CASE OF EAST WEST ALLIANCE LIMITED v. UKRAINE

Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary and non-pecuniary damage - award

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens

At the time of the events the applicant company, along with ATI (an air cargo traffic company), URARP (an aircraft repairs and maintenance company), and some other companies involved in the aviation business, belonged to the Titan Consortium.

At various times between August 1997 and March 2002, when he was elected to the national parliament, the president of the Ukrainian office of the applicant company, ATI and the Titan Consortium was a certain Mr L.

Pursuant to a sale contract of 30 July 1999, as modified on 28 December 1999, the applicant company purchased eight Antonov-28 (“An-28”) aircraft from the Russian airline company S. The aircraft had been manufactured in 1988-1990, and their flying records ranged from 1,455 to 2,821 hours.

On 9 and 19 January 2000 the applicant company leased those aircraft to ATI for ten years. It was stipulated in the contract that the aircraft would remain the property of the applicant company during that entire period. The ownership could then be transferred to ATI, on condition that it had settled all the leasing payments.

On 22 and 28 March 2000 the Ministry of Transport of Ukraine registered the aircraft. The applicant company was indicated as the owner in the registration certificates.

In November 2000 one of the aircraft was relocated to Moldova for commercial purposes.

On 7 March 2001 another aircraft was sold to company C.

The six remaining aircraft were parked at the Uzyn airbase in the Kyiv region (Bila Tserkva).

On 6 July 2001 the applicant company and ATI terminated the lease agreement because the lessee was unable to comply with its terms.

On 20 August 2001 the applicant company concluded an agreement on a ten-year lease of the six aircraft to another company, R.S.T., which was to take effect on 1 October 2001. That agreement, however, never entered into force.

Between 23 and 25 January 2001 the tax police conducted a search on the premises of the Titan Consortium in Kyiv, including the applicant company’s office, apparently in the context of criminal investigations against URARP on account of suspected tax evasion. As a result, it seized “a considerable number of documents” (quoted from a ruling of the Kyiv Prosecutor’s Office of 20 September 2002 – see paragraph 27 below). The seized documentation included the original contract of sale for the six An-28s parked at the Uzyn airbase. The case file does not contain the search-and-seizure report.

On 23 March 2001 the tax police launched criminal proceedings against ATI officials on suspicion of tax evasion.

On 29 March 2001 the proceedings were discontinued as they had been instituted prematurely. However, by the same ruling the tax police instituted criminal proceedings against ATI officials on suspicion of document forgery.

On 30 March 2001 the tax police held an “inspection of the scene” at the Uzyn airbase, as a result of which they discovered and seized the six An-28 aircraft. The seizure was documented by a “report of the inspection of the scene” (the same procedure took place at Cherkasy airport in respect of eight L-410 planes also belonging to the applicant company – see paragraph 104 below). As the security guard was unable to produce the documentation for those aircraft, submitting that it was in the applicant company’s office in Kyiv, the police concluded that “their owner could not be established”.

The applicant company challenged the aforementioned seizure (as well as the seizure of the L-410 aircraft – see paragraph 105 below) before the prosecution authorities.

On 10 January 2002 the tax police opened again a criminal case against the ATI officials on suspicion of tax evasion.

On 21 March 2002 the Kyiv City Prosecutor’s Office wrote to the applicant company, in reply to its complaint about the alleged unlawfulness of the seizure of the aircraft of 30 March 2001, that it could not decide on the seizure of the An-28 aircraft, as in the meantime, on 10 September 2001, the Kyiv City Commercial Court had also impounded them in the context of the commercial proceedings brought by the tax authorities (see paragraph 35 below). As regards the L-410s, their seizure was found to be unlawful as it had not been based on an adequate procedural document (see paragraph 106 below).

On an unspecified date a criminal case was opened against the vice-president of ATI, who was charged with abuse of office, forgery, tax evasion and money laundering. Apparently, this criminal case replaced those previously opened against the ATI officials (see paragraphs 18 and 22 above). The ATI vice-president was suspected, in particular, of having forged the contracts of 9 and 19 January 2000 (see paragraph 10 above) for the allegedly non-existent lease of the aircraft, with a view to tax evasion.

On 17 April 2002 the tax police investigator conducted another inspection of the planes at the Uzyn airbase.

On the same date the investigator classified the planes as material evidence in the criminal case against the ATI vice-president, with reference to Articles 78 and 79 of the Code of Criminal Procedure (see paragraph 138 below).

On 20 September 2002 the Kyiv City Prosecutor’s Office refused to institute criminal proceedings against the tax police in respect of, inter alia, the search of the applicant company’s office between 23 and 25 January 2001 and the seizure of documentation relating to the aircraft. It was the fourth decision of the prosecution authorities refusing to open a criminal case in that regard. The previous three had been quashed on grounds of insufficient evidence. The applicant company also unsuccessfully tried to bring a civil claim in that regard.

On 3 February 2003 the Pecherskyy District Court of Kyiv (“the Pecherskyy Court”) found the vice-president of ATI guilty of professional negligence and acquitted him of the other charges (including the forgery of the lease contracts of 9 and 19 January 2001). By the same judgment the court ordered that the six AN-28s used as material evidence in the case be returned to “their owner”. On 8 May 2003 the Kyiv City Court of Appeal upheld that judgment.

On 26 May 2003 the Pecherskyy Court wrote to the State company in charge of the management of the Uzyn airbase stating that, pursuant to the judgment of 3 February 2003, the planes in question were to be returned to their owner.

On 30 May 2003 the airbase manager forwarded that instruction to the State Tax Inspectorate in Bila Tserkva (further referred to as “the Bila Tserkva Tax Inspectorate” or “the tax inspectorate”), which had entrusted it with their storage. The airbase manager also indicated that the tax inspectorate owed the State company 46,295 Ukrainian hryvnias (UAH) for the storage.

On 2 June 2003 the tax inspectorate replied that meanwhile, on 16 September 2002, the aircraft had been declared ownerless (see paragraph 41 below) and that there were no lawful grounds for discontinuing their sale for State revenue (see also paragraphs 61-65 below). As to the supposed indebtedness, the tax inspectorate submitted that the planes, which were now State property, had been stored in a State-owned airbase and guarded by the tax police (see paragraphs 73-74 below). Accordingly, it considered the claim for storage costs to be without basis.

On 7 February 2005 the Pecherskyy Court specified that, in accordance with the judgment of 3 February 2003, the six An-28s were to be returned to the applicant company, which was their owner.

On 28 February 2005 the court issued a writ of execution on the basis of its ruling of 7 February 2005.

On 20 August 2001 the Pecherskyy District State Tax Administration in Kyiv lodged a claim with the Kyiv City Commercial Court against the applicant company and ATI, seeking to invalidate the lease contracts of 9 and 19 January 2000 (see paragraph 10 above). The claimant submitted that the applicant company had in fact supplied the planes to ATI free of charge, while the impugned lease contracts had subsequently been forged to conceal that fact, with a view to absolving ATI from any income tax payable. In addition to invalidation of the lease contracts, the tax administration sought confiscation of the eight aircraft, with the proceeds of their sale going to the State budget. It also requested that the planes be impounded as an interim measure to secure the claim.

On 10 September 2001 the court started the proceedings. It secured the claim by impounding the eight aircraft (including that sold to company C. and the one relocated to Moldova).

On 12 October 2001 company C. asked the court to lift the impoundment of the plane it had purchased. That request was apparently granted.

On 27 June 2003 the Kyiv City Commercial Court rejected the claim of the tax administration as unsubstantiated. It noted that it had been common ground that ATI had not complied with the lease contracts and therefore the applicant company remained the owner of the aircraft. The court also quashed the impoundment order of 10 September 2001 (see paragraph 35 above).

On 29 September 2003 the Kyiv Commercial Court of Appeal upheld that judgment. It stated that the applicant company’s ownership of the aircraft had been confirmed by documents, while the allegation that some of the documents had been forged had been found to be unsubstantiated in the judgment of 3 February 2003 (see paragraph 28 above).

On 10 July 2002 an investigator of the Bila Tserkva Tax Inspectorate issued a report about “the temporary seizure of the taxpayer’s assets” in respect of the six An-28 planes parked at the Uzyn airbase, with a view to “settlement of the taxpayer’s obligations vis-à-vis State budgets and target funds”. The report listed the planes’ registration numbers and referred to subsection 3.2 of section 9 of the Law of Ukraine “On the procedure for the settlement of taxpayers’ obligations to State budgets and special-purpose funds” (see paragraph 140 below). It was signed by a tax police official, the Uzyn airbase manager and two attesting witnesses.

