Last Updated on May 13, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no. 24237/10
Georgiy Vladimirovich DRAKIN
against Ukraine
The European Court of Human Rights (Fourth Section), sitting on 13 November 2018 as a Committee composed of:
Faris Vehabović, President,
Carlo Ranzoni,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 20 April 2010,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Georgiy Vladimirovich Drakin, is a Ukrainian national, who was born in 1945 and lives in Dnipro.
The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background of the case
3. On 18 February 2005 the applicant signed a three-month deposit contract with the private bank P. On behalf of the bank the contract was concluded by D., the director of the respective local branch of the bank. On the contract it was noted that it was “executed” by L., the deputy head of that branch. It is unclear who signed the contract. It was also noted in the contract that the applicant received a credit card for his deposit account.
4. Between 18 February and 16 May 2005 the applicant deposited 430,000 Ukrainian hryvnias (UAH) (at the material time around 60,000 euros (EUR)) in bank P.
5. On 26 May 2005 the applicant requested to withdraw the deposited money plus the interest, but received a refusal. The bank’s representatives alleged that on behalf of the bank the deposit contract had been signed by a person who had no authorization for that; that the applicant’s money had been sent to a transit account instead than on the applicant’s deposit account and had later been withdrawn by an unknown person.
2. Criminal proceedings
6. On 24 May 2005 a criminal case was opened for misappropriation of the bank’s funds in particularly large amounts.
7. On 27 September 2005 L. (see paragraph 3 above) was charged with misappropriation of funds using official powers and forgery. As his whereabouts were unknown, the proceedings were stayed.
8. According to a letter of the Dnipropetrovsk Regional Department of the Security Service of Ukraine of 27 September 2010 at that time the proceedings were still suspended.
9. No further information was provided as to these criminal proceedings.
3. First set of civil proceedings
10. In July 2005 the applicant instituted before the Zhovtnevyy District Court of Dnipropetrovsk proceedings against bank P. Invoking his consumer’s rights, he requested that the deposit and interest be returned to him and an award for non-pecuniary damage. The bank lodged a counter-claim stating that the deposit contract had been null and void.
11. On 25 July 2005 the court opened the proceedings.
12. On 31 October 2008 the court found against the applicant. It held that the contract was void since it had been signed by L., who had no competence to do so. Moreover, the documents issued to confirm the deposit were not in compliance with the legislative requirements and the money had been put on a transit account, and not on the applicant’s deposit account; it was later transferred to the applicant’s credit card account and withdrawn by an unknown person. The court also took notice of the fact that criminal proceedings as regards the misappropriation of funds were pending. The case thus raised the issue of compensation of damage caused by a crime, which was dependent on the identification of a perpetrator and on the establishment of his or her guilt. As no such identification had taken place, the court could not allow the applicant’s claim.
13. On 23 April 2009 the Dnipropetrovsk Regional Court of Appeal quashed the above decision and found in part for the applicant. The court held that the applicant had deposited money with the bank so it was for the bank to return the deposited amount. The court rejected the applicant’s claim for non-pecuniary damage.
14. On 7 October 2009 the Supreme Court, in the applicant’s absence, quashed the decision of 23 April 2009 and upheld the decision of 31 October 2008 (see paragraph 12 above). This decision was sent to the applicant on 21 October 2009.
4. Second set of civil proceedings
15. In April 2010 the applicant instituted a new set of civil proceedings against the bank, claiming restitution of his deposited money by reason that it had been acquired by the respondent without legal ground (Article 1212 of the Civil Code), as well as interest and non-pecuniary damages.
16. On 30 September 2010 the Zhovtnevyy District Court found for the applicant. The court referred to the findings of the previous judgments, namely those contained in Zhovtnevyy District Court’s judgment of 31 October 2008 (see paragraph 12 above), that the bank did receive money from the applicant. As this occurred without proper legal ground, the court ordered return of the deposited amounts, as well as payment of interest and non-pecuniary damages. The court noted that while there were criminal proceedings pending, this could not exclude the bank’s responsibility, as the applicant had had legal relations with the bank, and not with a private person (L.).
17. On 30 November 2010 the Dnipropetrovsk Regional Court of Appeal quashed the judgment of 30 September 2010, observing that criminal proceedings were pending against L., who was accused of misappropriation of funds. The bank, who did not acquire the applicant’s money, could not be ordered to return it.
18. By a final decision of 3 June 2011 the Higher Specialised Civil and Criminal Court of Ukraine refused to grant the applicant leave to appeal in cassation.
5. Third set of civil proceedings
19. In March 2013 the applicant instituted a new set of civil proceedings against the bank, seeking the compensation of damages inflicted by an employee while performing official functions (Article 1172 of the Civil Code).
20. After two retrials with the Higher Specialised Civil and Criminal Court of Ukraine, who quashed the appellate court’s decisions granting the applicant’s claims, on 27 May 2015 the Dnipropetrovsk Regional Court of Appeal eventually refused them. It noted that for a compensation to be paid by an employer for the actions of its employee it should be established that the employee had caused damage while performing his official duties. In the applicant’s case, while it was not disputed that L. was employed by the bank, it was established that he had exceeded the limits of his professional duties and responsibilities. Therefore, the bank could not be held responsible under Article 1172 of the Civil Code.
21. On 11 November 2015 the Higher Specialised Civil and Criminal Court of Ukraine upheld this judgment.
COMPLAINTS
22. The applicant complains that Article 1 of Protocol No. 1 to the Convention has been breached since the State had failed to ensure the return of his deposit.
23. He also complains under Article 6 of the Convention about the length of the first set of his civil proceedings.
THE LAW
A. Complaint under Article 1 of Protocol No. 1
24. The applicant complains that the courts failed to allow his claims against the bank.
He invokes Article 1 of Protocol No. 1 to the Convention, which 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.”
25. The Court notes that in the present case the applicant deposited his money with a private bank. Seeking to recover his money, the applicant invoked different legislative provisions, which were eventually found by the courts as not applicable to his situation. The courts notably concluded that the contract of deposit was null and void, that L. had exceeded the limits of his professional duties and responsibilities and that the deposited money had been stolen, the latter fact being not contested by the applicant.
26. The Court reiterates that when the State, through its judicial system, provided a forum for the determination of the applicant’s rights and obligations, this does not automatically engage its responsibility under Article 1 of Protocol No. 1. While the Court has also stated that the State could be held responsible for the losses caused by such determinations if the court decisions amounted to an arbitrary and disproportionate interference with possessions (see Breierova and others v. the Czech Republic (dec.), no. 57321/00, 8 October 2002), this is not the case here. Having examined the relevant domestic decisions, the Court does not find that in the present case the national courts had come to conclusions which could be regarded as arbitrary or manifestly unreasonable.
27. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Complaint under Article 6 § 1 of the Convention
28. The applicant further complains that the length of the first set of civil proceedings exceeded the “reasonable time” requirement of Article 6 § 1 of the Convention.
In so far as relevant, this provision 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 …”
29. The Court, having examined all the materials submitted to it and having regard to its case-law on the subject, considers that the applicants’ complaint under this head is inadmissible since the length of the proceedings, totalling little more than four years and two months for three levels of jurisdiction, was not excessive or unreasonable (see, mutatis mutandis, Yuryeva and Yuryev v. Ukraine, no. 3431/03, § 43, 31 July 2012).
30. In view of the above, the present complaint is also manifestly ill‑founded and should 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 6 December 2018.
Andrea Tamietti Faris Vehabović
Deputy Registrar President
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