FIFTH SECTION

DECISION

Application no . 2581/05 Olga Pavlivna KUTOVA against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 2 April 2013 as a Chamber composed of:

Mark Villiger , President, Angelika Nußberger , Boštjan M. Zupančič , Ganna Yudkivska , André Potocki , Paul Lemmens , Aleš Pejchal , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 4 December 2004,

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

The applicant, Ms Olga Pavlivna Kutova , was born in 1949 and lives in Berezneguvate in the Mykolayiv Region.

The Ukrainian Government (“the Government”) were represented by their Agent, Mr Nazar Kulchytskyy , of the Ministry of Justice .

I. THE CIRCUMSTANCES OF THE CASE

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

A. Background to the case

In October 2002 the applicant, a businesswoman, sold 60 tonnes of sunflower seeds to a certain K., who introduced himself as the representative of a private company. Shortly afterwards, K., using forged documents, sold the seeds on to other people, who in turn sold the seeds to A., a private company. The latter then consigned the seeds to N., a private company owning a silo.

B. Criminal proceedings

On 11 October 2002 the applicant complained to the Berezneguvate police that K. had failed to pay her for the seeds. On an unspecified date the police opened a criminal case against him for defrauding the applicant.

On 21 October 2002 the police declared the seeds to be physical evidence and ordered them to be seized and left for storage at the premises of company N.

On 9 January 2003 the applicant lodged a civil claim with the police in the context of the criminal proceedings against K. seeking 66,660 hryvnias (UAH) in compensation for pecuniary damage and UAH 50,000 for non-pecuniary damage.

On 17 July 2003 the police lifted the order for the seizure of the seeds and ordered them to be transferred to the applicant, but on 23 July 2003 the director of N. refused to return them, asserting that they belonged to company A.

On 10 September 2003 the police rejected the applicant ’ s request to institute criminal proceedings against the director of N. for his failure to transfer the seeds as they believed that the determination of the ownership dispute over the seeds was within the competence of the courts. The applicant challenged that decision before the courts; however, on 21 October and 11 December 2003 respectively the Nova Odessa Court and the Mykolayiv Regional Court of Appeal ruled against her.

On 23 September 2003 the applicant was given permission to participate in the criminal proceedings against K. as a civil claimant.

On 24 December 2003 the Berezneguvate prosecutor ’ s office quashed the police ’ s order of 17 July 2003 in its entirety. The seeds remained stored at the premises of company N.

Shortly afterwards, the criminal case was sent to the Berezneguvate Court for trial.

On 17 May 2004 the applicant amended her claim, seeking the return of the seeds instead of compensation for pecuniary damage. On the same date a representative of company A. requested the court to admit as evidence documents proving that the company owned the seeds. The representative also asked the court to hear a witness. It is unknown whether those requests were ever granted.

By a judgment of 8 June 2004, the first-instance court convicted K. of aggravated fraud, sentencing him to a five-year suspended term of imprisonment with a probationary period of three years. The court ordered K. to pay the applicant UAH 7,000 in compensation for non-pecuniary damage, lifted the order for the seizure of the seeds and ordered that they be returned to the applicant.

On 18 June 2004 company A. appealed against that judgment, whereas the other parties to the proceedings, including the applicant, did not choose to appeal. On the same date the trial court, relying in particular on Article 348 of the Code of Criminal Procedure of 1960 (“Code of Criminal Procedure”, as in force at the material time), declared the appeal inadmissible, on the grounds that company A. had not been a party to the proceedings before the first-instance court and thus had no right to lodge an appeal.

On 21 September 2004 the Mykolayiv Regional Court of Appeal quashed the decision of 18 June 2004 and ruled that the appeal was to be examined on its merits. It held that the judgment of 8 June 2004 was in the interests of company A. and concerned the protection of property for the purposes of Article 1 of Protocol No. 1 to the Convention. The inadmissibility decision had deprived the company of access to a court, which was contrary to Article 6 of the Convention. The appellate court did not specify the procedural status of company A. The applicant lodged an appeal in cassation.

On 14 October 2004 the Supreme Court left the applicant ’ s appeal unexamined, noting that only decisions on the merits were subject to its review.

On 16 November 2004 the appellate court quashed the part of the judgment of 8 June 2004 concerning the return of the seeds, which it found to be “insufficiently reasoned, contradictory, ambiguous and unlawful”. As regards the procedural status of company A., the court noted, without giving any further details, that the appeal had been lodged by “the representative of a civil claimant”. Relying in particular on Articles 80 and 81 of the Code of Criminal Procedure, the court remitted that part of the case to the trial court for fresh consideration.

By a decision of 25 February 2005, the trial court ordered the return of the seeds to the applicant, deeming her their rightful owner and noting that company A. had not been a party to the criminal proceedings. The court also noted that company A. could claim ownership of the seeds by means of civil proceedings.

On 12 April 2005 the appellate court quashed that decision, finding that the trial court had acknowledged that ownership of the seeds was in dispute and had actually determined who owned them. However, the decision in question was contrary to the second paragraph of Article 81 of the Code of Criminal Procedure, which provided that any disputes over the ownership of physical evidence should be resolved in civil proceedings. The appellate court subsequently discontinued its consideration of the matter, explaining that it should be dealt with by means of civil proceedings.