On 11 July 2002 the deputy head of the Bila Tserkva Tax Inspectorate issued a decision about “the administrative seizure of the taxpayer’s assets” in respect of the aircraft in question. The decision reiterated that the measure had been undertaken with a view to “settlement of the taxpayer’s obligations vis-à-vis budgets and State target funds”. It was noted in the line “the taxpayer whose assets have been seized” that the owner of the aircraft had not been established.

On 16 September 2002 the Bila Tserkva City State Administration (“the Bila Tserkva Administration”) issued an order by which it declared the six aircraft ownerless and empowered the tax police to sell them. As a result, between March and June 2003 the planes were sold to third parties (see paragraphs 61-65 below).

On 15 May 2003 the applicant company lodged a claim with the Kyiv Regional Commercial Court against the Bila Tserkva Administration, challenging the order of 16 September 2002. It submitted that it was the legitimate owner of the aircraft, that the defendant had duly been informed of that fact, and that the impugned order had amounted to unlawful expropriation of the applicant company’s property.

On 3 June 2003, in order to secure the claim of the applicant company, the court banned any transactions involving the aircraft.

Consequently, on 4 June 2003 a bailiff sealed the six aircraft. The Ad Hoc Investigation Commission for the Investigation into Reasons for the Ukrainian Aviation Crisis Situation (“the Parliamentary Investigation Commission”), which in the meantime had been set up under the chairmanship of Mr L., MP (see paragraph 8 above), and to which the applicant company had complained, also sealed the aircraft.

The Bila Tserkva Administration appealed against the impoundment of the aircraft ordered on 3 June 2003 submitting, in particular, that the applicant company’s claim was of a non-pecuniary nature, being limited to the invalidation of a document.

On 8 July 2003 the Kyiv City Commercial Court of Appeal rejected that appeal. It found the appellant’s arguments groundless because the subject matter of the dispute was twofold: firstly, the impugned decision had declared the planes ownerless, and, secondly, it had authorised the tax authorities to sell the planes. Accordingly, a failure to secure the claim could jeopardise enforcement of any future judgment on the dispute.

On 11 November 2003 the Higher Commercial Court quashed the rulings of 3 June and 8 July 2003 on a cassation appeal lodged by the Bila Tserkva Administration. It noted that as of 3 June 2003 the planes had remained impounded in order to secure a claim in another set of proceedings under a ruling of 10 September 2001, which had not been quashed until 27 June 2003 (see paragraphs 35 and 37 above). As the legal procedure did not provide for “double” measures for securing claims, the ruling of the Kyiv Regional Commercial Court of 3 June 2003 had no legal basis.

On 25 December 2003 the Kyiv Regional Commercial Court found in favour of the applicant company and quashed the order of the Bila Tserkva Administration of 16 September 2002 (see paragraph 41 above). It stated that the property rights of the applicant company were confirmed by the aircraft registration certificates dated 28 March 2000 (see paragraph 11 above).

On 9 April 2004 the Kyiv Commercial Court of Appeal upheld that judgment. It also issued a separate ruling in which it referred, inter alia, to the documentary evidence in the case file proving that the Bila Tserkva Administration had proceeded with the sale of the planes on the grounds that they were ownerless (see paragraphs 41 and 61-65 below) after having received documents from the applicant company confirming the latter’s ownership of those planes. The court thus concluded that, by declaring the planes ownerless, the defendant had infringed the applicant company’s property rights. It further instructed the Kyiv Regional State Administration, the Kyiv City Tax Administration, and the Bila Tserkva Tax Inspectorate “to take appropriate measures in respect of the officials guilty of the violations of the procedure for identifying and declaring ownerless the property belonging to the [applicant company].”

On 20 July 2004 the Higher Commercial Court upheld the lower courts’ decisions of 25 December 2003 and 9 April 2004.

On 9 December 2004 the General Prosecutor’s Office (“the GPO”) instituted criminal proceedings on the suspected abuse of power by officials of the tax and other state authorities, which had “had grave consequences”. The prosecutor noted that, by declaring the applicant company’s aircraft ownerless and selling them, as well as by unlawfully seizing its L-410s (see also paragraphs 104 and 106 below), the authorities had caused the applicant company “direct pecuniary damage of over one million Ukrainian hryvnias”. On 15 December 2004 the supervision department of the GPO quashed the ruling of 9 December 2004 as premature. However, this later decision was subsequently also set aside (by the Deputy General Prosecutor’s decision of 14 April 2005). There is no information on any further developments in the investigation.

On 21 December 2004 the Supreme Court quashed the judgment of the Kyiv Regional Commercial Court of 25 December 2003 and the related rulings of the higher-level courts (see paragraphs 48 and 50 above) and remitted the case for fresh examination to the first-instance court. It considered that the courts had made a premature finding that the applicant company was the owner of the aircraft. The fresh examination of the case was supposed to clarify, including with the help of a forensic graphological examination, whether the contracts of sale of 30 July and 28 December 1999 (see paragraph 9 above) were authentic and in compliance with the Russian legislation as indicated therein.

On 25 September 2006 the Kyiv Regional Commercial Court, having examined the case afresh, allowed the applicant company’s claim once again and quashed as unlawful the order of the Bila Tserkva Administration of 16 September 2002 (see paragraph 41 above). Pursuant to the instructions of the Supreme Court, it had undertaken a forensic graphological examination of the contract of sale of 30 July 1999 and the additional agreement of 28 December 1999, and had found the signatures on them to be authentic. The court further established that the transaction had taken place in compliance with Russian legislation as indicated in the contracts. It underlined that the aircraft had been declared ownerless despite the fact that the case file had contained copies of the certificates of their registration with the Ministry of Transport of Ukraine of 28 March 2000 (see paragraph 11 above). Furthermore, the Russian company S. had confirmed to the court in writing that it had sold the planes at issue to the applicant company. Accordingly, the court concluded that there were no reasons not to consider the contract of sale of 30 July 1999 as appropriate proof of the applicant company’s title to the planes. The court also found that the Bila Tserkva Administration had breached the procedure for identifying and declaring the property ownerless.

The Bila Tserkva Administration, the Bila Tserkva Tax Inspectorate and the Kyiv Regional Prosecutor’s Office appealed.

The Kyiv Tax Administration also enquired with Interpol whether the applicant company was registered and pursued its activities lawfully.

On 16 January 2007 the Kyiv Regional Commercial Court of Appeal stayed the examination of the case pending receipt of information from the Irish Interpol Department concerning that enquiry.

On 27 February 2007 the Ukrainian Interpol Department informed the applicant company of the reply of their Irish counterparts confirming that it (the applicant company) had no criminal record, nor any problems with the police in Ireland.

On 7 June 2007 and 14 October 2008 the Kyiv Regional Commercial Court of Appeal and the Higher Administrative Court, respectively, upheld the judgment of the Kyiv Regional Commercial Court of 25 September 2006 (see paragraph 53 above; apparently at some point the jurisdiction over the case had been changed from commercial to administrative).

On 10 November 2008 the applicant company asked the Bila Tserkva Tax Inspectorate to return the six aircraft to it, with reference to those judicial decisions.

On 10 December 2008 the tax inspectorate replied that it was impossible to return the planes to the applicant company, because they had been sold off at a public auction in the meantime (see paragraphs 63-65 below).

In July 2002, following the seizure of the aircraft (see paragraphs 39-40 above), the Bila Tserkva Tax Inspectorate commissioned the Ukrimpeks-2000 company to store and sell them.

The applicant company unsuccessfully sought to prevent the sale before the Bila Tserkva Administration.

On 17 March 2003 Ukrimpeks-2000 sold one plane to a private company.

On 24 April 2003 four other planes were sold to another private company.

On 4 June 2003 the sixth plane was sold to the Ukrainian State Air Traffic Service Enterprise.

On 12 December 2003 the Kyiv Regional Commercial Court started proceedings following a claim by the applicant company challenging all those sale contracts, and impounded the aircraft in order to secure the claim.

Meanwhile, the Ukrainian State Air Traffic Service Enterprise, from its side, also challenged the contract of 4 June 2003 before the Commodity Market Arbitration Office (“Біржовий арбітраж (на правах третейського суду)”). The buyer could not get possession of the aircraft in question and found out that the sale had been carried out despite the judicial orders to impound the aircraft of 10 September 2001 and 3 June 2003.

