CASE OF VASHCHENKO v. UKRAINE
Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
4. The applicant was born in 1953 and lives in Melitopil. 5. In September 1994 the applicant, as a retired military officer, was granted the social tenancy of two family apartments in a newly erected building, the construction of which had been partly sponsored by the municipal authorities and his former military detachment. 6. On 17 October 1995 the applicant lodged a claim with the Melitopil City Court (Мелітопольський міський суд Запорізької області) alleging that the apartments in question had been provided to him in an uninhabitable condition; he had renovated them at his own expense and was therefore entitled to receive pecuniary and non-pecuniary damages. In the course of the proceedings the applicant adjusted the amount of his claim on some twenty occasions. Military Detachment A-0325 (Військова частина А-0325), the Executive Committee of the Melitopil City Council (Виконавчий комітет Мелітопольської міської ради), the Construction Company “Melitopilbud” (Акціонерне товариство «Мелітопільбуд») and the Melitopil Housing Service (Виробничо-житлове ремонтно-експлуатаційне об’єднання) were summoned into the proceedings as defendants. Subsequently the military detachment was substituted by the Ministry of Defence of Ukraine (Міністерство Оборони України). 7. On 28 May 1997 the Melitopil City Court ordered an expert assessment of the state of the apartments. No hearings were scheduled between May 1997 and May 1998 on account of the pending expert assessment. 8. On 16 March 1999 the court rejected the applicant’s claim. In particular, the court found that the applicant had not shown that the apartments in question had defects which were such as to make them uninhabitable. Moreover, having being aware of the state of the apartments before moving in, the applicant had not taken the opportunity to request alternative housing. Furthermore, he had never properly documented the defects he had repaired and the expenses he had borne. 9. On 29 April 1999 the Zaporizhzhya Regional Court (Запорізький обласний суд) 10. On 27 March 2002, following the applicant’s allegations about deterioration of his family members’ health on account of the state of the apartments, the Melitopil City Court ordered a medical expert assessment. 11. On 17 February 2003 the Melitopil City Court rejected the applicant’s claim on similar grounds as in the judgment of 16 March 1999. Moreover, the court found that the claim had been lodged outside the statute of limitation. 12. Between October 1995 and February 2003 the Melitopil City Court scheduled a total of fifty hearings, forty of which were set up after September 1997, the date, when the Convention entered into force in respect of Ukraine. Some fifteen of them were adjourned on account of the failure of one or more of the defendants to appear or following a defendant’s request for adjournment. Some five hearings were adjourned to allow the court and the defendants to familiarise themselves with adjustments of the applicant’s claims. Three hearings were adjourned on account of the applicant’s requests for adjournments. Seven adjournments were initiated by the court for various reasons. Most hearings were scheduled at intervals from several days to two months. On four occasions the intervals between hearings were between four and six months. 13. On 22 May 2003 the Regional Court upheld the judgment of 17 February 2003. In June 2003 the applicant appealed in cassation. 14. On 1 September 2004 the Supreme Court rejected the applicant’s request for leave to appeal in cassation. 15. On 24 July 2001 the Melitopil District Police (Мелітопільський районний відділ УМВС України в Запорізькій області) filed with the Melitopil City Court an administrative charge against the applicant. In particular, they established that on 18 June 2001 around noon the applicant and Mr V. S. had visited Mr E. Sh., the president of the Melitopil District Court (Мелітопільський районний суд Запорізької області) to discuss Mr V. S.’s civil case. The applicant started arguing with Mr E. Sh. and refused to leave his office when requested to do so. Mr E. Sh. having stepped out into the corridor, the applicant followed and continued to say that the judicial officers were unprofessional and lacked integrity. Several other judges and personnel heard the noise and came to the area seeking to calm the applicant down. The police were called, but the applicant had left the court building before they arrived. The incident lasted for some half an hour. 16. On 16 August 2001 the Melitopil City Court found that the applicant’s conduct could qualify as hooliganism under the Criminal Code of 1960, in force on the date of the incident, discontinued administrative proceedings and transferred the case to the Melitopil Prosecutor (прокурор м. Мелітополя) for a decision on initiating criminal proceedings. 17. On 1 September 2001 the new Criminal Code entered into force. 18. On 30 October 2001 criminal proceedings were instituted against the applicant, who was charged with hooliganism under the old Criminal Code. 19. On 28 November 2001 the investigator discontinued criminal proceedings on account of absence of corpus delicti in the applicant’s conduct. 20. On 23 December 2001 the supervising investigator annulled this decision and transferred the case to another investigator. 21. On 18 April 2002 the new investigator altered the charge, from hooliganism to insult of a judicial officer, pursuant to the provisions of the old Criminal Code. He noted in particular that the charge of hooliganism implied disruption of public order, while in the case at issue there was no evidence that the incident, which had taken place at lunchtime, had in fact disrupted the court’s operation. On the same date the investigator discontinued proceedings in view of the fact that following adoption of the new Criminal Code, insulting a judicial officer was no longer a criminal offence. 22. On 21 August 2002 the prosecutor’s office annulled this decision and reopened the proceedings. The case was transferred to another investigator. 23. On 25 November 2002 the new investigator discontinued proceedings on essentially the same grounds as above. 24. On 16 October 2003 the prosecutor’s office annulled this decision and reopened the proceedings. 25. On 31 October 2003 the investigator altered the charge to that of hooliganism under the new Criminal Code. 26. On 5 November 2003 the applicant was placed under an obligation not to abscond. Subsequently the case was transferred to the Melitopil City Court. 27. On 19 April 2004 the Melitopil City Court remitted the case for additional investigation. In particular, the court found that the case file contained insufficient information on whether the incident had disrupted the normal operation of the Melitopil District Court. 28. On 30 June 2004 the Regional Court upheld this ruling. The case was assigned to a new investigator. 29. On 27 April 2005 the investigator, having found no evidence that the court’s operation had been in fact disrupted by the applicant’s conduct, altered the charge to insulting a judicial officer pursuant to the Criminal Code of 1960 and discontinued the proceedings in view of the decriminalisation of the offence in question. 30. On 20 June 2006 the supervising investigator ordered the reopening of the criminal proceedings. 31. On 20 October 2006 the investigator discontinued the proceedings on account of absence of any appearance of a criminal conduct on the part of the applicant. 32. On 7 November 2006 the prosecutor’s office annulled this decision. 33. On 4 December 2006 the investigator transferred the case to the Melitopil City Court, requesting it to absolve the applicant of criminal liability in view of the decriminalisation of the offence. 34. On 18 January 2007 the Melitopil City Court dismissed this request. In particular, it found that since the formal criminal proceedings against the applicant had been instituted after the entry into force of the new Criminal Code, the applicant could not have been charged under the old Code in the first place. The court returned the case to the investigation authorities for rectification of the formulation of the charges. It further ordered that the applicant remain under an obligation not to abscond. 35. On 12 March 2007 the Regional Court upheld this ruling. 36. By September 2007 no final decision had been taken in respect of the applicant’s case.