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FIFTH SECTION
CASE OF GRABCHUK v. UKRAINE
(Application no. 8599/02)
JUDGMENT
STRASBOURG
21 September 2006
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 Grabchuk v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a
Chamber composed of:
Mr P. Lorenzen,
President,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek,
Section Registrar,
Having deliberated in private on 30 August 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 8599/02)
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 Ukrainian national, Ms
Mariya Mykhaylivna Grabchuk (“the applicant”), on 23
October 2001.
- The Ukrainian Government (“the Government”)
were represented by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.
- On 5 July 2005 the Court declared the application
partly inadmissible and decided to communicate the complaints under
Articles 6 § 2 and 13 of the Convention concerning a presumption
of the applicant’s innocence and availability of effective
domestic remedies to the Government. 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.
- On 1 April 2006 this case was assigned to the newly
constituted Fifth Section (Rule 25 § 5 and Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1949 and resides in the
village of Liski, Volyn region, Ukraine.
- In 1993-1994 the applicant worked as a director of a
café in the town of Volodymyr-Volynskyy, Volyn region,
Ukraine.
A. Criminal proceedings against the applicant
- On 14 February 1995 criminal proceedings were
instituted against the applicant for plundering State property
(Article 84 § 1 of the Criminal Code).
- On 6 June 1995 the applicant was charged with
plundering State property in particularly large quantities (Article
86 § 1 of the Criminal Code). The same day she was arrested.
- On 9 June 1995 the applicant was released on bail
subject to an undertaking not to abscond (підписка
про невиїзд).
- On 26 December 1997 the criminal case was terminated
for want of proof of a crime.
- On 13 July 1999 the Prosecutor of Volodymyr-Volynskyy
District quashed the decision of 26 December 1997 and sent the case
for further investigation.
- By a decision of 5 October 1999, the criminal
proceedings against the applicant were terminated partly for want of
proof of a crime and partly on the ground that the further
prosecution in her case was time-barred. The investigator did not
find it proven that the applicant had been involved in plundering,
but considered that her actions could be classified as negligence,
which was an offence under Article 167 of the Criminal Code in the
wording which was in force at the relevant time (see paragraph 27).
However, given that the statutory time-limit for prosecuting the
applicant for negligence had passed, the criminal case in respect of
that charge had to be discontinued as time-barred.
- On 22 October 1999 the applicant complained to the
Prosecutor of Volodymyr-Volynskyy District about the decision of 5
October 1999. This complaint was rejected. The applicant appealed to
the court.
- On 22 December 1999 the Volodymyr-Volynskyy District
Court allowed the applicant’s appeal and quashed the decision
of 5 October 1999. The court noted that a criminal case could be
terminated on non-exonerative grounds, like a time-bar on further
prosecution, only with the consent of the prosecuted person. As the
applicant had never agreed to the termination of the case on this
ground the investigation should be continued.
- On 29 February 2000, the investigator terminated the
criminal proceedings against the applicant on the same grounds as
previously.
- On 3 November 2000, the same court, upon the
applicant’s appeal, quashed this decision and remitted the case
for a fresh consideration.
- On 4 December 2000 the criminal case against the
applicant was terminated for want of proof of a crime. At the same
time, in his decree terminating the criminal proceedings against the
applicant, the investigator mentioned that the courts had quashed the
previous decisions on termination of the criminal case on
non-exonerative grounds, because the applicant had not agreed. In the
investigator’s opinion the applicant’s consent was not
necessary, because even though her conduct could be qualified as a
crime of negligence, no criminal proceedings could be instituted, as
prosecution was time-barred and she could not be considered as an
accused in this respect. The investigator, therefore, decided that:
“In the actions of Ms Mariya Mykhaylivna Grabchuk
there are corpus delicti (є склад
злочину), provided for
in Article 167 of the CCU [the Criminal Code of Ukraine], that is
negligence, of which she herself confessed to be guilty.
Nevertheless, taking into account that from the moment when she had
committed that crime (час скоєння
нею даного
злочину) the
time-limits had expired... the institution of a criminal case under
Article 167 of the CCU should be rejected for being time-barred...”
- The applicant challenged the decision of 4 December
2000, requesting that her guilt be proved in judicial proceedings in
accordance with Article 62 of the Constitution. She further submitted
that closing the criminal case against her on non-exonerative grounds
deprived her of a possibility to receive compensation for the
unlawful actions taken against her.
