FIFTH SECTION

DECISION

Application no. 44291/17 Oleg Gennadiyovych GENSHAFT against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 21 January 2021 as a Committee composed of:

Arnfinn BÃ¥rdsen , President, Ganna Yudkivska, Mattias Guyomar, judges and Martina Keller, Deputy Section Registrar ,

Having regard to the above application lodged on 13 June 2017,

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 Oleg Gennadiyovych Genshaft, is an American national, who was born in 1975 and lives in London. He was represented before the Court by Mr V.V. Shevchuk , a lawyer practising in Kyiv.

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

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

4 . On 21 June 2013 criminal proceedings were initiated against the applicant on charges of assault on a law enforcement officer (Article 345 § 2 of the Criminal Code, punishable by up to five years ’ imprisonment) and disobedience to the police officer (Article 342 § 1 of the Code, punishable by up to two years ’ imprisonment), in connection with some construction work conducted near the seashore in 2013 in Alupka (in the Autonomous Republic of Crimea) the legality of which was contested.

5 . On 22 November 2013 the bill of indictment in respect of the applicant was submitted to the Yalta Court of the ARC, the trial court.

6 . On 24 December 2013 the Yalta Court held a preparatory hearing in the case and scheduled the case for trial. However, due to the events described in paragraph 7 below the trial never started.

7 . The Government submitted that in February and March 2014 the Russian Federation seized control over Crimea and the Ukrainian Government authorities ceased to operate in the peninsula and lost access to the case files stored there, including the case file in the applicant ’ s case. The Government described the events of 2014 in the following terms:

“4. In late February – March 2014 the Russian Federation occupied the territory of Crimea peninsula.

...

6. On 16 March 2014 there was illegitimate and unrecognised by international community and overtly falsified “referendum” in Crimea and the city of Sevastopol, which Russia organised and used for justification of the occupation.

7. On 17 March 2014 the Supreme Council of ARC proclaimed the independence of the Republic of Crimea... According to this decision Ukrainian legislation should not be applied in the territory of the “Republic of Crimea”; decisions of the Verkhovna Rada of Ukraine and of others state authorities, adopted after 21 February 2014, would not be complied with. The decision also purported to terminate the authority of the state bodies of Ukraine on the territory of Crimea. Their powers, property and facilities were passed into the state authorities of the “Republic of Crimea”, which were recognised by the Government of the Republic of Crimea. The state property of Ukraine, located in the territory of the “Republic of Crimea” was to become the state property of the “Republic of Crimea”... Furthermore, by this decision the Supreme Council of ARC applied to the Russian Federation with a proposal to accept the Republic of Crimea and Sevastopol (again without its consent) as new members of Federation.

8. On 20 March 2014 the State Duma of the Russian Federation voted for the “accepting” of Crimea and Sevastopol and ratified Agreement of 18 March 2014 to this effect.

9. On 21 March 2014 the Council of Federation “joined” the Crimea and Sevastopol to the Russian Federation and ratified the Agreement of 18 March 2014. 155 members of Council of Federation voted to adopt the appropriate decision.”

8 . On an unspecified date the applicant submitted an application seeking discontinuation of criminal proceedings against him to the Kyiv Court of Appeal asking it to designate, under the Law No. 1207-VII (see paragraph 22 below), a court in Kyiv to examine the application. The applicant asked that the proceedings be discontinued on the grounds that no sufficient evidence of his guilt had been found and there was no possibility to collect such evidence.

9 . On 27 October 2014 the Kyiv Court of Appeal designated the Kyiv Dniprovsky District Court as the court competent to examine the discontinuation application.

10 . On 19 February 2015 the Dniprovsky District Court held a hearing on the applicant ’ s discontinuation application, refused to examine the application and returned it to the applicant on the grounds that only the court before which the bill of indictment was pending was competent, under domestic law, to examine such an application. The Kyiv Court of Appeal had designated the District Court only as the court competent to examine the discontinuation application and not the criminal case as a whole .

11 . On 5 June 2015 the Kyiv Court of Appeal quashed the Dniprovsky Court ’ s ruling of 19 February 2015 and remitted the case and the discontinuation application for reexamination , explaining that it had, contrary to what the Dniprovsky Court had understood, designated it as the court competent to examine the application.

12 . The applicant asked the ARC prosecutor ’ s office to submit to the Dniprovsky Court a bill of indictment in his respect.

13 . On 11 September 2015 the ARC prosecutor ’ s office refused to do so, on the grounds that the Law No. 1207-VII (see paragraph 22 below) did not provide for resubmission of bills of indictment which had already been submitted.

14 . On 14 September 2015 the applicant withdrew his discontinuation application.

15 . The applicant ’ s lawyer asked the Kyiv Court of Appeal to designate another Kyiv district court as the trial court in his case. He submitted a copy of the bill of indictment with his application.

16 . On 17 November 2016 the Kyiv Court of Appeal, on the applicant ’ s lawyer ’ s application, designated the Kyiv Desnyansky District Court.

17 . On 16 December 2016 the applicant applied to the Desnyansky Court to schedule a new preparatory hearing in his case on the basis of the bill of indictment.

18 . However, on 30 December 2016 the Desnyansky Court returned the bill of indictment to the applicant ’ s lawyer. On 1 March 2017 the Kyiv Court of Appeal, in a final ruling, upheld that decision. The courts reasoned that the applicant ’ s lawyer had no authority to submit the bill of indictment to the court as the prosecutor ’ s office was the only party entitled to do so.

