CASE OF LOPUSHANSKYY v. UKRAINE
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms)
Carlo Ranzoni;Ganna Yudkivska
4. The applicant was born in 1955 and lives in Yuzhnoukrayinsk. At the time of the events he was the director of a private joint stock company. 5. In November 2003 the local court delivered a judgment ordering a debt recovery by a certain Mr Ts. to the applicant. On 12 December 2003 Mr Ts.’s wife, acting under a power of attorney, authorised the applicant to use their car. On 9 March 2004 she revoked her power of attorney. The car, however, remained with the applicant. 6. On 25 and 29 March 2004 criminal proceedings were instituted against the applicant on suspicion of forcible assertion of private rights and extortion, following a complaint by Mr Ts. The latter claimed that the applicant was arbitrarily retaining his car and was extorting money for it. 7. On 30 March 2004 the applicant was arrested in his office as a criminal suspect. He was placed in the Arbuzynka Temporary Detention Facility (“the Arbuzynka ITT”). Following a search of the company’s premises, the police seized the car in question. 8. Two days later, on 1 April 2004, Mr Ts. wrote a receipt confirming that the applicant had paid him 1,700 US dollars (USD) in respect of pecuniary and non-pecuniary damage and that he had no claims against the applicant. He addressed the receipt in question to the investigator dealing with the applicant’s criminal case. 9. On the same day the applicant was released subject to a commitment not to leave the town. 10. On 20 April 2004 the Yuzhnoukrayinsk Town Court (“the Yuzhnoukrayinsk Court”) quashed the decisions of 25 and 29 March 2004. On 3 June 2004 and 5 April 2005 the Mykolayiv Regional Court of Appeal (“the Court of Appeal”) and the Supreme Court, respectively, upheld that ruling. The courts held that there had been no grounds for instituting criminal proceedings against the applicant as there was no indication of a criminal offence. 11. On 21 September 2005 the applicant lodged a claim for damages against the local prosecutor’s office and police. He claimed compensation for pecuniary and non-pecuniary damage in respect of the following four issues: his arbitrary criminal prosecution, his unlawful arrest, the allegedly unlawful search of the company’s premises, and the seizure of the car as having amounted to his deprivation of property. More specifically, the applicant complained that there had been no reasons to arrest him and that he had never been summoned to the police. He further noted that his arrest had taken place in his office, in front of his colleagues, and that he had suffered stress and humiliation. He also observed, in the context of the complaint about his unlawful detention, that the conditions of his detention in the Arbuzynka ITT had been very poor (poor food and dirty linen, and impossibility to receive any parcels from the outside). 12. The applicant’s claim in respect of pecuniary damage included the amount of the debt owed by Mr Ts. to him, which the applicant estimated as being equivalent to the value of the impounded car. The applicant therefore claimed that that car should be returned to him. Furthermore, he claimed an equivalent to USD 5,000, which he had allegedly been forced to pay to Mr Ts. as a result of the unlawfully instituted criminal proceedings (whereas Mr Ts. had indicated a lower amount, USD 1,700, in his receipt – see paragraph 8 above). The applicant also claimed UAH 150,000 (at the time equivalent to EUR 24,650) in respect of non-pecuniary damage. 13. On 5 May 2006 the Yuzhnoukrayinsk Court allowed the applicant’s claim in part. It awarded him UAH 8,585 in compensation for pecuniary damage, as that was the amount (equivalent to USD 1,700) paid by the applicant to Mr Ts. and confirmed by the latter’s receipt. The court also awarded the applicant UAH 25,000 (at the time equal to about EUR 3,800) in respect of non-pecuniary damage. It relied, in particular, on the Compensation Act and Article 5 of the Convention. The aforementioned amounts were to be paid to the applicant from the State budget. 14. The applicant, the State Treasury of Ukraine and the Mykolayiv Regional Prosecutor’s Office appealed. 15. By a letter of 6 July 2006 the Court of Appeal sent the applicant copies of the defendants’ appeals and informed him that he could comment on them by 14 July 2006. The letter also contained a court summons for 19 July 2006. As indicated on the post stamp, it was dispatched on 14 July 2006. The applicant received that letter on 19 July 2006. 16. On 19 July 2006 the Court of Appeal, following a hearing with the participation of the defendants, but in the applicant’s absence, quashed the judgment of 5 May 2006 and issued a new one. It agreed with the first-instance court’s conclusion that the applicant “had suffered distress as a result of the illegal actions of law-enforcement officials”, but considered the compensation award to be unreasonably high. The appellate court awarded the applicant UAH 5,000 (around 750 euros at the time) in compensation for non-pecuniary damage and UAH 1,000 in costs and expenses. In rejecting his claim for compensation in respect of pecuniary damage, the court noted that the car did not belong to the applicant and the State was not required to reimburse him money paid to a private individual. 17. Neither the decision of the appellate court nor the verbatim records of its hearing contain any information regarding the notification of the applicant of that hearing. 18. The applicant appealed on points of law. He complained, in particular, that he had received the summons on the day of the hearing before the appellate court, which prevented him from participating in it. 19. On 26 November 2007 the Kherson Regional Court of Appeal, acting as a court of cassation, rejected the applicant’s appeal on points of law with broadly couched reasoning that it was unsubstantiated.