FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 6692/02 by Oleksandr Yukhymovych POZHARSKYY against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 29 May 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mr K. Jungwiert , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr J. Borrego Borrego , Mrs R. Jaeger , Mr M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 30 May 2001,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility a nd merits of the case together,

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, 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 Kyi v.

A. The circumstances of the case

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

1. Criminal proceedings

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 ap peal 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.

B. Relevant domestic law

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.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that he had been denied access to court on account of the refusal by the domestic courts to consider his claim in the context of criminal proceedings.

Relying on Article 1 of Protocol No. 1 the applicant complained that the seizure and attachment by the State of the money found during the search of the premises of the Bank had violated his property rights.

The applicant further maintained that he had been denied an effective remedy in respect of the alleged violation of his rights und er Article 1 of Protocol No. 1.

THE LAW

A. Alleged violation of Article 6 § 1 of the Convention

The applicant complained that he had had no access to court in respect of his claim for restitution of part of the money seized at the bank. He relied on Articles 6 § 1 of the Convention, which, in so far as relevant provides as follows:

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

1. Submissions by the parties

The Government contended that the applicant had had the benefit of adversarial proceedings before the Supreme Court . They also maintained that Article 6 § 1 obliges courts to give reasons for their decisions, but cannot be understood as requiring a detailed answer to every argument and that it is not the Court ’ s function to deal with errors of fact or law allegedly committed by a national court. Relying on these arguments, the Government considered that the applicant had been provided with access to court for determination of his civil claims.

The applicant disagreed.

2. The Court ’ s assessment

The Court observes that, in the context of the criminal proceedings against a third person, the applicant asserted his right to part of the money seized in the course of the investigations, and this in the amount of USD 175,600. The parties did not dispute the applicability of Article 6 § 1 to the proceedings at issue. This being so, and bearing in mind that the parties ’ arguments before it were directed to the issue of compliance with Article 6 § 1, the Court proposes to proceed on the basis that it was applicable to the present case.

Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way the Article embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one aspect only (see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, p. 18, § 36). It also recalls that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective. This is particularly true for the right of access to courts in view of the prominent place held in a democratic society by the right to a fair trial (see, for example, Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, pp. 12-13, § 24).

In the present case the applicant was allowed to join the criminal proceedings against Mr Nevmerzhytsky as a civil claimant at the stage of investigation, but not at the trial proceedings where he participated as witness. When convicting Mr Nevmerzhytsky and his co-accused on 19 February 2001, the trial court decided that the amount of USD 184,761, which had been seized at the bank in the course of the investigations, be forfeited to the State as its rightful owner had not been established. As transpires from a separate ruling issued on the same day, the trial court had doubts as to the source of the money seized and suggested to reopen the investigations against the applicant. The applicant ’ s appeal against the judgment ordering the forfeiture was rejected on formal grounds. The Supreme Court considered that as the applicant had participated in the trial proceedings only as a witness he was not entitled to file an appeal.

The Court observes at the outset that the applicant, when filing his third-party application, limited himself to asserting his property rights to part of the money seized at the bank, without lodging general compensation claims against the defendant (see, a contrario, Anagnostopoulos v. Greece , no. 54589/00, § 32 , 3 April 2003 ). The Court finds that in the present case, the criminal courts decided on all criminal aspects of the case before them, including the confiscation of the money seized in the course of the investigation. As their conclusion in this respect was that the lawful owner of the seized money could not be established, the applicant was no longer in a position to claim the ownership of any part of the money in question. Accordingly, his attempt to obtain, in the context of the criminal proceedings against his debtor, redress for the loss of his money due to the latter ’ s criminal activities failed.

However, the Court notes that he had the opportunity to file any civil compensation claims against Mr Nevmerzhytsky with the civil courts which had full jurisdiction over such a dispute between private individuals (see Relevant domestic law above). Indeed he did avail himself of this possibility when suing Mr Nevmerzhytsky in a district court of Kyiv, though he subsequently failed to pursue that case. Accordingly, the outcome of the proceedings before the criminal courts were not decisive for the applicant ’ s right to compensation (see Stokas v. Greece (dec.), no. 51308/99, 29 November 2001).

The Court, therefore, finds that the failure of the criminal courts to decide on the applicant ’ s claims does not disclose any appearance of a violation of his right of access to court as guaranteed by Article 6 § 1.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

B. Alleged violation of Article 1 of Protocol No. 1

The applicant asserted that the decision ordering the forfeiture of the money found during the search of the premises of the Bank deprived him of the peaceful enjoyment of his possessions. The applicant invoked Article 1 of Protocol No. 1 to the Convention, which provides:

“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 maintained that there was no infringement of the applicant ’ s property rights guaranteed by Article 1 of Protocol No. 1. The applicant disagreed.

The Court notes that the applicant had deposited USD 175,600 in cash with Mr Nevmerzhytsky under an agreement that it would be paid back to him any time upon his request. Several days later, an amount of USD 184,761 was seized at the premises of the bank in the context of a criminal investigation against Mr Nevmerzhytsky and others. The trial court ’ s decision to order the forfeiture of the money seized as no rightful owner had been established cannot, in the present circumstances, be regarded as an interference with the applicant ’ s right to peaceful enjoyment of his possessions. The Court also observes that it had no direct bearing on the applicant ’ s claims that he could file against Mr Nevmerzhytsky, either based on contract or tort. Having also regard to its conclusions on the applicant ’ s complaint under Article 6 § 1 of the Convention, the Court, on the basis of the material before it, finds that no appearance of a breach of the applicant ’ s rights under Article 1 of Protocol No. 1.

It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention.

C. Alleged violation of Article 13 of the Convention

The applicant maintained that he had been denied an effective remedy in respect of the violation of his rights under Article 1 of Protocol No. 1.

The Court recalls that Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “ arguable complaint ” under the Convention and to grant appropriate relief (see for example Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI).

Referring to its considerations above, the Court finds that the applicant had no arguable complaint under Article 1 of Protocol No. 1. It follows that this part of the application should be rejected as being manifestly ill ‑ founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

The Court considers that in the present case must be discontinued.

For these reasons, the Court unanimously

D iscontinues the application of Article 29 § 3 of the Convention;

Declares the application inadmissible.

Claudia Westerdiek Peer Lor e nzen Registrar President