CASE OF SVIRGUNETS v. UKRAINE (European Court of Human Rights)

Last Updated on May 12, 2020 by LawEuro

FIFTH SECTION
CASE OF SVIRGUNETS v. UKRAINE
(Application no. 38262/10)

JUDGMENT
STRASBOURG
30 April 2020

This judgment is final but it may be subject to editorial revision.

In the case of Svirgunets v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Gabriele Kucsko-Stadlmayer, President,
Mārtiņš Mits,
Anja Seibert-Fohr, judges,
and Victor Soloveytchik, Deputy Section Registrar,

Having regard to:

the above application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Antonina Anatoliyivna Svirgunets (“the applicant”), on 25 June 2010,and the parties’ observations,

Noting that on 4 December 2018 the Government were given notice of the complaints concerning the length of the criminal proceedings against the applicant and the alleged violation of her property rights and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court;

Having deliberated in private on 17 March 2020,

Delivers the following judgment, which was adopted on that date:

1. The applicant complained under Article 6 § 1 of the Convention that the length of the criminal proceedings against her had been unreasonable. She also complained that her rights under Article 1 of Protocol No. 1 to the Convention had been breached on account of the forfeiture of her property within the criminal proceedings and her inability to get compensation for it after the charges against her had eventually been dropped for lack of evidence.

THE FACTS

2. The applicant was born in 1968 and lives in Shepetivka. She was represented by Ms T.I. Gorbachevska, a lawyer practising in Kharkiv.

3. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.

I. Background

4. On 6 March 2000 the applicant and Ms S. signed a contract of sale, according to which the former bought from the latter 28% (about 280 sq. m) of a shop in Shepetivka for 14,146 Ukrainian hryvnias (UAH – at the time equivalent to about 2,600 euros (EUR)).

5. On 5 April 2002 the Shepetivka town prosecutor’s office (“the Shepetivka prosecutor’s office”) instituted criminal proceedings against the applicant’s uncle, Mr V., the Shepetivka mayor at the time, who was suspected of having extorted and having taken a bribe from Ms S.

II. Criminal proceedings against the applicant

6. On 14 May 2002 criminal proceedings were instituted against the applicant on suspicion of aiding and abetting bribe-taking on the part of Mr V. Specifically, it was suspected that the applicant had not paid anything to Ms S. for the 28% of the shop and that the title to that property had in reality been Ms S.’s bribe to the applicant’s uncle. The case was joined to that in respect of Mr V. (see paragraph 5 above).

7. From 16 to 20 May 2002 the applicant was held in pre-trial detention. Subsequently that preventive measure was replaced by an obligation not to leave her town of residence.

8. On 18 July 2002 the investigation was declared completed and the case was referred to the Slavuta Town Court (“the Slavuta Court”) for trial.

9. The trial court adjourned the proceedings several times, in particular, owing to the absence of witnesses.

10. On 17 July 2003 the Slavuta Court found the applicant (as well as Mr V.) guilty as charged. The applicant was sentenced to three years’ imprisonment suspended for two years, as well as confiscation of one quarter of her property. The trial court held that the 28% of the shop was to be considered as proceeds of crime and ordered its transfer to the State.

11. On 23 September 2003 the Khmelnytskyy Regional Court of Appeal (“the Court of Appeal”) upheld that judgment.

12. In January 2004 the State Bailiffs Service transferred the 28% of the shop to the Shepetivka Tax Inspectorate.

13. On 5 April 2004 the Shepetivka Tax Inspectorate sold that property at public auction to Mr S. (Ms S.’s husband) for UAH 144,600 (at the time equivalent to about EUR 22,000). Later, on 27 April 2007, Mr S. sold 24% of the shop to the Nadra Commercial Bank. The remaining 4% stayed in his possession.

14. On 16 September 2004 the Supreme Court quashed the lower courts’ decisions of 17 July and 23 September 2003 for “substantial breaches of the rules of criminal procedure”. More specifically, it noted that the reasoning provided by the first-instance court in the verdict did not comply with the legal requirements and that the appellate court had disregarded that. The Supreme Court observed that the accusation against the applicant was confined to the statement that she had aided and abetted bribe-taking on the part of Mr V., without any further details as to what that aiding and abetting had consisted of and in which circumstances it had taken place. Referring to the fact that the accusation against the applicant was “vague and imprecise”, the Supreme Court held that it was unable to verify the lawfulness of the lower courts’ decisions. It therefore remitted the case to the first-instance court for fresh examination.

