CASE OF LIZANETS v. UKRAINE
Preliminary objection joinded to merits and dismissed (six-month period);Violation of Art. 6-1;Not necessary to examine Art. 6 (length of the proceedings);Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award
Peer Lorenzen
4. The applicant was born in 1945 and lives in the town of Mukacheve, the Zakarpatye region. 5. In February 1997 the Mukacheve City Prosecutor charged the applicant (a former inspector of the Mukacheve city market) with corruption, and ordered his detention on remand. In August 1997 the applicant was released against his undertaking not to abscond. In December 1997 his case was closed given the lack of any corpus delicti. This decision was subsequently quashed by the Zakarpatye Regional Prosecutor's Office and the investigation was reopened. On 8 August 1998 the criminal proceedings against the applicant were ultimately terminated given the absence of any corpus delicti. 6. On 3 September 1998 the applicant instituted proceedings against the Mukacheve District Prosecutor's Office of the Zakarpatye Region, seeking monetary compensation for unlawful prosecution. 7. On 30 September 1998 the Mukacheve City Court (hereafter “the City Court”) granted this claim and awarded the applicant UAH 60,000. In assessing the amount of moral compensation, the court took account of medical certificates attesting to the fact that subsequent to his release the applicant had suffered a nervous breakdown. On 10 October 1998 this judgment became final and binding. 8. On 18 November 1999 the Zakarpatye Regional Prosecutor lodged an supervisory appeal with the Presidium of the Zakarpatye Regional Court against the judgment of 30 September 1998. On 29 November 1999 the court, sitting in a closed session in the presence of a prosecutor, quashed this judgment and remitted the case for a new consideration. 9. On 17 May 2001 the City Court, in the resumed proceedings, allowed the applicant's claim. Having regard to the medical documents, the forensic psychological report and statements from a number of witnesses, the court found, inter alia, that the applicant's nervous breakdown had been caused by his detention, and ordered the Prosecutor's Office to pay the applicant UAH 80,000 in moral and material damages. On 27 May 2001 this judgment acquired legal force. 10. On 4 September 2001 the Zakarpatye Regional Prosecutor's Office challenged this judgment under the new cassation procedure (see “Relevant domestic law”, paragraph 24 below). 11. On 3 October 2001 the Constitutional Court declared unconstitutional Article 25 of the Law on the State Budget 2001, which provided that compensation for unlawful criminal prosecutions was to be deducted from the funds allocated to the relevant law-enforcement agencies. The Constitutional Court decided that the relevant amounts should be paid directly from the State Budget held by the State Treasury. 12. On 10 December 2001 a judge of the Supreme Court returned the prosecutor's appeal to the City Court, indicating that it had to examine the issue of the reopening of the proceedings on the ground of new circumstances. 13. On 24 January 2002 the City Court, on a request from the Zakarpatye Regional Prosecutor, reopened the proceedings in the case due to new circumstances, namely the annulment of the Article 25 of the Law on the State Budget 2001 by the aforementioned decision of the Constitutional Court. 14. On 5 April 2002 the City Court partly allowed the applicant's claim, ordering the State Treasury to pay him UAH 10,000 in compensation for unlawful prosecution. The court held that the criminal proceedings against the applicant had been unlawful but found the claim for moral damages excessive: “With respect to the remainder of the claims [the court notes that] the claimant has failed ...to provide any corroborating evidence; nor did he submit to the court any calculation of the amount of compensation for moral damage. No reliable link could be seen between the claimant's nervous breakdown and his criminal prosecution and arrest.” The applicant appealed. 15. On 12 June 2002 the Zakarpatye Regional Court of Appeal upheld this judgment, indicating, inter alia, that, according to the forensic psychological report, the nervous breakdown, suffered by the applicant in 1997, could result either from his unlawful detention or from his general poor state of health, thus finding that the amount of UAH 10,000 constituted sufficient compensation for damages suffered due to unlawful prosecution. 16. On 2 December 2002 the Supreme Court rejected the applicant's request for leave to appeal under the cassation procedure. 17. On an unknown date in early 1999 the applicant applied to the Zakarpatye Regional Department of Justice for compulsory enforcement of the September 1998 judgment. The warrant of execution was on several occasions sent to the Zakarpatye Regional Department of the State Treasure. However on 18 November 1999 the enforcement proceedings were suspended pending the outcome of the prosecution's extraordinary appeal (paragraph 8 above). 18. On 2 December 2005 the City Court refused the applicant's request to initiate the enforcement proceedings for the judgment of 5 April 2002, ruling that its enforcement was time barred. The court found that Article 21 of the Law on Enforcement Proceedings envisaged that the writs of execution should be lodged with the relevant authority within three years after the judgment acquired legal force. The judgment in the applicant's case had become final on 12 June 2002 upon the decision of the Zakarpatye Regional Court of Appeal, whereas the applicant requested the issuance of the writ of execution on 23 November 2005, i.e. after the expiry of the statutory limitation. The applicant did not appeal against this decision. 19. The judgment of 5 April 2002 has not been enforced to date. 20. The relevant domestic law is summarised in the judgment of Voytenko v. Ukraine (no. 18966/02, §§ 20-25, 29 June 2004). 21. Article 347-6 of the Code provides that, having examined the request for reopening of the case on the ground of new circumstances, the competent court delivers the ruling, whereby it either quashes the relevant judgment or rejects the above request. If the judgment is quashed the case is examined on the merits according to the general rules contained in this Code. 22. The Constitutional Court held: 23. The relevant provisions of the Law are read as follows: Article 320 Persons having the right to lodge a cassation appeal “Parties and other persons who participate in court proceedings, and the prosecutor and other persons who have not participated in the proceedings in which the court has decided on their rights and obligations, may lodge a cassation appeal against judgments and rulings adopted by the court of first instance, only in relation to a violation of the substantive or procedural law and rulings and judgments of an appeal court. The basis for such an appeal is the incorrect application of the norms of substantive law or infringement of the norms of procedural law.” Section 321 The deadlines for lodging an application for annulment “The deadline for lodging an application by the prosecutor is three months from the date of delivery of the ruling or judgment of the Court of Appeal, or one year from the date of delivery of the ruling or judgment of the court of first instance, if these rulings or decisions have not been appealed against.” Chapter II. Transitional Provisions “1. This Law shall enter into force as from 29 June 2001. 2. Laws and other normative acts adopted before this Law entered into force are effective in so far as their provisions do not conflict with the Constitution of Ukraine and this Law. 3. Appeals in civil cases lodged before 29 June 2001 shall be considered in accordance with the procedure adopted for the examination of appeals against local courts' decisions. 4. Protests against judicial decisions lodged before 29 June 2001 shall be sent to the Supreme Court of Ukraine for consideration in accordance with the procedure for consideration of cassation appeals (касаційних скарг). 5. Decisions that have been adopted and have entered into force before 29 June 2001 can be appealed against within three months in accordance with the procedure for consideration of cassation appeals (to the Supreme Court of Ukraine).”