days of its adoption...”

3. Code of Civil Procedure

Article 248(3)

Complaints about decisions and actions outside the jurisdiction of the courts

“The following complaints are outside the courts’ jurisdiction:  ...

- ... the actions or acts of an official of a body of inquiry, preliminary investigation, prosecution or court with regard to which a different procedure for lodging claims is established....”  (provision declared unconstitutional by the decision of the Constitutional Court of Ukraine No. 6-pп/2001 of 23 May 2001).

Law of Ukraine on the procedure for compensation for damage to the citizen by unlawful actions of bodies of inquiry, preliminary investigation, prosecution and the court of 1 December 1994 (as amended on 21 December 2001)

Section 1

In accordance with the provisions of this Law the following damage inflicted on citizens shall be compensated:

“1) unlawful conviction, unlawful indictment, unlawful detention, an unlawful search conducted in the course of an investigation or judicial consideration of the case, impoundment, seizure of property, unlawful dismissal from work, and other procedural actions that restrict the citizen’s rights;   ...

In the events provided for in paragraph 1 of this Article, the damage inflicted shall be fully compensated irrespective of the guilt of the officials of the bodies of inquiry, preliminary investigation, prosecution or court.”

Section 2

A right to damages, in the amounts and pursuant to the procedure envisaged by this Law, arises in the event of:

“1) an acquittal by the court;

2) termination of the proceedings in a criminal case due to the lack of actus reus, a lack of corpus juris in the act or omission, or a lack of proof of participation by the accused in the crime;  ...

The right to recover compensation for damage inflicted by the investigative actions specified in section 1 of this Law arises if, for three months after the conduct of such actions, no decision has been adopted to bring a criminal case, or such a decision has been annulled.”

COMPLAINTS

1. The applicant complains of the length and unlawfulness of his detention, alleging an infringement of Article 5 §§ 1 and 3 of the Convention.

2. The applicant complains of a violation of the requirement of fairness in the proceedings, invoking the whole of Article 6 of the Convention.

3. The applicant complains under Article 6 § 1 of the Convention of the length of the criminal investigation against him.

4. He also alleges an infringement of Articles 3, 4, 8, 13 and 14 of the Convention.

THE LAW

1. The applicant alleges that his detention was unlawful and unreasonably long, contrary to Article 5 §§ 1 and 3 of the Convention, which provisions guarantee, inter alia, the right to liberty, except in certain prescribed circumstances, and the right to a trial within a reasonable time or release pending trial.

However, the Court notes that the applicant’s detention was sanctioned by a prosecutor on 28 January 1998, as was his release on 25 August 1999, but his application to the Court was lodged more than six months after both these dates on 13 November 2000.

It follows that these complaints have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. The applicant next complains, essentially, of an unfair hearing in relation to the proceedings seeking the termination of the criminal investigations against him, and the unsuccessful outcome of the proceedings brought by his company for the return of property and documents. He invokes the whole of Article 6 of the Convention, but the Court considers that only the first paragraph of that provision is relevant to the complaints, which paragraph provides in so far as relevant as follows:

“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. ...”

The Court recalls that it is not a court of appeal from the domestic courts and cannot intervene to investigate claims that they have reached an allegedly wrong decision (see, for example, the judgment of 21 January 1999 in the case of García Ruiz v. Spain [GC], no. 30544/96, ECHR  1999-I, § 28). Moreover, even assuming that these procedures fall within the scope of Article 6 § 1 of the Convention, the Court finds no evidence whatsoever in the materials before it of any unfairness. The Court notes that the applicant enjoyed the right to adversarial proceedings with the participation of all interested parties. Within the framework of the proceedings, the applicant was able to introduce all necessary arguments in defence of his interests, and the judicial authorities gave them due consideration. The Court concludes therefore that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and must be rejected in accordance with Article 35 § 4.

3. The applicant also complains that the criminal proceedings against him have exceeded the “reasonable time” requirement in Article 6 § 1 of the Convention, cited above.

However, the Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint, and that it is therefore necessary, in accordance with Rule 54 § 3 of the Rules of Court, to give notice of this part of the application to the respondent Government.

4. The applicant further complains of the infringement of his rights under Articles 3, 4, 8, 13 and 14 of the Convention, which provide, respectively, for freedom from torture and slavery, the right to respect for private and family life, home and correspondence, the right to effective domestic remedies for Convention breaches and freedom from discrimination in the enjoyment of Convention rights. 

As to the complaints of a violation of Articles 3, 4 and 14 the Court finds that they are wholly unsubstantiated and should therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

As to the complaints under Article 8, the Court finds nothing in the case-file which might disclose any appearance of an unjustified interference with  the applicant’s rights under this provision. It therefore considers that this part of the application must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

As to the complaints under Article 13, the Court finds that it is not necessary to examine these complaints separately from those made above, other than that linked to the issue concerning the length of the criminal proceedings under Article 6 § 1 of the Convention. The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this aspect of the Article 13 complaints, and that it is therefore necessary, in accordance with Rule 54 § 3 of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints regarding the length of the criminal proceedings and an alleged absence of effective domestic remedies for that complaint, under Articles 6 § 1 and 13 of the Convention,

Declares inadmissible the remainder of the application.

S. Dollé J.-P. Costa 
 Registrar President

MERIT v. UKRAINE DECISION


MERIT v. UKRAINE DECISION