On 19 February 2004 the Commodity Market Arbitration Office, in allowing the buyer’s claim, declared the sale of 4 June 2003 (carried out in the form of a commodity market transaction) null and void.

On 19 May 2005 the Kyiv Regional Commercial Court discontinued the proceedings in which the applicant company was seeking annulment of the sale contract of 4 June 2003, with reference to that decision.

On 6 July 2005 the court also quashed the impoundment order of 12 December 2003 on the ground that it was impeding technical maintenance of the aircraft (the ruling did not refer to any requests to have the order quashed).

On 25 August 2009 the Kyiv Regional Commercial Court, in allowing the applicant company’s claim, declared the sale contracts of 17 March and 24 April 2003 null and void.

On 17 December 2009 and 25 February 2010 the Kyiv Regional Commercial Court of Appeal and the Higher Commercial Court, respectively, upheld that judgment.

On 12 July 2002 the State Tax Administration instructed its Kyiv Regional Department to ensure security guard of the six An-28 aircraft.

The planes were apparently still parked at the Uzyn airbase after their sale to third parties (see paragraphs 14, 39 and 63-65 above).

According to the applicant company, on 4 June 2003 it concluded a contract with a State security agency on the guarding of the planes. That contract remained in force until August 2007 and the applicant company paid a total of UAH 351,522 (which, according to its calculations, was equivalent at the time to USD 67,865) for the services provided. According to the Government, that contract was of no effect in practice, given that the planes remained in the authorities’ custody (see also paragraph 243 below).

In 2004 the applicant company found out that some of the planes had been damaged or had had some equipment removed, so it complained to the police.

As a result, on 23 July 2004 the Bila Tserkva police investigator, in the presence of a representative of the applicant company, inspected the six planes. The inspection revealed that some of them had been damaged and/or had had certain equipment removed. A door handle had been broken and the door damaged on one plane, and the wheel housing, navigation equipment, engines, emergency radio installations, pilots’ seats and flashlight were missing on some of the planes. At the same time, some of the bailiffs’ seals and those of the Parliamentary Investigation Commission (see paragraph 44 above) were broken or missing, whereas there were fresh and intact Kyiv Regional Tax Administration seals on the planes.

On 26 July 2004 the applicant company complained to the GPO about the theft and damage of the aircraft, emphasising that it had happened while they were being guarded by the Bila Tserkva Tax Inspectorate. The applicant company sought to institute criminal proceedings against the latter. It further argued that the planes had arrived at the airbase in good condition, referring to the fact that they had all been independently flown there, rather than taken inside the hold of another aircraft.

On 5 August 2004 the prosecutor’s office refused to institute criminal proceedings against the officials of the Bila Tserkva Tax Inspectorate on account of the theft, having found no corpus delicti in their actions.

On 14 September 2004 the prosecutor’s office initiated criminal investigations into the theft without targeting them against any specific persons.

On 28 March 2005 the investigator terminated the investigations, having found it impossible to identify the perpetrator(s).

On 2 October 2007 the applicant company brought an administrative claim against the tax authorities on account of the allegedly unlawful armed guard of the aircraft, and sought its lifting.

On 19 November 2007 the Kyiv Regional Administrative Court refused to open the proceedings. It noted that the dispute in question had already been resolved by the judgment of the Kyiv Regional Commercial Court of 25 September 2006, upheld by the Kyiv Regional Commercial Court of Appeal on 7 June 2007 (see paragraphs 53 and 58 above).

On 17 February 2009 the applicant company brought another administrative claim against the Bila Tserkva Administration and Tax Inspectorate seeking the return of its six AN-28s. It submitted that those authorities had committed an unlawful omission by their failure to return the planes to the applicant company as their legitimate owner. It further noted that the decision of 16 September 2002 had been quashed by the Kyiv Regional Commercial Court on 25 September 2006, whose decision had been upheld by the higher-level courts. Nonetheless, the property had never been returned to the applicant company.

On 14 April 2009 the Kyiv Regional Administrative Court terminated the proceedings on the grounds that they fell under criminal rather than administrative jurisdiction. The court noted that it had been discovered that the applicant company’s claim concerned the alleged non-enforcement of a final criminal verdict (apparently meaning the verdict of the Pecherskyy Court of 3 February 2003, further clarified on 7 February 2005 – see paragraphs 28 and 32 above).

On 9 October 2009 the applicant company wrote to the tax authorities that it was the only legitimate owner of the six aircraft, as the decision to declare them ownerless had been quashed by the courts. It therefore insisted that the guard of the planes be lifted and that they be returned to it.

On 23 October 2009 the Bila Tserkva Tax Inspectorate replied that no decision had been taken about the lifting of the guard.

On 6 November 2009 the Kyiv Regional Tax Administration also replied to the applicant company that there was no reason to stop guarding the planes given that the court proceedings on the matter were ongoing (without specifying which proceedings it was referring to).

On 16 February 2010 the applicant company requested, once again, that the State Tax Administration set aside its instruction of 12 July 2002 regarding the guarding of the aircraft.

On 3 March 2010 the Deputy Head of the State Tax Administration forwarded that request to the Kyiv Regional Tax Administration.

On 15 March 2010 the latter dismissed the applicant company’s request. It noted that, indeed, the courts had invalidated both the decision to declare the planes ownerless and the contracts for their subsequent sale. Nonetheless, no decision had been delivered on the lifting of the security guard.

On 6 October 2010 an investigator of the Bila Tserkva police department declared the six AN-28 planes as material evidence in the criminal investigation into suspected embezzlement by Ukrimpeks-2000, which had been initiated in February 2006 (the company officials were suspected of having failed to transfer all the proceeds of the aircraft sales to the State budget – see paragraphs 61 and 63-65 above). The investigator noted that the planes were under constant security guard by the Bila Tserkva Tax Inspectorate (see paragraphs 73 and 87-91 above).

On 26 November 2010 the applicant company complained about that decision to the Kyiv Regional Department of the Ministry of the Interior. It stated that there were no grounds for attaching the aircraft as material evidence in the criminal case in question, which had been opened about four years earlier. The applicant company pointed out that, while the planes had been guarded by the tax authorities, their technical condition had considerably deteriorated and they had become unusable. Therefore, the applicant company suggested that the tax authorities might have been seeking ways to shift the responsibility for that deterioration onto the law-enforcement authorities.

On 25 December 2010 the Bila Tserkva Prosecutor’s Office, to which the applicant company’s complaint had apparently been referred, replied that there were no reasons for it to intervene.

On 17 June 2011 the investigator of the Bila Tserkva police department (apparently, the one in charge of the criminal investigation into suspected embezzlement by Ukrimpeks-2000 in which the planes had been declared as material evidence – see paragraph 92 above) decided that the planes should be returned to the applicant company.

On 9 August 2011 the applicant company contracted Antonov, the exclusive designer and manufacturer of An-28 aircraft, to carry out an expert evaluation of the planes.

From 3 to 8 October 2011 an expert commission of Antonov inspected the planes in the presence of the applicant company’s representative. It concluded that what had been presented to it for inspection had consisted of separate items and components, which could not be classified as aircraft. Nor could they be identified as constituent parts of exactly the planes belonging to the applicant company. Furthermore, no documentation for the planes was available.

On 25 July 2000 the applicant company purchased six L-410 aircraft at a public auction.

On 15 August 2000 it received notarised certificates that those planes were its property.

On 19 September 2000 it purchased two more planes of the same type at a commodity market.

Pursuant to lease contracts between the applicant company and ATI of 18 August and 1 October 2000, the eight L-410s were to be leased to the latter after repairs and technical upgrading had been carried out by the applicant company. This was envisaged to be completed by 1 May 2001.

The planes were parked at Cherkasy airport.

During the search conducted at the applicant company’s office in Kyiv between 23 and 25 January 2001 (see paragraph 17 above), the tax police seized original documentation for the L-410 planes. The case file does not contain the search-and-seizure report.

On 30 March 2001 the tax police seized the aircraft “for the purpose of using them as material evidence in the criminal case [against the ATI officials] and for redemption of tax arrears”. The seizure was documented by a “report of the inspection of the scene” (similar to the inspection conducted on the same date at the Uzyn airbase – see paragraph 20 above).

On 21 February 2002 the applicant company challenged the seizure of the planes before the Kyiv City Prosecutor’s Office.

