FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1751/03 by Vadym Gavrylovych MATSYUK against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 15 January 2008 as a Chamber composed of:

Peer Lorenzen , President, Snejana Botoucharova , Karel Jungwiert , Volodymyr Butkevych , Margarita Tsatsa-Nikolovska , Rait Maruste , Mark Villiger , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 28 November 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Va dym Gavrylovych Matsyuk, is a Ukrainian national who was born in 1938 and lives in the town of Bila Tserkva , Ukraine .

A. The circumstances of the case

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

In February 1996 the A. company (“the company”) was created and the applicant became its director and one of its shareholders. At the end of 1997, B. became a shareholder in the company. The company was renting two premises on 6 Klinichna street in the town of Bila Tserkva .

The f irst two set s of criminal proceedings

Between April and July 1998 two sets of criminal proceedings , for embezzlement of property and non-payment of taxes , were instituted against the applicant by the Bila Tserkva Tax Police (“the t ax p olice”). On 1 and 4 November 1999 these proceedings were terminated for lack of proof that a crime had been committed and under the Amnesty Act . On an unidentified date the decision of 4 November 1999 was quashed and the case was transferred to the Bila Tserkva Town Department of Internal Affairs for further investigation. On 3 February 2000 these proceedings were terminated for lack of proof that a crime had been committed .

The third set of criminal proceedings

On 9 December 1999 new criminal proceedings were instituted against the applicant , for embezzlement of property and forgery. On 18 April 2000 the Bilotserkivskyy Town Court sentenced the applicant to three years ’ imprisonment for embezzlement of property but amnestied him by the same decision.

According to the applicant, during the investigation of the criminal cases against him, the tax police had banned all transactions with his property and the property of the company , and had frozen its bank accounts. Consequently, the company had been unable to pay the rent on its premises .

Eviction proceedings

On an unidentified date the Prosecutor of Bila Tserkva instituted proceedings in the Kyiv Regional Commercial Court on behalf of the Bila Tserkva Municipal Council seeking to evict the company from the premises it occupied . On 15 April 1999 the court held that the company should move out. According to the applicant, at that time he had bec o me the sole owner of the company since all other shareholders had wi thdrawn and he had bought their shares.

On 12 October 1999 the company was evicted from the premises. According to the applicant, B. took all of the company ’ s property which was on the premises.

On 22 October 1999 the Higher Commercial Court dismissed an appeal by the applicant against the judgment of 15 April 1999 . On 28 October 1999 the Higher Commercial Court of Ukraine decided to postpone the enforcement of the judgment of 15 April 1999 in view of the pending appeal under the extraordinary procedure against this judgment before the Presidium of the Higher Commercial Court of Ukraine . The applicant did not inform the Court whether this appeal was granted.

Civil proceedings against B.

In February 2001 the applicant instituted proceedings against B. in the Bilotserkivskyy Town Court , claiming compensation for pecuniary and non-pecuniary damage inflicted by an alleged seizure of the applicant ’ s property by B. during the company ’ s eviction from the premises .

On 22 March 2001 the court closed proceedings in the case as the applicant should have lodged his claim bef ore the commercial court. On 24 April 2001 the Kyiv Regional Court quashed this ruling and remitted the case for a fresh consideration.

On 9 October 2001 the Bilotserkivskyy Town Court rejected the applicant ’ s claims as unsub s tantiated. On 28 January 2002 the same court returned an appeal by the applicant for non-compliance with procedural formalities. On 16 May 2002 the Kyiv Regional Court of Appeal upheld this decision. On 4 October 2002 the Supreme Court of Ukraine dismissed a cassation appeal by the applicant.

First set of proceedings against the t ax p olice

On 6 November 2001 the applicant requested the t ax p olice to pay him compensation for unlawful criminal proceedings against him (see the f irst two set s of criminal proceedings).

By a letter of 23 November 2001 the t ax p olice informed the applicant that his claims were unsubstantiated.

In February 2002 the applicant instituted proceedings in the Bilotserkivskyy Town Court against the t ax p olice , claiming compensation for pecuniary and non-pecuniary damage inflicted by unlawful criminal proceedings against him .

On 4 March 2002 the court noted that by letter of 23 November 2001 the t ax p olice had refused to pay the applicant the compensati on claimed and that the applicant had not appeal ed against this refusal. Consequently, o n 26 March 2002 the applicant lodged a new complaint , challenging the refusal of the t ax p olice to pay him compensation.

