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17.12.2009

Strasbourg again finds violation by Ukraine of the right to a fair trial

   

The European Court of Human Rights has issued its judgment in the Case of Matsyuk v. Ukraine and has again found that Ukraine violated the right to a fair trial (Article 6 § 1 of the European Convention on Human Rights) with respect to Vadim Matsyuk’s lack of access to a domestic court. The applicant was represented in court by Volodymyr Yavorskyy, lawyer and Executive Director of the Ukrainian Helsinki Human Rights Union, with the case being supported by the Strategic Litigations Fund.  

Between 1998 and 2000 the Bila Tserkva Tax Police instituted and subsequently discontinued several sets of criminal proceedings against the applicant for property embezzlement and tax evasion.

This basically destroyed Vadim Matsyuk’s small business, and he brought proceedings against the Tax Police seeking compensation for pecuniary and non-pecuniary damage over the criminal proceedings against him.

The court proceedings dragged on until 2003, even reaching the Supreme Court. However none of the courts recognized his right to compensation for the unlawful initiating of criminal proceedings against him.  

On 4 March 2002 the Bila Tserkva Town Court stayed the examination of his claim in the part concerning the pecuniary damage having indicated some shortcomings which had to be rectified by 27 March 2002. It referred to section 12 of the Compensation Act, according to which the amount of compensation for pecuniary damage was to be established by a resolution of the respective authority, in this case the Tax Police. The court noted that the police had rejected the applicant’s claim for such compensation by their letter of 23 November 2001 and that the applicant had not introduced a judicial appeal against that refusal. As to his claim in the part concerning the non-pecuniary damage, it was subsequently examined by the domestic courts and rejected as unsubstantiated.

Mr Matsyuk immediately lodged a complaint, challenging the refusal of his claim by the Tax Police, however the court rejected the claim as time-barred, referring to the fact that the applicant had failed to raise it within six months after he had become aware of the discontinuation of the criminal proceedings against him (February 2000).

(3) “On 25 October 2002 the Kyiv Regional Court of Appeal (“the Court of Appeal”) quashed the above decision on the applicant’s appeal and remitted the case for fresh examination. It noted that the first-instance court had wrongly considered that the applicant’s claim concerned the criminal proceedings against him. Instead, it should have been deemed to concern the refusal of the police to award him compensation for pecuniary damage. It further noted in that connection that the first-instance court had failed to clarify whether the police had issued a resolution concerning the applicant’s compensation claim.

4.  On 21 November 2002 the Bila Tserkva Court refused to consider the applicant’s complaint, since no resolution in that respect had been issued by the police in accordance with section 12 of the Compensation Act”. The court instructed the applicant that he could apply to the tax police “for settling the compensation issue under the legally envisaged procedure”.

At the beginning of 2003 the Kyiv Regional Court of Appeal upheld the finding of the Bila Tserkva Court that given the absence of a resolution there was no procedural basis for the judicial examination of the applicant’s claim, then in March the Supreme Court rejected Matsyuk’s cassation appeal.

            In considering the merits of the case, the Court noted (32) that “the applicant, before bringing judicial action, had sought compensation for pecuniary damage from the police, who informed him by a letter of 23 November 2001 that his claim had been rejected and explained their reasoning for that decision. After their failure to respond to his renewed claim of 10 December 2001, the applicant applied for compensation to the Bila Tserkva Court, but was instructed that he had first to appeal against the refusal of the tax police to award it to him of 23 November 2001. After he fulfilled that requirement, the courts of three levels of jurisdiction dismissed without consideration his complaint on the ground that the decision of the police, which he was challenging, had not been issued as a resolution but stated in a simple letter. The courts relied on section 12 of the Compensation Act, according to which it was for the tax police to establish the amount of compensation for pecuniary damage. To sum up, the domestic courts instructed the applicant to apply to the tax police for a resolution about the amount of the compensation for pecuniary damage after the latter had rejected such compensation claim as a whole by their letter of 23 November 2001 and after the applicant had judicially challenged that rejection in compliance with the earlier instruction of the Bila Tserkva Court of 4 March 2002.

            (33) The Court notes, without undertaking to interpret the applicable domestic procedural legislation, which is not its role, that the respective interpretation by the domestic courts lacked consistency (given the misleading instruction to the applicant of 4 March 2002) and deprived the applicant of the opportunity to challenge, in a clear and practical procedure, the refusal of the administrative authorities to pay compensation in connection with criminal proceedings.”

It accordingly found that there had been a breach of Article 6 § 1 of the Convention.

Following this judgment, domestic courts should now re-examine the case and Vadim Matsyuk’s right to compensation. The Ukrainian Helsinki Human Rights Union will be seeking to thus bring this case to its logical conclusion.

From the HUDOC portal at http://cmiskp.echr.coe.int/tkp197/search.asp and information at www.helsinki.org.ua

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