On 21 March 2002 the prosecutor replied that, indeed, the seizure of the L-410 planes had not been based on any procedural document and that he had therefore instructed the tax police to “take an appropriate decision concerning those aircraft”.

On 22 April 2002 the Kyiv State Tax Administration instructed the applicant company to submit financial documentation in respect of the planes in order for a decision to be taken.

On 26 April 2002 the investigator of the police department of the State Tax Administration declared the eight L-410 planes as material evidence in the criminal investigations against the ATI officials (see also paragraph 26 above).

In August 2002 the criminal case was transferred to the GPO.

On 2 January 2003 a criminal case was opened in respect of Mr L. as the former president of ATI (see paragraph 8 above). Apparently, the planes were then classified as material evidence in those criminal proceedings. On 26 May 2003 the GPO discontinued the criminal investigations against Mr L. as there was insufficient evidence of any guilt. It was noted in the resolution that the eight L-410 planes, which had been classified as material evidence in the case, were to be returned to ATI. On 4 August 2004 the prosecutor amended his resolution to read that the planes had to be returned to the applicant company.

The applicant company unsuccessfully tried to bring proceedings before the commercial and civil courts on account of the seizure of the planes and their classification as evidence in the criminal case. On 18 October and 1 November 2004 the Kyiv City Commercial Court and the Shevchenkivskyy Court respectively refused to accept its claims for examination as being beyond their competence.

On 15 November 2004 the GPO’s supervisory department quashed the decision of 26 April 2002 (see paragraph 108 above).

On 19 November 2004 it informed the Kyiv Tax Administration of that decision and instructed it to return the aircraft to the applicant company as their rightful owner. A similar letter was sent to the management of Cherkasy Airport.

On 3 December 2004 the director of Cherkasy Airport informed the applicant company that the aircraft could be transferred to it only in the presence of the Kyiv Tax Administration which had seized them.

On 8 February 2006 the applicant company lodged a claim with the Kyiv City Commercial Court against the Kyiv Tax Administration seeking the return of the eight L-410 aircraft.

On 24 May 2006 the court allowed the claim and obliged the defendant to return the planes to the applicant company. It noted that the tax police had ignored the prosecutor’s unambiguous instructions to return the planes to the applicant company. The judgment stated as follows:

“As confirmed by the case materials and not refuted by the defendant, the [applicant company] is the owner of the eight L-410 aircraft .... The failure of the Kyiv State Tax Administration to comply with the instructions of the General Prosecutor’s Office as regards the return of the planes to the claimant [unlawfully] deprives the latter of its right to possess and use its property”.

On 24 October 2006 the Kyiv Commercial Court of Appeal quashed that judgment on an appeal by the Kyiv Tax Administration and terminated the proceedings. It found that the defendant had no longer been in charge of the planes after the criminal case in which they had been declared as material evidence had been transferred to the GPO in August 2002 (see paragraph 109 above). Moreover, the court considered that the destiny of the planes had already been resolved in the context of the criminal proceedings by the prosecutors’ resolutions of 26 May 2003, 4 August and 19 November 2004, pursuant to which the planes had to be returned to the applicant company (see paragraphs 110 and 113 above). The court therefore concluded that, as from 4 August 2004, there had been no impediments, including from the defendant’s side, to the applicant company’s accessing the L-410 planes.

On 1 April 2008 the Higher Administrative Court issued a final decision quashing the ruling of the Kyiv Commercial Court of Appeal of 24 October 2006 and upholding the judgment of the Kyiv City Commercial Court of 24 May 2006 on the applicant company’s cassation appeal.

On 11 June 2008 the Kyiv City Commercial Court issued a writ of execution, according to which the eight L-410 aircraft were to be returned to the applicant company.

On 18 June 2008 the bailiff opened enforcement proceedings and instructed the Kyiv Tax Administration to send its representative to Cherkasy airport to inspect the planes, verify their completeness and implement the transfer.

From July to December 2008 the bailiff reported several times his failure to enforce the judgment because the tax authorities’ representative had been absent or because the airport administration had refused to allow the bailiff to enter the airport.

From 5 December 2008 to 6 May 2010 the enforcement proceedings were stayed pending the outcome of applications lodged by both the bailiff’s service and the tax authorities with the Kyiv City Commercial Court for clarification of its judgment of 24 May 2006 (those applications were eventually rejected).

From May to December 2010 the bailiff issued at least three more reports about his inability, for the same reasons as before (see paragraph 121 above), to enforce the judgment in question.

Meanwhile, in September 2010, the applicant company incidentally found out about a decision of the Cherkasy City Council of 24 July 2008 authorising the municipal enterprise “Cherkasy Airport” to sell the eight L410 planes (with the same serial numbers as those of the planes belonging to the applicant company) at a public auction. The proceeds of the auction were to be used for the needs of Cherkasy Airport. Five of the planes had been sold to third parties.

On 10 December 2010 the administration of Cherkasy airport finally allowed the bailiff to enter the airport. Instead of the eight L-410 planes to be returned to the applicant company, the bailiff discovered there only three (or, more precisely, their components).

On 23 December 2010 the bailiff reported that he could not transfer the planes to the applicant company because: firstly, only three of them were left; secondly, the planes were locked and there were no keys to open them, which made it difficult to evaluate their technical condition; and, thirdly, the documentation for the planes was missing.

On the same date an expert commission of T., an aircraft maintenance company, which had been contracted by the applicant company, examined the planes discovered at Cherkasy airport and reported the following: instead of the eight complete L-410 planes as indicated in the writ of enforcement, there were separate components and items of three planes; no documentation for those items was available; the planes had corrosion on their metal surfaces and cracks in their windows; and their engines and propellers were missing. The conclusion was reached that the planes had not been stored in compliance with storage rules and that, in fact, the items discovered could no longer be considered as aircraft. Lastly, the absence of any documentation made it impossible to identify the discovered items as those belonging, and supposed to be returned, to the applicant company.

On 24 December 2010 the bailiff enquired with the Kyiv City Commercial Court, with reference to the expert commission’s report, as to how to proceed with the enforcement.

On 3 March 2011 T. informed the applicant company that in 2008 and 2009 it had performed major repairs to six aircraft propellers, the serial numbers of which were the same as those of the L-410s belonging to the applicant company. The customer company had presented itself as the owner of the planes in question.

On 15 June 2011 the bailiff declared a “search for the debtor’s property” in respect of the eight L-410s to be returned to the applicant company.

On 20 June 2011 the above decision was sent to the State Aviation Security Service.

On 16 and 18 August 2011 the bailiff repeated his request to the tax authorities to appear at Cherkasy airport at a specific time.

On 19 August 2011 the Kyiv City Tax Administration replied to the bailiff that after an audit in 2007 the eight L-410s had been declared as assets of the Cherkasy Airport municipal company and their ownership had been transferred to the city. It was a known fact that the bailiff had discovered only three planes at the airport and had therefore declared a search for the remaining five planes. Accordingly, the bailiff was aware that the debtor did not have the property defined in the writ of enforcement.

On 26 August 2011 the bailiff asked the applicant company to make it clear whether it was ready to accept the three aircraft in the condition in which they had been discovered at Cherkasy airport (which had not improved since 23 December 2010 – see paragraphs 126-127 above). As to the remaining five planes, it turned out that they had been sold to third parties in 2008 pursuant to a decision of the Cherkasy City Council. Furthermore, the State Aviation Security Service informed the bailiff that on 13 August 2008 the eight L-410s had been excluded from the state register of civilian aircraft and that their location was unknown.

On 30 August 2011 the group of technical experts again examined the components of the three planes at Cherkasy airport and confirmed its conclusion of 23 December 2010 that those items could not be regarded as aircraft.

On the same date the bailiff issued a report about the impossibility of returning to the applicant company even the three planes.

On 30 August 2011 the bailiff terminated the enforcement proceedings with the conclusion that it was impossible to enforce the judgment because the debtor did not have the property in question and the search for that property had been unsuccessful.

The relevant provisions of the Code of Criminal Procedure (1960) read as follows:

Material evidence consists of items that are instruments or objects related to a criminal offence or bearing its traces, money, valuables and other proceeds of crime, as well as any items which could serve to uncover a criminal offence, to identify a perpetrator or to refute the accusation or mitigate a penalty.

