CASE OF GRABCHUK v. UKRAINE
Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
Peer Lorenzen
5. The applicant was born in 1949 and resides in the village of Liski, Volyn region, Ukraine. 6. In 1993-1994 the applicant worked as a director of a café in the town of Volodymyr-Volynskyy, Volyn region, Ukraine. 7. On 14 February 1995 criminal proceedings were instituted against the applicant for plundering State property (Article 84 § 1 of the Criminal Code). 8. 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. 9. On 9 June 1995 the applicant was released on bail subject to an undertaking not to abscond (підписка про невиїзд). 10. On 26 December 1997 the criminal case was terminated for want of proof of a crime. 11. On 13 July 1999 the Prosecutor of Volodymyr-Volynskyy District quashed the decision of 26 December 1997 and sent the case for further investigation. 12. 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. 13. 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. 14. 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. 15. On 29 February 2000, the investigator terminated the criminal proceedings against the applicant on the same grounds as previously. 16. On 3 November 2000, the same court, upon the applicant’s appeal, quashed this decision and remitted the case for a fresh consideration. 17. 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...” 18. 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. 19. 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. 20. 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. 21. 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. 22. 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. 23. 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. 24. 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”. 25. The applicant did not appeal against that decision. 26. 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.” 27. 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”. 28. 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. 29. 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. 30. 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. 31. 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.”