15. On 24 July 2006 the Slavuta Court ordered an additional pre-trial investigation. On 27 December 2006 the Court of Appeal, however, quashed that ruling.

16. On 24 January 2007 the Slavuta Court received the case back for examination. It adjourned its hearings several times. Five such adjournments, accounting for about two months in total, were ordered because of the absence of both defendants.

17. On 1 October 2007 the Slavuta Court acquitted the applicant and her uncle.

18. However, on 6 August 2008 the Court of Appeal quashed that judgment and remitted the case to the first-instance court for fresh examination. It held, in particular, that a number of hearings had taken place in the absence of the prosecutor and the victim (Ms S.).

19. On 26 March 2009 the Slavuta Court ordered another round of pre‑trial investigation on the grounds that the accusation against the applicant and her uncle was vague and that the investigation carried out had been incomplete. The ruling listed a number of investigative measures to be carried out.

20. On 29 December 2009 the Shepetivka prosecutor’s office discontinued the criminal proceedings against the applicant and Mr V. for lack of evidence. By the same ruling it ordered that the forfeiture of their property be lifted.

21. On 6 December 2011 the Shepetivka Court quashed the above‑mentioned ruling following a complaint by Ms S. and ordered another pre-trial investigation. It noted that the prosecutor had failed to take all the investigative measures as directed by the Slavuta Court in its ruling of 26 March 2009 (see paragraph 19 above).

22. On 28 January 2012 the Shepetivka prosecutor’s office once again discontinued the criminal proceedings against the applicant and Mr V. for lack of evidence and lifted the forfeiture of their property.

III. proceedings initiated by the applicant

A. First set of proceedings

23. On 21 February 2013 the applicant brought civil proceedings against the Khmelnytskyy regional prosecutor’s office (“the regional prosecutor’s office”), the Shepetivka Tax Inspectorate and the State Treasury seeking compensation in respect of pecuniary damage. Specifically, she requested compensation for the value of the forfeited 28% of the shop in the amount of UAH 1,661,649 (at the time equal to about EUR 154,000). The applicant relied on the forensic technical expert report of 11 July 2011, according to which that was the market value of the property in question (from which the value added by the repairs undertaken after the forfeiture of the premises had already been deducted).

24. On 17 June 2013 the Shepetivka Court allowed her claim in part and awarded her UAH 1,635,827 (about EUR 152,000) as compensation in respect of pecuniary damage to be paid by the State Treasury.

25. On 22 October 2013 the Court of Appeal quashed that judgment and rejected the applicant’s claim. It noted that, according to the Compensation Act, confiscated property (including real estate) was to be returned in naturaor, where that was impossible, its value was to be compensated at the expense of the entity to which it had been transferred free of charge. According to the appellate court, the applicant did not show that she had tried to get back her property in naturabefore claiming compensation from the State.

26. The applicant appealed on points of law. She observed that the property in question had been forfeited in enforcement of a judicial decision, that the tax authority had sold it at public auction to a third person and that the revenue from that sale had been transferred to the State Treasury. Accordingly, the applicant maintained, it was for the State to compensate her for that property.

27. On 26 December 2013 the Higher Specialised Court for Civil and Criminal Matters (“the Higher Specialised Court”) upheld the appellate court’s findings and reasoning.

B. Second set of proceedings

28. On 26 May 2014 the applicant, relying on the above-mentioned conclusions of the domestic courts, brought rei vindicatio proceedings against the new owner of the property in question, the Nadra Commercial Bank. She also listed as respondents the regional prosecutor’s office, the Shepetivka Tax Inspectorate and the State Treasury. The applicant indicated that she had no information about whether the bank was the only owner and asked the court to make the requisite enquiries.

29. On 27 October 2014 the Shepetivka Court rejected her claim. It observed that the bank had purchased the 24% of the shop, whereas the heirs of Mr S. (see paragraph 13 above; he had died in the meantime) had inherited its 4%, in compliance with law. Accordingly, even though the applicant was entitled to compensation for damage caused to her by the criminal proceedings against her, the court stated there were no grounds for retrieving the property from its bona fide acquirers. In sum, the Shepetivka Court concluded that the applicant had chosen an incorrect legal remedy for restoring her property rights.