- On 26 April 2001 the Volodymyr-Volynskyy Local Court
rejected the applicant’s complaint about the decision of 4
December 2000. In its decision the court stated in particular:
“As it appears from the materials of the criminal
case against M.M. Grabchuk and the decision of the head of the
investigating unit of the Volodymyr-Volynsky Department of Interior
of 4 December 2000, the actions of M.M. Grabchuk disclose signs of
the corpus delicti (ознаки
складу злочину)
provided for in Article 167 of the CCU [the Criminal Code of Ukraine]
and she had acknowledged her guilt of having committed this offence.
According to Article 167 of the CCU, in the wording of
1993-1994, ... this crime was punishable by imprisonment for a period
of up to two years.
Under Article 48 § I (2) of the CCU, a person
cannot be charged with an offence if three years have elapsed from
the date when a criminal offence punishable under the law by
imprisonment for a period of up to two years was committed.
Under Article 6 § I (3) [of the Code of Criminal
Procedure] no criminal proceedings could be initiated and any
proceedings which had been started should be terminated as
time-barred.
Therefore, in the above circumstances, no criminal case
charging M.M. Grabchuk with an offence under Article 167 of the CCU
could be instituted because prosecution against her was time-barred.”
This decision was not subject to appeal.
B. Civil proceedings for compensation
- On an unspecified date the applicant lodged a claim
with the Volodymyr-Volynskyy Town Court, seeking compensation for
damage caused by the allegedly unlawful criminal proceedings against
her.
- On 30 June 1999 the court found in part for the
applicant and awarded her UAH 70,000 in compensation. The decision
was not appealed against and became final.
- By letter of 5 August 1999 the Volyn Regional
Department of the State Treasury, responsible for the enforcement of
the decision, requested the Regional Prosecutor to lodge a
supervisory review appeal on the ground that the State Budget for
1999 did not foresee expenditure of this kind. Following this
request, the Prosecutor sought supervisory review, arguing that the
actions of the police were lawful and that the amount awarded to the
applicant was too high, in particular given the difficult economic
situation in the country.
- On 20 September 1999 upon a supervisory review appeal
of the prosecutor, the Presidium of the Volyn Regional Court quashed
the decision of the Volodymyr-Volynskyy Town Court of 30 June 1999
and remitted the case for a fresh consideration.
- On 6 July 2001 the Volodymyr-Volynskyy Local Court
rejected the applicant’s claim for compensation because the
criminal proceedings against her had been terminated on a
non-exonerative ground, namely that prosecution was time-barred. The
court noted that it appeared from the decisions of 5 October 1999, 29
February and 4 December 2000 terminating the criminal case against
the applicant, that her conduct disclosed signs of the corpus
delicti provided for in Article 167 of the CCU (negligence),
namely the inappropriate performance of professional duties by an
official due to a negligent attitude, which had caused significant
loss to the State’s interests. The record of her interrogation
of 6 June 1995 showed that the applicant acknowledged her guilt of
negligence. The court further stated that, given that the criminal
case was terminated on a non-exonerative ground, the applicant lost
the right to compensation under the Law “on the procedure for
compensation of damage caused to the citizen by the unlawful actions
of bodies of inquiry, pre-trial investigation, prosecutors and
courts”.
- The applicant did not appeal against that decision.
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine
- Article 62 of the Constitution reads as follows:
“A person is presumed innocent of committing a
crime and shall not be subjected to criminal punishment until his or
her guilt is proved through legal procedure and established by a
court verdict of guilty.
No one is obliged to prove his or her innocence of
committing a crime.
An accusation shall not be based on illegally obtained
evidence as well as on assumptions. All doubts in regard to the proof
of guilt of a person are interpreted in his or her favour.
In the event that a court verdict is revoked as unjust,
the State compensates the material and moral damages inflicted by the
groundless conviction.”
B. Criminal Code of Ukraine of 28 December 1960
(repealed as of 1 September 2001)
- The relevant provisions of the Code read as follows:
Article 48.
The statute of time-bar for instituting criminal
proceedings
“1. A person cannot be charged with an offence, if
the following periods have elapsed from the date of the criminal
offence:
... 2. three years from the date of offence for
committing a crime punishable under the law by imprisonment for the
period of up to two years;...”
Article 84.
Plundering the State or collective property through
misappropriation, embezzlement or malversation
“1. Misappropriation or embezzlement the State or
collective property by a person to whom it was entrusted shall be
punishable by imprisonment for a term of two to four years, or a fine
in the amount of ten to fifteen non-taxable incomes, with or without
deprivation of the right to occupy certain posts or to practice
certain activities for the term of three years...