On 23 April 2002 the court found against the applicant. On 25 October 2002 the Kyiv Regional Court of Appeal quashed this decision and remitted the case for a fresh consideration. On 21 November 2002 the Bilotserkivskyy Town Court refused to consider the applicant ’ s complaint , since no resolution in this respect had been made by the t ax p olice in accordance with Article 12 of the Act “on the procedure for compensation for damage caused to the citizen by unlawful actions of bodies of inquiry, pre-trial investigation, prosecutors and courts” (“the Act”). The court further noted that the applicant should have first obtained a resolution from the tax police and only if he disagreed with this decision could he appeal against it to the court.

The applicant appealed against the decision of 21 November 2002, stating that the tax police had refused to award him compensation by their letter of 23 November 2001 and that he could not be responsible for the tax police ’ s non-compliance with the requirements of the Act.

On 17 January 2003 the Kyiv Regional Court of Appeal upheld th e decision of 21 November 2002 . On 21 March 2003 the Supreme Court of Ukraine dismissed an appeal in cassation by the applicant .

Second set of proceedings against the t ax p olice

In February 2002 the applicant instituted another set of proceedings against the t ax p olice , claiming compensation for non-pecuniary damage inflicted by the criminal proceedings against him. On 1 October 2002 the Bilotserkivskyy Town Court found against the applicant. On 10 December 2002 the Kyiv Regional Court of Appeal quashed this judgment and remitted the case for a fresh consideration. On 27 February 2003 the Bilotserkivskyy Town Court found the applicant ’ s claims unsubstantiated. On 15 May 2003 the Kyiv Regional Court of Appeal upheld this judgment. On 12 August 2003 the Supreme Court of Ukraine dismissed an appeal in cassation by the applicant .

Proceedings against the B ailiff s ’ S ervice

In August 2003 the applicant instituted proceedings in the Bilotserkivskyy Town Court against the B ailiff s ’ S ervice , claiming compensation for pecuniary and non-pecuniary damage inflicted by the allegedly unlawful eviction of the company from its premises on 12 October 1999 . On 8 September 2003 the court fo und against the applicant. On 9 December 2003 the Kyiv Regional Court of Appeal quashed this decision and remitted the case for a fresh consideration. On 23 March 2004 the Bilotserkivskyy Town Court found that the eviction of the company was lawful. On 20 July 2004 the Kyiv City Court of Appeal upheld this decision. On 21 May 2007 the Dnipropetrovsk Regional Court of Appeal , acting as a court of cassation , dismissed an appeal in cassation by the applicant .

B. Rele vant domestic law

The Act “on the procedure for compensation for damage caused to the citizen by unlawful actions of bodies of inquiry, pre-trial investigation, prosecutors and courts” of 1 December 1994

1 . The relevant extract s from the Act provide:

Section 2

“The right to compensation for damage in the amount and in accordance with the procedure established by this Act shall arise in the cases of:

- acquittal by a court;

- termination of a criminal case on grounds of absence of proof of commission of a crime, absence of corpus delicti , or lack of evidence of the accused ’ s participation in the commission of the crime;

- refusal to initiate criminal proceedings or termination of criminal proceedings on the grounds stipulated in sub-paragraph 2 of paragraph 1 of this Article;

- termination of proceedings for an administrative offence.”

Section 3

“... the citizen shall receive compensation for... :

1) salary or other monetary income which he has lost as a result of unlawful actions;

...

3) fines collected in accordance with the court decision, court fees and other expenses ... ;

4) expenses for legal aid ...”

Section 1 2

“ The amount of compensation for damage indicated in sub-paragraphs 1, 3 and 4 of this Act is determined by the relevant investigation body, prosecution or court which investigated or considered the case, within one month of the request [for such compensation] being lodged. A decision (resolution) should be adopted in this respect. [...]

In case of disagreement with the decision (resolution) adopted, it can be appealed against to the court under the civil procedure. [...] ”

Section 13

“The issue of compensation for non-pecuniary damage is decided by the court upon the citizen ’ s claim [ ... ] ”

COMPLAINTS

T he applicant complained under Articles 6 § 1 and 13 of the Convention of an interference with his right to fair hearing in his civil proceedings against B., the tax police and the Bailiffs ’ Service. He further complained under Article 1 of Protocol No. 1 to the Convention of an interference with his right of property.

THE LAW

A. Article 6 § 1 of the Convention

The applicant complained under Article 6 § 1 of the Convention of an interference with his right to fair hearing in the first set of civil proceedings against the tax police.

The Article relied on provides as follows:

Article 6 § 1

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of th is complaint , and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.

B. Other complaints

The Court, having examined the remainder of the applicant ’ s complaints, considers that, in the light of all the materials in its possession and insofar as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaint under Article 6 § 1 of the Convention concerning the access to a court in the first set of proceedings instituted by the applicant against the tax police ;

Declares the remainder of the application inadmissible.

             Claudia Westerdiek Peer Lorenzen              Registrar              President