30. On 21 January 2015 the Court of Appeal upheld the above‑mentioned decision. It noted that, according to the established procedure, the authority which had discontinued criminal proceedings was required to send a special notification to the person concerned with an explanation of when and where to seek compensation for damage caused. Where criminal proceedings were discontinued by a prosecutor’s office, the person had to apply to that office within six months of the notification with a view to determining the damage caused. The forfeited or confiscated property was to be returned to that person within a month, if the latter had claimed it within the above-mentioned six-month time-limit. The appellate court established that no such notification had ever been sent to the applicant. It criticised her, however, for not having followed the procedure outlined above.

31. On 22 July 2015 the Higher Specialised Court dismissed the applicant’s appeal on points of law. It noted that, as it had been established by the lower courts, her right to compensation for damage was undisputable. However, she had not respected the legally established procedure for seeking that compensation, and her claim could not therefore be allowed.

C. Events between the second and the third sets of proceedings

32. In September 2016 the applicant applied to the regional prosecutor’s office for evaluation of the damage caused to her.

33. On 20 November 2015 the prosecutor informed her that it was not within his competence to rule on such issues, and advised her to apply to the local “financial authority” for compensation for the full value of the property forfeited.

34. On 15 December 2015 the applicant applied to the Shepetivka Tax Inspectorate for either the return to her of the 28% of the shop in naturaor for its value to be recompensed.

35. On 5 January 2016 the Shepetivka Tax Inspectorate replied that neither option was possible and rejected the applicant’s claims.

D. Third set of proceedings

36. In June 2016 the applicant brought another claim against the Nadra Commercial Bank, the regional prosecutor’s office and the Slavuta United Tax Inspectorate (the legal successor to the Shepetivka Tax Inspectorate). She submitted that, as established by documents, the 28% of the shop which had been her private property had been transferred to the State. Subsequently, that property had been sold to Mr S. The applicant argued that, contrary to the applicable legislation, that contract of sale had not been certified by a notary and should therefore be considered as invalid. In other words, she maintained, the State had not lost its title to the property in question and nothing prevented it from returning that property to the applicant in natura.

37. On 22 November 2016 the Shepetivka Court dismissed her claim. It held that, contrary to the applicant’s argument, there had been no obligation to get the contract of sale in question certified by a notary.

38. On 28 March 2017 the Court of Appeal quashed that judgment and issued a new one, still dismissing the applicant’s claim, but on different grounds. It observed that the applicant had not been a party to the contract of sale, which she considered to be invalid. Accordingly, she could not claim the property from its bona fide acquirers. The appellate court observed that, according to the Compensation Act, confiscated property should be returned to its pre-confiscation owner in naturaor, where that was impossible, its value should be compensated at the expense of the entity to which that property had been transferred free of charge. If property had been transferred to a different owner against payment and if the proceeds had gone to the State, the issue of compensation for its value to the pre‑confiscation owner was to be resolved by the State financial authority. It was established that Mr S. had paid for the 28% of the shop and that the money had gone to the State. The shop itself was no longer the property of the tax authorities and they could not therefore return it to the applicant as requested.

39. On 16 May 2017 the Higher Specialised Court started proceedings following an appeal on points of law by the applicant.

40. In April 2018 the case was transferred to the new Supreme Court, which took over the role of the Higher Specialised Court as a result of a large-scale judicial reform.

41. On 27 February 2019 the Civil Court of Cassation of the Supreme Court (“the Civil Court of Cassation”) relinquished the case to the Grand Chamber of the Supreme Court. It noted that the applicant had used all possible legal remedies to get her rights restored and that the repeated dismissals of her claims amounted to a denial of justice. Furthermore, it was observed that there seemed to be divergence in the Supreme Court’s case-law as regards the possibility of a third party to challenge a legal transaction. In sum, the relinquishment was explained by the fact that the problem revealed by the case at hand was purely of a legal nature and that its examination by the Grand Chamber of the Supreme Court was required to clarify and streamline domestic case-law.

42. On 19 March 2019 the Grand Chamber of the Supreme Court returned, however, the case to the Civil Court of Cassation for examination.

43. On 12 June 2019 the Civil Court of Cassation quashed the lower courts’ decisions of 22 November 2016 and 28 March 2017 (see paragraphs 37 and 38 above) and remitted the case to the first-instance court for a fresh examination. It held as follows:

“… the State has not complied with its legal obligation to return the claimant’s property to her. It has neither guaranteed such a return nor indicated any time-limits as to when this could happen. Accordingly, the only adequate legal remedy for the breach of the claimant’s rights is compensation for the damage suffered – namely, compensation for the property value from … the State Treasury.”