Material evidence shall be carefully examined, if possible photographed, described in detail in the examination report and attached to the case file by the inquiry officer, investigator or prosecutor in charge or by a judicial ruling. The material evidence shall be kept in the case file, except for cumbersome items which shall be stored by the enquiry or investigation authority or in the court or shall be transferred for storage to a respective enterprise, institution or organisation. ...

In some cases the material evidence may be returned to its owner if this is not detrimental to the proceedings. ...

A seizure shall be carried out in cases where the investigator has accurate information that the items or documents of relevance are with a certain person or at a certain place.

A seizure shall be based on the investigator’s ruling. ...

A search and seizure shall be conducted in the presence of two attesting witnesses and the person occupying the premises in question ....

A search and seizure in premises occupied by an enterprise, company or organisation shall be conducted in the presence of their representatives. ...

The persons searched, the attesting witnesses and the respective representatives shall have explained to them their right to be present during all the actions of the investigator and to make statements on those actions; their statements shall be reflected in the report. ...

During a search and seizure only items and documents relevant to the case may be seized, as well as the valuables and property of the accused or the suspect with a view to securing a civil claim or possible confiscation of property. ...

The investigator shall present to the attesting witnesses and the other persons present all the documents and items subject to seizure. They shall be listed in the seizure report with an indication of their name, number, measurements, weight, material and individual features. Where necessary, the seized items and documents shall be packed and sealed on the spot. ...

The investigator shall produce a report on a search and seizure in two copies .... The report shall indicate the grounds for the search and seizure, the premises on which it was conducted ... the investigator’s actions and the search and seizure results.

The report of the search or seizure shall reflect all the statements and remarks of those present concerning the investigator’s actions. All those present shall sign both copies of the report. ...

In order to uncover traces of a crime and other material evidence, to clarify the circumstances of the crime, as well as other circumstances of relevance to the investigation, the investigator shall conduct an inspection of the scene, premises, items or documents.

In urgent cases, an inspection of the scene may be carried out before the institution of criminal proceedings. In this case, and where there are grounds for it, criminal proceedings shall be instituted immediately after the inspection of the scene.”

The Code of Commercial Procedure 1991 provided as follows:

The commercial court shall be entitled to take measures for securing a claim, upon the request of the claimant ... or of its own motion. Securing a claim is allowed at any stage of the proceedings where a failure to take measures might complicate or render impossible the enforcement of the commercial court’s judgment.

A claim may be secured by the following measures:

impoundment of the property or money belonging to the defendant;

prohibition on the defendant taking certain actions;

prohibition on other persons taking certain actions related to the subject matter of the dispute; ....

... A ruling on securing a claim may be appealed against.”

The relevant provisions of the Law of Ukraine “On the procedure for the settlement of taxpayers’ obligations to the State budgets and special-purpose funds” (“Про порядок погашення зобов’язань платників податків перед бюджетами та державними цільовими фондами”) (enacted in 2000 and repealed following the entry into force of the Tax Code on 2 December 2010), read as follows:

9.3.1. Following an application by a tax police unit, the head of the tax authority (or his deputy) may decide to seize a taxpayer’s assets. This decision shall be sent:

... (b) to the taxpayer, with the assets’ alienation ban;

(c) to other persons in possession of or using the taxpayer’s assets, with the ban on their alienation.”

9.3.2. An assets seizure may be ... applied to goods which are produced, stored, transported or sold in breach of customs legislation or legislation on excise tax, as well as goods ... sold in breach of legal procedures, without prior determination of their owner. In this case, officials of the tax or other law-enforcement authorities, acting within their competence, shall have the right to undertake a temporary seizure of such assets. This should be reflected in a report giving the reasons for the seizure, with references to breaches of concrete legal provisions, the description of the assets, their specific features and quantity, information about the person or persons from whom the goods have been seized (if applicable), and a list of the rights and duties of those persons in respect of the seizure. ...”


No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence)

András Sajó;Egidijus Kūris;Ganna Yudkivska;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1964 and lives in Otwock.

The applicant was arrested on 11 July 2000.

On 12 July 2000 the Jarosław District Court (Sąd Rejonowy) remanded him in custody on suspicion that, together with two accomplices, he had attempted to extort money from J.G. and M.G. by depriving the alleged victims of their liberty and threatening to kill them.

Subsequently, the applicant’s detention on remand was extended by the Jarosław District Court on 9 October and 29 December 2000 and 3 April, 25 June, 18 September and 29 October 2001. Interlocutory appeals brought by the applicant against those decisions were rejected.

The Jarosław District Court justified its decisions to impose and, later, to extend the preventive measure with reference to the strong evidence against the applicant, the severe punishment which was likely to be imposed if he was convicted and the risk that he would abscond or go into hiding if released. In the domestic court’s opinion, the latter risk was real in the light of the fact that in the past, the applicant had rarely lived at his permanent address.

On 13 December 2001 the Jarosław District Court convicted the applicant as charged and sentenced him to five years’ imprisonment. The period which he had already spent in detention, namely one year, five months and three days (from 11 July 2000 until 13 December 2001), was deducted from his sentence.

On 23 April 2002 the Krosno Regional Court (Sąd Okręgowy) quashed that judgment and remitted the case to the first-instance court.

The applicant’s detention was continued by the Krosno Regional Court on 22 March 2002 and the Jarosław District Court on 4 June and 8 October 2002 and 9 January, 3 April, 7 July and 9 October 2003.

At this stage of the proceedings the domestic courts referred to the original grounds for the applicant’s detention. They also noted that the trial was pending and that delays had occurred for reasons not attributable to the court.

Interlocutory appeals against those decisions were rejected, as were requests for release lodged by the applicant and his lawyer.

On 7 November 2003 the Jarosław District Court convicted the applicant as charged and sentenced him to five years’ imprisonment. The time which he had already spent in detention, namely three years, three months and twenty seven days (from 11 July 2000 to 7 November 2003), was deducted from his sentence.

On 23 March 2004 the Krosno Regional Court upheld the firstinstance judgment in respect of the applicant.

On 9 December 2004 the Supreme Court dismissed the applicant’s cassation appeal.

Throughout the entire proceedings the applicant was represented by two lawyers of his choice.

The applicant did not lodge any complaint about the length of these proceedings under the Law of 17 June 2004 on complaints of a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”)

On 10 November 2000 the Mińsk Mazowiecki District Court remanded the applicant in custody on the grounds that there was a reasonable suspicion that he had committed armed robbery and deprived the victims of their liberty. The court also considered that the measure was justified by the severity of the punishment which was likely to be imposed if he was convicted and the need to ensure the proper conduct of the proceedings. The applicant lodged an interlocutory appeal. On 29 November 2000 the Siedlce Regional Court upheld the detention order.

The applicant lodged several applications for release. He claimed that his mother suffered from a “back illness” and required his personal care. All those applications were dismissed, both at first instance and on appeal.

On 29 January 2001 the Siedlce Regional Prosecutor (Prokurator Rejonowy) lodged an indictment against the applicant and two co-accused, charging them with armed robbery and false imprisonment. At that stage the prosecutor ordered that nine witnesses be heard.

Subsequently, the applicant’s detention on remand was extended by the Mińsk Mazowiecki District Court on 6 February, 11 April, 12 July and 15 October 2001, and on 10 January 2002. Three of these decisions were upheld by the Siedlce Regional Court on 1 March, 29 August and 7 November 2001 respectively.

The domestic courts referred to the same grounds as previously, noting that prior to his arrest the applicant had not lived at his permanent address and that his whereabouts were unknown. It was also observed that the trial had still not begun because the applicant had challenged the judges who would be hearing his case.

On 14 June 2002 the Mińsk Mazowiecki District Court dismissed a request by the applicant for release.

Meanwhile, on 2 April 2002 the applicant’s case was severed from that of his coaccused, to be dealt with in a different trial.

The first hearing was scheduled for 18 June 2002 but was ultimately adjourned. The subsequent hearing was likewise adjourned.

Subsequently, the Mińsk Mazowiecki District Court further extended the applicant’s detention on 9 April and 12 July 2002. The earlier decision was upheld by the Siedlce Regional Court on 8 May 2002.

The courts reiterated the grounds previously given for the applicant’s continued detention, also noting that there was a real risk that he would obstruct the proceedings if released in the light of the fact that many of his alleged accomplices were still at large.

On 30 July and 29 August 2002 the trial court held the first two hearings in the case and on 27 August 2002 it ordered that the applicant undergo psychiatric observation.

