CASE OF VOLOSYUK v. UKRAINE
Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed
Peer Lorenzen
5. The applicant was born in 1942 and resides in the city of Khmelnitskiy, Ukraine. 6. At the material time the applicant worked as a lawyer in a private company “Naddnistryanka”. 7. On 29 November 1994 the General Prosecutor’s Office (hereinafter – the GPO) instituted criminal proceedings against the applicant for bribing. On 14 December 1994 the Deputy Prosecutor General sanctioned the applicant’s arrest and detention. On 16 December 1994 the applicant was arrested and detained until 24 June 1996. 8. While in detention, the applicant was allegedly subjected to psychological pressure by the investigation officers. Prior to interrogation the applicant allegedly was placed in a tiny (2m2) cold room without windows, where he had to stay for several hours. The applicant states that he lost consciousness during interrogations and was interrogated while being seriously ill. In detention and afterwards the applicant suffered from chronic bronchitis and chronic neuritis. The applicant was beaten by one of the cellmates. The applicant maintained that the offender was a former Security Service officer. The applicant further alleges that drugs were added to his meals. According to the applicant, his family members were not allowed to see him in detention. On his numerous complaints about such treatment the applicant received answers that no violations had been revealed during pre-trial investigation in his case. 9. After his release the applicant was on a written undertaking not to abscond until 12 April 1999. In 1995-1999 criminal charges in the applicant’s case were several times changed. By 12 April 1999 the criminal case against the applicant was closed. By a prosecutor’s decision of 13 June 1999 the applicant was awarded UAH 6,502.37 (at the material time – EUR 1,568.28) in compensation for material damage. 10. In June 1998 the applicant instituted proceedings in the Khmelnitskiy City Court against the Security Service of Ukraine claiming UAH 500,000 in compensation for moral damage. The applicant later raised his claims to UAH 7,000,000. In April 1999 he claimed UAH 15,000,000 in compensation for moral damage from the GPO. These claims were joined and examined together. On 15 December 1999 the Khmelnitskiy City Court found in part for the applicant and ordered the State to pay him UAH 7,635 in compensation for material and moral damage caused by the unlawful criminal action against the applicant and his unlawful detention. On 3 February 2000 the Khmelnitskiy Regional Court upheld this decision and it became final. On an unidentified date the applicant requested the Deputy Chairman of the Khmelnitskiy Regional Court to lodge a supervisory review request (protest) against these decisions. His request was satisfied, the judgment of 15 December 1999 was quashed and the case was remitted for a fresh consideration. On 11 September 2000 the Khmelnitskiy City Court found in part for the applicant and ordered the State to pay him UAH 10,180 (approximately EUR 2,000) in compensation for moral damage for the unlawful criminal action against the applicant, for his unlawful detention and for being on a written undertaking not to abscond. This compensation had to be paid from the funds allocated for maintenance of the GPO. On 19 October 2000 the Khmelnitskiy Regional Court upheld this decision and it became final. 11. On 20 February 2001 the GPO suspended the enforcement of the judgment of 11 September 2000. On 15 May 2001 the Deputy Prosecutor General lodged a protest with the Supreme Court of Ukraine asking to quash the decision of 11 September 2000 in the part concerning the source of the payment on the ground that the awarded amount should not be paid from the funds allocated for the maintenance of the GPO. 12. On 3 October 2001 the Constitutional Court of Ukraine found unconstitutional the provisions of Article 32 of the Law on State Budget for the Year of 2000 according to which the compensation for damage inflicted by unlawful actions of the prosecutors had to be paid from the funds allocated for the maintenance of the GPO. 13. On 2 July 2002 the Pecherskiy District Bailiffs’ Service opened the enforcement proceedings in the applicant’s case. On 22 July 2002 the Bailiffs’ Service requested the National Bank of Ukraine to transfer the amount awarded to the applicant to the deposit account of the Bailiffs’ Service. On 6 December 2002 the applicant received the amount awarded and the enforcement proceedings were closed. 14. On 8 May 2003 the Supreme Court of Ukraine satisfied the protest and decided that the compensation in the applicant’s case had to be paid directly from the State Budget. 15. In June 1999 the applicant instituted proceedings in the Khmelnitskiy Town Court against the Khmelnitskiy State Centre for Standardisation, Metrology and Certification, which had been his employer at that time, for his allegedly unlawful dismissal. On 11 October 1999 the court found against the applicant. On 9 December 1999 the Khmelnitskiy Regional Court upheld this decision. 