19 . The applicant did not allege that he was placed on the “wanted” list in connection with the above-mentioned criminal proceedings or that they had a practical impact on his freedom of movement.

20 . In the constitutional order of Ukraine the Crimea peninsula, except the city of Sevastopol, has the status of the Autonomous Republic of Crimea. Sevastopol is a city with a particular administrative status.

21 . The relevant procedure is set is set in Articles 524 to 531 of the 2012 Code of Criminal Procedure. According to those provisions, a ny party to the proceedings may apply to the court which delivered the judgment for restoration of a lost case file. Article 527 of the Code requires persons applying for restoration to explain the purpose for which restoration is sought, provide detailed information as to the specific material in the file, the names and addresses of parties to the proceedings, the possible location of the lost material and the circumstances in which it was lost, and to furnish to the court all documentation available to him or her. Article 529 provides that the court, having received the application, must ask the prosecutor ’ s office for information and documentation which may help in restoring the case file. Under Article 530, the court can examine as witnesses officials and other persons who took part in the proceedings and, where necessary, judges who examined the case. On the basis of the information and documentation so collected, the court may either deem the file restored in its entirety or in part or, if it finds the information available insufficient, discontinue the proceedings and explain to the parties their right to reapply if necessary documentation becomes available (Article 531).

22 . The Law concerns the Autonomous Republic of Crimea and Sevastopol, which it defines as territory temporarily occupied by Russia (sections 2 and 3). Section 12 reassigns jurisdiction over cases which would normally fall within the jurisdiction of the courts of the ARC and Sevastopol to courts in Kyiv designated by the Kyiv Court of Appel.

COMPLAINTS

23 . The applicant complained under Article 6 § 1 of the Convention of prolonged failure to examine his case and under Article 13 that he did not have an effective domestic remedy in that respect.

THE LAW

24 . The applicant complained under Articles 6 § 1 and 13 of the Convention which read, insofar as relevant:

Article 6 § 1

“In the determination of ... any criminal charge against him, 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.”

25 . The Government referred to the situation in the Autonomous Republic of Crimea (see paragraph 7 above) and submitted that, as in Khlebik v. Ukraine (no. 2945/16, 25 July 2017) in which the Court had found no violation of Article 6 § 1 on account of the complex situation in the Luhansk Region, the delay in the examination of the present applicant ’ s case was likewise caused exclusively by the impossibility of obtaining of the case-file material from Crimea. Accordingly, the length of proceedings could not be considered unreasonable. The Ukrainian authorities were undertaking all measures available to them to safeguard the rights of citizens who found themselves to the situation such as the applicant ’ s .

The domestic law provided for reassignment of jurisdiction in cases over which the courts in Crimea used to be competent to a court in Kyiv. The applicant had used that procedure and the courts in Kyiv had examined the procedural issues raised by him. The applicant had withdrawn his application for the termination of criminal proceedings (see paragraph 14 above) even though the domestic courts were considering that issue and there was a possibility of a positive decision for the applicant.

26 . The applicant submitted that he had taken all possible steps to prove his innocence. He had applied to the Kyiv Court of Appeal twice to have competent courts in Kyiv designated to examine his case. The first time the applicant had committed an error by asking to designate the court only to examine his application for discontinuation of proceedings and not submitting the bill of indictment to the same court. Realising his error, he had withdrawn the application because it had not complied with the law. The second time the applicant had had another court designated as the court responsible for examining the case against him as a whole and submitted the bill of indictment to it. However, the designated trial court had unjustifiably refused to examine the case.

27 . The relevant principles of the Court ’ s case-law have been summarized in Khlebik (cited above, § 71).

28 . The criminal proceedings against the applicant started on 21 June 2013 (see paragraph 4 above) and have since been pending before one level of jurisdiction.

29 . The authorities have been unable to proceed with the case given that the case-file material was inaccessible. While jurisdiction over the applicant ’ s case has been reassigned to courts in Kyiv, they have been unable to examine any substantive matters involved in the case.

30 . The applicant argued before the domestic courts that, in the absence of the case file, there was no sufficient evidence of his guilt and no possibility to collect such evidence meaning that the proceedings against him had to be discontinued.

31 . The Government pointed out that the applicant had undermined his own case by withdrawing that application for discontinuation of proceedings even though there had been a real prospect that those proceedings would bring positive result (see paragraph 14 above).

32 . The applicant responded that, in lodging that application, he had committed a procedural error because the bill of indictment had not been submitted to the same court. Having realised his error, he had withdrawn the application in order to correct it (see paragraph 26 above).

33 . However, it is not clear why the applicant considered that his application had been submitted in error given that the Court of Appeal had quashed the first-instance court ’ s decision rejecting it. The applicant did not cite any case-law which would support his assessment. This is perhaps unsurprising given that the issues with which the courts were confronted in the applicant ’ s case were new (compare Khlebik , cited above, § 60).

34 . This, however, makes it all the most difficult to assert with any degree of certainty what position the courts would have taken on the discontinuation application had the applicant not withdraw it. The Court is not in a position to speculate on this point.

35 . The Court finds that, by withdrawing his application for the discontinuation of criminal proceedings, the applicant renounced the use of a procedure which offered the domestic court a possibility to address his situation. He is ill-placed, therefore, to argue that the domestic courts are failing to examine his case since he himself through his own actions foreclosed that possibility.

36 . Accordingly, the application is manifestly ill-founded and should be rejected pursuant to 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 11 February 2021 .

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Martina Keller Arnfinn BÃ¥rdsen Deputy Registrar President