On 6 September 2002 the Mińsk Mazowiecki District Court extended the applicant’s detention on remand. This decision was upheld by the Siedlce Regional Court on 2 October 2002. Both courts referred to the original grounds, also noting that the applicant’s case had not yet reached the trial stage since proceedings against him before a different criminal court were pending at the time and there was a need to obtain an expert report which, in turn, required him to undergo psychiatric observation in a specialist institution.

On 22 October 2002 the Siedlce Regional Court rejected an application by the applicant to have his detention on remand replaced with a different preventive measure.

On the same date, as the period of the applicant’s detention on remand was approaching two years, the trial court lodged an application with an appellate court under Article 263 § 4 of the Code of Criminal Procedure (Kodeks postępowania karnego hereinafter, “the Code”), seeking to extend the preventive measure for another five months.

On 30 October 2002 the Lublin Court of Appeal (Sąd Apelacyjny) declared that it lacked jurisdiction and transferred the applicant’s remand file to the Mińsk Mazowiecki District Court.

The appellate court referred to the uniform and well-established line of interpretation given to Article 263 of the Code by the Supreme Court. It reiterated that the statutory time-limit of two years for detention on remand was considered to run only in so far as a person had been effectively deprived of his or her liberty in the particular case in the framework of which the preventive measure had been applied (see paragraphs 73 and 74 below).

The appellate court concluded that since the applicant had been deprived of his liberty, either on remand or after conviction, from 12 July 2000 onwards in the first criminal case, the term of his “effective detention on remand” in the second criminal case had not yet begun.

On 5 November 2002 the Mińsk Mazowiecki District Court once more extended the applicant’s detention. On 4 December 2002 the Siedlce Regional Court upheld that decision. Both courts held that the three original grounds for the applicant’s detention and the need for him to undergo psychiatric observation were sufficient to extend the preventive measure in question even though the proceedings had not yet reached the trial stage. In addition, the second-instance court addressed the arguments which had been raised in an interlocutory appeal brought by the applicant against the District Court’s decision. To that effect, the Regional Court reiterated the view of the Lublin Court of Appeal that the applicant’s detention on remand was not effective because he had been first deprived of his liberty within the framework of the first criminal case. It also considered that only the most severe preventive measure and not bail, as the applicant had suggested, could ensure the proper conduct of the proceedings.

On 17 December 2002 the Mińsk Mazowiecki District Court stayed the proceedings pending the enforcement of the court’s decision of 27 August 2002 ordering the applicant to undergo psychiatric observation (see paragraph 24 above). On 5 February 2003 the Siedlce Regional Court dismissed an interlocutory appeal brought by him against this decision. It was observed that he could not at that stage be placed under psychiatric observation because his presence was necessary in the court before which his other criminal case was pending and because that court had not authorised the measure.

In the meantime, on 28 January 2003 the Mińsk Mazowiecki District Court once again extended the applicant’s detention on remand, referring to the risk that he might attempt to obstruct the proceedings if released.

On 27 February 2003 the Siedlce Regional Court quashed that decision and ordered the applicant’s release from custody. The court found that the grounds for his detention were no longer valid in the light of the fact that the proceedings had been stayed.

The Government submitted that on 3 March 2003 the applicant had actually been released to his home. He on the other hand maintained that he had remained in custody as he had concurrently been in detention on remand in connection with his first criminal trial, pending at the time before the Jarosław District Court (see paragraphs 6-13 above).

On 12 November 2003 the Mińsk Mazowiecki District Court barred the applicant from leaving the territory of Poland.

On 11 December 2003 the Jarosław District Court ordered that the applicant undergo psychiatric observation in the psychiatric wing of the Warszawa-Mokotów Remand Centre.

On 30 December 2003 the Mińsk Mazowiecki District Court resumed the proceedings in the applicant’s case in view of that decision and the fact that the psychiatric observation could be scheduled to start in March 2004. On the same date the court again remanded him in custody on the grounds that the evidence showed a significant probability that he had committed armed robbery. It also had regard to the severity of the punishment that could be expected and the need to ensure the proper conduct of the proceedings.

On 28 January 2004 the Siedlce Regional Court dismissed an interlocutory appeal brought by the applicant against this decision. The appellate court acknowledged that the applicant had not to date attempted to obstruct the proper course of the proceedings. Nevertheless, the likelihood that a severe punishment would be imposed if he were convicted was considered to be sufficient reason for his continued detention.

On 6 February 2004 the applicant applied to the Mińsk Mazowiecki District Court for the preventive measure to be changed. On 24 February 2004 the court dismissed his request.

On 23 March 2004 the Mińsk Mazowiecki District Court further extended the applicant’s detention on remand. The court gave the argument that strong evidence had been obtained against him, that it was likely that a severe sentence would be imposed in the case, and that, if released, he would attempt to persuade witnesses to give false evidence or would, by other unlawful means, try to obstruct the proceedings, especially in the light of the fact that the psychiatric observation was underway.

Appealing against the latter decision, the applicant’s lawyer argued that his client had already been detained for almost four years and that the District Court did not have jurisdiction to decide on the preventive measure. Moreover, it was argued that since the applicant had never attempted to obstruct the proceedings, there was no risk that he would try to do so in the current stage of the case.

On 28 April 2004 the Siedlce Regional Court dismissed that appeal. It was observed that the actual period of the applicant’s detention on remand in the case in question had not reached two years because he had been concurrently deprived of his liberty in the framework of the first set of criminal proceedings. As to the grounds for extending his detention on remand, the appellate court held that, even though he had not attempted to obstruct the proper course of the proceedings, the likelihood that a severe punishment would be imposed if he were to be convicted was sufficient reason to uphold the preventive measure in question.

On 24 June 2004 the Mińsk Mazowiecki District Court again decided to extend the applicant’s detention on remand in view of the reasonable suspicion that he had committed armed robbery and the severity of the punishment that could be expected. This decision was upheld on 15 July 2004 by the Siedlce Regional Court.

On 23 August 2004 the Mińsk Mazowiecki District Court rejected a request by the applicant for release, relying on the same grounds as in the decision described above.

Subsequently, the applicant’s detention on remand was extended by the Mińsk Mazowiecki District Court on 9 September and 22 December 2004 and 24 March and 23 June 2005. The decisions were upheld by the Siedlce Regional Court on 29 September 2004, on an unspecified date and on 13 April and 28 July 2005 respectively.

All the decisions in question were based on the grounds that there was strong evidence against the applicant, that a severe punishment would be imposed if he were convicted and, since the court proceedings were only at the initial stage, that if released, he would attempt to persuade witnesses to give false evidence or, by other unlawful means, obstruct the proper course of the proceedings. It was also stressed in the earlier decisions that the trial court had not yet started its examination of the applicant’s case on the merits.

On 1 September 2005 the Mińsk Mazowiecki District Court convicted the applicant as charged and sentenced him to six years’ imprisonment. The period he had already spent in detention on remand, namely one month and twenty-one days (from 11 July until 1 September 2005), was deducted from his sentence. The remainder of his incarceration was considered to have comprised the prison sentence which had been imposed by the Jarosław District Court in the separate criminal case (see paragraph 12 above).

It appears that the first-instance court held fourteen and adjourned five hearings. It decided applications by the applicant challenging the judges, opposing the psychiatric observation and requesting a fresh examination of the case.

On 10 February 2006 the Siedlce Regional Court quashed the judgment of 1 September 2005 (see paragraph 45 above) and remitted the case to the first-instance court, ordering it to gather additional evidence.

On 7 March 2006 the Mińsk Mazowiecki District Court extended the applicant’s detention. That decision was upheld on 29 March 2006. The domestic courts considered that the actual period of detention on remand in the framework of the second case had only started running on 11 July 2005, when he was no longer deprived of his liberty in connection with the first criminal case. The courts also referred to the two original grounds for the applicant’s continued detention, namely a reasonable suspicion that he had committed armed robbery and the severity of the punishment that could be expected. In the courts’ view, the latter element in turn created a presumption that the applicant would attempt to obstruct the proper conduct of the proceedings if released.

On 29 March 2006 the Siedlce Regional Court fully adhered to the reasoning of the first-instance court and upheld the above-mentioned decision.

On 11 April 2006 the case was transferred to the Siedlce Regional Court as the competent court because, in the meantime, the charges against the applicant had been modified.

Pending trial the applicant’s detention was extended by the Siedlce Regional Court on 31 May and 21 June 2006, on an unspecified date and on 13 November 2006 and 19 January 2007. The decisions were upheld by the Lublin Court of Appeal.