44. The Civil Court of Cassation observed that the applicant had not indicated the State Treasury among the respondents. It noted, however, that her claim should not be rejected on those grounds and that it was for the courts to replace a wrong respondent with a proper one.

45. In the absence of any more factual updates from the parties, it appears that the proceedings are pending before the first-instance court.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

I. Code of Criminal Procedure of 28 December 1960 (repealed with effect from 19 November 2012)

46. Under Articles 81 and 324, the trial court was required to decide in a verdict what had to be done with the material evidence, including with proceeds of crime. Article 81 furthermore provided that proceeds of crime were liable to forfeiture, with a view to transfer to the State Treasury.

II. Compensation Act (Law on the Procedure for the Compensation of Damage Caused by Unlawful Actions of Bodies of the Inquiry, Pre-Trial Investigation, Prosecution and Courts of 1 December 1994 with subsequent amendments)

47. Under the provisions of this Act a person is entitled to compensation for damage caused by, in particular, unlawful advancement of criminal charges, unlawful property forfeiture and other procedural actions restricting his or her rights. The damage sustained must be compensated in full regardless of the guilt of officials of the bodies of inquiry, pre-trial investigation, prosecution and courts (section 1).

48. The right to such compensation arises, in particular, where criminal proceedings against a person are discontinued for a lack of evidence of his or her involvement in the crime (section 2).

49. If the above-mentioned preconditions are met, the claimant must be compensated for (or must receive back), inter alia, the property “forfeited, confiscated or transferred into State possession” (section 3). That property should normally be returned to the claimant in natura. If that is impossible, the entity to which it was transferred free of charge must compensate the claimant its value (section 4). The Compensation Act is silent about situations where the property in question was transferred to a different owner against payment; however, that issue is addressed in the Regulation on the Compensation Act application (see paragraph 52 below).

50. The value of the property should be determined on the basis of the prices applicable on the date of the examination of the claim for damages (section 4).

51. Where the right to compensation for damage arises, the body of inquiry, the investigator, the prosecutor or the court must explain to the person the procedure for restoring his or her rights and gaining compensation for the damage sustained (section 11).

III. Regulation on Application of the [Compensation Act] approved by the Ministry of Justice, the Prosecutor General’s Office and the Ministry of the Finance on 4 March 1996 (with the only amendment of 3 April 1998)

52. Paragraph 14 provides that the new owner of the property in question must return it to the claimant in naturawithin a month of the introduction of the claim, with a further precondition that such a claim should be made within six months of the respective authority sending official notification to the claimant.

53. As furthermore stated in that provision, if the property was transferred to a different owner against payment and if the proceeds went to the State, “the issue of compensation for its value to [the claimant] must be resolved by the State financial authority”. It is open to the claimant to challenge the decision of that authority before the courts.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

54. The applicant complained that the length of the criminal proceedings against her had been incompatible with the “reasonable time” requirement. She relied on Article 6 § 1 of the Convention, which reads as follows:

“In the determination of … any criminal charge against him, everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …”

A. Admissibility

55. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B. Merits

56. The applicant complained that the length of the criminal proceedings in her case had been excessive. She argued that the major delays had been caused by several remittals of the case for retrial or additional pre-trial investigation.

57. The Government argued that the length of the proceedings had been reasonable. They pointed out that on several occasions the trial court had adjourned its hearings owing, in particular, to the applicant’s absence.

58. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: in particular, the complexity of the case, and the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II).

59. The period to be taken into consideration in the present case began on 14 May 2002, when the criminal proceedings were initiated against the applicant, and ended on 28 January 2012 (see paragraphs 6 and 22 above). It thus lasted for over nine years and eight months.

60. The criminal proceedings at issue, which involved one incident and two co-accused (see paragraphs 5 and 6 above), were not complex.

61. There is no indication that the applicant contributed to the length of the proceedings other than for two months when the hearings had been adjourned owing, in particular, to her absence (see paragraph 16 above). This short period of time cannot justify the length of the periods of inactivity between the decision of the Supreme Court of 16 September 2004 and the decision of the Slavuta Court of 24 July 2006 (see paragraphs 14 and 15 above). It certainly cannot justify the total duration of the proceedings.

62. As regards the conduct of the authorities, there were several remittals of the case for re-examination for procedural flaws in the investigation and subsequent court proceedings (see paragraphs 14-15, 18-19 and 21 above). The Court has held that the repetition of such orders within one set of proceedings may disclose a serious deficiency in the judicial system (see, mutatis mutandis, Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003). Furthermore, as indicated above, the Court cannot but take note of the lengthy period of inactivity between the ruling of the Supreme Court of 16 September 2004 and the decision of the Slavuta Court of 24 July 2006.

