FIFTH SECTION

DECISION

Application no. 4465/18 Irina Yuryevna MOLCHANOVA against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 26 September 2023 as a Chamber composed of:

Georges Ravarani , President , Lado Chanturia, Carlo Ranzoni, Mārtiņš Mits, Stéphanie Mourou-Vikström, Mattias Guyomar, Mykola Gnatovskyy , judges , and Victor Soloveytchik, Section Registrar,

Having regard to the above application lodged on 12 January 2018,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

INTRODUCTION

1. The present case concerns the applicant’s complaints under Article 6 § 1 of the Convention that the length of consideration of her civil claim within the criminal proceedings on account of her son’s death was excessive.

THE FACTS

2. The applicant, Ms Irina Yuryevna Molchanova, is a Ukrainian national, who was born in 1974 and lives in Izmail, Odesa Region.

3. The Ukrainian Government (“the Government”) are represented by their Agent, most recently Ms M. Sokorenko, from the Ministry of Justice.

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

5. On 11 January 2015 a gas explosion occurred in a privately owned restaurant in the town of Izmail where the applicant’s son, M., was working unofficially. As a result, he sustained burns. The same day the police instituted criminal proceedings for breaches of the fire safety regulations.

6. On 30 January 2015 M. died from the injuries sustained in the accident.

7. On 6 February 2015 a forensic medical examination concluded that the death of M. had been caused by burns.

8. On 13 March 2015 the applicant was granted victim status in the criminal proceedings.

9. On 22 April 2015 a commission appointed by the Odesa Regional Department of the Occupational Safety and Health State Agency delivered a report. It found that the restaurant’s management had not complied with the fire safety regulations, and that this had caused the gas explosion.

10. Between May 2015 and September 2017 fifty-seven witnesses and victims were questioned and two forensic expert examinations were conducted.

11. According to a letter from the Odesa Regional Department of the Occupational Safety and Health State Agency of 28 September 2017, the restaurant had not had permission to use gas equipment.

12. In relation to the accident, on 24 November 2017 the director of the restaurant, D., was notified that he was suspected of having committed a crime, namely breaches of the fire safety regulations causing, among other things, M.’s death; he pleaded guilty.

13. On 15 December 2017 the applicant lodged a civil claim within the criminal proceedings seeking compensation for pecuniary and non-pecuniary loss and damage.

14. On 19 January 2018 the pre-trial investigation was completed, and the criminal case was transmitted to the Izmail Local Court of the Odesa Region (“the first-instance court”) for trial.

15. On 12 July 2018 D. was convicted as charged and sentenced to five years’ imprisonment; in the same decision, D. was discharged from criminal liability on the basis of the 2016 Amnesty Act. The first-instance court, however, did not consider the applicant’s civil claim, noting that it should be examined in separate civil proceedings.

16. On 13 December 2018 the Odesa Regional Court of Appeal quashed the decision of 12 July 2018 in part, remitting the case to the first-instance court for fresh consideration of the applicant’s civil claim within separate civil proceedings but upholding the remainder of the decision.

17. The parties did not provide the Court with information concerning the further progress of the domestic proceedings. However, it appears from the State Register of Court Decisions that on 18 June 2020 the first-instance court granted the applicant’s civil claim in part; that judgment was not appealed against.

18. Articles 127 and 128 of the Code of Criminal Procedure of Ukraine of 2012 (as worded at the material time) provided that a person who had sustained pecuniary and/or non-pecuniary loss or damage as a result of a criminal offence could lodge a civil claim against a suspect or an accused person within criminal proceedings at the pre-trial stage, before the commencement of the trial; damages could be awarded by the court after examination of a civil claim lodged within the criminal proceedings; a person who had not lodged a civil claim within the criminal proceedings or whose civil claim was not considered in the criminal proceedings could make a claim for damages in separate civil proceedings.

19. Under Articles 16, 22 and 23 of the Civil Code of Ukraine of 2003 (as worded at the material time), any person could apply to a court for protection of his or her personal non-pecuniary or pecuniary rights and interests; the available remedies included awards of damages for pecuniary and non ‑ pecuniary loss and damage.