The domestic courts reiterated the original grounds for the applicant’s detention on remand and stressed that the preventive measure in question had not lasted more than two years, regard being had to the fact that from 7 November 2003 to 11 July 2005 he had been serving a prison sentence imposed in the first set of criminal proceedings.

The first hearing took place on 29 June 2006.

On 6 July 2007 the Siedlce Regional Court convicted the applicant as charged and sentenced him to six years’ imprisonment. It appears that the court held seven hearings in the case. The period the applicant had already spent in detention on remand, namely one year, eleven months and twenty five days (from 11 July 2005 until 6 July 2007) was deducted from his sentence.

On 9 April 2008 the Lublin Court of Appeal quashed that judgment, lifted the preventive measure and remitted the case to the lower courts. The following day the applicant was released from the remand centre. He has remained at liberty ever since.

On 23 October 2009 the Siedlce Regional Court convicted the applicant on a number of charges and sentenced him to six years’ imprisonment. It held fourteen hearings in the case. Two years and nine months of the applicant’s detention on remand (from 11 July 2005 to 10 April 2008) were deducted from his sentence. It appears that he was not ordered to serve the remainder of his sentence.

On 12 February 2010 the applicant appealed.

On an unspecified date before March 2011 the Lublin Court of Appeal upheld the first-instance judgment.

The applicant did not wish to take his case to the Supreme Court, believing that a cassation appeal would not have any prospects of success.

He did not lodge a complaint about the length of the second set of criminal proceedings under the 2004 Act.

On 29 November 2006 the applicant made a constitutional complaint (skarga konstytucyjna) under Article 191, read in conjunction with Article 79 of the Constitution (see paragraph 86 below), asking for Article 263 §§ 3 and 4 of the Code (see paragraph 73 below) to be declared unconstitutional (SK 39/07). He alleged that the provision infringed, inter alia, the right to personal inviolability and security under Article 41 § 1 of the Constitution (see paragraph 71 below). On 30 January 2007 the applicant finalised his complaint.

The applicant challenged two aspects of Article 263 of the Code of Criminal Procedure.

Firstly, he alleged that Article 263 §§ 3 and 4 were unconstitutional in so far as, under the legal principle (zasada prawna) of the Supreme Court (see paragraph 74 below), they concerned only effective detention on remand, that is to say only the actual period of deprivation of liberty on the basis of a detention decision issued in a particular case because they denied a detainee sufficient protection of his liberty if he had earlier been convicted or otherwise deprived of his liberty on the basis of decisions issued in another set of proceedings.

Secondly, the applicant challenged Article 263 § 3 in so far as it defined a maximum statutory period for the length of detention on remand only until the delivery of a first judgment by the trial court. Consequently, people such as him who remained in detention while their criminal proceedings were pending de novo after the quashing of the first judgment of the first-instance trial court, were not protected against unreasonably lengthy detention on remand. Article 263 § 3 of the Code was silent in that respect and because of that, the authorities could extend the preventive measure for an indefinite period following the quashing of the first judgment of a trial court.

On 15 January 2008 the Ombudsman joined the proceedings, asking that Article 263 § 3 of the Code be declared unconstitutional in so far as it left a legal loophole which was filled in by an erroneously developed wellestablished court practice not to include in the calculation of the statutory two-year period of detention on remand (prior to the first judgment of the first-instance court) periods of the detainee’s concurrent deprivation of liberty on the basis of a criminal sentence.

On 10 March 2009 the Constitutional Court discontinued the application under section 39 of the Constitutional Court Act of 1 August 1997, which provided for such a possibility in the event a ruling was considered to be redundant (zbędne).

It was observed that, despite the obvious differences in scope, the essence of the first part of the applicant’s complaint, concerning Article 263 §§ 3 and 4 of the Code (see paragraph 60 above), had already been examined on the merits by the Constitutional Court in case no. SK 17/07. The provision had been declared unconstitutional in so far as it was interpreted to the effect that the statutory maximum period of two years allowed for a person’s detention on remand prior to the first judgment of the first-instance court had not comprised the term of the prison sentence the detainee was serving in another case, concurrently to his detention on remand, thus allowing for an extension of the preventive measure beyond two years by a first-instance court on general grounds (see paragraphs 7781 below).

In connection with the second part of the complaint (see paragraph 61 above), the Constitutional Court held that the applicant did not have the standing to challenge Article 263 § 3 of the Code because this provision had not been applicable to his detention in the relevant period. The preventive measure in question had been extended during the proceedings which had been pending before the first-instance court de novo, after the original judgment had been quashed by the appellate court. In these circumstances, the legal basis for extending the applicant’s detention was Article 263 § 7 of the Code (see paragraph 74 below).

On 8 June 2001 the applicant informed the Przemyśl prosecutor’s office about an offence allegedly committed by staff of Przemyśl Prison. He claimed that they had been selling alcohol, cigarettes and drugs to prisoners. On 29 November 2002 the Przemyśl prosecutor’s office discontinued the criminal investigation against the alleged culprits. This decision was upheld by the Przemyśl District Court on 27 February 2003.

When, on 26 November 2001, the applicant lodged his application with the Court he had been detained on remand in relation to the first and second sets of criminal proceedings against him. On 31 July and 30 November 2001 and on 10 and 14 March 2003 he sent letters to his defence lawyer, W.J. The envelopes bear the stamp “Jarosław District Court” and a handwritten note stating “censored on...” (ocenzurowano dn.).

On 18 July 2003 the Lubaczów District Prosecutor discontinued criminal proceedings against several judges of the Jarosław District Court who, in the applicant’s view, had monitored his correspondence with his lawyer. The court held that none of the individuals concerned had opened and read the applicant’s correspondence. This decision was upheld by the Lubaczów District Court on 25 November 2003. The court found that the applicant’s correspondence had not been read and the words “censored” had been automatically stamped on the applicant’s letters.

On 4 December 2001, the Registry of the Court received its first letter from the applicant, dated 26 November 2001. The envelope bears the stamp “Jarosław District Court” and a handwritten note stating “Censored on 30 November 2001” (Cenzurowano dn. 30 XI 2000).

On 8 August 2002 the Registry of the Court received another letter from the applicant, dated 22 July 2002. It was delivered in an envelope bearing the stamp “Jarosław District Court” and a handwritten note stating “Censored on 26 July 2002” (Cenzurowano dn. 26 VII 2002).


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

The applicant was born in 1944 and lives in Ajka.

On 22 July 1990 the applicant and Pápa és Vidéke ÁFÉSZ, a legal person, concluded a lease contract concerning the property of the latter party.

The applicant apparently breached his contractual obligations and failed to pay the monthly rental fees between October 1993 and October 1994.

After several unsuccessful deadline extensions and requests for payment, Pápa és Vidéke ÁFÉSZ terminated the lease contract with immediate effect on 26 October 1994.

In November 1994 Pápa és Vidéke ÁFÉSZ lodged a compensation claim with the Veszprém County Regional Court against the applicant.

The first-instance court found for the plaintiff and ordered the applicant to pay the overdue rental fees (approximately 1,600 euros (EUR)) and accrued interests to the plaintiff.

On appeal, the Budapest Court of Appeal upheld the judgment on 2 December 2003.

The applicant lodged a petition for review with the Supreme Court, which rejected it on 8 December 2005. The decision was served on the applicant on 26 January 2006.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

André Potocki;Mārtiņš Mits;Síofra O’Leary

The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.


Preliminary objection joined to merits and dismissed;Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority;Reasonable suspicion;Reasonably necessary to prevent offence);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1963 and lives in Moscow.

An EU-Russia summit was scheduled for 17 and 18 May 2007 to take place in Samara. On 18 May 2007 the applicant was travelling to Samara to take part in the opposition rally “March of Dissent” which had been organised to coincide with the summit. He was accompanied by several activists who were also travelling to the rally. At 8.30 a.m. the applicant and his fellow activists arrived at Terminal 1 of Sheremetyevo airport, Moscow, and attempted to check in for a flight to Samara (flight no. SU0697). The parties have submitted different versions of events as to what then happened. Each version is set out below.

The applicant submits that, when he presented his passport for identity check, police officer A. seized the passport and the ticket. The applicant was required to leave the check-in area and to follow officer A. He was taken to a police office on the second floor of the airport. Five other persons from his group were escorted from the check-in hall in the same manner.

At 11.20 a.m. the applicant and the five others were ordered to remain on the second floor of the airport and were informed that they would have to be questioned as to how they had purchased their allegedly forged tickets.

