KUTOVA v. UKRAINE
Inadmissible
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens
The applicant, Ms Olga Pavlivna Kutova, was born in 1949 and lives in Berezneguvate in the Mykolayiv Region. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Nazar Kulchytskyy, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In October 2002 the applicant, a businesswoman, sold 60 tonnes of sunflower seeds to a certain K., who introduced himself as the representative of a private company. Shortly afterwards, K., using forged documents, sold the seeds on to other people, who in turn sold the seeds to A., a private company. The latter then consigned the seeds to N., a private company owning a silo. On 11 October 2002 the applicant complained to the Berezneguvate police that K. had failed to pay her for the seeds. On an unspecified date the police opened a criminal case against him for defrauding the applicant. On 21 October 2002 the police declared the seeds to be physical evidence and ordered them to be seized and left for storage at the premises of company N. On 9 January 2003 the applicant lodged a civil claim with the police in the context of the criminal proceedings against K. seeking 66,660 hryvnias (UAH) in compensation for pecuniary damage and UAH 50,000 for non-pecuniary damage. On 17 July 2003 the police lifted the order for the seizure of the seeds and ordered them to be transferred to the applicant, but on 23 July 2003 the director of N. refused to return them, asserting that they belonged to company A. On 10 September 2003 the police rejected the applicant’s request to institute criminal proceedings against the director of N. for his failure to transfer the seeds as they believed that the determination of the ownership dispute over the seeds was within the competence of the courts. The applicant challenged that decision before the courts; however, on 21 October and 11 December 2003 respectively the Nova Odessa Court and the Mykolayiv Regional Court of Appeal ruled against her. On 23 September 2003 the applicant was given permission to participate in the criminal proceedings against K. as a civil claimant. On 24 December 2003 the Berezneguvate prosecutor’s office quashed the police’s order of 17 July 2003 in its entirety. The seeds remained stored at the premises of company N. Shortly afterwards, the criminal case was sent to the Berezneguvate Court for trial. On 17 May 2004 the applicant amended her claim, seeking the return of the seeds instead of compensation for pecuniary damage. On the same date a representative of company A. requested the court to admit as evidence documents proving that the company owned the seeds. The representative also asked the court to hear a witness. It is unknown whether those requests were ever granted. By a judgment of 8 June 2004, the first-instance court convicted K. of aggravated fraud, sentencing him to a five-year suspended term of imprisonment with a probationary period of three years. The court ordered K. to pay the applicant UAH 7,000 in compensation for non-pecuniary damage, lifted the order for the seizure of the seeds and ordered that they be returned to the applicant. On 18 June 2004 company A. appealed against that judgment, whereas the other parties to the proceedings, including the applicant, did not choose to appeal. On the same date the trial court, relying in particular on Article 348 of the Code of Criminal Procedure of 1960 (“Code of Criminal Procedure”, as in force at the material time), declared the appeal inadmissible, on the grounds that company A. had not been a party to the proceedings before the first-instance court and thus had no right to lodge an appeal. On 21 September 2004 the Mykolayiv Regional Court of Appeal quashed the decision of 18 June 2004 and ruled that the appeal was to be examined on its merits. It held that the judgment of 8 June 2004 was in the interests of company A. and concerned the protection of property for the purposes of Article 1 of Protocol No. 1 to the Convention. The inadmissibility decision had deprived the company of access to a court, which was contrary to Article 6 of the Convention. The appellate court did not specify the procedural status of company A. The applicant lodged an appeal in cassation. On 14 October 2004 the Supreme Court left the applicant’s appeal unexamined, noting that only decisions on the merits were subject to its review. On 16 November 2004 the appellate court quashed the part of the judgment of 8 June 2004 concerning the return of the seeds, which it found to be “insufficiently reasoned, contradictory, ambiguous and unlawful”. As regards the procedural status of company A., the court noted, without giving any further details, that the appeal had been lodged by “the representative of a civil claimant”. Relying in particular on Articles 80 and 81 of the Code of Criminal Procedure, the court remitted that part of the case to the trial court for fresh consideration. By a decision of 25 February 2005, the trial court ordered the return of the seeds to the applicant, deeming her their rightful owner and noting that company A. had not been a party to the criminal proceedings. The court also noted that company A. could claim ownership of the seeds by means of civil proceedings. On 12 April 2005 the appellate court quashed that decision, finding that the trial court had acknowledged that ownership of the seeds was in dispute and had actually determined who owned them. However, the decision in question was contrary to the second paragraph of Article 81 of the Code of Criminal Procedure, which provided that any disputes over the ownership of physical evidence should be resolved in civil proceedings. The appellate court subsequently discontinued its consideration of the matter, explaining that it should be dealt with by means of civil proceedings. The applicant lodged an appeal on points of law, arguing in particular that company A. had not been a party to the proceedings. On 13 June 2006 the Supreme Court upheld the ruling of the appellate court although it did not specify the procedural status of company A. The applicant did not institute civil proceedings for the return of the seeds, which remained in the possession of company A. On 23 June 2004 bailiffs instituted enforcement proceedings in respect of the part of the judgment of 8 June 2004 concerning the return of the seeds to the applicant. On 27 July 2004 the Nova Odessa Court suspended the enforcement proceedings following a request submitted by company A. On 23 September 2004 the same court rejected the bailiffs’ request of 23 June 2004, stating that the judgment of 8 June 2004 was not final and that ownership of the seeds was to be determined in civil proceedings. No appeal was lodged against the decision of 23 September 2004. Article 79, the third paragraph of Article 80 and the second paragraph of Article 81 of the Code of Criminal Procedure provided at the material time that any disputes over the ownership of physical evidence should be resolved in civil proceedings and that the evidence in question should be kept with the case file or (in the case of perishable or bulky goods) left for storage with a legal entity until judgment had been given. Subparagraph 5 of the first paragraph of Article 81 provided that any objects which had been the target of criminal activity should be returned to their rightful owner. Article 348 of the Code of Criminal Procedure, as worded at the material time, stipulated that in criminal proceedings an appeal can be lodged by an accused, a victim, a convict, an acquitted person, a civil claimant or a civil respondent, a prosecutor who supported the charges or signed the indictment, a minor subjected to coercive educative measure by a court, the representative of a person subjected to coercive medical measures, and other persons in the cases envisaged by the Code.