POZHARSKYY v. UKRAINE
Inadmissible
Peer Lorenzen
The applicant, Mr Oleksandr Yukhymovych Pozharskyy, is a German national who was born in 1965 and lives in Berlin. He was represented before the Court by Mr A. Vronsky, a lawyer practising in Kyiv. The facts of the case, as submitted by the parties, may be summarised as follows. On 21 September 1995 the applicant deposited an amount of 175,600 United States dollars (hereafter “the USD”) in cash with Mr Nevmerzhytsky, who at the relevant time was the Head of the Kyiv office of the Poltava Bank (hereafter “the Bank”). Mr Nevmerzhytsky issued a receipt for this money, in which he undertook to repay it immediately on the applicant’s demand. The receipt was countersigned by the applicant and two witnesses. On 28 September 1995, in the course of an ongoing preliminary criminal inquiry, the premises of the Bank were searched by the police and an amount of USD 184,761 in cash was seized which had been stored underneath the table of an employee. On 18 October 1995 the Investigative Division of the Main Department of the Ministry of Internal Affairs of Ukraine in Kyiv began a criminal investigation into allegations of illegal currency transactions that had allegedly been committed by Mr Nevmerzhytsky. Subsequently this charge was dropped and he was charged with financial fraud, forgery committed by an official, aggravated forgery, abuse of power, tax evasion, aggravated fictitious trading and aiding and abetting the concealment of the proceeds of currency sales (see Nevmerzhitsky v. Ukraine, no. 54825/00, §§ 10-25, ECHR 2005). On 27 October 1995 a police investigator ordered that the money seized at the premises of the Bank be attached to the file in the criminal case against Mr Nevmerzhytsky and be used in the subsequent trial as real evidence. On 19 April 1997 the applicant was put on the list of wanted persons for his alleged involvement in illegal currency transactions. On 6 May 1997 he was apprehended by the police. On 8 May 1997 the applicant was formally charged with engaging in illegal currency transactions. On 10 June 1998 the investigator discontinued the criminal proceedings against the applicant, holding that there was no evidence that the applicant had been aware of the fact that Mr Nevmerzhytsky had conducted illegal financial transactions. On 3 August 1998 the applicant lodged a civil-party application in the context of the criminal case against Mr Nevmerzhytsky, asserting his rights to the money seized at the bank in the amount of USD 175,600. On 5 August 1998 the investigator dealing with case against Mr Nevmerzhytsky, allowed the applicant to join the proceedings as a civil claimant. In his decision the investigator stated, inter alia, that the applicant had a valid claim for part of the money seized at the premises of the Bank. During the trial proceedings against Mr Nevmerzhytsky, which started in August 1999 and continued, with several interruptions (see Nevmerzhitsky, cited above, §§ 19-26), until February 2001, the applicant was heard as a witness. He stated that on several occasions in summer and autumn 1995 he had deposited cash with the defendant, including the amount USD 175,600, handed over on 21 September 1995. On 19 February 2001 the Kyiv City Court convicted Mr Nevmerzhytsky of repeated financial fraud, acts in preparation of financial fraud, forgery committed by an official, aggravated forgery and abuse of power. It sentenced him to five years and six months’ imprisonment, and ordered the confiscation of all his personal property. The trial court acquitted him of the offences of aiding and abetting the concealment of the proceeds of currency sales, tax evasion and aggravated fictitious trading. The Kyiv City Court also ordered the amount of USD 184,761 forfeited to the State as its rightful owner had not been established during the hearings. On the same date the Kyiv City Court issued a separate ruling, noting that the investigating authorities had permitted the applicant to join the proceedings as a civil claimant on the ground that in summer and autumn 1995 he had deposited substantial amounts in cash with Mr Nevmerzhytsky. However, the applicant could not be a party to the criminal proceedings as the authorities had failed to verify the source of this money and the lawfulness thereof. The Kyiv City Court suggested that the investigating authorities should reconsider their decision of 10 June 1998 to discontinue the criminal proceedings against the applicant. There is no indication that the criminal investigation against the applicant was ever reopened. On an unspecified date the applicant appealed against the judgment of 19 February 2001, stating that the Kyiv City Court had unfairly denied him access to the proceedings in his capacity as civil claimant. The applicant further complained that the trial court had unreasonably ordered the forfeiture of the cash seized at the premises of the Bank, as the major part of this money belonged to him. Pursuant to Article 347 of the Code of Criminal Procedure, the applicant’s appeal in cassation was handed over to the Kyiv City Court, which examined its compliance with the relevant procedural requirements (see the relevant domestic law below). On 1 March 2001 this court declared the appeal inadmissible as the applicant was not a party to the criminal trial and therefore not entitled to appeal against the judgment of 19 February 2001. The applicant challenged this decision before the Supreme Court. On 24 May 2001 the Supreme Court, following a hearing held in presence of the applicant’s lawyer, upheld the Kyiv City Court’s finding that the applicant was not a civil party to the criminal proceedings against Mr Nevmerzhytsky and was therefore not entitled to file an appeal against the judgment of 19 February 2001. The Supreme Court stated, inter alia, that the amount of cash seized during the search differed from that deposited by the applicant with Mr Nevmerzhytsky on 21 September 1995 and that the seized cash did not have any features that would permit to identify it as that belonging to the applicant. Moreover, it was highly improbable that such a significant sum of money would be stored for seven days (from 21 to 28 September 1995) by the bank employees in the counter hall underneath a table. 2. Civil proceedings On 29 November 1995 the applicant sued Mr Nevmerzhytsky for breach of contract, claiming that the latter owed him USD 175,600. On 7 December 1995 the Svyatoshynsky District Court of Kyiv suspended the proceedings in this case. On 24 April 1996 the Kyiv City Court, acting as supervisory instance, quashed this decision and remitted the case for examination on the merits. On an unidentified date the case was transmitted from the Svyatoshynsky to Starokyivskyy District Court of Kyiv. On December 1997 the Starokyivskyy District Court of Kyiv dismissed the applicant’s claim because he had repeatedly failed to appear in court. On 25 November 1998 the Kyiv City Court, on the applicant’s appeal, quashed this decision on the ground that the case file did not contain any evidence that the applicant had been duly informed of the scheduled hearings. On an unknown date before February 1999 the applicant amended his claims, requesting the court to order to the Kyiv City Police Department to join the proceedings as a co-defendant and requesting that the sum of USD 175,600 be excluded from the attachment order of 27 October 1995. On 1 February 1999 the Starokyivskyy District Court of Kyiv suspended the proceedings pending the outcome of the criminal proceedings against Mr Nevmerzhytsky. This decision was quashed on an unspecified date by a higher court. On 5 June 2000 the Starokyivskyy District Court of Kyiv dismissed the applicant’s claims because he had repeatedly failed to appear. The applicant did not appeal against this decision. Article 28 of the Code of Criminal Procedure provides that a person who sustained material damage from a crime shall be entitled to lodge a civil claim against the accused person or any other persons who bear material liability for the actions of the accused. The civil claim can be filed during the pre-trial proceedings as well as at the initial stages of the trial proceedings. The person who has not filed a civil claim in the context of the criminal proceedings, as well as a person, whose claim was left without consideration, is entitled to bring proceedings before civil courts.