FIFTH SECTION

DECISION

Application no . 18949/04 Sergey Viktorovich BLAGOY against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 15 October 2013 as a Chamber composed of:

Mark Villiger, President , Boštjan M. Zupančič , Ann Power- Forde , André Potocki,

Helena Jäderblom ,

Ale Å¡ Pejchal , judges, Stanislav Shevchuk , ad hoc judge , and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 3 April 2004,

Having regard to the partial decision of 29 March 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Sergey Viktorovich Blagoy , is a Ukrainian national, who was born in 1953 and lives in Kharkiv . He was represented before the Court by Mr A. Bushchenko , a lawyer practising in Kharkiv .

2 . The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy .

3 . Mrs G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Chamber decided to appoint S. Shevchuk to sit as an ad hoc judge (Rule 29 § 1(b)).

A. The circumstances of the case

4 . The facts of the case, as submitted by the parties, may be summarised as follows.

5 . On 7 December 1999 the Kharkiv Regional Prosecutor ’ s Office instituted criminal proceedings against the applicant for accepting a bribe. Several other sets of criminal proceedings were instituted against him and the other individuals, which were consolidated into one criminal case.

6 . On 20 March 2000 the case was referred to the Kharkiv Regional Court for trial.

7 . On 21 July 2000 the court remitted the case to the authorities for additional investigation, instructing them to undertake further investigative measures.

8 . On 7 November 2001 the case was referred to the Dzerzhynskyy District Court of Kharkiv for trial.

9 . On 18 April 2003 that court found, inter alia , that the applicant had committed fraud and sentenced him to three years ’ imprisonment. However, he was released from serving his sentence on the basis of the Amnesty Act. The applicant appealed against his conviction.

10 . On 14 October 2003 the Kharkiv Regional Court of Appeal quashed the judgment of 18 April 2003 and remitted the case to the authorities for additional investigation. The Court of Appeal listed a number of specific investigatory measures which had to be undertaken during the additional investigation.

11 . On 27 December 2005 the police investigator terminated the criminal proceedings for lack of corpus delicti .

12 . On 1 February 2006 the Kharkiv City Prosecutor ’ s office gave its consent to that decision.

13 . The applicant challenged the decision of 27 December 2005 before the local court, claiming that the proceedings had to be terminated on the ground that there had been no crime rather than there having been no corpus delicti in his actions.

14 . On 2 March 2006 the court considered the complaint in the absence of the applicant and the prosecutor. The court noted that the investigation was conducted comprehensively, the investigator ’ s conclusions were correct and there was no reason to reverse the decision in question. It therefore rejected the applicant ’ s complaint.

15 . On 28 March 2006 the Kharkiv Regional Prosecutor ’ s Office, exercising its supervisory powers under Article 227 of the Code of Criminal Procedure, conducted a case review and reversed the decision of 27 December 2005, noting that it had been adopted prematurely and that, despite the instructions given in the Court of Appeal ’ s decision of 14 October 2003 and the instructions of the prosecutors at the earlier stages in the proceedings, not all the necessary investigative measures had been undertaken. The criminal proceedings were reopened accordingly.

16 . The applicant challenged the decision of 28 March 2006 before the courts, but his complaint was dismissed for lack of jurisdiction at that stage of criminal proceedings.

17 . On 25 May 2007 the investigating officer once again terminated the criminal proceedings for lack of corpus delicti .

B. Relevant domestic law

1. Code of Criminal Procedure of 28 December 1960 (in force at the material time)

19 . Article 214 of the Code provided, inter alia , that the investigator was to close the case by a reasoned decision which had to include, among other things, the details of the accused person, the merits of the case and the grounds for termination of the case. By that decision the investigator also had to deal with the issues of lifting a preliminary measure and the measures for securing civil claim and/or the possible confiscation of property, as well as the issues concerning the material evidence.

Article 216. Resumption of the investigation in a terminated case

“The investigation in a terminated case may be resumed, within the time-limits applying to criminal liability, by a decision of the prosecutor, the head of the investigative department, or – in the case of events falling under Article 236-6 of the Code – by the decision of a court.”

Article 227. Powers of the prosecutor in supervising the enforcement of the law by inquiry and investigation bodies

“In supervising the enforcement of the law by inquiry and investigation bodies, the prosecutor shall be empowered to take the following measures within the scope of his competence:

(1) request the criminal case files from inquiry and investigation bodies for review...;

(2) reverse unlawful and unsubstantiated decisions taken by investigators and inquiry officers;

...

(8) remit criminal cases to the investigating bodies for additional investigation with instructions; ...”

Article 236. Complaints in respect of the prosecutor ’ s actions

“Complaints concerning actions taken by a prosecutor during the pre-trial investigation or specific investigative measures in the case shall be submitted to the superior prosecutor, who shall consider them in accordance with the procedure and time-limits prescribed by Articles 234 and 235 of this Code.

