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European Court of Human Rights |
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You are here: BAILII >> Databases >> European Court of Human Rights >> Yevgeniy Anatoliyovych SMIRNOV v Ukraine - 1409/03 [2007] ECHR 678 (10 July 2007 ) URL: http://www.bailii.org/eu/cases/ECHR/2007/678.html Cite as: [2007] ECHR 678 |
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FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no.
1409/03
by Yevgeniy Anatoliyovych SMIRNOV
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 10 July 2007 as a Chamber composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges,
Mr K.
Jungwiert,
Mr M. Villiger, substitute judges,
and
Mr J.S. Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 24 October 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Yevgeniy Anatoliyovych Smirnov, is a Ukrainian national who was born in 1958 and lives in the city of Kerch.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a private entrepreneur. From April 2002 to March 2006 he was a deputy of the Kerch City Council.
1. Criminal proceedings against the applicant
In February 1999 the Tax Inspection of Kerch (“Tax Inspection”) conducted an examination of the applicant’s business activity and drew up a report on tax evasion. On 15 February 1999 a fine amounting to UAH 67,325 was imposed upon the applicant.
On 17 February 1999 the Tax Inspection instituted criminal proceedings against the applicant on a charge of tax evasion (Article 148-2 of the Criminal Code of 1960). On 18 February 1999 the applicant’s property was attached.
On 14 June 1999, following a new examination, the Tax Inspection quashed its decision of 15 February 1999 and fined the applicant with UAH 107,245.
On 7 October 1999 the Kerch City Court remitted the case for additional investigation.
On 12 April 2000 the Commercial Court of the Crimea (“the Commercial Court”), upon the applicant’s complaint, found unlawful the decision of the Tax Inspection of 14 June 1999. On 9 February 2001 and 27 June 2002 the Head of the Commercial Court and the Higher Commercial Court, respectively, upheld this decision.
On 27 May 2000 the Tax Police of Kerch terminated the criminal proceedings against the applicant as they were time-barred.
On 5 July 2000 the investigator of the Office of the Public Prosecutor of the Crimea quashed the decision of 27 May 2000 and terminated the criminal proceedings against the applicant finding that no offence had been committed.
On 24 December 2001 the Deputy Public Prosecutor of the Crimea quashed the decision of 5 July 2000 and remitted the case for additional investigation.
On 21 February 2002 the Tax Police of Kerch transferred the case to the Kerch City Court with a request to terminate the criminal proceedings against the applicant as the offence in question was decriminalized under the Criminal Code of 2001.
On 5 April 2002 the Kerch City Court remitted the case for additional investigation on the ground that the applicant had not been informed about the termination of investigation and had no opportunity to study the case-file. On 14 May 2002 the Court of Appeal of the Crimea (“the Court of Appeal”), following the appeal of the Public Prosecutor, quashed this ruling and remitted the case to the first instance court.
On 25 June 2002 the Kerch City Court terminated the criminal proceedings against the applicant as the offence charged was decriminalized. On 10 September 2002 the Court of Appeal upheld this ruling. On 21 April 2003 the Supreme Court left the applicant’s cassation appeal without consideration for his failure to provide copies of his cassation appeal for other parties. On 10 June 2003 the applicant’s cassation appeal was rejected as having been lodged out of time.
2. Civil proceedings
In October 2000 the applicant instituted proceedings against the Tax Inspection seeking to recover his property attached in the course of the criminal proceedings and to receive compensation for moral damage.
On 10 August 2001 the Kerch City Court allowed the applicant’s claim in part and awarded him a total of UAH 173,1501.
On 11 August 2003 the Court of Appeal quashed this decision and remitted the case for a fresh consideration.
On 12 December 2003 the Supreme Court rejected the applicant’s cassation appeal.
On 16 June 2004 the Kerch City Court found against the applicant. On 27 September 2004 the Court of Appeal upheld this decision.
On 6 October 2004 the applicant lodged a cassation appeal.
To date, the proceedings are pending before the Supreme Court.
3. Criminal proceedings against the officials of the Tax Inspection
On 19 May 2000 the Kerch City Court, following the applicant’s complaint, instituted criminal proceedings concerning the loss of the applicant’s property attached in the course of the criminal proceedings against him.
On 29 December 2000 the investigator of the Kerch Department of the Interior terminated the criminal proceedings for want of proof.
4. Commercial proceedings
On 5 March 2001 the Commercial Court, following the applicant’s claim against the Tax Inspection, awarded him UAH 250,000 in compensation for moral damage caused by his persecution. The execution order was issued on 30 July 2001. On 30 August 2001 the Kerch Department of the Bailiffs’ Service (“the Bailiffs”) instituted the enforcement proceedings. On 27 September 2001 the execution order was returned to the applicant without enforcement due to the debtor’s lack of funds.
On 14 February 2002 the Higher Commercial Court, following the cassation appeal of the Tax Inspection, quashed the judgment of 5 March 2001.
COMPLAINTS
The applicant complained under Articles 6, 13 and 14 of the Convention about the unfairness and outcome of criminal proceedings instituted against him as well as about their unreasonable length. He alleged being persecuted because of his public activity and referred in this respect to Article 10 of the Convention. He further complained about a violation of his right to a private and family life and his property rights in the course of the criminal proceedings and referred to Article 8 of the Convention and Article 1 of Protocol No. 1, respectively.
The applicant also complained under Articles 6 § 1, 10 and 13 of the Convention about the unfairness and outcome of civil and commercial proceedings instituted by him. He complained under Article 6 § 1 of the Convention about the unreasonable length of the civil proceedings against the Tax Inspection.
The applicant also complained under Article 8 of the Convention and Article 1 of Protocol No. 1 about the non-enforcement of the judgment of 5 March 2001 of the Commercial Court.
He finally complained under Articles 6, 13 and 14 of the Convention about the refusal to institute criminal proceedings against the officials of the Tax Inspection.
THE LAW
A. The length of the civil proceedings against the Tax Inspection
The applicants complained under Article 6 § 1 of the Convention about the unreasonable length of the civil proceedings against the Tax Inspection. The relevant part of this provision reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair... hearing within a reasonable time by [a] ... tribunal...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.
B. Other complaints
The Court has examined the remainder of the applicant’s complaints and considers that, in the light of all the materials in its possession and in so far as the matters complained of were within its competence, they did not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning the length of the civil proceedings against the Tax Inspection;
Declares the remainder of the application inadmissible.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
1. EUR 37,611.