SHAVROV v. UKRAINE
Inadmissible
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych
The applicant, Mr Yevgen Oleksandrovych Shavrov, is a Ukrainian national who was born in 1964 and lives in the city of Mariupol. He is a former share-holder (40% of shares) and the head of the board of the joint stock company “Donservispak” (hereinafter “Donservispak”). The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. On 9 February 1998 the Public Prosecutor of Donetsk (hereinafter “the Public Prosecutor”) instituted criminal proceedings against the applicant on charge of theft of collective property (Article 84 of the Criminal Code of 1960). The allegation was that from October 1996 to December 1997 the applicant’s university studies as well as service charges for his apartment were met by Donservispak, causing it UAH 2,280 (1,079 ECU) damage. On 8 May 1998 the Public Prosecutor issued an indictment. The applicant was obliged not to leave the place of his permanent residence. On 5 June 1998 the investigator of the Public Prosecutor’s office ordered the applicant’s dismissal from his position. On 9 June 1998 the investigation was suspended as the applicant was ill. On 26 June 1998 the investigation was resumed and a witness was questioned. On the same day the investigator suspended the proceedings as the applicant was in hospital. On 15 September 1998 the investigator of the Public Prosecutor’s office put the applicant on the list of wanted persons. On 30 September 1998 the Public Prosecutor quashed this decision as unsubstantiated. On 12 October 1998 the Deputy Public Prosecutor extended the time-limit for the pre-trial investigation. On 20 October 1998 the investigator of the Public Prosecutor’s office suspended the proceedings because the applicant could not be found at his permanent residence. The Donetsk Department of the Interior was ordered to find the applicant. On 10 August 1999 the prosecutor of the Public Prosecutor’s office quashed this decision on the ground that the investigator had not taken all procedural measures that could be accomplished in the applicant’s absence. On 13 August 1999 the investigator of the Public Prosecutor’s office suspended the proceedings in view of the applicant’s absence. On 8 October 1999 the applicant presented himself to the Public Prosecutor’s office and the proceedings were resumed. On 11 October 1999 the applicant was informed that the pre-trial investigation had been completed. On 15 October 1999 the criminal proceedings against the applicant were terminated as no crime had been committed. On 30 November 1999 the senior prosecutor of Public Prosecutor’s office quashed this decision and remitted the case for additional investigation. On 12 January 2000 the investigator ordered an accountant’s report, the results of which were received by the Public Prosecutor’s office on 25 January 2000. On 25 January 2000 the Public Prosecutor issued a new indictment under Article 165 of the Criminal Code, relating to charges of abuse of position. On 9 March 2000 the applicant was arrested. He was released the next day. He was obliged not to leave the place of his permanent residence. On 29 March 2000 the criminal case was transferred to the Voroshylivsky District Court of Donetsk (“the Voroshylivsky Court”). Between 19 April 2000 and 23 March 2001 two out of nineteen hearings were adjourned due to the applicant’s failure to appear before the court, one due to the applicant’s and witnesses’ failure to appear before the court, two due to the applicant’s illness, and five due to the witnesses and/or the prosecutor’s failure to appear before the court. On 2 April 2001 the Voroshylivsky Court convicted the applicant and imposed a suspended sentence of five years’ imprisonment. On 4 April 2001 the applicant lodged a cassation appeal and on 14 April 2001 the case-file was transferred to the Donetsk Regional Court (hereinafter “the Regional Court”). On 27 April 2001 the Regional Court returned the case-file to the first instance court for rectification of procedural shortcomings (the applicant, his representative and the prosecutor had not been informed about the date of hearing before the Regional Court; the applicant had not been provided with a copy of the judgment). On 21 May 2001 the case-file was transferred to the Regional Court. On 15 June 2001 the Regional Court returned the case-file to the first instance court for rectification of procedural shortcomings (the civil party, Donservispak, had not been informed about the date of hearing before the Regional Court and had not been provided with the copy of the cassation appeal). On 21 June 2001 the case-file was transferred to the Regional Court. On 27 July 2001 the Donetsk Regional Court of Appeal (former Regional Court, hereinafter “the Court of Appeal”), following the applicant’s request, appointed forensic book-keeping examination, which was terminated on 8 November 2001. On 14 March 2002 the Court of Appeal returned the case-file to the first instance court for rectification of procedural shortcomings (Donservispak had not been informed about the date of hearing before the Court of Appeal). On 26 April 2002 the Court of Appeal quashed the judgment of 2 April 2001 and acquitted the applicant. On 17 June 2002 the Deputy Public Prosecutor lodged a cassation appeal. On 3 October 2002 the hearings were resumed before the Supreme Court. On 14 November 2002 the Supreme Court quashed the judgment of 26 April 2002 and remitted the case to the Court of Appeal. On 28 February 2003 the Court of Appeal rejected the applicant’s appeal and partially modified the judgment of 2 April 2001. The applicant was convicted and a suspended sentence of three years’ imprisonment was imposed under Article 364 of the Criminal Code of 2001. On 27 January 2004 the Supreme Court rejected the applicant’s cassation appeal against this ruling. On 7 July 2002 the applicant addressed the Voroshylivsky Court with a request to calculate the pecuniary and non-pecuniary damage caused by his criminal prosecution and by alleged violations of the law committed by officials of the Public Prosecutor’s office and courts. On 22 July 2002 the court decided not to deal with the request because the applicant had failed to comply with the formal requirements. It allowed the applicant time to rectify the shortcomings. On 30 August 2002 the applicant’s request was returned as had not lodged a rectified version. The applicant did not appeal against this ruling. On 2 August 2002 the applicant lodged a claim with the Court of Appeal asking for compensation for pecuniary and non-pecuniary damage caused by his criminal prosecution and the alleged violations of the law. On 7 August 2002 the court found that the claim fell outside its jurisdiction. The applicant lodged a cassation appeal against this ruling. There is no information about the outcome of the proceedings. In September 2002 the applicant instituted proceedings against the Public Prosecutor’s office and the Voroshylivsky Court for compensation for pecuniary and non-pecuniary damage caused by the prosecution. The Voroshylivsky Court decided not to deal with the claim because the applicant had failed to comply with the formal requirements. It allowed the applicant until 7 October 2002 to rectify the shortcomings. On 14 October 2002 the same court returned without examination the applicant’s claim for failure to rectify the mistakes. The applicant did not appeal against this ruling. On 16 December 1997 the Donetsk Commercial Court, upon the claim of the public prosecutor in the interest of the Kuibyshevsky Department of the Communal Property, annulled the rent contract of Donservispak’s office and ordered its eviction. On 26 February 1998 the Deputy President of the Donetsk Commercial Court upheld this decision. On 5 October 2000 the Donetsk Commercial Court, upon the motion of the Voroshylivsky Office of the State Tax Inspectorate in Donetsk, declared Donserviskpak bankrupt. On 27 March 2002 the same court terminated the bankruptcy proceedings and ordered the liquidation of Donservispak On 22 April 2002 the applicant’s appeal against this ruling was returned without examination for failure to comply with the formalities. The applicant did not pursue the proceedings.