Communicated on 9 November 2020 Published on 30 November 2020

FIFTH SECTION

Application no. 45903/16 Nataliya Mykolayivna DAVYDENKO and Ivan Mykolayovych DAVYDENKO against Ukraine and 3 other applications (see list appended)

STATEMENT OF FACTS

A list of the applicants, who are Ukrainian nationals, is set out in the appendix.

The circumstances of the case

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

The applicants ’ house, which was under construction, burned down on 17 April 2009. On 26 April 2009 a forensic expert determined the cause of the fire to be arson.

However , on numerous occasions the investigating authorities refused to institute criminal proceedings in respect of the incident or, after they were instituted, discontinued them for lack of constitutive elements of an offence in the event. Initially those decisions were based on the argument that arson as the cause of the fire was not proven.

Eventually, in the decision of 7 July 2015 the investigating authority found it established that the house had been vandalized by five construction workers, in the context of a conflict with the applicants concerning the payment for construction work. However, only one of the workers, Mr T., who had since died, had set the house on fire without the others ’ involvement. The proceedings against T. were accordingly discontinued due to his death and against the others because their vandalism caused damage of little monetary value.

The domestic courts and the prosecutor ’ s office repeatedly overruled the above decisions, considering them to be premature, taken without meaningful investigation, based on forged evidence and on taking the construction workers ’ accounts on faith. Officers responsible for the investigation were disciplined.

The most recent decision in the case was taken in 3 January 2017 when the prosecutor ’ s office, in view of lack of effective investigation, reassigned the investigation to the police of a different district. The investigation is pending.

The applicant was robbed, allegedly by police officers, on 13 October 2008. A criminal investigation was launched on 17 October 2008 and is still pending. Documentation in the file indicates that the applicant lodged a civil claim for damages within the framework of those proceedings but it is unclear who the defendants were as nobody has been charged so far. The domestic courts repeatedly found the investigating authority ’ s inaction and failure to take effective steps to identify possible perpetrators unlawful.

The applicant is an author of a law textbook . An electronic copy of her book was posted without her consent on the Internet and made available for download, with payment collected through a text message to a Ukrainian number . Starting in February 2013, the applicant, not knowing the identity of the persons behind that operation (notably because of confidentiality of banking and telecommunications information which she tried to obtain privately without success), sought to initiate a criminal investigation for intentional breach of copyright (Article 176 of the Criminal Code), in order to establish the identities of the individuals involved and be able to claim damages.

The police repeatedly, on at least four occasions, discontinued proceedings for lack of elements of a criminal offence in the situation, notably on the grounds that the police were unable, for unclear reasons, to obtain information from telecommunication providers concerning the user of the relevant phone number. The decisions were overruled by the prosecutor ’ s office and the courts as premature, most recently on 8 February 2017.

On 30 December 2008 criminal proceedings were initiated against Mr M., to whom the applicant ’ s representatives (intermediaries) had entrusted the applicant ’ s car, for theft of the car. The applicant lodged a civil claim within those proceedings. On 20 May 2014 the investigating authority discontinued criminal proceedings for lack of constituent elements of an offence in M. ’ s actions but that decision was overruled by a court as premature on 16 January 2016 and the proceedings are still pending.

COMPLAINTS

The applicants complain, invoking Articles 6 § 1, 13 and Article 1 of Protocol No. 1 of the Convention that the authorities failed to comply with their obligations to ensure respect for their property rights and that the length of proceedings in their cases was excessive.

QUESTIONS TO THE PARTIES

1. Is Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present cases (see Perez v. France [GC], no. 47287/99, §§ 67-72, ECHR 2004 ‑ I, Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 207, 25 June 2019, Kositsina v. Ukraine ( dec. ), no. 35157/02, 15 January 2008, and Skorokhodov v. Ukraine , no. 56697/09, § 42, 14 November 2013 )? Please also answer this question with reference to the answers provided to question 3 below.

2. If so, was the length of the civil proceedings in the present cases in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

3. Was there a positive obligation for the respondent State under Article 1 of Protocol No. 1 to protect the applicants ’ right to peaceful enjoyment of their possessions? If so, did the authorities discharge this obligation?

In particular, was it open to the applicants, if they considered that the criminal investigation in their cases was ineffective, to:

( i ) institute separate civil proceedings against alleged guilty parties, in the absence of a final decision or a specific accused charged in the criminal proceedings (compare, for example, Sigalas v. Greece , no. 19754/02, § 28, 22 September 2005, Blumberga v. Latvia , no. 70930/01, §§ 64-73, 14 October 2008, Khaylo v. Ukraine , no. 39964/02, §§ 89-91, 13 November 2008, and Kurşun v. Turkey , no. 22677/10, §§ 123 and 124, 30 October 2018, where the Court found that such claims were allowed under domestic law and appropriate, with Afanasyev v. Ukraine , no. 38722/02, § 77, 5 April 2005, Antonov v. Ukraine , no . 28096/04, §§ 36, 48 and 49, 3 November 2011, Basyuk v. Ukraine , no. 51151/10, § 64, 5 November 2015, and Abukauskai v. Lithuania , no. 72065/17, § 71, 25 February 2020, where they were either not allowed under domestic law in the presence of pending criminal proceedings or futile on the facts of respective cases) and/or

(ii) in application no. 45903/16 ( Davydenko v. Ukraine ), to institute separate civil proceedings against T. ’ s heirs following discontinuation of criminal proceedings due to his death (see, mutatis mutandis , Zagrebačka banka d.d . v. Croatia , no. 39544/05, § 277, 12 December 2013 ) and/or

(iii) in application no. 81496/17 ( Dotsenko v. Ukraine ), to institute separate civil proceedings against the intermediaries who entrusted the applicant ’ s car to M. ?

Would provision for such avenues of redress be sufficient in the circumstances to discharge the State ’ s positive obligation?

The parties are invited to provide any relevant examples of the domestic case-law on the latter issue.

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant

Year of Birth

Place of Residence

Represented by

1

45903/16

Davydenko v. Ukraine

22/07/2016

N. DAVYDENKO

1964Kyiv

I. DAVYDENKO

1958Kyiv

2

60591/17

Sedov v. Ukraine

28/06/2017

N. SEDOV

1924Cherkasy

3

74663/17

Korotyuk v. Ukraine

10/10/2017

O. KOROTYUK

1986Kyiv

M. KOROTYUK

4

81496/17

Dotsenko v. Ukraine

23/11/2017

A. DOTSENKO

1980Kharkiv