Complaints about actions taken by a prosecutor may be lodged with a court.

Complaints about the prosecutor ’ s actions shall be considered by the first-instance court in the course of the preliminary consideration of the case or in the course of consideration of the case on the merits, unless otherwise provided for by this Code.”

Article 236-5. Challenging in court a decision to terminate criminal proceedings

“A decision of a body of inquiry, an investigator, or a prosecutor on the termination of criminal proceedings can be appealed against to the district (town) court by a person concerned or his/her representative within a seven-day period of receipt of a copy of the decision or the prosecutor ’ s notice of dismissal of the complaint in respect of that decision.”

21 . According to Article 236-6 of the Code, the complaint against a decision of a body of inquiry, an investigator, or a prosecutor to terminate the criminal proceedings had to be considered by a single judge within five days, or in complex cases within ten days, of receipt of the case file by the court. The judge had to request the case-file and examine it; if necessary, he or she could hear the complainant. The prosecutor and the complainant were entitled to participate in the hearing and had to be notified about the time of the consideration of the complaint.

After the examination of the complaint the judge, depending on whether the impugned decision had been taken in compliance with Articles 213 and 214 of the Code, had either to reject the complaint or to quash the decision and send the case-file to the prosecutor for the resumption of the investigation. The decision of the judge could be appealed against before the court of appeal within seven days of its adoption, by a prosecutor or the complainant.

2. The Law “On procedure for compensation for damage caused to citizens by the unlawful acts of bodies of enquiries, pre-trial investigation authorities, prosecutor ’ s offices and courts” of 1 December 1994 (“the Compensation Act ”)

22 . Sections 1 and 2 (as worded before the amendments of 1 December 2005) can be found in the judgments in the cases of Kobtsev v. Ukraine (no. 7324/02, § 35, 4 April 2006) and Afanasyev v. Ukraine (no. 38722/02, § 52, 5 April 2005).

23 . Following amendments to the Compensation Act on 1 December 2005, the list of situations where the right to compensation would arise was supplemented with the following paragraph :

“(1-1) where ... the unlawfulness of bringing the charges, placing and holding in custody, ... searches, seizures, attachment of property, suspension from employment, and other procedural actions restricting or violating citizens ’ rights and freedoms ... has been established by a conviction or other judgment of a court (save for rulings on the remittal of cases for additional investigation).”

COMPLAINT

24 . The applicant alleged that a decision to terminate the criminal proceedings against him had been unfairly reversed by the prosecutor.

THE LAW

25 . The applicant contended that the decision of 28 March 2006 to reopen the criminal proceedings against him had been adopted in breach of the principle of legal certainty and in violation of Article 6 of the Convention which provides, in so far as relevant, as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. The submissions by the parties

26 . The Government submitted that Article 6 § 1 of the Convention was inapplicable to the present complaint as the criminal proceedings against the applicant had been terminated at the pre-trial investigation stage without involving a determination of any criminal charge against him by the domestic courts.

27 . The Government further contended that the applicant had not complied with the requirement of exhaustion of domestic remedies in that he had failed to lodge a civil claim under the Compensation Act for damages in respect of the alleged violation. The Government provided examples of domestic judicial practice where individuals had been awarded compensation for having been unlawfully prosecuted.

28 . The applicant contended that his complaint did fall within the ambit of Article 6 § 1 of the Convention and that the reopening of the investigation disapproved the local court ’ s decision of 2 March 2006 and violated the principle of legal certainty. He further claimed that the civil remedy suggested by the Government was ineffective.

B. The Court ’ s assessment

29 . The Court does not find it necessary to rule on the Government ’ s objections since this complaint is in any event inadmissible for the following reasons .

31 . However, the Court did not apply this principle when it concluded that the applicant continued to be affected by the alleged violation after the acquittal or the discontinuation of the proceedings (see, for example, Correia de Matos v. Portugal ( dec. ), no. 48188/99 , 15 November 2001 , Kobtsev v. Ukraine , no. 7324/02, § 44, 4 April 2006, and Arat v. Turkey , no. 10309/03 , §§ 46-47, 10 November 2009 ).

32 . In the present case the applicant complained that the prosecutor reopened the pre-trial investigation in breach of Article 6 of the Convention. However, following that alleged procedural shortcoming, the investigation was terminated once again for lack of corpus delicti in the applicant ’ s actions. The available material does not suggest that the applicant continued to be affected by the alleged violation after the authorities discontinued the domestic proceedings again.

33 . Accordingly, the Court, having regard to its case-law, considers that the alleged procedural shortcoming must be considered to have ceased to have any effect after the discontinuation of the domestic proce edings. Thus, the applicant can not claim to be a victim of the alleged violation of the Convention, as required by Article 34.

34 . It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

Claudia Westerdiek Mark Villiger Registrar President