COMPLAINT

20. The applicant complained that the length of the proceedings in her case, starting from 11 January 2015, when the criminal investigation had been launched, was incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which reads as follows:

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

THE LAW

21. The Government submitted that the length of the proceedings in the applicant’s case should be calculated from 15 December 2017, the date on which the applicant had lodged her civil claim within the criminal proceedings. They also argued that the applicant’s case was complex and that some delays had been caused by the necessity of questioning many witnesses and conducting numerous expert examinations. The Government stated that the applicant’s complaint under Article 6 § 1 of the Convention was therefore manifestly ill-founded.

22. The applicant maintained her application without, however, commenting on the above Government’s submissions.

23. In accordance with the Court’s settled case-law, as a general rule Article 6 § 1 of the Convention under its civil limb is applicable to criminal proceedings from the moment applicants have joined them as civil parties (see Gorou v. Greece (no. 2) [GC], no. 12686/03, § 25, 20 March 2009, and Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 207, 25 June 2019). In the absence of any civil claim lodged by the applicant, Article 6 § 1 of the Convention is inapplicable to such proceedings (see Skorokhodov v. Ukraine , no. 56697/09, § 42, 14 November 2013).

24. At the same time, the Court observes that the applicability of Article 6 § 1 of the Convention under its civil limb cannot depend on the applicant’s formal recognition as a “party” under national law (see S.W. v. the United Kingdom , no. 87/18, § 78, 22 June 2021). For instance, in cases where at the stage of the preliminary investigation domestic law did not give an opportunity to join as a civil party in criminal proceedings but injured parties could nevertheless exercise rights and powers expressly afforded to them by law and had actually done so, the Court has concluded that the civil limb of Article 6 § 1 of the Convention was applicable to criminal proceedings in which the applicants participated as an injured party but not as a civil party (see Arnoldi v. Italy , no. 35637/04, §§ 25-44, 7 December 2017, with further references, and Petrella v. Italy , no. 24340/07, § 23, 18 March 2021). It follows that the legislation of the State concerned is not without importance. It is thus appropriate to ascertain whether an applicant has unequivocally demonstrated his or her intention to act as a civil party in criminal proceedings, in particular by way of lodging a claim to that effect.

25. The Court notes at the outset that the Ukrainian legislative framework allows victims of criminal offences to lodge a civil claim in criminal proceedings for the purpose of obtaining monetary compensation; if a person fails to make such a claim in the framework of criminal proceedings or the proceedings conclude without a claim being examined, this does not prevent that person from having the claim resolved in separate civil proceedings.

26. The Court further observes that the availability of a civil claim in criminal proceedings is subject to certain conditions. More specifically, the domestic legislation allows a civil claim to be filed within the framework of criminal proceedings only after a suspect or accused person has been identified (see, for example, Korotyuk v. Ukraine , no. 74663/17, § 43, 19 January 2023). Therefore, under domestic law, a victim may claim compensation for loss or damage caused by a criminal offence only once the offender has been officially charged, so the civil right does not automatically arise from the wrongdoing. In other words, a victim’s intention to seek redress for damage cannot result from the offence itself; instead, the victim asserts his or her civil rights only when he or she claims compensation for the loss or damage caused by the offence.

27. Turning to the circumstances of the present case, the Court notes that after the offender, D., was charged with breaches of the fire safety regulations resulting in the gas explosion which had caused M.’s death, the applicant exercised her civil rights by lodging a claim within the criminal proceedings seeking compensation for the loss and damage caused by the offence. Ukrainian legislation made it impossible for the applicant to lodge such a claim before the offender had been officially charged.

28. In view of the relevant provisions of domestic law and the facts of the present case, the Court considers that Article 6 § 1 of the Convention came into play when the civil claim was lodged on 15 December 2017 within the criminal proceedings. The proceedings in the applicant’s case therefore lasted slightly more than two years and six months at two levels of jurisdiction, ending on 18 June 2020, which cannot be regarded as unreasonable (see, among many others, Belukha v. Ukraine , no. 33949/02, § 66, 9 November 2006).

29. Given the above, the Court finds that the applicant’s complaint under Article 6 § 1 of the Convention is manifestly ill-founded and must be rejected 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 19 October 2023.

Victor Soloveytchik Georges Ravarani Registrar President