European Court acknowledged the violation of the right for fair hearing within a reasonable time in the case vs. Ukraine

On 30 March the European Court of human rights in Strasbourg issued the decision in the case Merit vs. Ukraine (complaint No. 66561/01), in which the Court acknowledged the violation by the country of Article 6 item 1 (right for fair hearing within a reasonable time) and Article 13 (right for an effective remedy for the protection of a violated right) of the European Convention on the protection of human rights and fundamental freedoms. This case vividly illustrates the existing problem of the return of criminal cases by court for additional investigation and the refusal of judges to close criminal cases.

Claimant Mr. Sam Merit was born in 1939 and lives in Poland. He owns 99% of the Ukrainian joint enterprise «Jason Industries», which is a part of the joint-stock company JDE.

On 29 September 1997 the Vadul-Siretska state custom service of Ukraine conducted the custom check of the coffee products supplied by «Jason Industries». The check showed that the custom declaration had been filled in by representatives of JDE on the basis of false documents. On the same day the Vadul-Siretska custom service initiated the criminal case on such crimes as smuggling and swindle. On 29 September 1997 the case was passed to the Chernivtsy oblast prosecutor’s office (the prosecutor’s office, in what follows) for further investigation. On the basis of the resolutions of the prosecutor’s office of 10 October 1997, 20 October 1997, 18 November 1997 and 19 January 1998, the Vadul-Siretska custom service confiscated the documents concerning the financial and commercial holdings of «Jason». On 13 October 1997 the prosecutor’s office seized the property of the company JDE for the provision of proofs, and on 16 October 1997 the accounts of the company were arrested.

On 28 January 1998 the prosecutor’s office presented the formal accusations. The claimant was accused of the violation of Article 70 of the Criminal Code of Ukraine (smuggling), Article 148-2 (tax evasion) and Article 194 (2) (falsification of documents). On the same day the prosecutor’s office issued the resolution about the arrest of the claimant and holding him in custody until the end of the investigation.

On 29 June 1999 the Leninskiy district court of Chernivtsy issued the resolution about the conduction of additional investigation of circumstances of the case. In the framework of this investigation the claimant handed the petition to the Leninskiy district court about his release from custody. The petition was rejected by the court under the pretext that he could hide from justice. In July 1999 the prosecutor’s office appealed against passing of the case to the Chernivtsy oblast court, referring to the fact that there were sufficient confirming proofs.

On 10 August 1999 the Chernivtsy oblast court rejected the prosecutor’s accusation against he claimant and insisted on the necessity to realize the additional measures for reconstruction of circumstances of the crime.

On 25 August 1999 the claimant was released from custody by the prosecutor’s office.

In May 2000 the claimant brought a suit against the prosecution demanding to complete the criminal investigation of his case. On 2 June 2000 the Leninskiy district court of Chernivtsy cancelled his claim, since this claim was not under the jurisdiction of the court in accordance with Article 248-3 of the Criminal-Procedural Code of Ukraine because of the existence of special procedure of handing claims against the actions of prosecutor’s office, which inflicted moral or material damage, envisaged by the Law «On compensation of damage inflicted by the illegal actions of court, prosecutor’s office and militia» of 1 February 1994.

On 7 July 2000 the investigation was stopped in the connection with insufficiency of proofs. On 19 August 2000 the prosecutor’s office passed the case for further investigation. On 7 October 2001 the prosecutor’s office informed the claimant that the criminal investigation against him was still going on.

The claimant complained, in accordance with Article 6.1 of the Convention, against the long duration of criminal investigation of his case, since this Article reads: «… everyone is entitled to fair… hearing within a reasonable time». The criminal case against him is investigated already for more than six years and is not closed until now. The claimant also complained against the violation of his right for the effective protection of his abused right, guaranteed by Article 13 of the Convention.

The European Court pointed out in its decision that Article 13 of the European Court guarantees an effective remedy before a national authority from violation of the right to fair hearing within a reasonable time (see the case Kudla vs. Poland). The court reminds that the remedy is regarded as «effective», if the person can quickly obtain the court decision on this case or has other methods for preventing the delays in court consideration. At that the European Court rejected the arguments of the government about the availability of such remedies and acknowledged them to be ineffective. In this connection the court recognized that the Ukrainian legislation did not provide the effective remedies for prevention of too long duration of criminal investigation.

The European Court issued the decision about the violation of Articles 6.1 and 13 of the European Convention and obliged the Ukrainian government to pay 2500 Euro for compensation of non-material damage and 1500 Euro for compensation of the expenses connected with consideration of the case. This decision would come into effect, if the sides would not appeal against it within the legal term.

Volodymir Yavorskiy

Secretariat of the Council of Ukrainian human rights protecting organizations