CASE OF ANTONENKOV AND OTHERS v. UKRAINE
Violation of Art. 6-1 (length of proceedings);No violation of P4-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
4. The applicants were born in 1967, 1959 and 1970, respectively. All three live in Kyiv. 5. On 26 June 1996 criminal proceedings against the applicants were instituted. 6. On 31 June 1996 A.D. was arrested on suspicion of fraud and theft. On 16 August 1996 V.S. and, on 19 August 1996 A.A., were arrested on similar charges. The prosecution’s case was that the applicants had fraudulently (using false documents) converted and subsequently sold an apartment belonging to Mr K. 7. During the investigation the prosecution authorities obtained several economic expert opinions regarding the suspect transaction. 8. On 3 March 1997 the Kyiv City Prosecutor approved the indictment and referred the case to the Kyiv City Court, requesting it to determine the territorial jurisdiction in the case. On 5 March 1997 the Kyiv City Court (hereafter “City Court”) remitted the case to the Shevchenkovsky District Court of Kyiv (hereafter “the District Court”). The applicants stood trial on charges of theft, fraud, and embezzlement of official documents (A.D.), fraud and forgery (V.S.) and fraud and theft (A.A.). 9. On 2 April 1997 the District Court committed the applicants for trial. 10. On 3 April 1997 the District Court released A.A. and V.S. on bail of UAH 3,000 each (approximately USD 1,500 at the material time) and an undertaking not to abscond. On 19 May 1997 A.D. was also released on bail of UAH 4,000 (approximately USD 2,000) and an undertaking not to abscond. On 27 May 1997 the applicants’ bail was raised to UAH 17,000 (approximately USD 8,500) each. 11. Between April 1997 and June 1998 the District Court listed 22 hearings (14 between September 1997 and June 1998). Ten hearings were adjourned mainly due to the failure of the victim, witnesses and the applicants’ lawyers to appear in court. In the course of the proceedings on 24 October 1997 the court issued a compulsory summons for the witness F. 12. On 22 June 1998 the District Court decided to remit the case for further inquiries on account of the insufficiency of the original investigation. The court stated inter alia, that the investigative authorities had failed to establish the whereabouts of one of the key witnesses, F., which made it impossible for the court to summon her to give evidence. The prosecution appealed against this decision. The decision was, apart from one point, quashed by the City Court in its ruling of 6 August 1998 because the flaws in the investigation indicated in this decision could be remedied during the trial. However, the City Court upheld the findings of the District Court that the charges of aggravated embezzlement filed against A.D. needed additional investigation. 13. The trial resumed on 2 November 1998. During the period November 1998 to April 2000 thirty hearings were scheduled, of which seven were held. Fifteen hearings were cancelled due to the victim’s failure to appear, five hearings were adjourned on account of the applicants’ absence and on two occasions the presiding judge was ill. In particular, the hearing scheduled for 12 May 2000 was adjourned until 17 May 1999 on account of V.S. being on a mission. On 15 March 2000 he lodged with the trial court a successful request for permission to go to the Russian Federation for medical treatment. 14. On 20 April 2000 the District Court remitted the case for further investigation, referring to the similar circumstances in its decision of 22 June 1998. The prosecution’s appeal out of time was rejected by the City Court on 28 September 2000. On 18 January 2001 the Kyiv City Prosecutor lodged a supervisory protest (an extraordinary appeal) against the decision 20 April 2000. On 29 January 2001 the Presidium of the City Court granted the protest and remitted the case to the first instance court for further consideration. 15. The District Court resumed the examination of the case on 4 April 2001. Between April 2001 and July 2002 the court listed 23 hearings of which 13 were adjourned due to the failure of the victim (on 9 occasions), the applicants (on 3 occasions) and the prosecutor (on one occasion) to appear. In the course of the proceedings on 24 April and 21 May 2001 the court ordered the compulsory summons of the victim. 16. On 17 July 2002 the District Court disjoined the proceedings concerning the charges of theft and embezzlement of documents (A.D. and A.A.) and remitted the case in this part for additional investigation. 17. On 19 July 2002 the District Court terminated proceedings concerning the charges of fraud (all three applicants), embezzlement of documents (A.D.) and forgery (V.S.) as time-barred, lifted the bail condition and ordered the return of the bail money. 18. According to both parties’ submissions, the criminal proceedings for (presumably) theft against A.D. and A.A. are still pending. 19. The text of Articles 148, 149 and 150 of the Code of Criminal Procedure of 1960 (general rules on the application of preventive measures) is set out in Merit v. Ukraine, no. 66561/01, 30 March 2004 (Relevant domestic law and practice). 20. Article 154-1 of the Code (application of bail) is set out in Koval v. Ukraine (no. 65550/01, 10 December 2002). 21. Article 281 (remittal of a case for additional investigation) is set out in the judgment of 6 September 2005 in the case of Salov v. Ukraine (see no. 65518/01, § 72). 22. Article 151 of the Code provides that an undertaking not to abscond consists in obtaining from the suspect or the accused an agreement not to leave the place of residence or temporary stay without the permission of an investigator (or a trial judge). In the event of a breach of the written undertaking given by him, a stricter measure of restraint may be applied to the suspect or accused.