16. The applicant instituted two sets of proceedings in the Khmelnitskiy City Court against the GPO claiming UAH 61,161.06 and 5,862,364.79 in compensation for material damage. The applicant stated that according to the labour contracts of 12 November 1993 and 14 April 1994 his employer, the private company “Naddnistryanka”, had to pay him the above mentioned amounts of remuneration for the work performed. The applicant alleged that because of his detention and the investigation in the criminal case against him he had not been able to receive this money as the company went bankrupt in 1998. On 19 March and 3 April 2002 the court found against the applicant on the ground that the GPO was not an appropriate defendant to this claim and that the applicant should institute proceedings against his ex-employer. On 18 June and 2 July 2002 the Khmelnitskiy Appellate Court upheld these decisions. On 19 December 2002 and 29 September 2003 the Supreme Court of Ukraine rejected the applicant’s appeals in cassation. 17. In 1998-2000 a number of articles about the applicant were published in different newspapers. 18. In 2001-2004 the applicant complained to police and to other bodies that unknown people, who were allegedly policemen and the Security Service agents, threatened to destroy him in particular because he had raised complaints about the Security Service and the GPO before the European Court of Human Rights. By letter of 17 April 2001 the police informed the applicant that checks were carried out following his complaints. It was revealed that in February-March 2001 the former investigation officer, Mr M., who had investigated the applicant’s case, threatened the applicant. Mr M. was wanted for committing several crimes. By another letter of 22 March 2003 the police informed the applicant that an unknown person, who called him and threatened to eliminate him, was identified and warned about possible responsibility for such actions. By letters of 7 April and 30 December 2004 the police informed the applicant about the refusal to institute criminal proceedings following his complaints for the absence of the corpus delicti. 19. The applicant requested the investigation officer to allow him to represent Mr K. in a criminal case against the latter. By a decision of 19 November 2003 the investigation officer rejected the applicant’s request on the ground that in spite of having a law degree the applicant did not possess an advocate’s certificate. On 2 July 2004 the Khmelnitskiy Miskrayonnyi Court upheld this decision. 20. The relevant provisions read as follows: “Everyone has the right to compensation, at the expense of the State or bodies of local self-government, for material and moral damages inflicted by unlawful decisions, actions or omission of bodies of state power, bodies of local self-government, their officials and officers during the exercise of their authority.” ... “... In the event that a court verdict is revoked as unjust, the State compensates the material and moral damages inflicted by the groundless conviction.” “... Judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.” 21. At the material time, Chapter 42 of the Civil Code of Procedure allowed a final and binding judgment to be reviewed under the supervisory review procedure. The supervisory review procedure was repealed in June 2001. 22. Paragraph 6 of Article 34 provides that the enforcement proceedings may be suspended upon decision of the State official entitled to such actions by law. 23. At the material time, part 2 of Article 41 provided that the prosecutors who brought an appeal for supervisory review in the civil cases were entitled also to suspend the enforcement proceedings in such cases. In June 2001 this Article was repealed. 24. The relevant parts of the decision of 3 October 2001 read as follows: “ 5... Therefore, Article 32 of Law of Ukraine “On the State Budget of Ukraine for the Year 2000” ... de facto introduces civil and not public responsibility of ..., the prosecutor’s offices, ... for the material and moral damage caused to the citizens by unlawful actions of these bodies. Concurrently, the Constitution of Ukraine guaranties the right of the citizens for the compensation by the State and not from the funds allocated for the maintenance of these bodies (Article 56, 62). ... the Constitutional Court has decided: 1. To consider as contrary to the Constitution of Ukraine (unconstitutional) provisions of Article 32 of Law of Ukraine “On the State Budget of Ukraine for the Year 2000” ... according to which the compensation for damage inflicted to the citizens by unlawful actions of ..., the prosecutor’s offices, ... is to be provided from the funds allocated for the maintenance of the courts, the General Prosecutor’s Office, the Security Service of Ukraine, and the Ministry of Interior. 2. Provisions of Article 32 of Law of Ukraine “On the State Budget of Ukraine for the Year 2000” ... are considered unconstitutional, and void from the day this decision is made by the Constitutional Court of Ukraine.”