63. In the light of the foregoing, the Court considers that in the instant case the length of the criminal proceedings against the applicant was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 1 of protocol no. 1 to THE CONVENTION

64. The applicant complained that there had been a breach of her rights under Article 1 of Protocol No. 1 on account of the forfeiture of the 28% of the shop belonging to her within criminal proceedings against her and her inability to get compensation for the loss of the property after the charges against her had eventually been dropped for lack of evidence. The provision relied on reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. Admissibility

65. The Government observed that the third set of proceedings for damages brought by the applicant was still pending (see paragraph 45 above). That being so, they argued, the applicant could not be regarded as having exhausted the domestic remedies.

66. The applicant contested that argument. She submitted that the ruling of the Shepetivka prosecutor’s office of 28 January 2012 had explicitly lifted the earlier applied forfeiture of her property. Accordingly, the applicant maintained, it had been for the State to return that property to her or to compensate her for its value, and she had had no obligation to take any legal steps to get her property rights restored. Nonetheless, the applicant observed, she had initiated three sets of proceedings, doing her best to take into account the directions made by the courts as to which legal avenue she had had to pursue. Almost eight years after the forfeiture of her property had formally been lifted, her claim for damages was still pending before the first-instance court. That being so, the applicant argued, she could not be regarded as having failed to exhaust domestic remedies.

67. The Court points out that the purpose of the rule of exhaustion of domestic remedies under Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions (see, for example, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999‑V). At the same time, this rule must be applied with some degree of flexibility and without excessive formalism. The Court has already held on a number of occasions that this rule is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case (see Akdivar and Others v. Turkey, 16 September 1996, § 69, Reports of Judgments and Decisions 1996‑IV, and Aksoy v. Turkey, 18 December 1996, §§ 53-54, Reports 1996-VI). The Court looks, in particular, at whether the applicant did everything that could reasonably have been expected in order to exhaust available domestic remedies (see Merit v. Ukraine, no. 66561/01, § 58, 30 March 2004).

68. In the present case the applicant indeed took strenuous efforts in order to obtain redress at the domestic level. As she has pointed out, her claim was dismissed many times and remains pending for eight years after the forfeiture of her property was lifted (see paragraphs 22 and 45 above). In other words, the remedies used by the applicant including the proceedings that remain pending before the first-instance court have turned out to be completely ineffective.

69. Therefore, the Government’s objection about non-exhaustion of domestic remedies must be dismissed.

70. The Court also notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

71. The applicant complained that the forfeiture of the 28% of the shop belonging to her had been unlawful and that she had not been able to peacefully enjoy her possessions for many years.

72. She furthermore submitted that, as soon as the impugned forfeiture had been lifted on 29 December 2009 and subsequently on 28 January 2012 (see paragraphs 20 and 22 above), the real estate in question should have been returned to her either in naturaor in the monetary equivalent. Referring to the findings of the Civil Court of Cassation (see paragraphs 41 and 43 above), the applicant maintained that the failure of the State to do so had amounted to a denial of justice.

73. The Government did not submit any observations on the merits of this complaint.

2. The Court’s assessment

(a) General principles

74. Article 1 of Protocol No. 1 above all requires that any interference by a public authority with the enjoyment of possessions be in accordance with the law: under the second sentence of the first paragraph of this Article, any deprivation of possessions must be “subject to the conditions provided for by law”; the second paragraph entitles the States to control the use of property by enforcing “laws”. Moreover, the rule of law, which is one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see Amuur v. France, 25 June 1996, § 50, Reports 1996‑III, and Iatridis, cited above, § 58).

75. Since the second paragraph of Article 1 of Protocol No. 1 is to be construed in the light of the general principle enunciated in the opening sentence of that Article, there must exist a reasonable relationship of proportionality between the means employed and the aim sought to be realised: the Court must determine whether a fair balance has been struck between the demands of the general interest in this respect and the interest of the individual company concerned (see, among many other authorities, G.I.E.M. S.R.L. and Others v. Italy [GC], nos.1828/06 and 2 others, § 293, 28 June 2018).

76. Any interference with the peaceful enjoyment of possessions must be accompanied by procedural guarantees affording to the individual or entity concerned a reasonable opportunity of presenting their case to the responsible authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by that provision. In ascertaining whether that condition has been satisfied, a comprehensive view must be taken of the applicable judicial and administrative procedures (see Lekić v. Slovenia [GC], no. 36480/07, § 95, 11 December 2018, with further case-law references).