3. Any such actions as provided for by paragraph 1 or 2
of this Article, if repeated or committed by a group of person upon
their prior conspiracy shall be punishable by imprisonment for a term
of five to eight years with or without a confiscation of property,
with deprivation of the right to occupy certain posts or to practice
certain activities for the term of three years...”
Article 86-1.
Plundering State or collective property in particular
large quantities
“Plundering State or collective property,
performed in particularly large quantities, regardless of the manner
of plundering (Articles 81-84, and 86) shall be punishable by
imprisonment for a term of ten to fifteen years with the forfeiture
of property.”
Article 167 of the Code prior to 11 July 1995 provided for a sanction
of imprisonment of up to two years for negligence, that was “the
failure to perform or improper performance, by an official, of his or
her official duties due to careless or inaccurate attitude, which
caused significant damage to the state or public interests or to the
legally protected rights and interests of individual physical or
legal persons”.
C. Code of Criminal Procedure
- At the material time paragraph 3 of part I of Article
6 of the Code provided that criminal proceedings could not be
initiated and started proceedings should be terminated if further
prosecution was time-barred. This provision was repealed on 12 July
2001. At the same time the right to close the case as time-barred was
given to the courts.
- Article 99 of the Code laid down the conditions for
refusing to institute criminal proceedings against a person and
Article 214 the conditions for terminating the criminal proceedings.
- The termination of criminal proceedings on the ground
of paragraph 3 of part I of Article 6 of the Code required the
applicant’s consent.
D. The Law of Ukraine “on the procedure for
compensation of damage caused to the citizen by unlawful actions of
bodies of inquiry, pre-trial investigation, prosecutors and courts”
of 1 December 1994
- The relevant provisions of the Law read as follows:
Article 2
“The right to compensation for damages in the
amount and in accordance with the procedure established by this Law
shall arise in the cases of:
acquittal by a court;
termination of a criminal case on grounds of absence of
proof of commission of a crime, absence of corpus delicti, or
lack of evidence of the accused’s participation in the
commission of the crime;
refusal to initiate criminal proceedings or termination
of criminal proceedings on the grounds stipulated in sub-paragraph 2
of paragraph 1 of this Article;
termination of proceedings for an administrative
offence.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
- The applicant complained that she was declared guilty
without being proved so according to law in violation of Article
6 § 2 of the Convention, which reads as follows:
Article 6 § 2
“Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.
The Government contested this argument
A. Admissibility
1. Preliminary objection of the Government
- The Government maintained that having failed to appeal
against the decision of the Volodymyr-Volynskyy Local Court of 6 July
2001 the applicant did not exhaust domestic remedies.
- The applicant maintained that the outcome of civil
proceedings depended on the grounds for termination of the criminal
proceedings against her. The latter proceedings had been closed on
non-exonerative grounds and therefore she was no longer entitled to
compensation under the law. Accordingly, she considered this remedy
futile for her present complaint.
- The Court finds that the main issue before it is the
alleged violation of the principle of presumption of innocence, as
guaranteed by Article 6 § 2 of the Convention. The civil
proceedings for compensation under the Law of Ukraine “on the
procedure for compensation of damage caused to the citizen by
unlawful actions of bodies of inquiry, pre-trial investigation,
prosecutors and courts” had no bearing on this matter.
- The Court, accordingly, dismisses this objection of
the Government.
2. Conclusion
- The Court notes that this complaint under Article 6 §
2 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 Government maintained that the issue of the
applicant’s guilt had never been considered by the domestic
courts, neither in the pre-trial investigation which had not resulted
in a course of trial, nor in the proceedings leading to the decision
of 26 April 2001.
- The applicant disagreed.
- The Court reiterates that the Convention must be
interpreted in such a way as to guarantee rights that are practical
and effective as opposed to theoretical and illusory (e.g., Multiplex
v. Croatia, no. 58112/00, § 44, 10 July 2003); that
also applies to the right enshrined in Article 6 § 2
(see Allenet de
Ribemont v. France, judgment of 10 February 1995, Series A
no. 308, § 35).
- The Court recalls that neither Article 6 § 2
nor any other provision of the Convention gives a person “charged
with a criminal offence” a right to reimbursement of his costs
or a right to compensation for lawful detention on remand where
proceedings against him have been discontinued (see, among other
authorities, Capeau v. Belgium, no. 42914/98, § 23,
ECHR 2005 I).
