TK SKLO, TOV v. UKRAINE (European Court of Human Rights) Application no. 69758/10

FIFTH SECTION
DECISION
Application no. 69758/10
TK SKLO, TOV
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 8 January 2019 as a Committee composed of:

André Potocki, President,
Mārtiņš Mits,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,

Having regard to the above application lodged on 24 November 2010,

Having deliberated, decides as follows:

THE FACTS

The applicant, TK Sklo, Tov, is a limited-liability company registered in Ukraine. It is represented before the Court by Mr V. Bodryaga, a lawyer practising in Kramatorsk.

A. The circumstances of the case

The facts of the case, as submitted by the applicant company, may be summarised as follows.

On 23 March 2010 the Donetsk Voroshylovskyy District Court ordered the seizure of all assets belonging to the applicant company in the context of ongoing criminal proceedings against officials of a different company.

Having found out about the seizure order on 20 April 2010, the applicant company appealed against it on 22 April 2010. On 17 March 2010, following a preliminary examination of the case, the Donetsk Regional Court of Appeal issued a ruling by which it dismissed the appeal without examining it on the merits, on the grounds that the order issued by the first-instance court was not amenable to appeal and that the applicant company had no standing to lodge an appeal.

On 15 June 2010 the applicant company challenged that ruling on points of law. It argued that Article 126 of the Code of Criminal Procedure did not explicitly state that seizure orders were not amenable to appeal. The applicant company also referred to Article 129 of the Constitution, which it considered to provide sufficient legal basis for an appellate review of the impugned order.

On 25 June 2010 the Supreme Court dismissed the applicant company’s appeal on points of law without examining it on the merits, on the grounds that the ruling of the appellate court could not be appealed against on points of law.

B. Relevant domestic law

Article 129 of the 1996 Constitution of Ukraine (as worded at the material time) provided that ensuring that judicial decisions could be reviewed on appeal and on points of law, except for the cases established by law, was one of the key principles of justice.

Article 32 of the 1960 Code of Criminal Procedure (“the 1960 CCP”), which was in force at the material time (it was repealed with effect from 19 November 2012), contained definitions of various terms used in the CCP. It defined “parties to criminal proceedings” as follows: “an accused, a suspect, defence counsel, a victim, a civil claimant, a civil defendant, as well as their representatives”. “An appeal” and “an appeal on points of law” were defined as “an application by a prosecutor or a party to criminal proceedings for review of a judicial decision on appeal” or “on points of law”, respectively.

Article 125 of the 1960 CCP provided, in particular, that the investigator was obliged to take necessary measures with a view to securing a possible penalty of confiscation imposed as a result of criminal proceedings.

Article 126 of the 1960 CCP regulated the procedure for securing possible confiscation. It provided that this was to be achieved by the seizure of assets, valuables and other property of an accused or a suspect, or other persons who could be held materially liable for his or her actions.

Pursuant to Article 359 of the 1960 CCP, the appellate courts were to dismiss appeals without examining them on the merits if they had been lodged by someone who did not have the right to do so.

Under the 1960 CCP, third parties whose interests were affected by seizure and/or confiscation in criminal proceedings had no standing and no procedural rights within those proceedings.

In accordance with the new CCP enacted on 19 November 2012 (“the 2012 CCP”), as amended on 18 February 2016, third parties whose interests are affected by seizure and/or confiscation measures in criminal proceedings have become fully fledged participants of criminal proceedings and are vested with a variety of procedural rights.

COMPLAINTS

The applicant company complained, under Article 6 § 1 of the Convention, of lack of access to a court. It also complained that the Voroshylovskyy Court had issued the seizure order in its absence. Lastly, it alleged a breach of its rights under Article 1 of Protocol No. 1.

THE LAW

The applicant company complained, under Article 6 § 1 of the Convention, that in spite of the fact that the seizure order directly affected its interests, it had had no procedural standing under the CCP in force at the material time. It had therefore been denied access to a court and its rights had remained without any protection. It further complained, under the same provision, that it had not been notified of the hearing of the Voroshylovskyy Court and that it had taken place in its absence. The applicant company also complained under Article 1 of Protocol No. 1 that the seizure of its assets had amounted to an unlawful and arbitrary interference with its property rights.

The Court refers to Article 35 § 1 of the Convention, which reads as follows:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

The Court reiterates that the object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see, amongst other authorities, Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 156, ECHR 2009, and Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000‑I).

As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Varnava and Others, cited above, § 157; and Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002). In the event of a continuing situation, the six-month period runs from the cessation of that situation (see Koval v. Ukraine (dec.), no. 65550/01, 30 March 2004). The concept of a “continuing situation” refers to a state of affairs in which there are continuous activities by or on the part of the State which render the applicant a victim (see Posti and Rahko v. Finland, no. 27824/95, § 39, ECHR 2002‑VII). Complaints which have as their source specific events which occurred on identifiable dates cannot be construed as referring to a continuing situation, even if those events had enduring effects for the applicant (see Camberrow MM5 AD v. Bulgaria, (dec.), no. 50357/99, 1 April 2004, and Meltex Ltd v. Armenia (dec.), no. 37780/02, 27 May 2008).

Turning to the present case, the Court notes that the applicant company’s complaints concerned the order on the seizure of its assets, which had been issued on 23 March 2010. Even though it undoubtedly had enduring effects, there is no indication of a “continuing situation” under the circumstances.

The Court next observes that, as the applicant company admitted, it had no standing in the criminal proceedings in question. As provided, in particular, in Article 32 of the CCP of 1960, which was in force at the material time, any appeal or appeal on points of law could be lodged by “a party to the criminal proceedings”. The list of such parties was exhaustive: an accused, a suspect, a defendant, a victim, a civil claimant, a civil defendant, as well as their representatives. Obviously, the applicant company did not fit any of those categories.

It was only after the entry into force of the new CCP on 19 November 2012 and its further legislative amendments of 18 February 2016 when third parties whose interests were affected by seizure and/or confiscation in criminal proceedings became fully fledged parties to criminal proceedings and were vested with all the procedural rights required for protection of their legitimate interests.

It follows that the applicant company’s attempts to lodge an appeal and an appeal on points of law were doomed to fail and that it ought to have known about that, given the public nature of the applicable legal provisions.

Accordingly, the six-month time-limit should be calculated from the date when the applicant company became aware of the impugned seizure order, namely from 20 April 2010. It introduced its application seven months and four days after that date, which is outside the six-month time-limit under Article 35 § 1 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 31 January 2019.

Milan Blaško                                         André Potocki
Deputy Registrar                                     President

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