The applicant lodged an appeal on points of law, arguing in particular that company A. had not been a party to the proceedings.

On 13 June 2006 the Supreme Court upheld the ruling of the appellate court although it did not specify the procedural status of company A.

The applicant did not institute civil proceedings for the return of the seeds, which remained in the possession of company A.

C . Enforcement proceedings in respect of the court ’ s order to return the seeds to the applicant

On 23 June 2004 bailiffs instituted enforcement proceedings in respect of the part of the judgment of 8 June 2004 concerning the return of the seeds to the applicant.

On 27 July 2004 the Nova Odessa Court suspended the enforcement proceedings following a request submitted by company A.

On 23 September 2004 the same court rejected the bailiffs ’ request of 23 June 2004, stating that the judgment of 8 June 2004 was not final and that ownership of the seeds was to be determined in civil proceedings. No appeal was lodged against the decision of 23 September 2004.

II. RELEVANT DOMESTIC LAW

Article 79, the third paragraph of Article 80 and the second paragraph of Article 81 of the Code of Criminal Procedure provided at the material time that any disputes over the ownership of physical evidence should be resolved in civil proceedings and that the evidence in question should be kept with the case file or (in the case of perishable or bulky goods) left for storage with a legal entity until judgment had been given. Subparagraph 5 of the first paragraph of Article 81 provided that any objects which had been the target of criminal activity should be returned to their rightful owner.

Article 348 of the Code of Criminal Procedure, as worded at the material time, stipulated that in criminal proceedings an appeal can be lodged by an accused, a victim, a convict, an acquitted person, a civil claimant or a civil respondent, a prosecutor who supported the charges or signed the indictment, a minor subjected to coercive educative measure by a court, the representative of a person subjected to coercive medical measures, and other persons in the cases envisaged by the Code.

THE LAW

1. The applicant complained that she had been deprived of the right to a fair trial as the appeal of company A. had been unlawfully accepted and the order to return the seeds to her (further to the judgment of 8 June 2004) had been quashed contrary to the procedural rules in force at the material time. T he applicant also complained, invoking Article 13 of the Convention, that not all those involved in defrauding her had been prosecuted .

The Court considers that the above complaints fall to be examined under Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

The Government contested the applicability of Article 6 on the basis that the applicant had withdrawn her compensation claim for pecuniary damage and had failed to institute civil proceedings for the return of the seeds. The Government further argued that the A. company had been the rightful owner of the seeds and had had the right to lodge an appeal against the judgment of 8 June 2004, taking into account the facts of the case, the principle of the rule of law and the guarantees provided by the national legislation.

The applicant disagreed. She argued that the A. company ’ s appeal had been accepted in breach of domestic and international law. The company should have lodged a separate civil claim to claim ownership of the seeds instead of lodging an appeal.

The Court reiterates that for the “civil” limb of Article 6 § 1 to be applicable, there must be a dispute over a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law. Firstly, the dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, lastly, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, inter alia , Mennitto v. Italy [GC], no. 33804/96, § 23, ECHR 2000 ‑ X; and Gülmez v. Turkey , no. 16330/02, § 28, 20 May 2008).

The Court observes that in the present case the applicant tried to recover property that she had sold but for which she had not received payment. As the property had been seized by the authorities in the course of the criminal proceedings against the buyer K., the applicant had had recourse to court within a non-contentious procedure under Articles 79 to 81 of the Code of Criminal Procedure which was only applicable to cases where there was no dispute over ownership of property. A criminal court of first instance allowed the applicant ’ s claim, despite the fact that it attracted conflicting pecuniary interests and was the subject matter of a dispute between several parties. The higher courts overturned the first-instance court ’ s decision on the grounds that under Ukrainian law such a claim should have been determined by the civil courts. The Court discerns no argument to disagree with the latter approach and finds that the applicant had an access to the criminal courts and she did not demonstrate that she did not have access to the civil courts for the determination of her claim. It follows that this part of the application is manifestly ill-founded wit hin the meaning of Article 35 § 3 (a) of the Convention and must be rejected in accordance with Article 35 § 4 .

As regards the remainder of the applicant ’ s complaint, namely that not all those involved in defrauding her had been punished, the Court observes that the Convention does not as such guarantee a right to have criminal proceedings instituted against third parties (see, Calvelli and Ciglio v. Italy [GC], no. 32967/96, ECHR 2002 ‑ I). It follows that this part of the application is also incompatible ratione materiae with the provisions of the Convention .

2. The applicant complained that the quashing of the part of the judgment of 8 June 2004 concerning the order to return the property to her had violated her rights under Article 1 of Protocol No. 1, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government contended that since the applicant had withdrawn her claim for compensation in respect of pecuniary damage and had not instituted civil proceedings to establish her ownership of the seeds , she had not exhausted domestic remedies in respect of this part of her application . The Government further suggested that her application was incompatible ratione personae with the provisions of the Convention , as the order made by the court to return the seeds to the applicant had not become final and enforceable before it had been quashed by the appellate court.

The applicant disagreed.

The Court agrees with the Government in that the applicant failed to exhaust the domestic remedies available to her because she did not raise her claim before the civil courts. This part of the application must thus be rejected for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Mark Villiger Registrar President