FIFTH SECTION

DECISION

Application no. 45240/09 Nina Zakharivna DOROGYKH against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 24 June 2021 as a Committee composed of:

Mārtiņš Mits , President, Jovan Ilievski , Ivana Jelić , judges, and Martina Keller, Deputy Section Registrar ,

Having regard to the above application lodged on 3 August 2009,

Having regard to the parties ’ submissions,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Nina Zakharivna Dorogykh , is a Ukrainian national, who was born in 1956 and lives in Kozyatyn . She was represented before the Court by Mr T. Kalmykov , a lawyer practising in Kharkiv .

2 . The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice.

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

4 . On 17 December 1994 several individuals attacked the applicant ’ s brother, robbed him and beat him. The applicant ’ s brother died shortly afterwards because of the injuries sustained.

5 . According to the applicant, in January 1995 criminal proceedings were brought against four individuals who were accused of having committed those crimes.

6 . Furthermore, also according to the applicant, on an unspecified date she joined the criminal proceedings as a civil party and introduced a compensation claim in the framework of those proceedings. Subsequently, she amended her claim on several occasions. In that connection, she submitted copies of her two amended claims bearing marks that they had been received by the Khmilnyk Town Court on 13 January 2004 and 11 January 2005 respectively.

7 . By decisions of 21 December 2004 and 11 January 2005, the Khmilnyk Town Court terminated as time-barred the criminal proceedings, in so far as they concerned charges of beating.

8 . On 26 September 2008 the Kozyatyn Town Court terminated as time-barred the criminal proceedings, in so far as they concerned the remaining charges of robbery.

9 . By decisions of 29 October 2008 and 26 May 2009, the Vinnytsya Regional Court of Appeal and the Supreme Court dismissed the applicant ’ s appeals against the decision of 26 September 2008, having found , in essence, that the proceedings had been terminated on lawful grounds. The courts also held that there was evidence that the robbery had been committed by two of the accused individuals and referred to the applicant as an aggrieved party.

10 . The Government made no submissions on the facts, stating that the domestic case file had been destroyed following the expiry of the term of storage.

11 . According to Article 28 of the Criminal Procedure Code of 1960 (repealed as of 19 November 2012), as worded at the material time, a person who had sustained pecuniary damage as a result of a crime could lodge a civil claim against an accused at any stage of criminal proceedings before the examination of the case on the merits by a trial court. The termination of the criminal proceedings as time-barred did not release the accused from the obligation to compensate such damage. If the civil claim introduced in the framework of criminal proceedings was left unexamined, the claimant had the right to bring it before the civil courts.

THE LAW

12 . The applicant complained of the allegedly excessive length of the criminal proceedings, their termination and the resulting non-examination of her civil action. She relied on Articles 6 § 1 and 13 of the Convention, which read, in so far as relevant, as follows:

Article 6

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

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

13 . The Government stated that they could not comment on the applicant ’ s complaints because the domestic case file had been destroyed ( see paragraph 10 above ) and the documents submitted by the applicant were insufficient.

14 . The Court reiterates that it is for the parties, in particular the applicants, to substantiate their factual arguments by providing the Court with the necessary evidence. In exceptional cases, this requirement will also be satisfied if the applicants give the Court a convincing explanation as to why it was not possible to submit the evidence (see, for instance, Lisnyy and Others v. Ukraine and Russia ( dec. ), nos. 5355/15, 44913/15 and 50853/15 , §§ 25-30, 5 July 2016).

15 . In the present case, the Court considers that the applicant did not submit sufficient information in support of her complaint of excessive length of the criminal proceedings, assuming Article 6 § 1 of the Convention under its civil limb was applicable ratione materiae (see, see Perez v. France [GC], no. 47287/99, §§ 62-66 and 74-75, ECHR 2004 ‑ I, and Mikhno v. Ukraine , no. 32514/12 , § 157, 1 September 2016). In particular, the applicant provided no proof in support of her statement that the impugned proceedings had started in January 1995, no information of what had happened before January 2004 when she had lodged her amended compensation claim with the Khmelnyk Town Court and no information of whether that claim had been included in the criminal case file (see paragraphs 5 and 6 above). The decisions, copies of which she submitted, demonstrate that on different dates in 2004, 2005 and 2008 the domestic courts had decided to terminate the proceedings and that the applicant had challenged the 2008 decision before the higher courts (see paragraphs 7 - 9 above). However, it remains completely unclear whether or not any other procedural events took place between 2005 and 2008. At the same time, the applicant did not point to any facts demonstrating that the proceedings had been unnecessarily prolonged or that the authorities or the courts had not acted expediently during that period. While, according to the Government, the material contained in the domestic case file had been destroyed (see paragraph 10 above), the applicant did not argue that this had prevented her from submitting any other documents which could potentially be in her possession as a party to those proceedings or, at least, a detailed factual account regarding their conduct.

16 . In so far as the applicant complained that the termination of the criminal proceedings at issue had resulted in the fact that her related compensation claim had remained unexamined, she did not argue that she had been prevented from initiating a separate set of civil proceedings in that regard in accordance with the relevant domestic law as in force at the material time (see paragraph 11 above) or that this procedural avenue would have been ineffective in her case. It must be noted that in other cases in which a civil party ’ s complaint had not been examined on account of the inadmissibility of the criminal complaints to which it had been attached, the Court found no violation of the right of access to a court where other judicial remedies had been available to applicants (see, for instance, Dimitras v. Greece , no. 11946/11, §§ 41, 46 and 47, 19 April 2018, with further references).

17 . Finally, in so far as the applicant ’ s complaints are directed against the decisions terminating the criminal proceedings, the Court reiterates that the Convention does not confer any right, as such, to have third parties prosecuted or sentenced for a criminal offence (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 218, 14 April 2015).

18 . In the light of the foregoing considerations, the Court rejects the application as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 July 2021 .

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Martina Keller Mārtiņš Mits Deputy Registrar President