CHOSTA v. UKRAINE
Inadmissible
Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Paul Lemmens
The case originated in an application (no. 35807/05) 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 Grygoriy Denysovych Chosta (“the applicant”), on 5 August 2005. 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. The applicant was born in 1943 and lives in Kramatorsk. At the material time the applicant worked at a steel factory owned by a company in which the State held about 25% of the share capital. The company operated under its articles of association and was managed by a director appointed by the general meeting of shareholders, which was the highest authority deemed competent since shareholders represented over 60% of the votes. The company’s supervisory board included one representative of the State Property Fund. On 13 February 2002 the director of the company, noting an increase in instances of staff members presenting for work under the influence of alcohol, and relying on paragraph 23 of the company’s internal regulations, which “forbade attendance at work in a state of intoxication and ... drinking at work”, instructed the departmental factory guards (“the guards”) – who were employees of the company – to “apprehend, in compliance with the legislation of Ukraine, anyone appearing to be in a state of alcoholic (narcotic) intoxication and take them to [the guards’] office for a report subsequently to be drawn up”. Employees who disagreed with the report were to be escorted to a local clinic for an alcohol test. At about 10 p.m. on 3 August 2002, a guard at the factory gate suspected that the applicant, who was on his way out after working two shifts in succession, was drunk and asked him whether he had drunk alcohol. Following the applicant’s reply that he had drunk “a glass of vodka”, guards S. and P. seized the applicant’s badge and would not allow him to leave the premises of the factory. After about half an hour the senior guard, N. arrived, questioned the applicant and drew up a report indicating that the applicant was drunk and “looked untidy”, and that “there was a strong smell of alcohol on his breath”. The applicant, who disagreed with those conclusions and refused to sign the report, was then taken to the office of the chief guard, M., for further questioning. M. asked several factory workers to smell the applicant’s breathe and say whether he was drunk. Eventually, the applicant was escorted to a local clinic where at 11.30 p.m. he was given an alcohol test and was found to be sober. Subsequently, at an unspecified time, the applicant was allowed to leave, his badge having been returned to him. On an unspecified date, upon the applicant’s complaint, the head of the company’s trade union initiated an internal investigation into the incident. The investigation established that the report drawn up by guard M. on 3 August 2002 had been based on the statements of S. and P., “external signs of the applicant’s alcoholic intoxication”, and the applicant’s behavior after he had been stopped by S. and P. It was also noted that the applicant had consented to undergo an alcohol test at the clinic. On 22 August 2002, the chief guard of the factory, referring to the findings of that investigation, issued an instruction indicating a number of shortcomings in the conduct of the guards involved in the incident on 3 August 2002. In particular, it was noted that guard M. had failed to describe the signs of alcoholic intoxication which the applicant had allegedly displayed or to record the statements given by S. and P. The chief guard also noted that the guards had failed to draw up a separate report on the applicant’s refusal to cooperate. On 4 February 2003 the applicant instituted proceedings before the Kramatorsk Court against the company, seeking 12,000 Ukrainian hryvnias (UAH) in compensation for non-pecuniary damage allegedly caused to him by the unlawful actions of the guards on 3 August 2002. On 3 June 2003 the court rejected the applicant’s claim. It found that the guards had acted in line with the company’s internal regulations and therefore their actions had been lawful. Having heard all the eyewitnesses of the incident on 3 August 2002, the court concluded that there was no evidence that the guards’ conduct caused damage to the applicant’s reputation, health, lifestyle or working relationships. The court relied on the report of 3 August 2002 and the internal investigation report, plus the records of the applicant’s alcohol test on that date and statements by S. and P. The court invoked Articles 440-1 and 441 of the Civil Code of 1963. On 26 August 2003 the Donetsk Regional Court of Appeal rejected an appeal by the applicant. The applicant appealed in cassation, stating, in particular, that the Court of Appeal had failed to verify whether his detention had been compatible with the requirements of the Convention. According to the applicant, his detention on 3 August 2002 had not been justified by any of the grounds in Article 5 § 1 of the Convention but no compensation had been available to him, contrary to Article 5 § 5 of the Convention. On 4 April 2005 the Supreme Court refused the applicant leave to appeal in cassation on the ground that there was no evidence suggesting that the decisions of the lower courts were unlawful or inaccurate. Meanwhile, on 6 February 2003 at 11.20 p.m., guards P. and I., suspecting the applicant of being drunk, had stopped him as he was leaving the factory. The guards took the applicant to their office and questioned him. The senior guard L. drew up a report stating that the applicant was drunk and noting that the latter disagreed with that conclusion. According to the applicant, the guards refused to take him to a clinic for an alcohol test and did not allow him to leave until 2.30 a.m. on 7 February 2003. From 11.20 on 6 February to 2.30 a.m on 7 February 2003 the guards allegedly pressured and threatened the applicant. According to the Government, the applicant was kept in the guards’ office for only twenty minutes on 6 February 2003. On 7 February 2003 at about 2.30 a.m. the applicant, who wished to prove that he was sober, went to a local clinic and at 3.50 a.m. on that day took an alcohol test. There were two reports drawn up following the test, which came to opposite conclusions; the disparity between the conclusions was explained by the different techniques that had been used. The company carried out an internal investigation into the incident of 6 February 2003 and found no fault in the guards’ conduct. The investigation report mentioned, inter alia, that the guards had not taken the applicant to a clinic for an alcohol test because of poor weather conditions. On 21 April 2003 the applicant instituted proceedings before the Kramatorsk Court against the company, seeking UAH 35,000 in compensation for the non-pecuniary damage allegedly caused to him by his unlawful detention on 6 February 2003. On 1 October 2003 the court rejected the applicant’s claim, relying on essentially the same grounds as in its judgment of 3 June 2003 (see above). The court also noted that according to the statements of guards P. and I., the applicant had been released within twenty minutes of his apprehension. On 18 March 2004 and 12 October 2006 the Donetsk Regional Court of Appeal and the Supreme Court, respectively, rejected appeals by the applicant and upheld the first-instance court’s judgment. According to the applicant, the judges of the courts dealing with his complaints were biased and corrupt. Article 440-1 of the Civil Code of 1963, in force up to 1 September 2005, provided that non-pecuniary damage caused to a person or an organization was to be compensated by the person who had caused it unless the latter proved not to be responsible for the damage. Article 441 provided that an employer was liable for harm caused by an employee, in the performance of his or her work duties, to a third person. Article 146 of the Criminal Code of 2001 provided that unlawful deprivation of liberty or abduction of an individual were punishable by restriction of liberty or imprisonment for up to five years.