(b) Application of the above principles to the present case

77. It is not disputed that the 28% of the shop had been the applicant’s property. The criminal proceedings against her on suspicion of her having received the title to that property unlawfully were discontinued on the grounds of lack of evidence (see paragraph 22 above). Furthermore, in all three sets of proceedings brought by the applicant the domestic courts proceeded on the assumption that she had been the only lawful owner of the property in question.

78. Accordingly, the forfeiture of the above-mentioned real estate and the failure of the State either to return that property to the applicant or to compensate her for its value after that measure was no longer applicable constituted an interference with her property rights under Article 1 of Protocol No. 1 to the Convention.

79. It must be established now whether that interference was lawful.

80. The Court observes that the impugned forfeiture was based on the verdict of the Slavuta Court of 17 July 2003 ordering the transfer into the State property of the 28% of the shop regarded as proceeds of crime, in compliance with Article 81 of the Code of Criminal Procedure (see paragraphs 10 and 46 above). However, the legal basis for the forfeiture finally ceased to exist after the forfeiture had been lifted following the quashing of the verdict and the discontinuation of the criminal proceedings (see paragraphs 14, 20 and 22 above). The Court notes in this respect that the Court of Appeal on 22 October 2013 held that as a result confiscated property was to be returned in natura or, where that was impossible, its value was to be compensated pursuant to the Compensation Act.

81. It follows that the applicant’s continued deprivation of her property and the State party’s failure to compensate her for its value was unlawful.

82. This consideration is sufficient for the Court to find a violation of Article 1 of Protocol No. 1 to the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

83. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

84. The applicant claimed 154,130 euros (EUR) in respect of pecuniary damage. She observed that, according to the expert report relied on by the Shepetivka Court in its judgment of 17 June 2013 (see paragraph 24 above), the market value of the part of the shop which had been seized from her, was 1,661,649 Ukrainian hryvnias (UAH) at the time. If converted into euros at the exchange rate established by the National Bank of Ukraine in June 2013 (UAH 10.78 to EUR 1), this sum corresponded to EUR 154,130. She also claimed EUR 126,000 for the lost income that she would have obtained over the years if she had been able to lease the shop space.

85. The applicant also claimed EUR 14,935 in respect of non-pecuniary damage.

86. The Government contested the above claims as speculative and exorbitant.

87. The Court considers that the question of pecuniary damage is not yet ready for decision. It should therefore be reserved to enable the parties to provide their written observations on this question and inform the Court of any agreement reached between them in this connection (Rule 75 §§ 1 and 4 of the Rules of Court).

88. On the other hand, the Court considers that the applicant sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 2,400 in respect of non-pecuniary damage, plus any tax that may be chargeable thereon.

B. Costs and expenses

89. The applicant also claimed EUR 8,000 for her legal representation in the domestic proceedings, EUR 540 for the forensic expert reports, and EUR 850 for legal fees in the proceedings before the Court. In support of her claims, the applicant submitted a legal-assistance contract signed by her with Mr Novikov on 31 March 2014 (he had represented her before Ms Gorbachevska entered in the proceedings in February 2019 – see paragraph 2 above). The applicant also submitted a receipt issued by Mr Novikov, according to which she had paid him UAH 5,000 immediately after the signature of the above-mentioned contract.

90. Furthermore, the applicant submitted receipts which showed that she had paid UAH 400 on 14 March 2002 and UAH 4,230 on 22 March 2011 for expert valuations of the shop.

91. Lastly, she submitted copies of several postal receipts in respect of her correspondence with the Court.

92. The Government argued that the applicant had substantiated her above claims only in part.

93. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 800 covering costs under all heads.

C. Default interest

94. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 2,400 (two thousand four hundred euros) in respect of non‑pecuniary damage and EUR 800 (eight hundred euros) in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that maybe chargeable on those amounts to the applicant;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Holds that the question of the application of Article 41 of the Convention in respect of pecuniary damage is not ready for decision, and accordingly:

(a) reserves the said question;

(b) invites the Ukrainian Government and the applicant to submit, within the forthcoming three months, their written observations on the matter and, in particular, to notify the Court of any agreement they may reach;

(c) reserves the further procedure and delegates to the President of the Committee power to fix the same if need be;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 30 April 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Victor Soloveytchik                  Gabriele Kucsko-Stadlmayer
Deputy Registrar                      President