At 12.20 p.m. the operative duty police officer from Department of the Interior (Criminal Division), Captain N., questioned the applicant as to where he had bought his ticket. The applicant replied that his ticket had been purchased lawfully and refused to give any further explanation, relying on his constitutional right to remain silent. He maintains that he was under orders not to leave and that he was prevented from leaving the police office by an armed policeman who was guarding the doorway. The applicant remained at the police station until 1.30 p.m.

The applicant has submitted three documents in support of his version of events.

The first is a copy of the record (протокол) of search and confiscation completed by Captain N. It records that the applicant was searched and his aeroplane ticket confiscated, in accordance with Articles 21.1, 27.7 and 27.10 of the Code of Administrative Offences (see relevant domestic law at paragraphs 25 and 26 below). At the bottom of the record, the applicant has written that it had been explained to him that the search and seizure could be appealed to a higher authority and that, while the record had been handed to him at 1 p.m., the actual seizure of the ticket by officer A. had taken place at 8.30 a.m. at the check-in desk.

The second is a pro forma statement (объяснение), filled in by Captain N. In it, he records that he began filling out the statement at 12.40 p.m. and finished at 12.50 p.m., and that, when asked, the applicant refused to given an explanation for the ticket. On the statement the applicant has written that the ticket was obtained legally and that, relying on Article 51 of the Constitution (the right against self-incrimination) he refused to give any further explanation because he had been detained illegally in the departure hall without explanation. He has also written that, from 8.30 a.m. until 12.50 p.m., he had been deprived of his freedom of movement, and that no documents had been provided to him until then.

The third is a handwritten declaration made by the applicant and five others while at the airport. It reads:

“We, the undersigned, state that today, 18 May 2007, at Sheremetyevo Airport [terminal] 1 we were prevented from taking flight 813 to Samara because [officer A.] seized our tickets at the check-in desk.

At present we are at the airport building under the surveillance of the police officers, with our passports confiscated.

At 11.20 police officers [A.], [C.] and [S.] categorically prohibited us to leave the second floor of the airport.

At the same time, they indicated that we have to provide an explanation to the police officers because some tickets were allegedly forged.

As of 12.20 we are still detained in the hall of the airport without any documents being provided to us.

(signed)”

The Government submitted that, on 17 May 2007, the Department of the Interior’s Sheremetyevo airport branch received information on forged tickets being sold for the 18 May Moscow-Samara flight. On 18 May 2007, officers from the branch, acting on that information, were present at checkin and examined the tickets of all passengers on the flight. In the course of their checks, twenty tickets bearing signs of forgery were found: they had worn spots and the forms on which the tickets were printed appear dubious. Those tickets were confiscated and the passengers who had presented them were prevented from boarding. The tickets were subsequently sent for forensic examination, which showed thirteen tickets with signs of writing on top of the original text.

As regards the applicant’s allegations, the Government commented that their records indicated that his ticket for the flight had been seized but there was no record of his passport also being seized. If it had been, the applicant would have been able to make a written comment to that effect in the search record which had been drawn up by the police, but he had not done so. Under section 11 of the Police Act (see paragraph 24 below) the police had the right to seek an explanation from the applicant regarding the ticket, and he had been invited to provide one. The applicant’s allegation that he was questioned from 8.30 a.m. to 1.30 p.m. was not supported by the police records.

The applicant complained to the Moscow Transport Prosecutor’s Office about having been unlawfully detained by the police and requested that those responsible be prosecuted.

On 28 June 2007 the prosecutor’s office decided not to open criminal proceedings against the policemen. The decision stated, in so far as relevant, as follows:

“... on 18 May 2007 the [police] together with the Sheremetyevo airport security service carried out a check of the passengers leaving on the flight no. 813, Moscow – Samara. During the check [they] discovered thirteen plane tickets with traces of forgery, which were seized. Later [the police] conducted an inquiry under Articles 144-145 of the Code of Criminal Procedure.

When questioned, [officer A.] stated that on 17 May 2007 at 6 p.m. he received operative information that some forged tickets had been sold for the Moscow-Samara flight leaving on 18 May 2007 [...]

On 18 May 2007 he verified this information by checking all passengers’ tickets [...] for that flight.

...Thirteen plane tickets were found to have traces of forgery, such as scuff marks, and also the ticket blanks used for printing the tickets were suspicious.

[The police] seized the tickets and removed the passengers from the flight. [A.] wrote a report concerning these facts ... after that, the materials were sent to the [Sheremetyevo police unit].

When questioned, the Head of the Operational-Search Unit of the Aviation Division of the Department of the Interior, [S.], stated that, on 18 May 2007, on the occasion of the high-profile summit in Samara the policemen of the Aviation Division of the Moscow branch of the Department of the Interior, together with its subordinate units in the airports of the Moscow region, carried out operational search activities to identify persons of an extremist nature intending to organise mass riots.

In this connection, the police carried out checks on persons leaving for Samara. On 18 May 2007 [S.], together with [the operative officer A.B.] arrived at the Sheremetyevo airport, where, at 7.30 a.m., check-in began for flight no.813 Moscow – Samara. Together with the [airport security screening service] they checked all passengers, which included screening their luggage with special equipment and checking their documents. During the check some [officers] noticed that tickets of certain passengers had additional non-standard notes, and, when inspected, these tickets raised doubts as to their authenticity. Because of that, thirteen suspected forged tickets were seized and the passengers were questioned about the circumstances of their purchase. Moreover, several passengers decided not to fly, without explaining why. On the same day similar checks were conducted for other flights to Samara.

The [sales director of the airline] confirmed that the tickets were issued and sold [in a normal manner].

An expert examination of the twenty seized tickets ... revealed that seven tickets had no corrections of the original content. For thirteen of the tickets, the examination revealed that secondary text had been added on top of the original text in the fields ‘flight number’ and ‘time’.

Therefore, the inquiry has established that [the policemen] had acted within their powers and with sufficient grounds when seizing the tickets of the passengers for flight no.813 Moscow – Samara.

Held:

To refuse the institution of criminal proceedings further to the complaint about the commission of criminal offences of [abuse of powers] and [exceeding official powers] by the [eleven policemen involved] for absence of corpus delicti.”

The applicant challenged this decision before a court under the procedure set out in Article 125 of the Code of Criminal Procedure. He requested that the decision dispensing with criminal proceedings be declared unlawful and that the prosecutor’s office be ordered to remedy the shortcomings in it.

On 20 July 2007 the Golovinskiy District Court of Moscow examined and rejected the applicant’s appeal. It noted that the applicant had complained to the prosecutor’s office about his five-hour detention and about the seizure of his ticket to Samara. It also observed that the applicant had challenged the prosecutor’s refusal to open criminal proceedings claiming, inter alia, that the police had unlawfully restricted his liberty and in violation of his right to freedom of expression and to freedom of assembly. It also noted that the applicant had claimed that he had been deprived of his constitutional rights by the prosecutor’s office.

The court considered that the prosecutor’s office had taken its decision in accordance with the procedure provided for by law and remained within its competence while doing so. It upheld the finding that no criminal offence could be imputed to the police officers in question. The court found the applicant’s allegations about the unlawfulness of the ticket seizure to be unsubstantiated, finding that the seizure had been carried out in accordance with Articles 27.7 and 27.10 of the Code of Administrative Offences (see paragraph 26 below). The court further found that the applicant had been taken to the airport police quarters to provide an explanation for the purchase of his ticket. He had not been “isolated” at the police station. Therefore, there had been no grounds for applying the three-hour time-limit for the application of preventative measures in administrative offences cases (as provided for by the Code of Administrative Offences), or for the drawing up of a detention report (протокол о задержании).

The court concluded that the prosecutor’s decision was lawful and well-founded.

The applicant brought a cassation appeal against that decision. He claimed that the measures applied to him were contrary to the Code of Administrative Offences, and that there had been violations of his constitutional rights to liberty, freedom of expression and freedom of assembly.

On 20 August 2007 the Moscow City Court examined and dismissed the applicant’s appeal. It noted that the subject matter of the applicant’s appeal to court had been the lawfulness of the prosecutor’s refusal to institute criminal proceedings against the officers who had allegedly violated his constitutional rights. It upheld the decision not to institute criminal proceedings as correct in substance and form. It further held that the alleged breach by the police offices of statutory detention limits were outside the scope of the first-instance court’s [power of] review.