- The Court’s case-law establishes that the
presumption of innocence is infringed if a statement of a public
official concerning a person charged with a criminal offence reflects
an opinion that he is guilty unless he has been proved so according
to law. It suffices, even in the absence of any formal finding, that
there is some reasoning to suggest that the official regards that
person as guilty (see Daktaras v. Lithuania, no. 42095/98,
§ 41, ECHR 2000-X; A.L. v. Germany, no. 72758/01, §
31, 28 April 2005). Whether a statement of a public official is
in breach of the principle of the presumption of innocence must be
determined in the context of the particular circumstances in which
the impugned statement was made (see Daktaras, cited above, §
43). The scope of Article 6 § 2 is moreover not limited to
pending criminal proceedings but extends to judicial decisions taken
after a prosecution has been discontinued (see Nölkenbockhoff,
cited above, § 37; and Capeau, cited above, § 25) or
after an acquittal (see, in particular, Sekanina v. Austria,
judgment of 25 August 1993, § 30, Series A no.
266 A; and O. v. Norway, no. 29327/98, ECHR 2003-II).
- The Court is, therefore, required to determine whether
in the present case the outcome of the criminal proceedings against
the applicant allowed doubt to be cast on the applicant’s
innocence, although she had not been proved guilty.
- The Court notes that the applicant’s case was
terminated at the pre-trial stage by the investigative authorities,
partly for want of proof of a crime and partly on the ground that the
prosecution for the offence of negligence was time-barred. The
investigator’s decision was confirmed by the
Volodymyr-Volynskyy Local Court.
- It is true that the voicing of suspicions regarding an
accused’s innocence is conceivable as long as the conclusion of
criminal proceedings has not resulted in a decision on the merits of
the accusation (see Sekanina, cited above, § 30). The
Court notes that in the present case the decisions terminating the
criminal proceedings against the applicant were couched in terms
which left no doubt as to their view that the applicant had committed
the offence. In particular, the investigator in his decision of 4
December 2000 (see paragraph 17 above) exploited the words “in
the actions [of the applicant] there are corpus delicti”
and “the moment when [the applicant] had committed the offence”
and the Volodymyr-Volynskyy Court indicated that the applicant’s
actions “disclosed signs of the corpus delicti provided
for in Article 167 of the Criminal Code of Ukraine”. The
proceedings before the Volodymyr-Volynskyy Court leading to the
decision of 26 April 2001 (see paragraph 19 above) were not
criminal in nature and they lacked a number of key elements normally
pertaining to a criminal trial. In that respect, it cannot be
concluded that the proceedings before that court resulted, or were
intended to result in the applicant being “proved guilty
according to law”. In these circumstances, the Court considers
that the reasons given by the investigator and by the
Volodymyr-Volynskyy Court constituted an infringement of the
presumption of innocence.
- In conclusion, there has been a violation of Article 6
§ 2 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The applicant further complained that she had no
effective remedies, as required by Article 13 of the Convention, to
complain about the failure of the courts to examine the criminal
charges against her, dropped by the investigation on non-exonerative
grounds.
- The Court has examined this complaint as it has been
submitted and finds that it is manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention and must be rejected
pursuant to Article 35 § 4. The Court recalls that Article 13
cannot be read as requiring the provision of an effective remedy that
would enable the individual to complain about the absence in domestic
law of access to a court as secured by Article 6 § 1 (Kudła
v. Poland [GC], no. 30210/96, § 151, ECHR 2000 XI),
which is the substance of the applicant’s complaint under
Article 13.
III. 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 UAH 102,000 (around 16,200 euros
(EUR) in respect of pecuniary and non-pecuniary damage. This amount
consisted of the UAH 70,000, which the applicant was originally
awarded in the compensation proceedings (see paragraph 21 above) and
UAH 32,000 in compensation for worsening of her health.
- The Government maintained that would the Court find a
violation of Article 6 § 2 of the Convention in the instant
case, the applicant would be able to initiate the domestic review
proceedings and claim the amount originally awarded to her by the
domestic courts. As to the rest of the applicant’s claim, the
Government submitted that it was irrelevant to the circumstances of
the present case and could be also claimed at the domestic level.
- 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, it awards the applicant EUR
1,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The applicant did not make any claims under this head,
the Court, therefore, makes no award.
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
- Dismisses the Government’s preliminary
objection;
- Declares the applicant’s complaint under
Articles 6 § 2 of the Convention admissible and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
6 § 2 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 1,000 (one thousand euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable;
(b) that the above amounts shall 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;
(c) 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 21 September 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
